Trustee Of St. Joseph'S College

ST. JOSEPH'S COLLEGE Trustee of St. Joseph's College and, The Faculty As- sociation of St. Joseph's College, Maine Teach- er's Association and National Education Asso- ciation. Case 1-RC-17262 5 November 1986 DECISION ON REVIEW AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 1 June 1981 the Acting Regional Director for Region 1 issued a Decision and Direction of Election in the above-entitled proceeding, ' attached hereto in relevant part, in which he asserted juris- diction over the College. Thereafter, in accordance with Section 102.67 of the National Labor Rela- tions Board Rules and Regulations, the 'Employer filed a timely request for review of the Acting Re- gional Director's decision, contending that the Acting Regional Director had erred in asserting ju- risdiction over the College. The Employer asserts that the Board lacks jurisdiction over the College because it is church-operated within the meaning of the Supreme Court's decision in NLRB. v. Catholic Bishop of Chicago." By mailgram dated 17 July 1981 the Board granted the Employer's request for review. Both the Employer and the Petitioner filed briefs on review. The National Labor Relations Board has delegat- ed its authority in this 'proceeding to a three- member panel. The Board has considered the entire record in this case and makes the following findings. 1. St. Joseph's College is a 4-year liberal arts col- lege in Standish, Maine.2 The College was founded by the Sisters of Mercy of Maine (the Order) in 1912. The Order provided the initial funds for the establishment of the College, and continues to maintain a financial interest in the College in the form of low-interest and interest-free loans. These loans have taken the form of cash advances for working capital and of deferred payment on a por- tion of the Sisters' salaries.3 When necessary, the 1 440 US 490.(1979). 2 The Employer annually receives gross revenues in excess of $1 nnl- lion and annually receives, at its Maine campus, goods and materials valued in excess of $10,000 from points located outside the State of Maine. The Employer also operates an external degree program out of a facility in Roanoke, Virginia, which is not at issue here. $ Under the deferred payment arrangement, the fair market value of the Sisters' services is computed . Forty percent of this salary figure is paid directly to the Order The fair market value of what is owed to the College for the Sisters' room and board is then subtracted from the re- mainder of the salary figure. The difference is recorded as a deferred li- ability of the College A debt of between $100,000 and $ 115,000 is in- curred annually from this arrangement. 65 annual payments on,these loans have been extended by the Order. The current indebtedness of the Col- lege to the Order is approximately $1,765,000. Ac- cording to the Bursar General of the Order and the president of the College, the College could not sur- vive without the financial support of the Order. The College is headed by'a seven-member board of trustees. The board of trustees has the final au- thority on matters pertaining to the College, al- though the day-to-day operation of the College is left to the board of governors. The College's constitution provides that the Mother General of the Sisters of Mercy and her duly selected councilors and their successors in office shall constitute the trustees of the Corpora- tion. The College's bylaws provide that, the Mother General of the Sisters of Mercy shall be the chair- man of the board of trustees, the Assistant General of the Sisters of Mercy shall be the vice chairman of the board of trustees, and the treasurer and the secretary of the board of trustees shall be Sisters of Mercy. There are no other provisions in the consti- tution and bylaws governing the appointment of trustees. The -Mother General testified without con- tradiction that the College's governing documents and procedure require that all of the trustees must be members of the Sisters of Mercy.4 At present, all seven trustees are Order members. Under the constitution, the board of trustees has the sole and final right to control and direct the in- vestment of all college funds, encumber' the corpo- rate assets by borrowing in excess of $450,000, al- ienate corporate real estate or buildings, approve any expansion plans, include on the board of gov- ernors, the faculty, or the administration o,r the College any member of the Sisters of Mercy "pro- fessionally and apostolically suited," and appoint and remove the College president and the members of the board of governors. The trustees own the assets of the College, and if the College' closes, the assets will revert to other, programs conducted under the auspices of, the Order. The Mother General testified that the Sisters of Mercy have 18 nuns ' "assigned" to the College in administrative or teaching positions. The dean of the college, the treasurer of the College, the direc- tor of development, the assistant dean of the col- lege, the executive secretary to the', president, the assistant to registrar, and one-half of the depart- ment chairmen are Sisters of Mercy. The dean of the College, the