Application of the National Labor Relations Board for enforcement of its orders issued on May 15, 1978 and June 25, 1979 against respondent Bishop Ford Central Catholic High School finding that respondent had violated sections 8(a)(1),(3) and (5) of the National Labor Relations Act. Enforcement denied because the Board lacked jurisdiction over the respondent.
Before Lumbard, Mulligan and Oakes, Circuit Judges.
The dispositive issue raised by this application for enforcement of orders of the National Labor Relations Board (the Board) is whether Bishop Ford Central Catholic High School (Ford Central) is subject to the jurisdiction of the Board. On May 15, 1978 the Board found that Ford Central had violated sections 8(a)(1), (3) and (5), 29 U.S.C. §§ 158(a)(1), (3) and (5), of the National Labor Relations Act (the Act) by refusing to recognize the Lay Faculty Association (the Union) as the representative of its lay faculty, 236 NLRB No. 3. On March 21, 1979, the Supreme Court in NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 99 S. Ct. 1313, 59 L. Ed. 2d 533 (affirming the Seventh Circuit's decision, 559 F.2d 1112 (1977)) held that the Board lacked statutory jurisdiction over "church-operated schools."*fn1 On a petition for enforcement of the Board's order in the instant case, this court remanded the matter to the Board on April 27, 1979 for reconsideration in light of the Catholic Bishop decision. On June 25, 1979, the Board, with Member Penello dissenting, issued a supplemental decision (243 NLRB No. 24) affirming its decision as to Ford Central. This enforcement proceeding followed.
Since we hold that the Board lacked jurisdiction we do not consider the merits of the other issues which have been raised on this appeal.
In order to determine whether Ford Central is within the holding of Catholic Bishop we must examine the history of the school as well as its present religious characteristics. For many years, the Roman Catholic Diocese of Brooklyn (the Diocese) owned and operated nine Catholic high schools in Brooklyn and Queens including Bishop Ford. In June 1972, a task force commissioned by the Bishop of the Diocese recommended the termination of the existing diocesan high school system. As an alternative, the Diocese in 1972 incorporated the Henry M. Hald High School Association (Hald), an educational corporation which was to operate a number of the Catholic high schools in the Diocese including Bishop Ford. By 1975 two high schools were closed and two others were transferred to religious communities or private boards. During the fall of 1975, faced with the possibility that Bishop Ford might be closed, parent groups at the school began discussions to determine the feasibility of turning the school over to a private board of trustees. In February 1976 Hald determined to close Bishop Ford and transfer it to an independent board. Brother Alphonsus Maher, who was then the principal of the school, resigned and became the first principal of the respondent Ford Central.
On September 3, 1976 the Diocese and Ford Central entered into an agreement which conveyed title to the land, buildings, improvements, fixtures and appurtenant personal property to Ford Central. The agreement recites that Ford Central is to hold title, however, only so long as it "continues the operation of a Roman Catholic high school." If it ceases to operate as a Roman Catholic high school, all rights, title and interest revert automatically to the Diocese.
Other provisions of the agreement require Ford Central to maintain the premises in good condition, and not to make major alterations or place any encumbrances or mortgages upon the premises without the approval of the Diocese. Ford Central is required to keep the buildings and contents insured in amounts and kinds of coverage satisfactory to the Diocese. Although the Diocese continues to maintain a portion of the premises for its Educational Television project, the agreement makes it clear that Ford Central is solely responsible for the "operation and maintenance of the school," and assumes responsibility for its "debts, obligations, or liabilities."
The record demonstrates and it is undisputed that Ford Central is a Roman Catholic school. Its title is "Bishop Ford Central Catholic High School." Its motto is "To Imitate Jesus." All the members of the Board of Trustees are Roman Catholics, and its two highest administrators, the principal and assistant principal, are Franciscan Brothers. The professional staff of the school is composed predominantly of teachers who are members of Roman Catholic religious orders.
The philosophy of the school is stated in its faculty manual, in these terms:
The success of this school as a Catholic school will depend on each faculty member striving as an individual and as a member of a unified faculty to form with the assistance of the Holy Spirit a community of faith where gospel values are the norm and Christian virtues are experienced.
This school will only be as good as the individual faculty members that make it up. The success of this academic year will depend on each faculty member contributing his/her