St. Leo's School

National Labor Relations Board - Board DecisionsNov 26, 1975

221 N.L.R.B. 831 (N.L.R.B. 1975)

ROMAN CATHOLIC DIOCESE OF BROOKLYN 831 Roman Catholic Diocese of Brooklyn and St. Leo's Parish, as Joint -Operators of St. Leo's School and Lay Faculty Association, Local 1261 , American Federation of Teachers, AFL-CIO. Case 29-CA- 4135 November 26, 1975 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND PENELLO On August 20, 1975, Administrative Law Judge John P. von Rohr issued the attached Decision in this proceeding. Thereafter, Respondents filed excep- tions and a supporting brief, and General Counsel filed an answering brief and cross-exceptions and a supporting brief. Pursuant to the. provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions 'and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. The Administrative Law Judge found that Respon- dents unlawfully threatened to close the school if the Union was selected as bargaining representative; threatened the leading employee union adherent that he would be hurting his chances for advancement if he persisted in his union activities; and interrogated the same union adherent by asking what he would expect to obtain from the outside organization. Such unfair labor practices, in the view of the Administra- tive'Law Judge, are so substantial as to preclude,the holding of a fair election and warrant issuance of a bargaining order. While we agree with the Administrative Law Judge that a bargaining order is warranted, we do so for the additional reason that, as alleged in the complaint, Respondents, on or about December 3, 1974, unlawfully refused, and have continued to refuse, to recognize and bargain collectively with the Union as the exclusive bargaining representative. As found by the Administrative Law Judge, the record shows that 8 out of 12 employees in an appropriate unit of lay faculty signed authorization cards prior to November 23, 1974, the date the Union sent a letter to Sister Mary Denis, the, principal of St. Leo's School, claiming majority status and requesting recognition. r N.L.RB. v Gissel Packing Co., Inc, 395 U.S. 575 (1969); Trading Port, Inc., 219 NLRB No. 76 (1975). Member Fanning would find that by such conduct Respondents violated Sec. 8(a)(5) and (1) of the Act notwithstand- 221 NLRB No. 136 Thereafter, on December 3, 1974, Sister Mary Denis declined recognition on grounds that the Union did not represent a majority. On December 4, 1974, and thereafter, Sister Mary Denis engaged in conduct involving unlawful threats and interrogation as set forth above. Based on the foregoing, we find that Respondents, by refusing to recognize and bargain with the Union on and after December 3, 1974, and by embarking instead upon a course of unfair labor practices designed to destroy the Union's majority status and preclude the holding of a fair election, violated Section 8(a)(1) of the Act, as alleged in the complaint.' Based on the foregoing and the entire record herein, we make the following: ADDITIONAL CONCLUSION OF LAW Conclusions of Law 5 and 6 in the attached Administrative Law Judge's Decision are renum- bered 6 and 7, respectively, and the following Conclusion of Law 5 is added: - "5. Respondents engaged in unfair labor prac- tices in violation of Section 8(a)(1) of the Act by refusing on or about December 3, 1974, and at all times thereafter, to recognize and bargain with the Union in the above-described unit." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge, as modified below, and hereby orders that the Respon- dents, Roman Catholic Diocese of Brooklyn and St. Leo's Parish, as Joint Operators of St. Leo's School, Brooklyn, New York, their officers, agents, succes- sorsâ€ž and assigns , shall take the action set forth in the said recommended Order, as modified herein: 1. Renumber paragraph 1(c) as-1(d) and insert the following as paragraph 1(c): "(c) Failing and refusing to recognize and bargain collectively, upon request, with Lay Faculty, Associa- tion, Local 1261, American Federation of Teachers, AFL-CIO, as the exclusive representative of its employees in the appropriate unit described below. The appropriate bargaining unit is: All full-time and regular part-time permanent lay faculty employees of Respondents, employed at St. Leo's School, exclusive of teachers who are members of religious orders, office clericals, mg that the complaint alleged the refusal to bargain to be a violation of Sec. 8(a)(1). The violation is clear and the issue was litigated and can therefore be found. 832 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD maintenance employees, teachers' aides and all ROMAN CATHOLIC other employees and all supervisors defined in DIOCESE OF BROOKLYN Section 2(11) of the Act. AND ST. LEO'S PARISH, 2. Substitute the attached notice for that of the Administrative Law Judge. AS JOINT OPERATORS' OF ST. LEO'S SCHOOL DECISION APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten our employees that we will close St. Leo's School, or that they will lose opportunities for promotion, if they engage in activities on behalf of Lay Faculty Association, Local 1261, American Federation of Teachers, AFL-CIO. WE WILL NOT question our employees about their union activities or sympathies. WE WILL NOT fail and refuse to bargain collectively upon request, with the above-named Union, as the exclusive representative of our employees in the appropriate unit described below. The appropriate bargaining unit is: All full-time and regular part-time permanent lay faculty employees of Respondents, employed