Association of Hebrew Teachers

National Labor Relations Board - Board Decisions

May 30, 1974

210 N.L.R.B. 1053 (N.L.R.B. 1974)

ASSOCIATION OF HEBREW TEACHERS
Association of Hebrew Teachers of Metropolitan
Detroit, Affiliated with the American Federation of
Hebrew Teachers and American Federation of
Teachers, AFL-CIO and United Hebrew Schools
of Metropolitan Detroit . Case 7-CB-2709
May 30, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING, JENKINS, AND PENELLO
On June 18, 1973, Administrative Law Judge
George Turitz issued the attached Order Dismissing
Complaint sustaining Respondent's motion to dis-
miss the complaint in its entirety because the General
Counsel failed to establish that it would effectuate
the purposes of the National Labor Relations Act to
assert jurisdiction over the Employer.' Thereafter,
the General Counsel filed exceptions and a support-
ing brief and the Charging Party filed a request for
review and a supporting brief.2 The Respondent filed
an answering brief.
The Board has considered the record and the
attached Decision in light of the exceptions, request
for review, and briefs and has decided to affirm the
rulings, findings, and conclusions of the Administra-
tive Law Judge and to adopt his recommended
Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
MEMBER FANNING, dissenting:
I dissent from the majority's failure to assert
jurisdiction over this Employer whose operations
satisfy the recently adopted standards applicable to
educational institutions.
The Employer is an educational institution operat-
ing in the Metropolitan Detroit area. Its annual gross
revenues exceed $1,000,000. Its annual purchases of
goods originating from out-of-State exceed $100,000.
The Employer is a nonprofit organization and
provides educational instruction at four levels of
education: nursery school, elementary school, high
school, and college. Although its courses of instruc-
i The complaint alleges that Respondent violated Sec. 8 (b)(3) of the Act
by refusing to sign a collective-bargaining contract that had been mutually
agreed to by representatives of both parties However, by agreement of the
parties, the hearing herein was held only on the issue of Jurisdiction. Upon
the conclusion of the presentation of evidence on the issue of junsdiction,
the hearing was indefinitely postponed pending disposition of the
jurisdictional issue
2 The Administrative Law Judge dismissed the complaint pursuant to
1053
tion at all levels are organized around the study of
the Hebrew language, the Jewish faith, and Jewish
culture, it is not a religious organization.
The Employer's nursery school classes are held at a
single location and serve the educational needs of
approximately 67 children. Its elementary school
classes are conducted at five different locations in the
Detroit area and serve the needs of approximately
1,500 children. Its high school classes are conducted
on the Employer's main campus in Southland,
Michigan, and serve the needs of approximately 230
students. The Employer has taken steps to have the
high school accredited so that students may transfer
credits earned at the high school to other private and
public schools in the Detroit area.
The Employer also operates Midrasha College.
Midrasha operates at three different locations and is
authorized by the State of Michigan to grant
associate, bachelor's, and master's degrees in Judaic
studies and Hebrew literature. Midrasha functions in
many respects as a supplementary college to other
colleges and universities in the State of Michigan. It
operates at locations in Southland, Oakland, and
Ann Arbor, Michigan. It offers approximately 42
courses in Biblical, postbiblical, and modern Hebrew
literature; Jewish history, ethics, sociology, and
philosophy; and Hebrew language.
Manifestly, the Employer is an educational institu-
tion. Manifestly, too, its operations satisfy the
jurisdictional test established by the Board for
assertion of jurisdiction over employers operating
educational facilities. In Cornell University, 183
NLRB 329, the Board, as the Administrative Law
Judge correctly noted, overruled the Trustees of
Columbia University decision,3 and determined to
assert jurisdiction over the class of employers
operating educational institutions. Subsequently, the
Board amended its Rules and Regulations to provide
that it would assert jurisdiction over nonprofit
colleges and universities which had gross annual
revenues of $1 million or more.4 In adopting this test
for determining whether to assert jurisdiction the
Board rejected other possible jurisdictional tests.
There are, of course, criteria other than gross
revenue by which to assess the impact of an
institution on commerce. For example, respond-
ing parties suggested tests based on numbers of
employees, numbers of students, or annual
expenditures for commercial purposes. However,
Sec 102.25 of the Board's Rules and Regulations, Series 8, as amended. Sec
102 27 of the Rules and Regulations provides that the parties may file a
request for review of an Administrative Law Judge 's order dismissing a
complaint in its entirety pursuant to Sec. 102 25. Although the General
Counsel filed exceptions to the said order , we have treated these as a request
for review.
