College of Notre Dame

DECISIONS OF NATIONAL LABOR RELATIONS BOARD College of Notre Dame and Internationl Union of Op- erating Engineers, Stationary Local No. 39, AFL- CIO, Petitioner. Case 20-RC- 14787 September 26, 1979 DECISION ON REVIEW AND DIRECTION BY CHAIRMAN FANNING AND MEMBERS MURPHY AND TRUESDALE On May 25, 1979, the Regional Director for Region 20 issued a Decision and Direction of Election in the above-entitled proceeding in which she directed an election in a unit composed of service and mainte- nance employees, including maintenance, gardening, and housekeeping employees. The Regional Director rejected the Employer's contention that the Board was precluded from asserting jurisdiction over it by the recent Supreme Court decision in N.L.R.B. v. The Catholic Bishop of Chicago, et al., 440 U.S. 490 (1979). Thereafter, in accordance with Section 102.67 of the National Labor Relations Board Rules and Regula- tions, Series 8, as amended, the Employer filed a timely request for review of the Regional Director's decision on the grounds that she made improper fac- tual findings and drew incorrect legal conclusions re- garding the jurisdictional issue. The National Labor Relations Board, by tele- graphic order dated June 25, 1979, granted the re- quest for review.' Thereafter, Petitioner filed a brief on review. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the entire record in this proceeding with respect to the issues under review, including the brief on review, and finds that a ques- tion affecting commerce exists concerning the repre- sentation of certain employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act, and that it will effectuate the pur- poses of the Act to assert jurisdiction herein. The Employer is a private, nonprofit college in Bel- mont, California, which was established in 1851 by the Order of Sisters of Notre Dame de Namur,2 but is now operated by a board of trustees independent of the Order3 and of the Catholic Church. The Roman I We take administrative notice of the fact that an election was conducted in this proceeding on June 26. 1979, and that the ballots have been im- pounded pending our decision on review. 2 The Sisters of Notre Dame de Namur is an international religious teach- ing congregation. 3Although there is no requirement that a particular number of the trustees be members of the Order. 9 of the 15 current trustees are sisters of Notre Catholic Diocese of San Francisco, in which the col- lege is located, does not exercise administrative or other secular control over the institution.4 and it does not own any of the land on which the college is situ- ated or other property used by the school. Nor does the diocese contribute funds to be college. The arti- cles of incorporation do provide that, should the col- lege be dissolved, its assets will be distributed to the Order. Although there remain vestiges of a prior religious orientation throughout the school.5 the College ot Notre Dame is now an institution of higher learning open to the general public which receives direct Fed- eral grants and participates in Federal and state stu- dent scholarship and student loan programs. 6 The purpose of the college as set forth in the articles of incorporation is entirely secular: namely. to provide a liberal arts education to qualified students regardless of religious orientation, as would any other public or private nonsectarian college.7 There are no religious holidays listed on school calendar. Although mass is said daily in one of the college's three chapels, attend- ance is not required at any time. The curriculum of the school is nonsectarian. While degree candidates are required to take two semester-long religion classes over the length of a 4-year program' students can select which religion courses they wish to take from a wide variety of choices, including courses in Judaism and the Islamic faith. Study of the Catholic religion is not required. Decisions concerning hiring of both teaching and nonteaching personnel, as well as ad- mission of students, are made without regard to reli- gious preference.9 The Regional Director concluded that N.L.R.B. v. The Catholic Bishop of Chicago. supra, in which the Supreme Court decided that the Board did not have jurisdiction over certain high schools operated by the Roman Catholic Church, was not controlling in this proceeding. She reasoned that, since the College of Notre Dame is independently run by a board of trust- ees, and the diocese exercises no authority' or influ- ence over the board, the college cannot be said to be Dame. There is, however, a requirement that the president of the college, who is ex offrio a member of the board, belong to the Order. 4 However. the presence of the Order and its members in the diocese Is subject to the discretion of the Archbishop of San Francisco. who has au- thority over the nuns in matters of church doctrine. E.g., crucifixes hang in most classrooms. 6An elementary school. which operates as a separate corporation, is run by the college. Five nuns associated with the college are assigned to the elementary school. I The aim of the college as contained in the student handbook is "to assist the student to acquire a deeper understanding of Christianity in ts ('atholic interpretation, to live and experience it relevantly: and to provide knowledge of other Christian and non-Christian religions." But it is clear. as set forth herein, that the religiously oriented aspects of campus life are strictly op- tional. s The college requires courses in philosophy and foreign language as well 9 One-third of the faculty are members of' Cathollc Orders. 