treasurer, and the director of de- velopment are the highest-ranking administrators 4 Based' on this uncontradicted testimony, we decline to accept the Acting Regional Director's mere assertion ,that the trustees are not re- quired to be members of the Order 282 NLRB No. 9 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD under the president. The dean evaluates faculty and approves courses and the director of development is responsible for media relations and fundraising. The treasurer is also the Bursar General of the Order, who testified that she has "overall supervi- sion of the finances of St. Joseph's College." The Mother General testified that one of the trustees has been appointed as her liaison to the president on his academic advisory committee and reports to the Mother General and the trustees anything she believes is of concern to the trustees. The trustees prepared a list of criteria for the screening committee, to follow in selecting the cur- rent president. The list required that the president be,a practicing Catholic, have a valid marriage, be pro Church, religion, and the Mission of St. Jo- seph's College, and to accept and support the ob- jectives of the "sponsoring body." ,According to the College's constitution, the board of governors must consist of between 24 and 36 members, no less than one-third of which must be members of the Order. At the time of the hear- ing, there were 34 persons on the board of gover- nors, ,11 of whom were members of the Order and 3 of whom were priests., The governors exercise all powers of the Corporation not reserved to the trustees. According to the bylaws, the governors must establish basic policies which are consistent with the Roman Catholic religion and the purposes of the College. The Bishop of Portland has one representative on the board of governors, whose responsibility is to insure that the College, in its teachings, does not contradict the teachings of the Catholic Church with respect to faith and morals. According to the chairman of the board of trustees, if the Bishop finds such a contradiction, he can take appropriate action, including asking for the discharge of the faculty member involved and/or making a determination as to which books shall be used by the College. There is no evidence, howev- er, that the Bishop has ever exercised this power. The 43 faculty members at the College include 10 Sisters and 1 priest. Although faculty members are not expected to teach religious dogma, since 1981 new faculty, have been required to sign a letter which states, in part, that the faculty member "considers it a part of his duty-to promote the ob- jectives and goals of the founders and, continuing sponsors of the College . . . the Sisters of Mercy of Maine." In its , faculty handbook, the College states that it subscribes to the 1940 Statement Con- cerning Academic Freedom as adopted by the Amer- ican Association of University Professors.5 Within that same section of the handbook, however, it states that the faculty is prohibited from knowingly attempting to "inculcate ideas contrary to the offi- cial position of the Pope with the Bishops in mat- ters of Faith and Morals." Although there is no evidence of any faculty discharges for any reason, the president of the College testified that faculty could and would be dismissed if their personal lives were not in harmony with the teachings of the Catholic Church or if they advocated ideas, in or out of the classroom, which were contrary to Catholic beliefs. The College advertises itself as "the Catholic College" of Maine, and 80 percent of the students are Roman Catholics. There are various religious objects, such as 'crucifixes, statues, and grottos which would tend to identify it as a Roman Catho- lic College. Mass is offered twice a day but attend- ance is voluntary. Each student who attends the College is required to take 6 semester hours (i.e., two courses) of religious studies. For the students who are Catholic, this requirement must be satis- fied by taking religion courses concerning Catholi- cism. According to the College catalogue, the school "aims primarily at the intellectual development of its students through the disciplines of the human- ities and the sciences." The manner in which each discipline at the College is taught is comparable to that at "secular" colleges. Both the chairman of the board of trustees and the College president testi- fied, however, that the College's mission is inextri- cably interwoven with the indisputably religious mission of the Order. 2. The Petitioner seeks to represent the full-time faculty employed at the College, excluding those persons who are members of a religious order. The Acting Regional Director, applying the Board's de- cisions in Barber-Scotia College 6 and College of Notre Dame,7 found that the Board was not pre- cluded from asserting jurisdiction over the Em- ployer because Catholic Bishop does not apply, to institutions of higher learning. He further found that the Board's assertion of jurisdiction herein was proper since the College is not church-operated within the meaning of Catholic Bishop and there- fore there exists no risk of entanglement between church and State. The Employer contends that the Board lacks ju- risdiction over the College because the school is operated by and financially dependent on the Order, that, it exists in part for a religious purpose, and that the nature of the College is likely to in- 5 The Statement Concerning Academic Freedom is neither set forth nor 6 245 NLRB 406 (1979). described in the record. 