3 97 NLRB 424
4 Sec. 103.1, NLRB Rules and Regulations , Series 8, as amended.
210 NLRB No. 132
1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after considering all the various alternatives, the
Board concludes that a gross revenue test is
preferable, for it has the advantages of simplicity
and ease of application. Board experience has
demonstrated that such figures are readily availa-
ble and relatively easy to produce, thereby
reducing the amount of time , energy, and funds
expended by the Board and staff as well as
imposing less of a burden on the parties in-
volved.5
Subsequent to the issuance of this "jurisdictional
rule," the Board extended it to cover an art school,
Trustees of the Corcoran Gallery of Art, 186 NLRB
565, noting that it had intended to indicate in Cornell
University that it "would no longer decline to assert
jurisdiction over educational institutions as a class."
Thereafter, the Board applied the $ 1 million gross
revenue standard to nonprofit secondary schools,
Shattuck School, 189 NLRB 886; to proprietary
private secondary schools, The Windsor School, Inc.,
200 NLRB No. 163; 199 NLRB No. 54; and finally
to an employer operating an elementary and second-
ary school, The Judson School, 209 NLRB No. 110.
The majority disregards all the foregoing decisions
and determinations, and declines to assert jurisdic-
tion herein. They do so not withstanding the findings
and conclusions that the Employer is an "employer"
within the meaning of Section 2(2) of the Act, that its
operations affect commerce within the meaning of
Section 2(6) and (7) of the Act, and that the Board
has jurisdiction. They do so notwithstanding the
Administrative Law Judge's determination that the
fact that the employer's activities are "dedicated to a
sectarian religious purpose is not a sufficient reason
for the Board to refrain from asserting jurisdiction."
They do so because they, like the Administrative
Law Judge, apparently believe that "after-school
religious education in the United States" is a
completely different kind of educational activity
from that involved in Cornell University and Shattuck
School, and constitutes a separate class of employ-
ers.6 Assuming, arguendo, that is so, the argument
proves too much, for the Administrative Law Judge
found that the Employer's operations were not
conducted in the usual manner in which such
educational activity is conducted. Thus he found,
The Employer's mode of operation, what the
General Counsel's witness called a "community
school," is definitely the exception. The usual
operation, namely, the synagogue-sponsored af-
ter-school class, would be on a much smaller
scale, would not make as extensive interstate
purchases, and would be essentially local in
character. The Employer's activity is plainly
different from the usual after-school Jewish
religious education.
Clearly the Employer is, as the Administrative Law
Judge characterized it, an "atypical employer" in the
field of after-school religious oriented education.
Indeed, it is so atypical that its organization and
structure, scope of activities, interstate purchases,
and impact on commerce are indistinguishable from
those operations in the field of educational activity
over which this Board has asserted jurisdiction under
a standard carefully devised to measure just such
matters. The Employer operates a college. It operates
a high school. It operates elementary schools. The
Board has applied its educational jurisdictional
standard to each of the foregoing types of education-
al institutions. It is also a firmly established principle
that the Board considers the totality of an employer's
operation,7 and adds up the revenues of all parts of
its operations in determining whether the appropriate
jurisdictional standard has been met.8 In failing to
apply these principles and in declining jurisdiction,
my colleagues relegate the labor relations of this
employer to a "no-man 's-land" in which no orderly
dispute resolving machinery can be brought to bear
to bring about a peaceful resolution of this labor
dispute.9 Their decision cannot possibly serve to
effectuate the policies of the Act or further the
interest of the parties to this case. I would assert
jurisdiction.
5 Ibid
6 Even were it appropriate to find that employers operating in the field of
after-school religious education constitute a separate class of employers, I
do not see how the Board could conclude that the impact on commerce of
that segment of the class in which my colleagues would place the Employer
is not sufficiently substantial to warrant the assertion of jurisdiction
7 T H Rogers Lumber Company, 117 NLRB 1732, Siemons Mailing
Service, 122 NLRB 81.
