Barber-Scotia College

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Barber-Scotia College, Inc. and Barber-Scotia Profes- sional Association/NEA, Petitioner. Case I-RC- 4674 September 26, 1979 DECISION AND DIRECTION OF ELECTION BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY Upon a petition filed on March 23, 1979, under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held on April 5, 12, and 18, 1979, before Hearing Officer Thomas A. Finger. Fol- lowing the hearing, and pursuant to Section 102.67 of the National Labor Relations Board Rules and Regu- lations, Series 8, as amended, the Regional Director for Region I I transferred this case to the Board for decision. Thereafter, the Petitioner filed a brief in support of its position. 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 reviewed the Hearing Officer's rul- ings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record, the Board finds: I. The Petitioner seeks to represent certain profes- sional employees of Barber-Scotia College, a 4-year, liberal arts, coeducational institution located in Con- cord, North Carolina. The Employer, a private, non- profit school, has historically been related to the United Presbyterian Church. It contends that Catho- lic Bishop of Chicago' precludes the Board from as- serting jurisdiction on the ground that the College is controlled by the United Presbyterian Church. In Catholic Bishop the Supreme Court held that the Act was not clearly intended "to bring teachers in church-operated schools within the jurisdiction of the Board .... 2 Although the case presented "difficult and sensitive questions arising out of the guarantees of the First Amendment Religion Clauses,"3 the Court declined to resolve those questions "in the ab- sence of a clear expression of Congress' intent" that parochial school teachers should be covered by the Act.4 We do not believe that Catholic Bishop prevents the Board from asserting jurisdiction herein because, in our judgment, Catholic Bishop applies only to paro- I N.L.R.B. v. Catholic Bishop of Chicago, 440 U.S. 490. 85 LC 11,163 (1979). 285 LC 11,163 at 20,583. Ibid 4 Ibid chial elementary and secondary schools. Further- more, we find that Barber-Scotia College is not a church-operated school within the meaning of the Catholic Bishop decision. Catholic Bishop involved private religiously ori- ented high schools, whereas the Employer is an insti- tution of higher education. In Tilton v. Richardson5 the Supreme Court articulated a fundamental distinc- tion between these two types of schools in determin- ing whether the administration of the Higher Educa- tion Facilities Act of 1963 fostered an excessive government entanglement with religion. The Court recognizied that "there are generally significant differ- ences between the religious aspects of church-related institutions of higher learning and parochial elemen- tary and secondary schools."6 This observation was based on the Court's findings that college students are less impressionable and less susceptible to religious indoctrination, that the internal discipline inherent in college courses minimizes the possibility of sectarian influence, and that a high degree of academic free- dom often exists at church-related colleges and uni- versities.7 The Court further stated that, "Since reli- gious indoctrination is not a substantial purpose or activity of these church-related colleges and universi- ties, there is less likelihood than in primary and sec- ondary schools that religion will permeate the area of secular education."8 The record shows that Barber-Scotia College closely resembles the institutions on which the Su- preme Court based its general distinction between church-related colleges and parochial schools. The College, a State-accredited school, is managed by a board of trustees which, according to the employees' policy handbook, "controls the corporation of the College, and is responsible for all of its functions." The Employer relies on the College's charter, consti- tution, and bylaws to support its contention that the College is controlled and operated by the Church. However, the record reveals numerous instances where the College is operated in a manner that does not conform to its charter and bylaws. For example, the College has not received any operating funds from the Church since June 1977, it holds title to sev- eral pieces of property in its own name, and it hires faculty and staff without seeking the Church's ap- proval. Since the evidence shows that the Church does not become actively involved in the internal af- fairs of the College, we find the Employer's argument unpersuasive. The record reflects that the major aim of Barber- Scotia College is to provide a secular education. The 5403 U.S. 672 (1971). 6 Id at 685. Id. at 686. 8 Id at 687. 245 N LR" No. 48 406 BARBER-SCOTIA COLLEGE College does not stress religion or Presbyterian princi- ples in its curriculum. Students are required to take one of the two religiously oriented courses that are offered, but both of these courses are surveys of var- ious religions and are not limited to the teaching of Presbyterian principles. The record does not indicate that religious doctrine affects the teaching of courses offered by the College for credit towards a degree. The College occasionally conducts religious obser- vances, but student attendance is not mandatory. De- cisions concerning the curriculum and course content are made by the College without the Church's in- volvement. We therefore find that Barber-Scotia College is not a "church-operated school." Rather, it is a college of the kind found by the Supreme Court to be primarily concerned with providing a secular education, rather than with inculcating particular religious values. Con- sequently, we are not confronted with the serious first amendment difficulties envisioned by the Supreme Court in Catholic Bishop and we reject the Employer's argument that the Board's assertion of jurisdiction would constitute an impermissible entanglement be- tween government and religion.9 The gross annual revenue of the College exceeds $1 million, and at least $50,000 of that amount was re- ceived from outside the State of North Carolina. Ac- cordingly, we find that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The Employer disputes the Petitioner's status as a labor organization within the meaning of the Act. It contends that the Petitioner is an alter ego of the Na- tional Education Association (NEA) which, accord- ing to the Employer, is barred by a U.S. district court order from organizing private sector employees until reports required by the Labor Management Report- ing and Disclosure Act are filed. Although the NEA provides the Petitioner with legal and technical assist- ance, the record fails to establish an alter ego relation- ship. The Petitioner was formed to represent employ- ees, it admits employees to membership, and, if certified, asserts it intends to bargain with the Em- ployer. We therefore find that the Petitioner is a labor organization within the meaning of the Act which claims to represent certain employees of the Em- ployer.' 