7 245 NLRB 386 (1979). ST. JOSEPH'S COLLEGE volve impermissible Board inquiries into religious and political beliefs. Each of these characteristics, the Employer argues, brings the College within the description of "church-operated" schools as de- fined in Catholic Bishop. The Employer urges that in light of the facts in the present case, the Board should reevaluate its fording articulated in Barber- Scotia and College of Notre Dame that Catholic Bishop applies only to parochial elementary and secondary schools. The Petitioner maintains that the holding in Catholic Bishop does not preclude the assertion of jurisdiction here because the Supreme Court did not find that religiously affiliated colleges and uni- versities are excluded from the coverage of the Act. In the alternative, the Petitioner argues that even if Catholic Bishop were found to apply to in- stitutions of higher learning, the College is not suf- ficiently church-operated to warrant exclusion from the Act's coverage. For the reasons below, we find merit in the Employer's contentions. 3. At issue in Catholic Bishop was whether the Board had properly asserted jurisdiction over the lay faculty at two groups of Roman Catholic high schools. One group of schools was operated by the Catholic Bishop of Chicago and the other by Dio- cese of Fort Wayne-South Bend, Inc. All the schools offered essentially the same college prepar- atory curriculum as public secondary schools, but also required religious training. The Board asserted jurisdiction over the schools based on the fact that they were not "completely religious" institutions, but merely "religiously associated." The schools challenged the Board's assertion of jurisdiction on both statutory and constitutional grounds, arguing that as church-affiliated institutions, they did not fall within the Board's discretionary jurisdictional criteria and that the first amendment's freedom of religion clause precluded the assertion of jurisdic- tion. The Court recognized the potential first amendment problems that would be raised if the Board were to assert jurisdiction over a religious institution, but determined that the constitutional issues need not be addressed, since the Court found these schools to be "church-operated" and deter- mined that Congress never intended the Board to have jurisdiction over teachers in such church-op- erated schools. In Barber-Scotia College, the Board was present- ed with the issue of whether it was precluded from asserting jurisdiction over a 4-year liberal arts col- lege which had ties to the United Presbyterian Church.. The employer argued that since the col- lege w,as controlled by the church, it was church- operated within the meaning of Catholic Bishop and therefore outside of the Board's jurisdiction. The 67 Board, however, determined that it was not pre- cluded from asserting jurisdiction over the college because Catholic Bishop applied only to parochial elementary and secondary schools and did not apply to institutions of higher learning. The distinc- tion drawn by the Board between institutions of higher learning and secondary or primary schools was based on the Supreme Court's recognition in Tilton Y. Richardson8 that college students are less impressionable and less susceptible to religious in- doctrination than their younger counterparts, that the inherent discipline of college courses minimizes the possibility of religious influence, and that a high degree of academic freedom often exists at church-operated universities and colleges. Having determined that its assertion of jurisdic- tion over the college was not precluded by Catho- lic Bishop, the Board made a further finding that the College was not church-operated within the meaning of Catholic Bishop, and therefore did not raise the constitutional difficulties of entanglement between church and State envisioned by the, Court. In this regard, the Board specifically noted that, unlike parochial primary or secondary schools, the college was primarily concerned- with providing a secular education and ' not with inculcating a par- ticular set of religious values. Similarly, in College of Notre Dame, issued the same day as Barber-Scotia, the Board held that it had jurisdiction over a private, nonprofit college, because the college was not church-operated as contemplated by Catholic Bishop. The college was operated by an independent board of trustees, and neither the founding Order of Sisters nor the Catholic Church exercised any administrative, fi- nancial, or other secular control over the school. Thus, the Board concluded, the college was not ex- cluded' from the Board's jurisdiction, nor would the assertion of jurisdiction 'raise the constitutional issue of impermissible entanglement between reli- gion and government. Since the issuance of Barber-Scotia and College of Notre' Dame, the Board has continued to assert ju- risdiction over religiously affiliated colleges based in part on the conclusion that Catholic Bishop does not apply to colleges.9 After careful consideration, we are' now of the opinion that the Supreme Court's holding in Catholic Bishop is not limited to parochial elementary and secondary schools, but rather applies to all schools regardless of the level of education provided. There is no language in s 403 U.S. 672 (1971) See Thiel College, 261 NLRB 580 (1982); Lewis University, 265 NLRB 1239 (1982). The Board in those cases, as in Barber-Scotia, also held that the colleges were not church-operated within the meaning of Catholic Bishop. 