Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Beth Jacob Schools of Philadelphia v. Pennsylvania Labor Relations Board and Irving W. Backman and John Haggerty, as Representatives of the Pennsylvania Labor Relations Board, No. 2193 June Term, 1972.
Francis A. Zulli, Assistant Attorney General, with him James F. Wildeman, Assistant Attorney General, and James L. Crawford, Assistant Attorney General, for appellant.
Patrick W. Kittredge, with him Herman Lazarus, James R. Redeker and Cohen, Shapiro, Polisher, Shiekman and Cohen, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Rogers.
The appellee, Beth Jacob Schools of Philadelphia, is a nonprofit corporation engaged in the education, both secular and religious, of Jewish children from kindergarten through high school. It conducts its program in synagogues. Forty-seven teachers, 25 secular and 22 religious (including seven rabbis), instruct the 390 students. Approximately one-half of the teaching time is spent on religious subjects, taught with particular emphasis on understanding and observance of Jewish law embodied in the book of Moses and the prophets, the Talmud and the codes of Jewish living. The school educates its students in conservative or orthodox doctrines,
and one of its purposes is the inspiring of vocations to the rabbinate among its students. The annual expenses are about $500,000, of which about $200,000 is derived from tuitions and the balance, except for about $50,000, is received from organized and individual charity. The $50,000 item mentioned is money received because the school participates in the school lunch program of the federal government.
Some of the appellee's instructors, calling themselves the Beth Jacob Teachers' Association, filed with the Pennsylvania Labor Relations Board a petition pursuant to the Public Employe Relations Act*fn1 for representation seeking an election and certification as the employe representative for the purposes of collective bargaining. The Board scheduled a hearing but Beth Jacob Schools instituted an action in equity seeking to restrain the Board from asserting any jurisdiction over it, its employes or the dispute between them. The court, preliminarily and, after trial permanently, enjoined the Board from exercising any jurisdiction in the premises. The court held that the Board had no power because the appellee school was not a public employer. The Pennsylvania Labor Relations Board has appealed.
Public employer is defined by the Public Employe Relations Act*fn2 as: ". . . [T]he Commonwealth of Pennsylvania, its political subdivisions including school districts and any officer, board, commission, agency, authority, or other instrumentality thereof and any nonprofit organization or institution and any charitable, religious, scientific, literary, recreational, health, educational or welfare institution receiving grants or appropriations from local, State or Federal governments
but shall not include employers covered or presently subject to coverage under the act of June 1, 1937 (P.L. 1168), as amended, known as the 'Pennsylvania Labor Relations Act,' the act of July 5, 1935, Public Law 198, 74th Congress, as amended, known as the 'National Labor Relations Act.'"
The Labor Relations Board states the question before us to be whether the court properly granted injunctive relief. It contends, of course, that it, not the court, should first decide whether there was power to act, subject to ...