On Petitions for Review and Cross-Applications for Enforcement of Orders of the National Labor Relations Board.
Cummings, Pell, and Sprecher, Circuit Judges. Sprecher, Circuit Judge, concurring.
The First Amendment to the Constitution of the United States specifies that Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. The cases before us present the issue of whether this constitutional prohibition (sometimes called a high and impregnable wall,*fn1 but more recently characterized as being a blurred, indistinct, variable barrier depending on all the circumstances of a particular relationship)*fn2 serves to prevent the National Labor Relations Board, which functions pursuant to an Act of Congress, from exercising jurisdiction over two groups of secondary diocesan schools operated by the Roman Catholic Church.
On June 12, 1974, the Quigley Education Association, an affiliate of the Illinois Education Association, intervenor herein, filed a representation petition with the Board seeking to represent a bargaining unit composed of lay teachers employed at Quigley Seminary North and Quigley Seminary South, secondary schools located in the City of Chicago and operated by The Catholic Bishop of Chicago, a corporation sole, one of the employers*fn3 herein. On June 4, 1975, the Community Alliance, the other union here involved, filed a representation petition with the Board seeking to represent a bargaining unit composed of lay teachers employed at five diocesan high schools,*fn4 operated by the Diocese of Fort Wayne-South Bend, Inc., one of the employers, in Northeastern Indiana.*fn5
In the representation hearings conducted during 1975, the employers contended, inter alia, that the Board should decline jurisdiction under its own jurisdictional criteria, and that in any event the First Amendment prohibited the Board's taking jurisdiction of these schools. The employers' jurisdictional arguments were rejected on the basis of the Board's decisions in Roman Catholic Archdiocese of Baltimore, Archdiocesan High Schools, 216 NLRB 249 (1975); and Cardinal Timothy Manning, Roman Catholic Archbishop of the Archdiocese of Los Angeles, a Corporation Sole, Etc., 223 NLRB 1218 (1976). Elections were ordered in one unit of all the lay faculty at the two Quigley schools*fn6 and one unit of the five Indiana diocesan high schools. The unions won the elections and were certified by the Board as the exclusive representatives of the lay faculties in the units.
Following the unions' requests to bargain collectively, the employers refused to bargain in order to obtain judicial review of the Board's representation decisions. The unions then filed unfair labor practice charges with the Board, and complaints issued charging the employers with refusing to bargain with the unions in violation of Sections 8(a)(5) and (1) of the Act, 29 U.S.C. §§ 158(a)(5) and (1). Motions for summary judgment in both cases were filed with the Board. In response, both employers admitted that they continued to refuse to bargain collectively with the lay teachers and raised again the affirmative defense that the Board had no jurisdiction over the seminary high schools and the five diocesan high schools.
The Board granted the motions for summary judgment and held that the employers had violated Sections 8(a)(5) and (1) of the Act, 29 U.S.C. §§ 158(a)(5) and (1), by refusing to bargain with the certified bargaining representatives of their employees. In reaching these decisions, the Board rejected the employers' constitutional contentions on the basis that
(1) the purpose of the Act is to maintain and facilitate the free flow of commerce through the stabilization of labor relations; (2) the provisions of the Act do not interfere with religious beliefs; and (3) regulation of labor relations does not violate the first amendment when it involves a minimal intrusion on religious conduct and is necessary to obtain that objective.
The Board's orders require the employers to desist from the unfair labor practices found and from interfering with their employees' rights under Section 7 of the Act, 29 U.S.C. § 157. Affirmatively, the Board's orders require the employers to bargain with the unions upon request and to post appropriate notices.
The Board's Decisions and Orders issued on June 18, 1976, and are reported at 224 NLRB No. 164 (1976); and at 224 NLRB No. 165 (1976). The respective church employers have petitioned this court to review and set aside the orders and the Board has cross-applied for enforcement of its orders. This court has jurisdiction in the proceedings under Sections 10(e) and (f) of the National Labor Relations Act, as amended, 29 U.S.C. §§ 160(e) and (f).
On the day that oral argument was heard in the present cases, argument was also heard with regard to the attempted exercise of jurisdiction by the Board over parochial schools in another diocese in Indiana. In that case the bishop had not gone through the Board procedures as in the present cases. The district court in the third case had granted an injunction as to the continuance of the Board proceedings and as to an unfair labor practice charge arising out of a discharge during the representation effort. This court acting through the same panel as in the present cases, in an opinion written by Judge Cummings, unanimously agreed that the district court had no jurisdiction because the status quo in the case did not impede the free exercise of religious belief inasmuch as if the union should win the election and be certified by the Board, the bishop-plaintiff could refuse to bargain with the union and test the validity of the Board's jurisdiction in this court. "Any First Amendment challenge may later be presented in this Court." Grutka v. Barbour, 549 F.2d 5, 10 (7th Cir. 1977), cert. denied, 431 U.S. 908, 97 S. Ct. 1706, 52 L. Ed. 2d 394, 45 U.S.L.W. 3718 (May 3, 1977). But cf. Caulfield v. Hirsch, 95 L.R.R.M. 3164, 46 U.S.L.W. 2025 (E.D.Pa. July 7, 1977).