at St. Leo's School, exclusive of teachers who are members of religious orders, office clericals, maintenance employees, teachers' aides and all other' employees and all supervisors defined in Section 2(11) ofthe Act. WE WILL NOT in any other manner interfere with, restrain, orrcoerce employees in the'exercise of their rights to self-organization, to form labor organizations, to join or assist any labor organiza- tion, to bargain collectively through representa- tives of their own' choosing, to engage in concert- ed activities for the purposes of collective bar- gaining or other mutual aid or protection, or to refrain from engaging in any or all such -activities. WE WILL, upon request, recognize and bargain with the above-named Union as the exclusive collective-bargaining representative of the em- ployees in the aforesaid appropriate unit, respect- ing rates of pay, wages, hours, and other terms and conditions of employment, and, if an under- standing is reached, embody such understanding in a signed agreement. STATEMENT OF THE CASE JOHN P. VON ROHR, Administrative Law Judge: Upon a charge filed on December 4, 1974, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 29 (Brooklyn, New York), issued a complaint on March 28, 1975, against Roman Catholic Diocese of Brooklyn and St. Leo's Parish as joint operators of St. Leo's School, herein called the Respondents, alleging that they had engaged in certain unfair labor practices within the meaning of Section 8(a)(1) of the National Labor Relations Act, as amended, herein called the Act. The Respondents filed answers denying the allegations of unlawful conduct alleged in the complaint. Pursuant to notice, a hearing was held in Brooklyn, New York, on May 14, 15, and 16. Briefs were' received from the General Counsel and the Respondents on June 23, 1975, and they have been carefully considered. Upon the entire record in this case, and from my observation of the witnesses, I hereby make the following: FINDINGS OF FACT 1. JURISDICTION Respondents contest the jurisdiction of the Board. Inasmuch as Respondent St. Leo's Parish itself does not meet the Board's jurisdictional standards, largely for, the purpose of asserting jurisdiction it is the contention of the General Counsel, and the complaint alleges, that Respon- dents' Catholic Diocese of Brooklyn and St. Leo's Parish jointly operate andmaintain St. Leo's School and that they constitute a joint-employer of the lay faculty employees at said school. Respondents deny that there is a joint- employer relationship. However, the parties stipulated that during the year preceding the hearing, Respondent Diocese had gross` revenues from tuition fees and other sources in excess of $1,000,000 and that during the same period it received various supplies directly from points outside the- State of New York valued in excess of $50,000. (Respondent Diocese is a New York corporation with its facilities located in Brooklyn, New York.) St. Leo's School of St. Leo's Parish is one of 185-190 parish-operated primary schools in' the Diocese of Brook- lyn. Brother Medard Shea, employed by the diocese as assistant superintendent of schools for teacher personnel in the Catholic Schools' office, testified that the parishes are a unit of the diocese and that the number and geographic boundaries of the parishes are determined by the diocese proper. The administrative head of each parish is a pastor, also called a rector, who is appointed by a, diocese personnel board. He must also be approved by, and is responsible to, the bishop of the diocese. The assignment of ROMAN CATHOLIC DIOCESE OF BROOKLYN assistant pastor and other priests are also made through the diocese personnel board. The appointment of the majority of the parish-operated primary school principals are made by the religious order affiliated with the school, in this case the Gray Nuns of the Sacred Heart. However, Brother Shea testified that in the few instances where there are lay principals, the school's office "builds a file on them and makes their names available to the Pastor." The Catholic Schools' office recruits applications of prospective teachers and.maintains them in its files. When vacancies occur or positions become available, the Schools' office sends four or five referrals to the schools for interviews and the school will select the teacher on the basis of such referrals. Although on occasion a school may hire a: teacher on the basis of one teacher knowing and referring another, Brother Shea testified that "the vast majority are hired through the Schools' office lust on the fact we have them." i When teachers are hired they sign a contract of employment (set forth in a diocese personnel handbook, described below) which is headed "Catholic Diocese of Brooklyn" providing, inter alia, that they be paid according to the diocesean salary schedule and that they agree "to observe and enforce the rules prescribed by the Pastor and Principal -and the regulations of the Brooklyn Diocesean Schools Office ..." The salaries and fringe benefits costs at St. Leo's School are paid by St.'Leo's Parish. However, in this connection it is noteworthy that although St. Leo's Parish is fully self- supporting, other parishes within the Brooklyn diocese are not financially self-supporting and are provided with direct financial aid by the diocese. All parishes are "taxed" by the diocese on,the basis of a certain percentage of their total income. The Diocese Catholic Schools' office prepares a person- nel handbook for elementary schools which it distributes to each school, with a