Trustee Of St. Joseph'S College

National Labor Relations Board - Board Decisions

Nov 5, 1986

282 N.L.R.B. 65 (N.L.R.B. 1986)

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-