8 Ibed See also Appliance Supply Company, 127 NLRB 319; Man
Products, Inc,128 NLRB 546, Indiana Bottled Gas Company, 128 NLRB 1441
9 Sec 14(c)(2), though it authorizef courts and agencies of the States and
Territories to assume and assert jurisdiction over enterprises over which the
Board properly declines to assert jurisdiction , does not confer a similar
grant of authority over cases such as this one
ORDER DISMISSING COMPLAINT
STATEMENT OF THE CASE
GEORGE TuRrrz, Administrative Law Judge: Upon a
charge filed on October 17, 1972, by United Hebrew
Schools of Metropolitan Detroit (the Employer and, at
times, the School) against Association of Hebrew Teachers
of Metropolitan Detroit, Affiliated with the American
Federation of Hebrew Teachers and American Federation
of Teachers, AFL-CIO (Respondent), the General Counsel
of the National Labor Relations Board (the Board),
through the Regional Director for Region 7, on March 8,
1973, issued a complaint and notice of hearing which was
duly served upon Respondent. The -complaint alleged with
respect to unfair labor practices that Respondent, as
exclusive bargaining representative of the classroom
teachers employed by the School, refused to execute a
collective-bargaining contract covering the employees in
ASSOCIATION OF HEBREW TEACHERS
the unit , all the terms of which had been mutually agreed
to by representatives of both parties, and that Respondent
had thereby engaged in unfair labor practices affecting
commerce within the meaning of Section 8(b)(3) and
Section 2(6) and (7) of the National Labor Relations Act,
as amended (the Act). Respondent filed its answer in
which, inter aka, it denied that the Employer's operations
affected commerce and denied refusing to execute any
agreed-upon collective-bargaining contract. The Answer
alleged that any breach by Respondent of the Act had
been cured by the fact that the parties continued to bargain
collectively and on February 8, 1973, had executed a
collective-bargaining agreement covering the period from
September 1, 1972, to August 31, 1973. Respondent
affirmatively alleged that Section 103.1 of the Board's
Rules and Regulations, referring to the exercise of
jurisdiction over colleges and universities,' is not applica-
ble to the Employer and moved that the Complaint be
dismissed for lack of jurisdiction.
A heanng was held before me at Detroit, Michigan, on
April 25, 1973, at which the General Counsel, Respondent,
and the Employer were represented by their respective
counsel. At the hearing the parties, by prior agreement
among them, offered evidence with respect only to the
issue of whether the Board should assert jurisdiction. All
three parties then moved jointly to continue the hearing
with respect to the merits of the unfair labor practice
allegations until the question of jurisdiction had been
finally resolved by me and "any other appellate tribunal
which may thereafter be involved." Each counsel assured
me that the parties were hopeful that once the question of
jurisdiction had been determined, they could reach a
settlement of the unfair labor practice allegations without
further litigation. I thereupon granted the motion and
recessed the hearing indefinitely pending my ruling on
Respondent's motion to dismiss the Complaint on jurisdic-
tional grounds.
All parties have submitted briefs to me on the question
of jurisdiction.
Upon the entire record 2 and from my observation of the
witnesses , I make the following:
FINDINGS OF FACT
A. The Employer's Income
The Employer's fiscal'year runs from June 1 to May 31.
Its gross income has been as follows: 1970-71, $1,101,847;
1971-72, $1,113,855; 1972-73, estimated, $1,115,070.3 The
Employer's budget for fiscal 1974 shows $1,068,745
expected income. All the foregoing figures represent
revenue available for operating expenses. Donations
received for restricted nonoperating purposes, such as
building funds or scholarship programs, are earmarked and
kept separate from other funds; they have not been
included in the above figures.
The Employer derives roughly one-quarter of its income
i 75 LRRM 1442 (35 F R. 183701
2 The record includes General Counsel's Exhibits 10, 11, and 12, which
were submitted, with the consent of all parties , after the heanng had been
recessed
3 This figure is twelve-tenths of $929 ,225, the actual figure for the first 10
1055
from tuition fees and three-fifths from Jewish Welfare
Federation (Federation), an organization which supports a
number of Jewish agencies in the Detroit area with funds
raised from the community . Of its remaining income the
bulk-over $118,000, or 10 percent, in the year ending May
1972-is derived from parents or from other institutions
for busing services,4 for which the Employer operates a
garage and repair shop , with a staff of mechanics and
drivers. Some income is received from other organizations
for rental of the Employer' s facilities.
