*1 topics meetings that, the main at those related to test of supervisory status while not patient Similarly, although care. Cafaro simple apply, has nonetheless received filled out a form entitled “Outline Guide for express approval Congress, as the 1978,” Budget Plans and that form re Yeshiva, Supreme supra. Court noted in unit, quested suggestions improving Accordingly, we hold that the Board did not budget not recommendations. Lastly, authority ruling exceed its that Cafaro whereas paid head nurses like Cafaro were supervisor, reject was not a approximately per 12 and lh cents more Hospital’s argument discharge that her did nurses, hour than assistant head and were 8(a)(1). not violate Under the circum- § clocks, punch time they stances, whether, we need not even decide received the same life insurance and medi supervisor, discharge if Cafaro was a her nurses, cal benefits as did staff which were nevertheless violated the Act it because in- less than the benefits to which supervisors terfered with the protected exercise of the were entitled. rights of others who were concededly Hos- pital See, employees. g., Gerry’s e. Cash suggest We do not that the evidence here Markets, NLRB, Inc. v. 602 F.2d overwhelmingly pointed one conclu- (1st 1979); 1022-23 Cir. Food Store Em- sion or even that we would have decided the Union, ployees NLRB, Local 347 v. issue 418 F.2d panel as the three-member (D.C.Cir. did, 1969). 1180-81 Board sitting had we been place. its Rather, question is a turning close one petition for review is denied and the facts, precise on the plethora of order of the Board is enforced. involving Board cases nurses indicates.21

But just it is in such instances that we must

not substitute our view of the facts for that

of the Board. At hearing, Hospital present

did testify gen- witness to

erally about the responsibilities duties and Hospital, head nurses at the but relied on NATIONAL LABOR RELATIONS cross-examination of Cafaro and on docu- BOARD, Petitioner, mentary evidence to supervi- establish her

sory status. An administrative law judge’s credibility usually determinations are not Lay Faculty Association, Local disturbed; rulings and the ALJ’s here on 1261, Intervenor, crucial, Cafaro are particularly they since points credit her on that weaken the effec- tiveness of BISHOP FORD CENTRAL documents relied on CATHOLIC the Hos- SCHOOL, Respondent. pital. court, HIGH In this Hospital dissects length, frequently evidence at prefacing Docket 79-4166. analysis phrase, “contrary to United Appeals, States Court of the Board’s finding,” arguing to us as Second Circuit. though it were our role to find the facts. It not; our much more limited function in Argued March 1980. regard, noted, as already is to deter- Decided June mine findings whether the sup- Board’s are ported by substantial evidence on the record

considered as a whole. We conclude that

they Moreover, are. the Board utilized a Compare, g., Newton-Wellesley Hospital, (1978); e. NLRB No. 10 Gnaden Huetten Memori- (1975); Inc., Hospital, 219 NLRB (1975); The Trustees of Noble al Presbyterian 219 NLRB 235 Hospital, (1975); Wing Center, 218 NLRB 1441 Memo- Medical 218 NLRB 1266 Ass’n, Hospital (1975) (1975); rial Hospital, 217 NLRB 1015 Randall 217 NLRB Hepburn Hospital, (1975). A. Barton Memorial

819 C., Moore, Washington, of coun- D. Elliott sel), petitioner. Karp, (James

Jeffrey City S. New York Sandner, counsel), R. City, New York of for intervenor. McGill, (Clifton, City