copy for all lay and religious staff members. This booklet sets forth terms and conditions of employment and salaries for the parish school' teachers. Included therein are the terms and conditions pertaining to such subjects as hiring procedures, fringe benefits, sick leave, maternity leave, leaves of absence,, retirement, performance evaluation, job stability, professional growth, renewal and termination of employment (with appeal procedure to an appeal board for termination or suspen- sion), credit for teaching experience, school staff categor- ies, and the like. While Brother Shea testified that the handbook procedures are in the nature of recommenda- tions rather than binding, it appears from the record that the procedures, terms and conditions of employment, and salary schedules as set forth in the handbook are generally followed by the parish schools, it being the exception rather then the rule that they are not .2 ? He also testified that the Schools' office is notified in those instances when the individual schools lure a teacher directly. In this connection, two teachers initially hired by St. Leo's testified that they were required to be interviewed at the diocesean office in Brooklyn prior to starting as teachers. 2 For example, Brother Shea testified that some parish elementary 833 Insofar as fringe benefits are concerned, the school teachers are covered by a group medical insurance and life insurance plan undertaken between the Equitable Life Insurance Society of the United States and the Roman Catholic Diocese of Brooklyn, New York. Other miscella- neous areas of collaboration between the diocese and the parish schools including St. Leo's, are the following: The diocese prepares and distributes elementary school calen- dars setting forth official and religious holidays; although job evaluations are conducted at the parish school level, copies of the evaluations are submitted to the Diocese Schools' office where they are retained in the teacher's personnel files; s textbooks selected by the teachers are taken up with the Diocese Schools' office for approval prior to being ordered; and the financial data of the individual parish schools are included in the diocesean financial report, which is published and publicly circulated by the diocese. From all the foregoing it is clear that the Roman Catholic Diocese of Brooklyn maintains a significant degree of control over the schools, including the terms and conditions of employment of the teachers, and that it represents itself, with the parish schools,, including Respon- dent St. Leo's, as an integrated enterprise. Accordingly, I find that Respondents satisfy the Board's standards for the purposes of asserting jurisdiction. The Board has so held in a substantially similar situation. Roman Catholic Archdio- cese of Baltimore, Archdiocesean High Schools, 216 NLRB No. 54. See also Henry M. Hald High School Association and Roman Catholic Diocese of Brooklyn, 216 NLRB No. 94; Henry M. Hald High School Association, Roman Catholic Diocese of Brooklyn and the Sisters of Saint Joseph, 216 NLRB No. 93; and Henry M. Hald High School Association and the Sisters of Saint Joseph, 213 NLRB No. 15. I find,that Respondents are joint-employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Lay Faculty Association , Local 1261 , American Federa- tion of Teachers , AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Organizational Activities Appropriate Unit; Majority Status The Union commenced an organizational campaign among the employees beginning in about late October or early November 1974. These organizational-activities were conducted among the employees in the following unit, schools do not pay as high as the scales in the handbook because of lack of financial resources. 3 This procedure is followed by St . Leo's School , according to the unrefuted testimony of teacher Dennis Farrell 834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which the complaint alleges, and I find, to be an appropriate bargaining unit: 4 All full=tune and regular part-time lay faculty employ- ees employed at St., Leo's- School exclusive of teachers who are members of religious orders, office clericals, maintenance employees, teachers' aides and all other employees and supervisors as defined in.the Act. The record reflects, without dispute, that V out of 12 employees :signed, union, authorization cards prior to November 23, 1974. By letter of that date, the Union sent a letter to, Sister Mary Denis, the principal of St. Leo's School, claiming majority and" requesting recognition. By letter dated December 3, 1974, the Sister advised the Union that she believed that the Union did not represent a majority and that therefore recognition was declined. B. Interference, Restraint, and Coercion It is undisputed that Dennis Farrell, employed as a` teacher at St. Leo's School for 7 'years, was the leading union adherent and' was responsible 'for the organizing activities." He in fact bears the title of union 'delegate. Farrell sought to organize the employees in 1973, but after holding a 'meeting with a group of teachers at that time decided to abandon the campaign because of insufficient support. However, during the period between 1973 , and 1974, he "periodically received literature at the school from the Union. Due to the -mail distribution system at the school, it is undisputed that Sister Mary Denis was aware of his interest in the Union. ` Sister Denis received the Union's letter ofNovember 23, 1974, requesting recognition, on November 27, 1974: This was the first she learned