B. The Employer's Interstate Purchases
During the fiscal year 1972 the Employer purchased
from the following persons the services and articles
indicated:
1. Services which were performed by out-of-state
• firms and persons:
Amer . Assn. for Jewish
Ed. (for processing
exchange teachers'
applications)
Jewish Theological
Seminary (for evaluation
and accreditation of
Emp. program)
Jewish Agency Department
of Education and Culture
(for conference inN. Y.)
Grossinger's (hotel bills for
conference in N. Y.)
Israel Summer Education
program (for study
programs in Jerusalem)
Daniel Elazar and L. Fein
(for lectures)
E. R. Moore (for rental
of graduation gowns)
New England Life Ins. Co.
(for sickness
$ 600
250
290
300
970
1104
187
& accident ins.5) 9927
Intl. Ins . Co. of N.
Amer. (for ins.) 16,383
Blumberg Bros. (for
building ins.) 118
Natl. H. & We. Ret.
Assn. (for ret. plan) 26,960
Total $57,089
The Employer pays the premiums for the coverage
provided by New England Life and by National Health
months of fiscal 1973.
a Bus fees from other institutions were about $66,000.
5 For the purpose of deciding its jurisdiction the Board considers the
various common types of insurance as services See The Title Guarantee
Company, 97 NLRB 1497, 1498.
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Welfare Retirement Association to Federation which,
in turn, pays the insurance company. Federation performs
this service for other agencies which it supports.
2. Articles purchased and transported to the
Employer directly from outside Michigan:
Bell & Howell (for paper
products) $3474
Business Envelop Mfs. (for
envelopes) 619
Community Playthings (for
nursery equipment) 183
GAF Corp. (for gas-meter
checks) 134
W. W. Grainger (for
pumps) 109
Nationwide Paper (for
paper) 1948
Antiquities of the Holy
Land (for replicas of
archeological objects) 525
Jewish Education
Committee Press (for
magazines and books) 1279
Various publishers & books
dealers (for
library acquisitions) 4034
Other books purchased 312
Jewish Current Events (for
subs. for students) 1363
Other magazine subs. 213
Jewish Natl. Fund (for
maps and subsc.) 142
Polychrome Corp. (for
graphic art supplies) 356
Total $14,7416
3. Articles purchased from persons located within
Michigan which were manufactured, or which
otherwise originated, outside Michigan:
Albin's (for copy-machine
supplies) 757
Arrow Office Supplies (for
office supplies) 1119
Addressograph Multigraph
Company (for
printing supplies) 437
Better Business Equipment
(for typewriter) 275
Blake Business Machines
(for scnptomatic master) 162
Borenstein (for books) 3859
6 The Employer also received directly from outside Michigan library
shelving, steel , a mail machine and a punting machine the cost of which
totaled $10,074. I have omitted these items because they were nonrecurring
capital expenditures
7 1 have omitted almost $4,600 for nonrecumng capital expenditures,
Eric Electronics (for tape
recorders)
F & E Check Protector
(for check writer)
Gilson Ayres (for
calculators)
Hugh Greenburg (for
tables)
Lobby Hobby ( for film
equipment)
Lafayette Radio (for audio
visual equipment)
Amer. Oil Co. (for
gasoline)
387
310
716
320
148
286
8700
Total $17,4757
C. The Employer's History
The Employer was organized in 1898 under Act No. 209
of the Public Acts of 1897 of Michigan entitled, "An act to
revise, amend and consolidate the laws for the incorpora-
tion of acclesiastical bodies." The original name was The
Talmud Thorah Association of Detroit, and the purposes
stated in its articles of association were: "to establish,
maintain and control an institution or institutions for the
disseminating of religious knowledge, and especially for
the purpose of instructing children of the Jewish faith in
the history of that religion and its doctrines, in the Hebrew
language and for other purposes incident thereto." In 1923
the Articles of Association were amended to change the
name to United Hebrew Schools of Detroit; and in 1959
revised bylaws were adopted further changing the Employ-
er's name to The United Hebrew Schools of Metropolitan
Detroit .8 The revised bylaws state:
The object of the United Hebrew Schools of Metropoli-
tan Detroit shall be to provide educational facilities for
the study of the Hebrew language, a knowledge of the
Jewish religion, and an appreciation of Jewish culture.
