College of Notre Dame

National Labor Relations Board - Board Decisions

Sep 26, 1979

245 N.L.R.B. 386 (N.L.R.B. 1979)

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