The Board, now that the administrative procedures which were not followed in Grutka have been followed here, takes the position primarily that there is no First Amendment infringement in the Board's exercise of jurisdiction but secondarily that, even if there conceivably could be a problem "down the line," any such problem would have to be litigated later and "the Board would be compelled to try to make some reasonable accommodation to the religious purposes of the school."
To put the present cases into perspective, we will survey briefly the developments which have resulted in the present purported exercise of jurisdiction by the Board. The irreptitious process of bringing private educational institutions within the ambit of the National Labor Relations Act commenced in 1970. In Cornell University, 183 NLRB 329 (1970), the Board, ending a long time refusal to assert jurisdiction over non-profit educational institutions as a class, stated that it would no longer decline to assert such jurisdiction. This history was reviewed with regard to another private nonprofit institution of higher education by the First Circuit in NLRB v. Wentworth Institute, 515 F.2d 550 (1st Cir. 1975). That court rejected the argument that such educational institutions must be impliedly excluded either because of the Act's legislative history or the Board's earlier policy and held instead that the Act, clear on its face, could not be understood to preclude jurisdiction. We accept Wentworth as established law in this respect.*fn7
Nevertheless, the Board declined to extend this phase of its recently enlarged jurisdiction to schools found to be "completely religious" and hence declined jurisdiction, where the schools were devoted exclusively to teaching religion or religious subjects. See, e.g., Association of Hebrew Teachers of Metropolitan Detroit, 210 NLRB 1053, 1058 (1974); Board of Jewish Education of Greater Washington, D.C., 210 NLRB 1037 (1974). In the following year, however, the Board refined its standard of jurisdiction and accepted jurisdiction where the instruction was not limited to religious subjects and religiously associated schools sought to provide a general education, albeit an education based on religious principles. Roman Catholic Archdiocese of Baltimore, Archdiocesan High Schools, supra.
The Board's position with regard to schools at least of the type of those found in the diocese of Fort Wayne-South Bend is set forth in its 1976 Los Angeles case, supra, 223 NLRB at 1218, as follows:
We also do not agree that the schools are religious institutions intimately involved with the Catholic Church. It has heretofore been the Board's policy to decline jurisdiction over institutions only when they are completely religious, not just religiously associated. Roman Catholic Archdiocese of Baltimore, Archdiocesan High Schools, 216 NLRB 249 (1975). The schools perform in part the secular function of educating children, and in part concern themselves with religious instruction. Therefore, we will not decline to assert jurisdiction over these schools on such a basis. Roman Catholic Archdiocese of Baltimore, Archdiocesan High Schools, supra.
The procedural route followed in the two cases before us varied somewhat, but the result reached was identical in that the constitutional claims were rejected. In case No. 76-1600, the representation petition had originally been dismissed without a hearing by the Acting Regional Director on the basis of Board of Jewish Education. The petitioning union filed an administrative appeal, and the Board reinstated the petition and directed the Regional Director to proceed with a hearing. After the hearing, by direction of the Regional Director the proceeding was transferred to the Board for decision. In response to the employer's contention that the schools involved were minor seminary schools operated independently of each other and beyond the Board's purview and that assertion of jurisdiction would constitute an impermissible entanglement between State and Church, the Board citing Baltimore stated that its policy was to decline jurisdiction over religiously sponsored organizations only when they are completely religious, not just religiously associated. The Board concluded by finding no merit in the contentions that the two schools involved were minor seminary schools and therefore "completely religious." In analyzing the record produced at the hearing the Board noted that the Archbishop's policy reflected the desires of the Church to admit those who might adopt the vocation of the priesthood but that in reality the two Quigley schools operated primarily as college preparatory schools "within the class over which the Board has heretofore asserted jurisdiction." Noting that of the 1974 graduating classes only 16% went to the diocesan seminary college, that the academic curriculum was similar to that of other high schools, both private and public, and that the schools maintained a substantial number of extracurricular activities including interschool sports and intramural activities similar to those engaged in by students in other high schools, the Board stated that under these circumstances the Quigley schools, while religiously associated, "are not completely religious," and are the type over which the Board asserted jurisdiction.
When the unfair labor practice case later came before the Board, summary judgment was granted essentially on the basis that nothing was presented which would require the Board to reexamine the decision made in the representation proceeding. In answer to the employer's contention that summary judgment was inappropriate because the Board had never fully determined or addressed itself to the constitutional issues raised in the representation case, the Board responded that the constitutional contentions were clearly raised in the employer's extensive brief to the Board and that the Board's decision in ordering an election had made specific reference to the Church-State entanglement contention in finding "that the Quigley schools, while religiously associated, are not completely religious and of the type over which the Board has asserted jurisdiction." Further, the Board stated that it could not agree with the constitutional contention because of the principles set forth more fully in the Los Angeles case, i.e., that the purpose of the Act is to maintain and facilitate the free flow of commerce through the stabilization of labor relations, that the provisions of the Act do not interfere with religious beliefs, and that the regulation of labor relations does not violate the First Amendment "when it involves a minimal intrusion of religious conduct" and is necessary to obtain the objective of the Act.