Membership in the Employer is open to anyone paying
the specified dues of $10 per year. The organization is
managed by officers chosen by a board of directors elected
by the membership. It also has an advisory committee
consisting of its former presidents, of rabbis of congrega-
tions affiliated with the Employer, and of other members
elected by the membership. Among the standing commit-
tees is a committee on relations with affiliated congrega-
tions, which is required to meet with representatives of
such congregations on matters pertaining to their mutual
contracts. It is also required to serve as a center of
information to the congregations about the Employer's
work.
D. The Employer's Educational Activities
The Employer conducts nursery-school classes, with 67
children; after-school classes for elementary-school stu-
dents, with some 1500 attending; after-school classes for
namely for sprinkler-system mat erials, panels, windows and glass, and a
paper cutter
M The 1898 articles of association provided that the life of the
corporation was to be 30 years The Record does not disclose what steps
were taken to extend it beyond 1928.
ASSOCIATION OF HEBREW TEACHERS 1057
high-school students, with about 230 attending; and,
through a division called Midrasha College of Jewish
studies (Midrasha), gives courses for college and graduate-
school students, with about 255 attending. The School has
no boarding facilities and, except for some of the last
group, all students live at home.
Insofar as the elementary and high-school students are
concerned, the Employer's organization is unusual in the
following respect: Whereas the Employer serves, and is
supported by, a large metropolitan-areawide community,
in the United States as a whole 90 percent of the children
receiving "Jewish education" attend schools or classes
operated by individual synagogue congregations. Even in
the Detroit area two-thirds of such children attend schools
or classes operated by synagogue congregations or attend
Jewish day schools .9
The nursery school is operated at Oak Park, Michigan,
from 9 to 11:30 in the morning and 12:30 to 3:30 in the
afternoon. It conducts the kind of program, mostly play,
usually carried on in nursery schools, with the addition of
lessons in the Hebrew alphabet.
The classes for high-school students are held at the
Employer's main campus in Southfield on Sunday morn-
ings and on Monday through Thursday from 4:30 to 8:30
p.m. Each student attends classes 7 hours a week, 3 hours
on Sunday, and 2 hours on each of 2 other days. The
program is departmentalized and includes courses in the
Bible, in comparative religion, in Jewish music, history,
literature, philosophy, ethics, and social studies, in Hebrew
language and literature, in Zionism, and in current events
relating to Israel and to Jews throughout the world. The
students receive no credit in public high schools for courses
taken at the srhool.10
The classes for elementary-school students are held at
five different branches in the Detroit area on Sunday
mornings and on Monday through Thursday from 4 to 8
p.m. While the program is not departmentalized, the
subjects covered are basically the same as are covered in
the courses given the high-school-age students.
Midrasha is authorized by the State of Michigan to grant
bachelor's, master's and associate degrees in Judaic studies
and in Hebrew literature. It has in fact granted bachelor's
degrees, but not the others. The president of Midrasha
testified: ". . . we are a supplementary college. We work in
cooperation with the established colleges ...." Midrasha
requires candidates for its bachelor's degree to transfer to
Midrasha 60 credits from a liberal-arts institution, and it
has a specific arrangement with the University of Detroit
for the transfer of a limited number of credits from one
institution to the other. At the time of the hearing about
255 students attended courses given by Midrasha, 62 at the
main campus at Southfield-16 of them full time-42 at
Oakland University, and about 175 at the University of
Michigan at Ann Arbor.11
The Ann Arbor courses are given in cooperation with the
9 Cohen, testifying on behalf of the General Counsel, stated "so I think
in that sense Detroit is different or is almost unique "
10 At the time of the hearing the Employer was in the process of
negotiating the question of such credit with the appropriate State agency
11 The apparent arithmetic discrepancy may be explained by the fact,
noted below, that 18 Ann Arbor students were working for Midrasha
degrees and thus may have been included in the count at both locations
Hillel Foundation of B'nai B'nth . Most of those attending
are University of Michigan students; but some University
faculty members and wives of faculty members also attend.