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Catholic Bishop limiting the Court's holding to pa- rochial elementary and secondary schools. We cannot conclude based on generalizations about the difference between secondary and postsecondary education that Board jurisdiction over a postsec- ondary school can never pose the risk to first amendment freedom foreseen by the Court in Catholic Bishop. Rather, we find that we can more properly accommodate first amendment concerns by considering the application of Catholic Bishop to all educational institutions on a case-by-case basis. Accordingly, to the extent that Barber-Scotia and similar cases stand for the, proposition that Catholic Bishop does not apply to colleges and universities, they are overruled. The instant case illustrates the need for this more expansive reading of Catholic Bishop. St. Joseph's College exhibits many characteristics of a school which is truly church-operated within the meaning of Catholic Bishop. It is financially dependent on the Order, to the extent that if the Order withdrew its support, the College would close. The Order also exercises considerable administrative control over the College by virtue of the fact that all the members of the board of trustees must be members of the Order, and the leadership of the Order is mirrored in the leadership of the board, The Bishop of Portland also possesses a significant degree of control over the College, both by virtue of his representative on the board of governors, who is responsible for insuring that the College does not contradict the teachings of the Catholic Church, and in his ability to remove faculty mem- bers if their conduct is not in harmony with Catho- lic beliefs or to determine what books are to be used in the classroom. The pervasiveness of the Order's influence on the teaching of the College, even as to subjects commonly viewed as secular, is also apparent in certain requirements imposed on the faculty. New faculty members are required to sign a letter of employment in which they agree that it is part of their duties "to promote the objec- tives and goals" of the Order (emphasis added). In addition, all faculty members are prohibited from knowingly inculcating ideas which are contrary to the position of the Catholic Church on matters of faith and morals. Based on these facts, we find that the Board's as- sertion of jurisdiction here "presents a significant risk that the First Amendment will be infringed." Catholic Bishop, 440 U.S. at 502. We particularly find that the College's requirement that faculty members conform to Catholic doctrine and agree on hire "to promote the,objectives and goals .. . of the Sisters of Mercy of Maine," not merely the objectives and goals of the College itself, would necessarily involve the Board in an "inquiry into the good faith of a position asserted by the clergy- administrators" in the resolution of common unfair labor practices involving discipine or discharge, a result clearly disapproved of by the Court in Catholic Bishop, 440 U.S. at 502. In the present case, resolution of an unfair labor practice charge filed by a teacher alleging discharge for union ac- tivity would require the Board to assess the good faith of a clergy administrator who insisted that the teacher was terminated for failing to promote a particular tenet of the Order or conform to Catho- lic teachings. In our view, in such a circumstance the "very process of inquiry" by the Board would present a substantial likelihood that rights guaran- teed by the religion clauses may be impinged. Catholic Bishop, supra, 440 U.S. at 502. Nothing in the NLRA requires us to assert jurisdiction in such case, Catholic, Bishop, 440 U. S. at 505, and we, in our discretion, decline to accept the risk of in- fringement that is thus apparent.I0 Accordingly, we shall dismiss the petition. ORDER The petition is dismissed. 