245 NLRB No. 44 386 COLLEGE OF NOTRE DAME church-operated within the meaning of Catholic Bishop. In addition, the Regional Director concluded that the reasoning of Catholic Bishop was limited to the narrow issue of bargaining units comprised of lay teachers in church-operated schools, while the unit here is confined to nonteaching employees. Relying on Catholic Bishop, the Employer contends that the Board lacks statutory jurisdiction in this case because the college is in fact controlled by the Sisters of Notre Dame. The Employer further argues that the Regional Director's assumption of jurisdiction over the college is inconsistent with the limitations im- posed by the first amendment. It also contends that the Regional Director's restriction of Catholic Bishop to cases involving units of lay teachers in parochial schools is erroneous. For the reasons given below, we conclude that the College of Notre Dame is not church-operated as contemplated by Catholic Bishop, and that the Board clearly has statutory jurisdiction over the Employer. Because the college is not church-operated, no "sig- nificant risk" of constitutionally impermissible entan- glement between church and state arises from our as- sertion of jurisdiction herein.' 0 and thus, contrary to the Employer, such assumption of jurisdiction does not run afoul of first amendment guarantees. It is not necessary to decide here whether, in a church-oper- ated school, the Board lacks jurisdiction entirely over such an employer, or only to the extent that the peti- tioned-for unit consists of lay teachers. In deciding that the College of Notre Dame is not church-operated, we rely on our recent decision in Diocese of Brooklyn. l In that case, the Board asserted jurisdiction over a secondary school in a context sub- stantially similar to that presented here. The school in Diocese of Brooklvn was an institution separate from the diocese and operated by an independent board of trustees, consisting of nine lay persons and three members of religious orders. The board formulated the curriculum, hired the faculty, established the fac- ulty and student handbooks, developed the school's personnel policies, and formulated its own budget, all without the participation of the diocese. No services were performed for the school by the diocese, and no reports regarding the school were made to the dio- cese. The school received no funds from the diocese. The parochial schools in Catholic Bishop, on the other hand, were operated and controlled directly by Ro- man Catholic dioceses. Thus, distinguishing Catholic Bishop, we found that the school in Diocese of Brook- lyn was not operated by the Catholic Church and 10 440 U.S. 490. Roman Catholic Diocese of Brooklyn, Henrs M. Hold Association. Bishop Ford Central Catholic High School. 243 NLRB 49 (1979). that, therefore, we were not precluded from asserting jurisdiction. The college in the instant case falls squarely within the principles announced in Diocese of Brooklvn, rather than Catholic Bishop. Because an independent board of trustees, not the diocese or the Order, con- trols the institution, and because there is no adminis- trative or financial connection at all between the dio- cese or the Order and the school, the College of Notre Dame is not church-operated within the meaning of Catholic Bishop. In addition to the above, the status of the Em- ployer as a college makes it fundamentally distinct from church-operated elementary and secondary schools from a jurisdictional point of view. Thus, in Tilton v. Richardson,'1 the Supreme Court decided that "[t]here are generally significant differences be- tween the religious aspects of church-related institu- tions of higher learning and parochial elementary and secondary schools."" The Court recognized that col- lege students are less impressionable and less suscep- tible to religious indoctrination, and stated that "[sJince religious indoctrination is not a substantial purpose or activity of these church-related colleges and universities, there is less likelihood than in pri- mary and secondary schools that religion will perme- ate the area of secular education."' 4 Consistent with this, the Court in Catholic Bishop, quoting from Lem- on v. Kurtzman. 15 emphasized that secondary paro- chial schools "involve substantial religious activity and purpose."' The Court also noted, quoting Mr. Justice Douglas' concurring opinion in Lemon, "the admitted and obvious fact that the raison d'etre of parochial schools is the propagation of religious faith.""7 The main function of the College of Notre Dame is to offer a liberal arts college education to students regardless of their religious perference. In sharp con- trast to the parochial schools involved in Catholic Bishop, there is no required instruction in the Catholic religion, and the curriculum is nonsectarian. Al- though masses are offered on campus, attendance is not required of any student. The college does not dis- criminate in the admission of students or in the hiring of faculty or other employees on religious or other grounds. We thus conclude that, unlike parochial ele- mentary and high schools, the operation of the Em- ployer does not involve "substantial religious activity and purpose." And it is certainly clear that its reason 2 403 U.S. 672 (1971). That case involved a determination of whether the administration of the Higher Education Facilities Act of 1963 fostered an excessive government entanglement with religion. [3 403 U.S. at 685. ' 403 U.S. at 687. '5403 U.S. 602. 616 1971) 6 440 U.S. 490. 7 Id 387 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for being is not the "propagation of religious faith." Accordingly, we shall assert jurisdiction over the Col- lege of Notre Dame. No party has requested review of the Regional Di- rector's unit determination; thus, we find the follow- ing unit appropriate for the purpose of collective bar- gaining within the meaning of Section 9(b) of the Act: All service and maintenance employees, includ- ing maintenance, gardening and housekeeping employees employed by the Employer at its Bel- mont, California, campus; excluding all other employees, guards and supervisors as defined in the Act. DIRECTION It is hereby directed that the Regional Director for Region 20 shall, pursuant to the Board's Rules and Regulations, Series 8, as amended, within 10 days from the date of this Decision on Review and Direc- tion. open and count the valid ballots cast in the elec- tion held on June 26, 1979, and prepare and cause to be served on the parties a tally of ballots in accord- ance with Section 102.69 of the Board's Rules and Regulations, Series 8, as amended, which shall there- after be applicable to the further processing of this matter. 188