Except in special cases the Ann Arbor students receive no
University of Michigan credit for those courses, but 18 of
the students attending there at the time of the hearing were
working for Midrasha degrees . The Oakland University
courses resulted in Oakland University, as well as Midra-
sha, credit. In its 1972 fall-semester catalogue Midrasha
offered a total of 42 courses, 25 at the main campus, 3 at
Oakland University, and 14 at Ann Arbor. Included were
courses in Biblical , post-Biblical , and modern Hebrew
literature; Jewish history, ethics, sociology and philosophy;
Hebrew language ; and three courses in "basic Judaism,"
one at the main campus and two at Ann Arbor. The main-
campus course in "basic Judaism" was the only course
which the catalogue indicated was given by the department
of religion.
E. Concluding Findings
The Employer's purchases which I have listed include
almost $104,000 for services and articles originating
outside the State.12 Even after eliminating the approxi-
mately $15,000 in nonrecurring capital expenditures, 13 it is
apparent that the impact upon commerce of the Employ-
er's operations is more than de minimis and that the Board
has legal jurisdiction. I so find. Moreover, again excluding
the nonrecurring capital expenditures, the Employer's
purchases in the 1972 fiscal year included $57,089 for
services received from out-of-state firms and persons and
$14,741 for articles purchased and transported to the
Employer directly from outside the State. The Employer's
operations thus also meet the $50,000 inflow standard,
which is one of the two which the Board applies to the
majority of business firms involved in cases which come
before it.14 However, the Employer is not a business firm,
and the question remains of whether the Board should
assert its jurisdiction over the class of enterprise operated
by the Employer, and if so, what standard should be
applied.
For some years following its decision in Trustees of
Columbia University, 97 NLRB 424, the Board, on the basis
of that precedent, declined to exercise jurisdiction over
nonprofit educational institutions and other charitable,
religious, or community institutions where the activities in
question were intimately connected with, and incidental to,
the institutions' educational, charitable, religious or civic
purposes, notwithstanding the substantial impact of those
activities upon commerce. See Sheltered Work Shops of San
Diego, Inc., 126 NLRB 961; YMCA of Portland, Oregon,
146 NLRB 20; U.S. Book Exchange, Inc., 167 NLRB 1028.
However the Board has expressly overruled Columbia
University in Cornell University, 183 NLRB 329; and in
Trustees of the Corcoran Gallery of Art, 186 NLRB 565,
12 1 have omitted a number of small items and items not clearly proved
to have originated outside the State
13 I have not considered other capital expenditures , such as for
typewriters and library books, nonrecurring because they are representative
of constantly recurring purchases
14 The other is the $50,000 outflow standard
1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which did not involve a college or university, the Board
made clear, at 565, that it intended to indicate in Cornell
University that it "would no longer decline to assert
jurisdiction over educational institutions as a class."
(Emphasis supplied.) The Board subsequently adopted the
following amendment to its Rules and Regulations, Series
8, 75 LRRM 1442 [35 F.R. 183701:
Sec. 103.1 College and universities. The Board will
assert its jurisdiction in any proceeding arising under
sections 8, 9, and 10 of the Act involving any private
nonprofit college or university which has a gross
annual revenue from all sources (excluding only
contributions which, because of limitation by the
grantor, are not available for use for operating
expenses) of not less than $1 million; and in Shattuck
School ,189 NLRB 886, the Board found the operations
of a nonprofit in-residence secondary school with 173
students sufficiently similar to those of a college or a
university to warrant assertion of jurisdiction under the
same $1,000,000 jurisdictional standard.
The General Counsel and the School contend that the
Board should assert jurisdiction over the Employer under
the standard fixed by the Rule and followed in Shattuck.
Respondent contends that the Employer fails to meet the
tests set forth in the Rule. It points out the following: (a)
Midrasha is not a true college or university, but at best
serves merely as an adjunct to colleges or universities; (b)
in any event Midrasha is a small part of the School's
overall operations; and (c) the School "is strictly and
completely a religious school" whose major activity
concerns part-time teaching of Jewish students of kinder-
garten through high-school ages.
Whether an employer falls within a given "class" of
enterprise depends upon those of its activities which are
predominant and give the employing enterprise its charac-
ter. In Jewish Orphan's Home of Southern California, a/k/a
Vista del Mar Child Care Service, 191 NLRB 32, the Board
asserted jurisdiction over a residential treatment center for
emotionally disturbed children aged 6 to 18 years, which
included in its operations two schools and which had gross
income in excess of $1,000,000. Notwithstanding that
gross-income figure and the fact that at least one of the
schools must have been the equivalent of an in-residence
secondary school, so that the case was to that extent similar
to Shattuck School, supra, the Board, at footnote 1,
indicated that a different standard for asserting jurisdiction
might be appropriate for "this type of operation." 15
Although most of the evidence in the Record describing
the Employer's educational activities concerns Midrasha,
at the time of hearing the students of that division
constituted only about 13 percent of the School's census.