0 3. A question affecting commerce exists concern- ing the representation of employees of the Employer within the meaning of Section 9(c)(l) and 2(6) and (7) of the Act. I See also College of Noire Dame, 245 NLRB No. 44, issued this date. "o See N. L. R.B. v. Cabot Carbon Company and Cabot Shops, Inc., 360 U.S. 203 (1959). 4. The Petitioner seeks to represent a unit consist- ing of all full-time teaching faculty, including center directors, and all full-time student personnel staff. The Employer contends that an overall campus unit, excluding part-time employees and supervisors, is ap- propriate. The Employer would exclude center direc- tors on the ground that they are supervisors. The College's curriculum is organized around an "academic center" concept. Each center offers courses and degrees and is headed by a center direc- tor. The Employer contends that the center directors direct the centers' instructional activities and evaluate teachers. The College's policy handbook states that the center directors "bear the major responsibility for the procurement and retention of the faculty." The record shows that center directors are appointed and generally receive a higher salary than other faculty members. However, the record is not clear whether the center directors' extra pay derives from their posi- tion or their greater experience and advanced de- grees. The center directors carry substantial teaching loads and are paid according to the faculty salary scale. In addition, they work an extra month during the school year performing administrative duties. The center directors are subject to the same personnel policies as the faculty, and receive the same fringe benefits and medical and life insurance. Contrary to the policy handbook, the center direc- tors do not play a major role in the College's hiring procedures. After an application is filed, the center director compiles a file containing information about the applicant. The faculty recruitment committee in- terviews the applicant and votes on the application. The center director's recommendation to the vice president for academic affairs reflects the consensus of the committee, not the director's personal opinion. The center directors are also charged with establish- ing course schedules, but do so only after consulting wiih the center's faculty. Center directors, like other faculty members, must submit any course proposals to a curriculum committee. Center directors do not prepare budgets and are not authorized to pledge the College's credit. The record fails to show that center directors disci- pline, reprimand, or discharge faculty members, nor do they effectively recommend such action. The evi- dence also fails to support the Employer's contention that center directors make effective recommendations concerning the retention and promotion of faculty members. The record shows that the primary respon- sibility of the center directors is teaching. Although they possess some formal authority in coordinating the centers' activities, they exercise that authority in conjunction with several committees and the center faculty. The testimony of one center director that he serves as "a conduit of information coming from my 407 DECISIONS OF NATIONAL LABOR RELATIONS BOARD supervisor, the Academic Vice-President, to members within the centers," best describes the function per- formed by the center directors. We therefore find that they are not supervisors within the meaning of the Act and shall, accordingly, include them in the unit. In addition to the full-time faculty, the Petitioner seeks to include the full-time student personnel ser- vices staff on the ground that they are professionals "engaged in supportive and interrelated activities closely associated with the educational process." The employee categories sought by the Petitioner consist of the head librarian, cataloger, librarian technician, coordinator of testing and learning skills, coordinator of international development, interim director of in- stitutional research, assistant director of student af- fairs, director of college union, directors of residence halls, counselors, and medical staff. The record shows that the head librarian has a master's degree and holds faculty rank. The record also suggests, however, that the head librarian super- vises the cataloger and library technician in that she sets their work schedule, assigns their duties, and re- views their performance. The evidence does not show that the cataloger and library technician are profes- sionals or that they perform functions closely related to teaching. It therefore appears that the head librar- ian supervises nonunit employees. Since the record does not reveal whether the head librarian spends more than 50 percent of her time supervising nonunit employees, we shall permit her to vote subject to challenge. " I See New York University, 205 NLRB 4 (1973). We shall include the coordinator of testing and learning skills, the coordinator of the international development program, and the interim director of in- stitutional research as the record shows that the indi- viduals holding these positions are full-time faculty members who fulfill primarily teaching responsibil- ities. We shall exclude the assistant director of stu- dent affairs, the director of the college student union, the directors of the residence halls, the counselors, and the medical staff because the record fails to estab- lish that they are professional employees within the meaning of Section 2(12) of the Act, that they per- form duties closely related to the typical faculty unit, or that they share a community of interest with the faculty. We find the following employees of the Employer constitute an appropriate unit for the purpose of col- lective bargaining with the meaning of Section 9(b) of the Act: All full-time teaching faculty, including center directors, the coordinator of testing and learning skills, the coordinator of the international devel- opment program, and the interim director of in- stitutional research employed by the Employer at Barber-Scotia College, Concord, North Caro- lina; excluding the nonprofessional staff, part- time teaching faculty, assistant director of stu- dent affairs, director of college union, directors of residence halls, medical personnel, counsel- lors, office clerical employees, guards, and super- visors as defined in the Act. [Direction of Election and Excelsior footnote omitted from publication.] 408