Kevin J. New York DeMaria, Wiesen, Budd, A. Burke & Robert counsel), respondent. of City, York New LUMBARD, MULLIGAN Before OAKES, Judges. Circuit MULLIGAN, Judge: Circuit by this dispositive appli issue raised orders of the for enforcement of cation Board) (the Board Labor Relations National Bishop Ford Central Catholic is whether Central) (Ford to the High School May Board. On 1978 jurisdiction of the had that Ford Central the Board found 8(a)(1), (3) (5), violated sections 29 the 158(a)(1), (3) of Na U.S.C. §§ (the Act) by Act tional Labor Relations recognize Lay Faculty Asso refusing to Union) (the representative ciation 236 No. On March lay faculty, NLRB Supreme in NLRB v. Court 99 Bishop of (affirming 533 Ct. 59 L.Ed.2d S. decision, F.2d Circuit’s Seventh (1977)) held that the Board lacked statu “church-operated tory jurisdiction over petition for enforcement schools.”1 On case, in instant the Board’s order to the Board on the matter court remanded light 27,1979 in for reconsideration April On June Bishop decision. Board, with Member Penello dis (243 decision senting, supplemental issued a affirming 24) its decision as Washington, D. C. NLRB Donnelly, P. Charles proceeding J. This enforcement B., Spielberg, Norton Ford Central. (N. R. Paul J. L. Allen, Jr., Come, Robert E. followed. Higgins, John E. squarely in diffi- embroil the Board and held that would had

1. The Seventh Circuit arising questions jurisdiction by out of the cult and sensitive the Board over the assertion Religion Amendment. lay Clauses constituted there involved faculties First 1322. Justice Brennan, and Estab- of both the Free Exercise violation White, joined Mar- in Justices dissent of the First Amendment. lishment Clauses Blackmun, the Act cover Supreme construed shall and Court did F.2d at 1123-26. The lay This would involve involved. teachers Justice issue. Chief reach constitutional did not opinion preferred the dissent writing issues Burger constitutional so because do now do them. “I reach issue and instead to avoid the constitutional 518, 99 S.Ct. not.” the Court does teachers the Act not cover construed at 1328. inclusion schools since their condition, major juris- good and not to make Board lacked we hold that the Since encumbrances or place any alterations or the merits of we do not consider diction mortgages upon without on this have been raised other issues which approval of the Diocese. Ford Central appeal. keep buildings and contents I coverage *3 insured in amounts and kinds Although Diocese. satisfactory to the whether Ford Cen- In order to determine portion to maintain a Diocese continues holding is within the of Catholic tral premises for its Educational Television history of the school we must examine the project, agreement makes it clear that present religious well as characteris- its solely responsible Ford many years, tics. For the Roman Catholic school,” “operation and maintenance of the (the Diocese) Brooklyn Diocese of owned “debts, responsibility for its and assumes high and nine Catholic schools in obligations, liabilities.” Queens Brooklyn including Bishop The record demonstrates and it is undis- commis- Ford. In June a task force Roman Catho- puted that Ford Central is a sioned of the Diocese recom- “Bishop Ford Central lic school. Its title is existing mended the termination of the di- is “To High Its motto School.” high system. ocesan school As an alterna- All the members of the Imitate Jesus.” tive, incorporated the Diocese in 1972 Catholics, and Board of Trustees are Roman High Association Henry M. Hald School administrators, highest principal its two (Hald), corporation an educational which principal, and assistant are Franciscan operate was to a number of the Catholic professional Brothers. The staff of the high including Bishop schools in the Diocese composed predominantly school is of teach- By high Ford. 1975 two were closed ers who are members of Roman Catholic and two others were transferred to reli- religious orders. gious private communities or boards. Dur- ing possibili- the fall of faced with the philosophy of the school is stated in closed, ty might parent manual, Ford be faculty in these terms: groups began at the school discussions to The success of this school a Catholic the feasibility turning determine depend faculty school will on each mem- private school over to a board of trustees. striving ber as an individual and as a February 1976 Hald determined to close faculty member of a unified to form with indepen- Ford and transfer it to an Holy Spirit the assistance of the a com- Maher, Alphonsus dent board. Brother who munity gospel of faith where values are school, principal was then the re- expe- the norm and virtues are Christian signed principal and became the first rienced.

