Barber-Scotia College

National Labor Relations Board - Board Decisions

Sep 26, 1979

245 N.L.R.B. 406 (N.L.R.B. 1979)

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