In Case No. 76-1638, the original decision and direction of election was issued by the Acting Regional Director at Indianapolis, Indiana, and summarily disposed of the constitutional claim as follows: "The Employer's contentions that jurisdiction should not be asserted because of its religious character are rejected. Archdiocese of Baltimore, 216 NLRB No. 54." The Board's response thereafter was equally summary, as appears from the following teletype: "EMPLOYER REQUEST FOR REVIEW OF ACTING REGIONAL DIRECTOR'S DECISION AND DIRECTION OF ELECTION IS HEREBY DENIED AS IT RAISES NO SUBSTANTIAL ISSUES WARRANTING REVIEW. REQUEST FOR ORAL ARGUMENT IS ALSO DENIED."
When the unfair labor practice case came before the Board, the Board's order handed down the same day as the order in Case No. 76-1600 essentially followed the same pattern as previously discussed herein with regard to the Chicago case. Again reliance was placed on the tripartite statement of the principles of the Los Angeles case including the involvement of a minimal intrusion of religious conduct. There is, however, in the Board's order no express finding that the Fort Wayne-South Bend schools were not "completely religious." By virtue of the Acting Regional Director's reliance on Baltimore and the Board citation of Los Angeles, we may assume, however, that impliedly the Board found the diocesan high schools not to be "completely religious" and that the Board had not abandoned this standard.
The Board contends that it did not abuse its discretion in finding that under its standard the two Chicago minor seminaries and the five Indiana diocesan high schools were not "completely religious." It observes that the employers do not appear to be questioning its declination of jurisdiction over "completely religious" schools but seem to contend that the Board misapplied the self-imposed jurisdictional standard. Thus, apart from its contention that there is no First Amendment bar to the application of the Act to Catholic schools, the Board argues that the record amply supports its findings. At the same time, however, the Board argues that this court should not review the Board's formulation of its jurisdictional standard in the absence of extraordinary circumstances such as unjust discrimination, citing, inter alia, NLRB v. Carroll-Naslund Disposal, Inc., 359 F.2d 779, 780 (9th Cir. 1966) ("The question is whether the Board has violated its own self-imposed jurisdictional standards. It is well settled that the extent to which the Board chooses to exercise its statutory jurisdiction is a matter of administrative policy within the Board's discretion . . . and is not a question for the courts . . . in the absence of extraordinary circumstances, such as unjust discrimination . . . .")
Because the core question before us is whether the Board's exercise of jurisdiction over the schools constitutes an improper breaching of the separation wall provided by the Religion Clauses of the First Amendment, we regard this issue, being as it is one which has caused frequent discussions in the Supreme Court in other contexts, as sufficiently extraordinary*fn8 to require us to analyze the Board's jurisdictional standard by examining it in the light of the cases dealing with the Religion Clauses.
We find the standard itself to be a simplistic black or white, purported rule containing no borderline demarcation of where "completely religious" takes over or, on the other hand, ceases. In our opinion the dichotomous "completely religious - merely religiously associated" standard provides no workable guide to the exercise of discretion. The determination that an institution is so completely a religious entity as to exclude any viable secular components obviously implicates very sensitive questions of faith and tradition. See, e.g., Yoder, supra, 406 U.S. 205, 32 L. Ed. 2d 15, 92 S. Ct. 1526. At some point, factual inquiry by courts or agencies into such matters would almost necessarily raise First Amendment problems. If history demonstrates, as it does, that Roman Catholics founded an alternative school system for essentially religious reasons and continued to maintain them as an "integral part of the religious mission of the Catholic Church," Lemon, supra at 616, courts and agencies would be hard pressed to take official or judicial notice that these purposes were undermined or eviscerated by the determination to offer such secular subjects as mathematics, physics, chemistry, and English literature.
In our view the Board decisions dealing with the present question demonstrate that the Board has essentially adopted a per se rule*fn9 that Catholic secondary schools will be subject to its statutory jurisdiction. The simple truth is that the Board had defined those Catholic schools which offer the regular range of secondary subjects as being intrinsically incapable of meeting its jurisdictional standard of "completely religious."
Thus, in Baltimore, the Board noted the Archdiocese's contention that the Board should not assert its jurisdiction because of its religious character. Because the Archdiocese "concede[d] that instruction is not limited to religious subjects," the Board rejected the contention. Similarly, in Los Angeles, the Board could not agree "that the schools are religious institutions intimately involved with the Catholic Church," even though its decision formally recited that the twenty-six schools were owned and operated by the Archdiocese of Los Angeles. The rationale for rejecting the Cardinal's contention was that
the schools perform in part the secular function of educating children, and in part concern themselves with religious instruction. Therefore, we will not decline to assert jurisdiction over these schools on such a basis.
Under the rationale the Board has adopted, it is readily apparent that secondary schools operated by various dioceses of the Roman Catholic Church can never be characterized as "completely religious." Once the employer admits the fact that its schools are performing "in part the secular function of educating children," it becomes definitionally impossible under the Board's ...