respondent Ford Central. good This school will be as faculty individual members that make it September On 1976 the Diocese and up. year The success of this academic agreement Ford Central entered into an depend faculty will on each member con- land, conveyed buildings, which title to the tributing his/her improvements, appurtenant fixtures —religious conviction personal property to Ford Central. The agreement —professional competence recites that Ford Central is to title, however, only hold so as it “con- —personal integrity tinues youth —belief in high operate school.” If it to as a ceases encourage growth, support student to school, high rights, Roman Catholic all faculty fellow members of the and staff automatically and interest the Di- revert and to assist administrators. ocese. every member of the Each and provisions Other re- philoso- to PROMOTE and UPHOLD the quire phy Ford Central to maintain the of this school. cooperate priest chaplain —to Bishop Ford Central Philosophy of department. High religion School High School

Bishop Ford Central Catholic applies position for a When a teacher community persons-administrators, Central, form states application teachers, united their students and staff high “A Catholic school has specifically, expressed bond: faith God common of- problems spirit, opportunities, and goals, Roman Catholic tradition. other educational quite different from ten teaching a schedule of institutions. Besides recog- and teachers The administrators supervisory taking share of classes and of hu- the mandate that “The future nize responsibilities, who are manity hands of those lies expected to involve himself/her- genera- teacher coming strong enough provide basic ef- wholeheartedly in school’s living hoping.” self reasons tions with encouragement support and (The 31) provide Today, forts *4 Church generous, teenager’s to mature as to a call mandate, we work to- accepting this practicing and Catholic.” convinced striving in his gether to assist each student fulfilled Christian. become a mature and full- retains a In addition Ford Central ex- Through guidance, instruction and our who is available priest-chaplain time each student imitate ample, we ask that says Mass in counseling services and who age in wisdom and Jesus who “advanced a week. chapel the school once (Luke grace before God and men.” and 2:52) cial phy must defined in the threefold aim of Did.” We Above opportunities # provide spiritual, programs (Emphasis in all, be the # pastoral, recognize that this and sjt guiding which coincide with Catholic education original.) policies. educational and “To Teach # force ^[*] behind all philoso- ^[*] Jesus so- ed not tion under dismissed tral within its and Diocese scores the Board’s has severed its The Board order here is its alter only to Ford Central but and Hald. The June Catholic ego, complaint relationship with the jurisdiction Hald, position that Ford II Bishop. This under- for lack was as to only because it initially the Diocese also to the jurisdic- direct- order Cen- Dio- the facul- religious responsibilities of did in its on The Board cese. quite in manual are ty as set forth is not Ford Central appeal argue explicit: its philoso- sufficiently Roman Catholic obligation phy, its curriculum or in RESPONSIBILITIES