10 We emphasize that we are not finding that Catholic Bishop will pre- clude the assertion of jurisdiction over every religiously affiliated college or university. We recognize, as we did in Barber-Scotia and subsequent cases, that significant differences exist between colleges and universities on the one hand, and secondary and primary schools on the other. These differences will be one of the factors which we consider when evaluating the pervasiveness of a school's religious orientation in this regard, the Board will consider, on a case-by-case basis, all aspects of a religious school's organization and function that may be relevant to "the inquiry whether the exercise of the Board's jurisdiction presents a significant risk that the First Amendment will be infringed." Catholic Bishop, 440 U.S at 502. In reaching our conclusion in this case we have carefully considered Universidad Central de Bayamon v. NLRB, 793 F.2d 383 (1st Cir. 1986) In this regard we note that the facts in Bayamon are not before us today and we make no comment therefore on the outcome of that case APPENDIX DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before a hearing officer of the National Labor Relations Board (hereinafter the Board). Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its authority in_ this proceeding to the undersigned. Upon the entire record in this proceeding, the under- signed finds: 1. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 2. The Employer contends that it is a religious institu- tion and thus not subject to the Board's jurisdiction. - The Employer operates a 4-year liberal arts college in Standish, Maine. The college was founded in 1912 by the ST. JOSEPH'S COLLEGE 69 Sisters of Mercy of Main (hereinafter the Order). The Order provided the initial funds for the establishment of the College. In addition to the operation of the College in Standish, the Employer, in conjunction wth a private profit making corporation (St. Joseph's Services, Inc.), operates an external degree program out of a facility lo- cated in Roanoke, Virginia.3 According to the College catalog, the external degree program ".. . is under the absolute control, jurisdiction and direction of the Aca- demic Dean of St. Joseph's College at the Maine campus." The Employer annually receives gross revenues in excess of $1,000,000 and annually receives, at its Maine campus, goods and materials valued in excess of $10,000 directly from points located outside the State of Maine. The Employer's organizational structure includes, at the top, a Board of Trustees. At present, there are seven trustees and all seven are members of the Order. The Employer's corporate By-laws require that the Mother General of the Order shall be the Chairman of ,the Board of Trustees. The By-laws also require that the Assistant General of the Order shall be the Vice Chairman of the Corporation and that sisters also fill the positions of Treasurer and Secretary-Clerk of the Corporation. While there was testimony at the hearing, and an assertion by the Employer in its brief, that all trustees ' were required to be members of the Order, no such requirement ap- pears in the Constitution or By-laws of the Corporation. The Employer concedes in its brief that the Employer is "formally distinct" from the Order. While the Employer asserts in its brief that the Employer "is actually a sub- division within the Order," the record contained no fac- tual basis for this assertion apart from what has been set forth above. According to the Constitution of the Corporation, "The functions, business and government of the Corpora- tion shall be directed by a Board of Governors ... " The Constitution, however, provides that the Trustees shall have the sole and final right to perform several functions including the right to control and direct the in- vestment of all funds, incumber the corporate assets by any borrowings in excess of $450,0004 alter or amend, or in any way change the purposes of the Corporation; ap- prove any expansion plans and appoint or remove the President and the members of the Board of Governors. In addition, the Constitution gives the Trustees the right to "generally include on the Board of Governors, the faculty or administration of the Corporation those mem- bers of the Congregation of the Sisters of Mercy of Port- land, Maine professionally and apostolically prepared for roles in those fields." With respect to the Trustees' actual involvement in the operation of the College, there was testimony that the Trustees made the decision not to recognize the Petition- er as the collective bargaining agent for the faculty, that the Trustees made the ultimate decision against parietals 3 There are approximately 20-25 faculty members located in Roanoke, but neither party contends that they should be included in the unit found appropriate herein 4 The effect of this restriction is that there can be no major construc- tion without trustee approval and-that the Trustees-have overruled the Board of Gov- ernors with respect to the granting of honorary degrees. Two of the seven Trustees are also faculty members and thus reside on campus and one of these Trustees also serves on the President's Academic Advisory Committee and acts as a liaison between the Chairman of the Board of Trustees and the President of the College. According to the Constitution, the Board of Gover- nors must consist of between-24 and 36 members, no less than one-third of which must be members of the Order. According to the present College catalog, there are 34 members of the Board of Governors including 111 who are also members of the Order. The catalog also reveals that three members of the Board of Governors are priests. The President of the College, who is a layman, is an ex officio member of the Board of