Plainly, Midrasha is not representative of the character of
the enterprise operated by the Employer. On the other
hand, over 70 percent of the Employer's students are
elementary-school students attending after-school classes;
is Prior to the adoption of Rule 103 . 1 the Board , without fixing a
particular standard , asserted jurisdiction over a non-profit residential
treatment center for emotionally disturbed children which, however, did not
operate a school The Children's Village, Inc, 186 NLRB 953, fn. 3
18 In Lutheran Church, Missouri Synod, 109 NLRB 859, the Board's
refusal to assert jurisdiction over a radio station operated for a religious
including high-school students the figure is in excess of 85
percent. It is to the School's operation with the respect to
these students that we must look to determine the "class"
of enterprise operated by the Employer.
The instruction given the high-school and elementary-
school students is for the most part not in religion as such.
It is, however, largely directed to an understanding and
appreciation of a particular religion and in that sense may
be considered religious education. Significantly, the
School's official who testified on the subject knew of no
non-Jewish student in the School. It is true that the fact
that an employer's activity involved in the case before the
Board is dedicated to a sectarian religious purpose is not a
sufficient reason for the Board to refrain from asserting
jurisdiction. See The Sunday School Board of the Southern
Baptist Convention, 92 NLRB 801.16 At the same time,
children's after-school religious education is a completely
different kind of educational activity from what the Board
was concerned with in Cornell University and Shattuck
School.17 It is therefore by no means clear that the Rule
103.1 standard should be applied to the Employer.
Whether the Board should exercise jurisdiction over a
new class of employer does not depend only on the impact
upon commerce of the operations of the particular
employer involved; such impact of the operations of the
entire class is an important consideration. In Cornell the
Board examined carefully the impact upon commerce not
only of the two universities involved in that case, but of
nonprofit private colleges and universities in general. It
may well be that after-school religious education in the
United States is of such scope, or is carried on in such
fashion, as to have a substantial impact upon commerce
nationally, but the General Counsel made no attempt to
establish this. On the contrary, his evidence was limited to
Jewish education, and it showed that that section of
religious education is typically, i.e., for 90 percent of the
children affected, conducted as an after-school activity
under the auspices of individual synagogue congregations.
The Employer's mode of operation, what the General
Counsel's witness called a "community school," is definite-
ly the exception. The usual operation, namely, the
synagogue-sponsored after-school class, would be on a
much smaller scale, would not make as extensive interstate
purchases, and would be essentially local in character. The
Employer's activity is plainly different from the usual
after-school Jewish religious education. Even more impor-
tant is the fact that no evidence at all was adduced as to
the impact upon commerce of children's after-school
religious education generally. Thus the Record furnishes
no basis upon which a determination can be made as to
whether it would effectuate the policies or purposes of the
Act for the Board to assert its jurisdiction over this class of
employer and, if so, what standard would be appropriate.
I find that the evidence is insufficient to establish that it
would effectuate the purposes of the Act for the Board to
assert its jurisdiction in the isolated instance of this
purpose was based upon Trustees of Columbia University, supra, since
overruled by Cornell University, supra
17 It should be noted that even in the case of Midrasha well over 50
percent of the students , i e., most of the 175 at Ann Arbor , attend the classes
as an extracurricular activity.
ASSOCIATION OF HEBREW TEACHERS
atypical employer . I shall therefore grant Respondent's
motion to dismiss the complaint ; on jurisdictional grounds.
ORDER
Pursuant to Section 102.25 of the Board 's Rules and
Regulations , Series 8, it is hereby ordered that the
complaint be dismissed.
Pursuant to Section 102.27 of the Board 's Rules and
1059
Regulations any party may obtain a review of this action
by filing a request therefor with the Board in Washington,
D.C., stating the ground for review and immediately on
such filing serving a copy thereof upon the Regional
Director and the other parties . Unless such request for
review is so filed within 10 days from the date of this Order
of dismissal , the case shall be closed. ,^;