of the then current union activity. On December 2, 1974, an incident occurred wherein she ascertained that several of the teachers had become upset because of the union activities due to the fact that they had not been apprised that such activities were taking place.5 In any event, Sister Denis called Farrell into her office after school on December 4, 1974. Present also was Kathleen Dietsche, the assistant principal,6 whom Sister Denis testified she asked to be present as a witness to the conversation. Sister Denis concededly knew that Farrell was the union delegate and testified that she called him in at this time because she wanted to tell him "what my stand on [the Union] was, what my thoughts were regarding the [recognition] letter and regarding an outside organization coming into the school ..." Certain aspects of the above meeting, during which Sister Denis did most of the talking, are not in dispute. Thus, she began by telling Farrell that she was aware that some of the teachers had gotten together and were interested in having an "outside organization" come into the school, but that she believed that this would be detrimental to the school, devisive of the faculty, and that she would do 4 Although Respondents' answer denies the appropriateness ofthe unit, they have apparently abandoned this position since they advanced no argument in their brief as to why the above unit is not appropriate; and, although Respondents' counsel did state at the hearing that members of religious orders should be included, the Board has found that members of religious orders may be excluded from the unit. Roman Catholic Archdiocese of Baltimore, Archdiocesean High Schools, supra everything within the law to prevent the outside organiza- tion from coming into the school. She then went on to explain in some detail the various -benefits which the teachers were currently receiving, including salary raises they had received in the past, adding that she "couldn't understand anything that an outside organization could give that they already didn't have." She also stated that there- were no other elementary schools in the diocese that were represented by an outside organization, to which Farrell responded that this was not true of some high schools. She further stated that "when a group calls in an outside organization individuals will have somebody to speak for them and they do lose their individual rights because they have somebody speaking for them." 7 There is a dispute in the testimony, which I turn to now, as to whether any coercive statements were made during the conversation. Thus, Farrell testified that during their conversation Sister Denis further stated as follows: I am not quoting verbatim, but, she said something like what do you expect to get from, this outside organization and I said that I wanted some job security and Sister said, there could be no job security because if the outside organization came into the school, the school would close and I said, "I wanted a tenure system" and she went on to talk about dedication to the job and that we should be teaching for Christ and if I wanted more money I should go, elsewhere. ' Farrell further testified that during the conversation she also stated that "several high schools had closed since - I think the number was four, four Diocesean' high schools had closed since 'the Union was put into the high schools." On direct examination Sister Denis testified that during this meeting "I mentioned that there could be no job security if the schools weren't open and' operating. There would be job security only if they were open and operating. I said that an outside organization would not guarantee that they would have this job 'security." In response to questioning by counsel on direct examination, Sister Denis denied making any reference about the school closing if the Union came in or that she made any statement to the effect that the school would close if the Union made unreasona- ble,demands or demands of any kind. However, inconsis- tently with the foregoing, the following is her testimony on cross-examination. Mr. ; Farrell mentioned a few things, and he came out, with - he didn't say much during the whole thing, but he came out with three things, I believe. One was money, and I said something to the effect that if there were too.many demands from an outside organization upon the school, and the school couldn't meet these demands, that possibly the school would have to close. Schools, I think. 5 The details of this incident are not of particular significance and need not be related herem 6 Although bearing this title, the parties stipulated that Dietsche is-not a supervisor within the meaning of the Act. She is chiefly engaged as a teacher. T The quotation is from Sister Denis' testimony. ROMAN CATHOLIC DIOCESE OF BROOKLYN As will be indicated below, there was at least another significant aspect of Sister Denis' testimony which is patently demonstrative of her mistaken recollection as to her statements to Farrell and later statements to the other teachers. Farrell impressed me as an intelligent and reliable witness. From my observation, I do not believe his testimony to have been fabricated. Accordingly, I credit his testimony as previously quoted above.8 I also credit Farrell's testimony that during'the meeting Sister Denis advised him that he had excellent potential for leadership but that he was moving in the wrong direction and was "hurting his chances." On the following day, December 4, 1974, Sister Denis addressed an assembly of all the teachers at a