Governors. There was testimony that from at least 1969 to 1979 there was always a lay majority on the Board of Governors. According to the Constitution, the Board of Gover- nors exercises all powers of the Corporation not reserved to the Trustees. The Board of Governors is thus respon- sible for the curriculum. The Board of Governors must, according to the By-laws, establish basic-policies which are consistent with the Roman Catholic religion and the purposes of the College. The President is directly re- sponsible to the Board of Governors.' The President ap- points all faculty members, sets their rank, fixes their sal- aries and, whenever necessary, orders their dismissal. The Dean of the College, who reports to the President, evaluates all faculty members, assigns teachers to classes and approves all course offerings. The Treasurer, who also reports to the President, is responsible for the prepa- ration of the budget. The Dean and the Treasurer are both members of the Order as are the Vice President, Director of Development, Registrar and other members of the administration. The Trustees own the assets of the College. If the Col- lege closed, all of the assets would be diverted to related charitable and educational programs conducted under the auspices of the Order. The College receives no operating funds from the Catholic Church other than donations made in connec- tion with the College's fund drive. Apart from loans, the College does not currently receive, any funds from the Order. The aforementioned loans have taken the form of direct cash advances as well as deferred sisters' salaries. Deferred sisters' salaries represent the fair market value of the services provided to the College by various sisters, minus, (a) 40% of the fair market value (which is paid directly to the Order), and (b) the fair market value of the room -and board 'provided by the College to these same sisters. The current indebtedness of the College to the Order is approximately $1,765,000. The Order has given the College extensions of time to pay, back certain of the out- standing loans. In addition, most of the aforementioned loans do not carry an interest charge and, with respect to the remainder, the interest is 3%. Approximately $708,000 of the total indebtedness is secured by a first and second mortgage. In the opinion of Bursar General of the Order and the President of the College, the Col- 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lege could not survive without the "financial support" of the Order. The College has received loans and grants from the federal government as well as grants from the State of Maine. In addition, the College participates in a variety of state and federal financial aid programs which provide either grants or loans to students and also participates in the federally sponsored Federal College Work Study Program. According to the President, a "large number" of students receive financial assistance through the afore- mentioned programs. The Maine campus is located within the Roman Catholic Diocese of Portland. The Bishop of Portland has one representative on the Board of Governors. The Bishop has the responsibility to insure that the College, in its teaching, does not contradict the teaching of the Catholic Church with respect to faith and morals. Ac- cording to the Chairman of the Board of Trustees, if the Bishop finds such a contradiction he can ask for the dis- charge of the faculty member involved and/or make a determination as to which books or manuals shall be used by the College. There was, however, no evidence that the Bishop has actually ever requested the discharge of a faculty member and the Chairman of the Board of Trustees testified that, in her experience, the Bishop has never mandated that a particular book be used on campus. In addition to the above, the Bishop, or his Auxiliary, preside at commencement. While the present chaplain was appointed by the Bishop, this has not always been the case. According to the College catalog, there are approxi- mately 43 faculty members at the Maine campus includ- ing ten sisters and one priest. In the external degree pro- gram there are approximately 31 faculty members includ- ing three priests. It would appear that faculty members are hired without regard to their religious preference. The mission of the College as expressed by the Board of Trustees is: ... to enable the students to develop their poten- tial for learning, to obtain through the liberal arts a full appreciation of their capacity to experience for themselves and to facilitate others to experience true happiness, and to ready themselves to work with their fellow man for truth,-justice, and peace. According to the College catalog, the College "aims pri- marily at the intellectual development of its students through the disciplines of the humanities and the sci- ences." There was no evidence that the College exists for the purpose of propagating the Roman Catholic Faith. At the Maine campus, the College offers bachelors de- grees in biology, English, French, history, sociology, mathematics, natural sciences, elementary education, business administration, accounting, management, and nursing. Minors are