RELIGIOUS the Roman Catholic faculty propagate body student to indoctrinate the expected to faith and cannot be value Students The position faith. the tenets of that participation or value faith commitment that, having been rather faculty members of the Board religious activities ownership and interest diocesan separated fail to witness vibrant from longer is no style. life Ford Central management, Christian Bishop. “church-operated” under Catholic faculty expected: Each member Bishop so narrow- We do not read Catholic (e.g. behavior —to witness Christ-like ly- attitude, demeanor). encourage patiently students —to The minor seminaries foster Christian attitudes. been union- lay had schools whose faculties liturgies Bishop owned and participate in school were —to ized in Catholic paraliturgical by activities. either sole, of Fort by the Diocese corporation stu- encourage, not FORCE —to Bend, there- They were Wayne-South Inc. liturgies participation in school dent properly fore described paraliturgical activities. However, schools. the fact that The entire focus of was management responsibility to and for the obligation lay faculty to imbue schools were vested in the church was not body and indoctrinate the student entanglement prob- at all the reason for the religious tenets of a faith. As we have jurisdiction lems created Board asserted pointed out in opinion, Part I of this lay over the of those faculties institutions. obligation of both and reli- Rather, that, the Court’s concern was de- gious precisely at Ford that. At spite well intentioned Government involve- place no in the Court’s discussion of the ment, “entangle- the Board could not avoid entanglement problem in religious ment with the mission of the diocesan ownership management sug- setting school in the of mandatory collective gested religious entangle- as the basis for bargaining.” ment. It is the commitment of the faculty values no matter what In order to determine whether the issue in the curriculum is taught obliga- and the entanglement of excessive arose in Catholic propagate tion to those pro- values which Bishop, the Court turned to its recent deci vides the risk of entanglement. involving “parochial sions aid to schools.” That the risk is real and not theoretical Quoting Kurtzman, Lemon v. pointed was out the Seventh Circuit’s 2105, 29 L.Ed.2d 745 opinion in Catholic Bishop. Court in Catholic stated: “We can ignore danger that a teacher under We are unable to see how the Board can *5 religious discipline control and poses to the avoid becoming entangled in doctrinal separation religious purely from the if, matters example, for an unfair labor aspects secular pre-college of education. practice charge followed the dismissal of The conflict of functions inheres in the situ teaching a teacher either for a doctrine 501, ation.” 440 at U.S. S.Ct. at 1319. that has public current favor with the at Using Lemon, language from the Court fur large totally but is at odds with the ten- ther noted: “The religious substantial char faith, ets of the Roman Catholic or for acter of these gives church-related schools adopting some, a lifestyle acceptable to entangling rise to church-state relationships but contrary to Catholic teachings. moral of the kind the Religion sought Clauses The Board in processing an unfair labor 503, 1320, avoid.” 440 at practice charge would necessarily have to quoting Kurtzman, Lemon v. supra, 403 concern itself with whether the real cause U.S. at at S.Ct. discharge was that stated or whether The Bishop Court in Catholic also noted this merely pretextual was a given reason “importance of the teacher’s function in discharge to cover a actually directed at a church school.” 440 U.S. at 99 S.Ct. union activity. scope of this exami- 1319, quoting at Pittenger, from Meek v. nation would necessarily include the va- 349, 370, 421 U.S. lidity part as a of church doctrine of the (1975): L.Ed.2d 217 given reason discharge. for the “Whether the is ‘remedial read- F.2d ing,’ reading’ ‘advanced simply or ‘read- ing,’ teacher, pointed I, As we have a teacher remains a out in Part and the danger religious religious that mission doctrine will be- of Ford Central was not come intertwined with secular instruction terminated by its severance from the Dio- persists.” dogma cese. Church and the tenets of Ro- man Catholicism do not emanate from the quoted The Court also Douglas’ Justice con- Bishop of Brooklyn with all deference to curring opinion in Lemon where he noted prelate. analogy that which the Court “the admitted and obvious fact in Catholic parochial Bishop public raison d’etre makes to the aid of schools is the propagation religious parochial of a faith.” 403 cases is further instruc- 91 S.Ct. at 2118. tive. If the Board is correct entanglement with from a concluding legal disaffiliation Lemon, unacceptable embroilment with found “in eliminates schools diocese guaran- Walter, Religion Clause Amendment Meek First and [Wolman tees, arguably would be (1977)],” then Ford Central 53 L.Ed.2d 714 id. at S.Ct. legislative body aid a entitled to whatever We 99 S.Ct. at 1319. note in mar- might provide. While might see fit gin descriptions by those schools of reading of Catholic be welcome Supreme Court.2 proponents public aid to those who are In sum conclude that schools, it would be a misin- church related employed Court the term “church- terpretation. We have searched in vain for now operated” not in the restricted sense involving public where any case aid Board, by seized rather as Catholic, distinguished between or characterizing convenient method denominational, primary other religious mission. with au- operated schools owned and diocesan thority and those owned Ill religious lay groups. It the suffusion Although we that enforcement of hold religion into the curriculum and the man- the Board’s order should be denied under infuse the students date religious on the basis of religious of a religious values creed Central, we do not overlook mission of Ford Religion with which create the conflict fact that the Diocese here has com- vesting title or Clauses and not the relationship with Ford pletely severed its responsibility operation. significant de- but has retained intend- That the Court in ownership gree of control. While the using no the term particular ed limitation has operation of the school been left in “church-operated” religious to describe who hands of a board of trustees have evident, quite pre- schools is aside from our religious a pro- selected administrators and discussion, vious in the text of predominantly staff affiliated fessional Burger Justice stated itself. Thus Chief orders, Sep- relationship in church-teacher “[t]he *6 3, explicitly provides 1976 that “the tember church-operated differs from the em- school making property the ‘Diocese’ is desirous of relationship public ployment other the purposes herein described available for 504, at nonreligious school.” 440 U.S. high obviously is S.Ct. at 1320. Ford Central upon herein set forth.” school the conditions school, public nonreligious and is there- is agreement condition the The first conception of fore within the Court’s own prop- Central have and hold the Ford shall church-operated may While there school. grantee “so the continues the erty as an as how much be issue in some cases to high school operation of Roman is to orientation charac- all . the cessation which religious, as not the terize school conveyed and interest herein rights, title Moreover, although dispute “church- here. grantor, or its successor.” revert to the shall clearly predominant the de- operated” is agreement pro- 5 of the further Paragraph scriptive opinion, in the the term utilized schools,” grantee “cease so to “parochial vides that the shall speaks id. Court also school, school,” premis- to 1319, operate 501, “a said at at church S.Ct. re- 501, automatically It es described shall at at 1319. also refers to herein id. 99 S.Ct. institutions,” 363, 1760, Lemon, id. at In schools at is- “church-related 2. 1762, “religiously edu- as at affiliated sue “church- 95 S.Ct. were referred institutions,” 364, related,” 606, 2108, at id. at 95 S.Ct. cational 403 U.S. at S.Ct. at 615, 2112, schools,” described at S.Ct. at 1762. Wolman Court “church id. 616, schools,” “nonpublic,” 433 at “parochial in that case at 91 S.Ct. at id. 250, 2606, “church-sponsored,” Meek, id. 97 S.Ct. at used terms “non- 2113. the Court “church-related,” 251, 2607, 361, school,” public 97 S.Ct. at at 95 S.Ct. at at 251, schools,” 360, 1761, “parochial at 97 S.Ct. at 2607. id. at id. As supra, applicable further action would also be here. vert to the ‘Diocese’ without Mulligan’s point part.” Judge is careful to on 822, out, analogy supra pub- to the unambiguous It is intent of the clear and lic-aid-to-parochial-school cases is instruc- continue that Ford Central and, him, them I have never tive like read operate a Roman man- to church owned and to be confined and if the institution deviate should aged Accordingly I concur in the schools. religious mission, Diocese has from its judgment. right to intervene and automatic rever- position to the sion Diocese ensues. The Board that Ford is a enti- Central “separate