regularly scheduled faculty meeting. After first discussing routine school matters, she turned to the subject of the Union stating much as she had stated to Farrell on the preceding day. She began by stating that it had come to her attention that the lay faculty was attempting to bring in an outside organization and that she would do anything with her power to stop it because it would be "detrimental to the school" and devisive of the faculty."9 There is a conflict in the testimony as to whether Sister Dems said anything about the school closing in the event of unionization. Dennis Farrell and Annette Di Rocco, the latter a seventh grade teacher, whose testimony was substantially corrobo- rative, testified that at this meeting Sister Denis stated that if job security was what the teachers wanted, if the outside organization was brought into the school, the school would not be able to meet the demands of the outside organiza- tion and the school would close. Teacher Diane Mayo testified that she recalled a statement being made by the Sister to the effect that "if we took part in union activities the school would close." Katherine Soldt, a teacher and a witness for the Respondents, testified that she did not hear anything about closing St. Leo's, but that Sister Denis did state , "If it is job security you want there is only one thing that is important, you cannot have job security unless the schools are open." Teacher Jeanne Van Valen, also Respondents' witness, testified that Sister Denis stated, in the context of discussing job security, that the teachers would only have a job if the schools were open. Sister Denis testified that when she brought up the subject of job security, she made a statement to -the effect that 'jobs are only secure when the schools are open and operating, that an outside organization could not promise job security. ... " However, indicative of a hesitant or faulty recollec- tion on the subject is her following testimony on the cross- examination: Q. I believe you stated that you did not mention, for example, the school closing? A. No, I did not. Q. You didn't use the word closing? A. Not at that meeting. Q. Okay. And I believe you also said that you didn't use the expression last one hired, first one fired? 8 Kathleen Dietsche, who was present, also testified concerning this meeting . Dietsche was not asked on direct examination if Sister Dems said anything about closing the school. When so queried on cross-examination 835 A. No, I did not. In the context of the closing, they might have gotten - in the context of closing I did not mention closing. What might have been taken up was there were - I said something to the effect there had been 9 Diocesean high schools, now there are only 5, but that was in the context of job security. Upon consideration of all the testimony concerning the subject of school closing, and from my observation of the witnesses, I credit the testimony of Farrell and Di Rocco as above set forth. Five teacher witnesses (Farrell, Metos, Mugno, Gatto, and Di Rocco) testified that during the meeting Sister Denis, addressing her remarks to three new teachers, stated that if an outside organization was brought into the school, the last teacher hired would be the first to be fired. Not only did Sister Denis deny making any such statement on direct examination, but as seen in the quoted testimony above, this denial was repeated during the first part of cross-examination. Later, however, it was brought out that in her pretrial affidavit, Sister Denis stated as follows: "When I was talking about job security, I mentioned it was an outside organization's policy that the last to be hired would be the first to let go." In view of the foregoing, plus the testimony of five witnesses, there can be little doubt, and I find, that the statement in question was made. As to other statements made during the December 4 faculty meeting, Sister Denis testified that her address to the teachers at this time was of substantially the same content as her conversation with Farrell on the preceding day. B. Additional Facts; Conclusions The complaint alleges that Respondent St. Leo's School violated Section 8(a)(1) of the Act by creating the impression among its employees that it was keeping them under surveillance. In support of this allegation the General Counsel relies on Farrell's testimony, which I credit, to the effect that in June 1974, during an evaluation conference with Sister Denis, she stated that she was aware that there had been a meeting of teachers that concerned itself with bringing in an outside organization and further, that she was aware that he had received mail from the Lay Faculty Association because she had put it in his mailbox. With reference to the holding of a meeting, it appears that the only organizational meeting at this point was one which had been held during an organizational effort the preceding year. As to the receipt of mail, it is undisputed that mail delivered to the school, where Farrell received some union literature, was received and informally distributed in a bank of open mailboxes for the individual teachers. In fact, Farrell personally placed the Union's letter requesting recognition in Sister Denis' open mailbox. Under the circumstances, it could hardly come as a surprise to Farrell that others at the school, including Sister Denis, were aware that he had been receiving mail from the Union. The fact that she so apprised him does not, in my opinion, warrant a finding that Respondent thereby Dietsche merely testified, "Sister referred, I believe, to high schools, to Diocesean high schools that had been open, and some had closed." 