offered in all of the above areas and also from time to time in philosophy and Pyschology. Although courses are offered in Religious Studies, no major or minor is available in this discipline. Each student at the Maine campus must complete 128 semester hours. All students at the Maine campus are re- quired to take six semester hours (i.e. two courses) of Religious Studies. Catholic students are required to satis- fy their Religious Studies requirement by taking Catholic religion courses which were defined as ones that contain Roman Catholic content. Each discipline taught at the College is respected and taught according to the rules and expectations of that field. The Chairman of the Board of Trustees testified that she would expect the liberal arts education at the College to be comparable to the education given at "sec- ular" colleges. Faculty members at the Maine campus are not expect- ed to teach religious dogma. The extent to which the Roman Catholic viewpoint is introduced into the various courses depends on the individual faculty member in- volved. According to the Chairman of the Board of Trustees ". . . if the professor is aware of the Catholic teaching it would quite possibly be presented." While the College subscribes to the 1940 Statement Concerning Academic Freedom as adopted by the A.A.U.P., the faculty is prohibited from knowingly at- tempting to ". . . inculcate ideas contrary to the official position of the Pope with the Bishops in matters of Faith and Morals." The Administration and Faculty Handbook states that "inculcate" ". . . shall mean to impress upon the mind by insistent urging and frequent repetition." The external degree program offers a Bachelor of Sci- ence in Professional Arts. This program consists primari- ly of home study. The students are sent modules through the mail and communicate with the faculty by phone, through the mail and by the use of cassette tapes. There are no mandatory religion courses for students in the ex- ternal degree program. Some of the study modules for the students in the external degree program are prepared by faculty at the Maine campus. Students in the external degree program are required to attend one' three-week session on the Maine campus and a few of the regular full-time faculty at the Maine campus teach in this summer program. When members of the Maine faculty participate in the summer program or prepare modules, they do so voluntarily and pursuant to a contract which is separate and apart from the contract which covers their regular teaching duties. There are approximately 480 students on the Maine campus and about 3000 in the external degree program. All students are admitted without regard to their reli- gion. Approximately 80% of the students on the Maine campus are Catholic. Most of the students on the Maine campus are under 24, whereas 90% of the students in the external degree program are over 24 years of age. The Employer advertises itself as the "Catholic Col- lege" of Maine and there are various religious objects such as crucifixes, statues and grottos to saints, on the Maine campus which would tend to identify it as a Roman Catholic College. The College calendar, apart from Christmas and Easter, contains one Catholic holi- day. Masses are offered twice a day at the Maine campus but attendance by students is voluntary. In support of its claim that the Board does not have jurisdiction in the instant case, the Employer cites the recent decision of the Supreme Court in NLRB v. The ST. JOSEPH'S COLLEGE 71 Catholic Bishop of Chicago et al., 440, U.S. 490 ,(1979) The Board however, in asserting jurisdiction over a church-related college, has held that "... Catholic Bishop applies only to parochial elementary and secondary schools." Barber-Scotia College, Inc., 245 NLRB 406 (1979). - In College of Notre Dame, 245 NLRB 386 (1979), which was decided on the same day as Barber-Scotia, the Board asserted jurisdiction over another church-related college based on findings that it was not church-operated and that it existed for a secular purpose and not in order to propagate the Roman Catholic Faith. It is clear that the manner in which St. Joseph's Col- lege is operated is distinguishable from the manner in which parochial schools are operated. The fact that a primarily lay Board of Governors has substantial author- ity to direct the operation of the College and that a lay President is responsible for its day-to-day operation as well as the fact that operating funds are not primarily provided by the diocese or the Order lead me to con- clude that St. Joseph's College is not church-operated in the manner of parochial schools and thus that Catholic Bishop is clearly distinguishable. More important than the issue of whether St. Joseph's College is church-operated, is the fact that it exists for a secular and not a religious purpose.5 In Catholic Bishop the Supreme Court was concerned over the constitution- al issues inherent in the Board's assertion of jurisdiction over schools which existed for the purpose of propagat-, ing the Roman Catholic Faith. Despite its relationship to the Order and therefore the Roman Catholic Church, it is clear from the record that St. Joseph's