ty and distinct from Church” event submit irrelevant and accurate. condi- Ford Central

tionally separated the Diocese and the from continuing alle- imposed

condition is its giance loyalty to the Church. America, Appellee, UNITED STATES For these reasons enforcement v. entirety. order is denied in its Board’s TOMPKINS, William Defendant-Appellant.

OAKES, Judge (concurring): Circuit 1209, Docket 79-1412. question I think that whether Ford “church-operated” within NLRB Appeals, States Court of United Catholic Bishop Second Circuit. 1313, 1320, 99 S.Ct. 59 L.Ed.2d 533 Judge is not nearly as clear as Mulli- Argued June gan’s opinion suggest. Lay seems to ad- Decided June “clergy-adminis- ministrators rather than trators,” id. at Although are here involved. Brother

Maher was to remain on principal Hald, entity,

transfer from the diocesan Central, by-laws of Ford Central’s

predominantly lay board of trustees stated his “imple- chief responsibility was policy

ment decisions made Board.”

Moreover, effectuating the contract *7 provided “[m]anagement

transfer that exclusively

control shall rest

with” Central. hand,

On the other “management

and control” were conditioned trans-

fer contract grantee “so contin- operation

ues the And, premises.” sig- most

nificantly me, place reverter takes Thus, string

such real ceases. by the light,

held Diocese and it is this attendant indirect control gives Diocese,

condition the entan-

glement thought significant considerations Bishop, 5-4 in Catholic