9 The quotations above are from the testimony of Sister Dents. 836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unlawfully created an impression of surveillance. I would reach" the same conclusion as to a remark, which Sister Denis conceded making during the December 4, 1974, meeting to the effect that she felt hurt because she had learned the outside activities had been conducted in secret. In this connection, it appears that a day or two before the meeting the Sister was voluntarily apprised by Katherine Soldt, a teacher, that the organizational activities had not been conducted openly among all the teachers. Under the circumstances, I find no merit to the General Counsel's contention that the foregoing remark was violative of Section 8(a)(1) of the Act under the theory -that it created the impression of unlawful surveillance. The General Counsel also contends that Sister Denis' remark to the teachers that under union policy "the last ones-hired would be the first ones fired" was in violation of Section 8(a)(1) of the Act. I do not agree; for although this may have been intended as a strong talking point against the Union, I hardly think the statement to be inherently coercive. Clearly violative of the Act, however, were the remarks which Sister Denis first made in her private discussion with Farrell and which she repeated during the all-teacher meeting on the following day about the school closing in the event the Union was selected as the employees' bargaining representative. However phrased, this was tantamount to a clear prediction that this in fact would occur in the event that the school became organized. Indeed, although the remarks at the all-teacher meeting included a reference to union demands, it is clear that at this point not only was there a complete absence of any union demands, but there is no showing that Respondent had any indication what the Union would demand if successful . In this connection in N.L.R.B. v. Gissel Packing Company, 395 S.S. 575, and the related Sinclair case, 395 U.S. 571, stated as follows: 10 Thus, an employer is free to communicate to his employees any of his general views about unionism or any of his specific views about a particular union, so long as the communications do not contain a "threat of reprisal or force or promise of benefit." He may even make a prediction as to the precise effect he believes unionization will have on his company. In such a case, however, the prediction must be carefully phrased on the basis of objective fact to convey an employer's belief as to demonstrably probable consequences beyond his control or to convey a management decision already arrived at to close the plant in case of unionization. See Textile Workers v. Darlington Mfg. Co., 380 U.S. 263, 274, n. 20 (1965). If there is any implication that an employer may or may not take action solely on his own initiative for reasons unrelated to economic necessities and known only to him, the statement is no longer a reasonable prediction based on available facts but a threat of retaliation based on misrepresentation and coercion, and as such without the protection of the First Amendment. We therefore 10 See also Blaser Tool & Mold Company, Inc, 196 NLRB 374 (1972) 11 Steel-Fab, Inc, 212 NLRB 363 (1974), wherein the Board held that in a Gissel type case it was unnecessary to predicate a bargaining order on an 8(a)(5) violation . In issuing a bargaining order to remedy an employer's violations of Sec. 8 (a)(1) which were found to have dissapated a union's agree with the court below that "[c]onveyance of the employer's belief, even though sincere, that unioniza- tion will or may result in the closing of the plant is not a statement of fact unless, which is most improbable, the eventuality of closing is capable of proof." 397 F.2d 157, 160. As stated elsewhere, an employer is free only to Jell "what he reasonably believes will be likely economic consequences of unionization that are out- side his control," and not "threats of economic reprisal to be taken solely on his own volition." N.L.R.B. v. River Togs, Inc., 382 F.2d 198, 202 (C.A. 2d Cir. 1967). ... that the Board has often found that employ- ees, who are particularly sensitive to rumors of plant closings, take such hints as coercive threats rather than honest forecasts. I further find violative of Section 8(a)(1) Sister Denis' statement to Farrell that although he had excellent potential for leadership, he was moving in the wrong direction and thus was "hurting his chances." It hardly need be said that the statement contained a clear threat to this employee that he would hurt, his chances for advancement if he persisted in his union activities. Finally, and as has been previously noted, during the same conversation Sister Denis asked Farrell what he would expect to obtain from the outside organization. In the context of the entire conversation, I find this to constitute unlawful interrogation and to be further violative of Section 8(a)(1) of the Act. C. The Bargaining Order The General Counsel asserts that the unfair labor practices, as found herein, are so substantial as to make a fair election impossible. Accordingly, he urges that a Steel- Fab bargaining order is warranted:" In view of substantial Board precedent on the matter, I must agree. The serious threat made to all the teachers that the school would be closed in' the event the Union was selected as the bargaining agent has been held to be "of such gravity as to render a