College is not such a school. The fact that St. Joseph's College exists for a secular purpose, warrants the assertion of jurisdic- tion by the Board even if it were to be found that the College was church-operated. Thus, in The First Church of Christ, Scientist in Boston, Massachusetts, 194 NLRB 1006 (1972), the Board asserted jurisdiction over church- operated enterprises in view of the fact that the enter- prises (publishing and real estate) were commercial and not religious in nature. See also The First Congregational Church of Los Angeles, _189 NLRB 911 (1971) involving the operation of a cemetery.' The Employer contends that the Board's assertion of jurisdiction over the Employer would present significant questions arising out of the guarantees of the First Amendment religious freedom clauses. In this regard the Employer points to the concern expressed by the Su- preme Court in Catholic Bishop that the resolution of unfair labor practices by the Board would involve inquir- ies by the Board into religious policies and beliefs with a result that the Board would become entangled in the op- eration of the Church. In support of its position, the Em- ployer relied on evidence developed during the hearing that faculty members are subject to discipline for violat- ing their duty not to inculcate students with ideas con- trary to the official positions of the Church as well as 5 The fact that the mission of the College is co-extensive, to a certain degree, with the mission of the Order does not warrant a different con- clusion Harborcreek School for Boys, 249 NLRB 1226 (1980). evidence that, a faculty member might be disciplined for statements made outside the classroom which conflicted with the position of the Church. While there is a danger of some entanglement inherent in the Board's assertion of jurisdiction over the Employ- er, the danger would appear to be much less than in the case of parochial schools. Thus, in Catholic Bishcp the Supreme Court, quoting from their previous decision in Lemon v. Kurtzman, 403 U.S. 602 (1971), stated that, "The substantial religious character of these church-re- lated schools gives rise to entangling, church-state rela- tionships of the kind the Religion Clauses sought to avoid" Id. at 616. The secular purpose of St. Joseph's College clearly reduces the potential that the Board would become involved in inquiries into religious poli- cies and beliefs. Moreover the fact that laymen in the person of the President and the Board of Governors are responsible for the day-to-day operation of the College, reduces the potential for entanglement between the Board and the Church. The fact that some degree of en- tanglement may result from the Board's assertion of ju- risdiction is not sufficient grounds to deny that jurisdic- tion. Tilton v. Richardson, 403 U.S. 672 (1971). In view of the above, I find that the Board has juris- diction over the Employer, that the Employer is engaged in commerce within the meaning of the Act and that it will effectuate the purposes of the Act to assert jurisdic- tion herein. In view of my finding, the Employer's motion to dismiss the petition for lack of jurisdiction is hereby denied. 3. The labor organization involved claims to represent certain employees of the Employer. 4. A question affecting commerce exists concerning the representation of certain employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 5. The parties are in agreement and I find that a unit of: All full time faculty members, including department chairmen employed by the Employer at its Standish, Maine campus, but excluding full time administrators, part time faculty, summer school faculty, religious facul- ty, office clericals and guards is appropriate.6 Accord- ingly, I shall direct an election in this unit. There are approximately 27 employees in the unit found appropriate and, there is no history of collective bargaining with respect to any of these employees. The parties agreed, and I find that Professor Anne Go- lubisky, who was the faculty member on the Board of Governors at the time the Board of Governors made the decision not to recognize the Petitioner, and who still is on the Board of Governors shall not be eligible to vote in any election which is directed. 6 The parties stipulated and I find that the full time faculty at the Maine campus do not make final decisions nor final effective recommen- dations in the following areas: curriculum, teaching methods, grading policies, matriculation standards, admission policies, retention policies, graduation policies, size of the student body, tuition, location of the school, teaching loads, student absence policies, enrollment levels, faculty hiring, tenure, sabaticals, terminations and promotions Thus the Supreme Court's decision in NLRB v. Yeshiva University, 444 U.S 672 (1980), is not applicable to the instant case 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD With respect to the unit placement of members of the sufficient to make a determination as to whether they faculty who may in the future be elected to be faculty should remain in the bargaining unit on their election. members of the board of governors, the record was in-