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April 13, 1976

REV. JOHN J. CAULFIELD, Pastor, St. Athanasius Church, et al., Plaintiffs
PETER W. HIRSCH, Regional Director For the Fourth Region, National Labor Relations Board, Defendant

The opinion of the court was delivered by: FOGEL

Plaintiffs, five pastors of parish parochial elementary schools within the Archdiocese of Philadelphia, have brought this action against Defendant, the Regional Director for the Fourth Region of the National Labor Relations Board [Board]; they seek a declaratory judgment which would hold that the National Labor Relations Act [NLRA] 29 U.S.C. § 151, et seq. is unconstitutional as applied to them; they also ask for injunctive relief from the assertion or attempted assertion of jurisdiction over Plaintiffs by Defendant, acting on behalf of the Board. They contend that the application of the NLRA to parish elementary schools will violate their rights (1) under the Establishment Clause and the Free Exercise Clause of the First Amendment; (2) under the Due Process Clause of the Fifth Amendment; and (3) under that head of the Ninth Amendment which has been held to guarantee the right to privacy. Jurisdiction is based upon 28 U.S.C. § 1331, since the action is alleged to arise under the Constitution of the United States and the amount in controversy exceeds $10,000, exclusive of interest and costs.

 A three judge court was convened pursuant to 28 U.S.C. §§ 2282, 2284, on the basis that this action was one in which Plaintiffs were seeking "an interlocutory or permanent injunction restraining the enforcement, operation or execution" of the NLRA for "repugnance to the Constitution". Presently before us is Defendant's motion to dismiss the Complaint which seeks the following relief: first : Dismissal of the Complaint on the ground that this Court lacks subject matter jurisdiction under the provisions of the NLRA; and second : dissolution of the three judge court because the Complaint does not attack an Act of Congress, but instead seeks review of discretionary administrative action under the NLRA. *fn1" Oral argument was heard on this motion on March 8, 1976. *fn2" After careful consideration of all of the issues raised by this motion, the briefs submitted by both sides, and the presentation by counsel at oral argument, we hold that the three judge court should be dissolved at this stage of the proceedings for the reasons set forth in this opinion.


 The uncontested facts of record, including those stipulated by the parties, may be summarized as follows:

 On January 13, 1976, the Association of Catholic Teachers, Local Union No. 1776, American Federation of Teachers, AFL-CIO [the Union] filed a representation petition, pursuant to § 9(c)(1)(A) of the NLRA, 29 U.S.C. § 159(c)(1)(A) with Defendant Peter Hirsch, the Regional Director of the Fourth Region of the Board, in which the Archdiocese of Philadelphia was designated as the employer and an election was sought in a suit comprised of "all lay teachers employed in the elementary schools of the Archdiocese of Philadelphia" (about 2000 employees). This representation proceeding was assigned as NLRB Case No. 4-RC-11987, and is titled "Archdiocese of Philadelphia." Regional Director Hirsch notified John Cardinal Krol, Archbishop of Philadelphia, of the representation petition by letter dated January 16, 1976. This letter also requested certain information relating to interstate commerce and the employer's position with respect to the petition.

 Following the initial investigation as per the provisions of Section 9(c) of the NLRA, 29 U.S.C. § 159(c), Regional Director Hirsch, on January 27, 1976, issued a Notice of Representation Hearing. February 23, 1976 was set as the date for commencement of that hearing. Plaintiffs then filed this complaint in which they allege that the Board's assertion, or attempted assertion of jurisdiction is unconstitutional; they sought the issuance of a temporary restraining order, and the convocation of a three judge court.

 While the Plaintiff Pastors were not named as employers in the representation petition filed by the Union, their Complaint avers that they are responsible for "all manner of employment decisions" in their respective schools, all of which are within the Archdiocese, and Plaintiffs further claim that they, the churches of which they are pastors, and the parish elementary schools which they sponsor and operate "are typical of the approximately 275 parish elementary schools sponsored and operated by parish churches throughout the Archdiocese of Philadelphia."

 The Board filed a motion to dismiss this action on January 31, 1976. On February 3, 1976, Judge Van Artsdalen, the single judge to whom the case had been assigned, denied Plaintiffs' motion for a TRO, after a hearing. By Order of February 6, 1976, he denied Defendant's motion to dismiss, and called for the convening of a three judge court pursuant to 28 U.S.C. §§ 2282, 2284. Judge Van Artsdalen also held in abeyance a motion filed by the Union to intervene as a party defendant.

 Regional Director Hirsch, on February 20, 1976, at the request of counsel, rescheduled the representation hearings for the Archdiocese for March 1, 1976. Hearings were in fact held on March 1, 3 and 4; these three days proved insufficient to complete the matter. Additional hearing dates were then set for March 16 and 17. On March 8, 1976, as noted, this court heard oral argument on the resubmitted motion of Defendant to dismiss the complaint, and as a result of that hearing the court held that all of the motions would be taken under advisement. Plaintiffs were permitted to go forward with their evidence before Judge VanArtsdalen, sitting for the three judge court, subject to the proviso that such proceedings were without prejudice to our consideration of the motions before this court. See note 2 supra. We specifically reserved the right to rule upon any or all of the motions after due consideration, at any time, irrespective of the stage to which those hearings had progressed. Hence, since our review of the materials submitted to us, and the controlling legal principles, as we perceive them, persuade us that dissolution of the three judge court is proper at this time, we have determined that the issuance of the Order accompanying this Opinion is appropriate.


 A. The Nature of Board Procedures under the NLRA.

 In claiming that the three judge court was improperly convened, Defendant places dispositive significance on the distinction between " discretionary " and " ministerial " or " perfunctory " administrative action under federal law. Injunctive relief sought on constitutional grounds against ministerial acts is considered an attack upon the statute itself, and a three judge court is required to hear this claim. *fn3" However, when the challenged administrative actions are of a discretionary nature, the Act itself is not challenged, and the matter is one which should be determined by a single judge. William Jameson & Co. v. Morgenthau, 307 U.S. 171, 83 L. Ed. 1189, 59 S. Ct. 804 (1939); Sardino v. Federal Reserve Bank of New York, 361 F.2d 106 (2d Cir. 1966); Smuck v. Hobson, 132 U.S. App. D.C. 372, 408 F.2d 175 (1969). As stated in Woodward v. Rogers, 344 F. Supp. 974 (D.D.C. 1972) aff'd. 159 U.S. App. D.C. 57, 486 F.2d 1317 (1973):

When a complaint seeks to enjoin on constitutional grounds administrative action which is merely a perfunctory execution of a specific legislative directive, that complaint actually mounts a challenge to the legislative directive. This challenge requires the convening of a three judge court pursuant to 28 U.S.C. § 2282. However, when the complaint attacks the administrative action which is permitted but not required by broad legislative policy and which resulted from the exercise of administrative judgment and initiative, ...

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