reliable' election unlikely, even if the Employer were to discontinue his unlawful conduct." General Stencils, Inc., 195 NLRB 1109 (1972).12 Iri addition, and of an equally serious nature, was Respondents' threat to the leading union adherent that he would be hurting his chances for advancement if he persisted in his union activities. Clearly, both threats fall within the second category defined in the Gissel case , supra, of "less extraordinary cases marked by less pervasive practices which still have the tendency to undermine majority strength and impede the election processes." In sum, I am persuaded and find that Respondents' unlawful conduct, as found herein, precludes the,holding of a fair election in which the employees can exercise their free choice and that therefore a bargaining order is warranted. majority and to have prevented a fair election, the Board found that it would serve no real purpose to additionally find a violation of Sec 8(a)(5) of the Act 12 See also Idaho Candy Company, 218 NLRB No 52 (1975) ROMAN CATHOLIC DIOCESE OF BROOKLYN 837 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above, occurring in connection with the operation of Respondents described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. union activities and interests, Respondents have engaged in, and are engaging in, unfair labor practices within the meaning of Section 8(a)(1) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the basis of the foregoing findings of fact, conclusions of law, and upon the entire record in this case and pursuant to Section 10(c) of the Act, I hereby recommend the following: V. THE REMEDY Having found that Respondents have engaged in certain unfair labor practices, I shall recommend that they be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It is further recommended that Respondents be ordered to recognize and bargain with the Union as the exclusive collective-bargaining representative of the employees in the above-described bargaining unit. In view of the seriousness of Respondents' violations of Section 8(a)(1) of the Act, which strike at the very heart of the Act and constitute conduct from which a likelihood of recurrence of similar violations may be inferred, I shall recommend that Respondents be ordered to cease and desist from in any manner, interfering, restraining, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act.13 CONCLUSIONS OF LAW 1, The Respondents are a joint employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time permanent lay faculty employees of Respondents, employed at St. Leo's School exclusive of teachers who are members of religious orders, office clericals, maintenance employees, teachers' aides, and all other employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Lay Faculty Association, Local 1261, American Federation of Teachers, AFL-CIO, has been since Decem- ber 3, 1974, and is, the exclusive representative of all the employees in the above-described unit within the meaning of Section 9(a)of the Act.i4 5. By threatening employees that they will close St. Leo's School if the employees select the Union as their bargaining representative, by threatening employees that they will not be promoted if they continue their union activities, and by interrogating employees concerning their 13 N L R B v Entwistle Mfg Co, 120 F 2d 532 (C A 4,194 1), American Motors Corporation, 214 NLRB No 75 (1974) i4 With respect to the effective date of the bargaining order, as indicated above, see Trading Post, Inc, 219 NLRB No 76 (1975) 15 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions , and the recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations be adopted by the Board and become ORDER i5 The Respondents, Roman Catholic Diocese of Brooklyn and St. Leo's Parish as joint operators of St. Leo's School, their officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening employees that they will close St. Leo's School if they select the Union as their bargaining representative, and threatening employees that they will not be promoted if they continue to support the Union. (b) Interrogating employees concerning their union activities and sympathies. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act. (a) Upon request, recognize and bargain with Lay Faculty Association, Local 1261, American Federation of Teachers, AFL-CIO, as the exclusive representative of the employees in the following appropriate unit, and if an understanding is reached, embody such understanding in a signed agreement: All full-time and regular part-time permanent lay faculty employees of Respondents, employed at St. Leo's School exclusive of teachers who are members of religious orders, office clericals, maintenance employ- ees, teachers' aides and all other employees and all supervisors defined in Section 2(11) of the Act. (b) Post at St. Leo's School in Brooklyn, New York, copies of the attached notice marked "Appendix." 16 Copies of said notice, on forms provided by the Regional Director for Region 29, after being duly signed by Respondents' authorized representatives, shall be posted by them for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material. its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 16 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Notify the Regional Director for Region 29, in IT Is FURTHER ORDERED that the complaint be dismissed writing, within 20 days from the date of this Decision, what as to any allegations of unlawful conduct not specifically steps Respondents have taken to comply herewith. found herein.