Universidad Cent. de Bayamon v. N.L.R.B., 85-1074
| Decision Date | 12 September 1985 |
| Docket Number | No. 85-1074,85-1074 |
| Citation | 793 F.2d 383 |
| Parties | 120 L.R.R.M. (BNA) 3457, 122 L.R.R.M. (BNA) 2582, 54 USLW 2367, 103 Lab.Cas. P 11,718, 104 Lab.Cas. P 11,848, 33 Ed. Law Rep. 46 UNIVERSIDAD CENTRAL de BAYAMON, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Union de Profesores Universitarios, Intervenor. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
Carole O'Blenes with whom Saul G. Kramer, Proskauer Rose Goetz & Mendelsohn, New York City, and Dominguez & Totti, Hato Rey, P.R., were on brief, for petitioner.
Barbara A. Atkin with whom Howard E. Perlstein, Washington, D.C., were on brief, for the N.L.R.B.
Before COFFIN, ALDRICH and TORRUELLA, Circuit Judges.
Universidad Central de Bayamon petitions for review of a National Labor Relations Board decision finding violations of the National Labor Relations Act and requiring the University to enter into collective bargaining with the union elected to represent full-time teachers at the University. The University contends that, because it is an institution under the control of a religious order, NLRB jurisdiction would produce excessive entanglement between government and religion in violation of the First Amendment's free exercise and establishment clauses. The Board cross-petitions for enforcement of the order, and
the Union de Profesores Universitarios, charging party before the Board, intervenes. For reasons stated below, we find that the Board properly asserted jurisdiction over the University and that such jurisdiction does not violate the First Amendment.
The Universidad Central de Bayamon is a private, nonprofit university governed by a Board of Trustees, the majority of whom must be and are members of the Dominican Order. The University describes itself as a "Catholic-oriented civil institution," which has as its objective "that of providing a humanistic education at an academic level." The University's full-time faculty includes approximately 49 lay teachers and 4 or 5 priests. There is no requirement that the lay faculty be of the Catholic faith, although most are Catholic. The University "welcomes students of all denominations and faiths".
On October 30, 1979, the Union de Profesores Universitarios (the "Union") filed a representation petition with the Board, seeking certification as the bargaining representative of all full-time teaching personnel at the University. The University opposed the petition, in part on the grounds that the Board's assertion of jurisdiction would constitute an impermissible entanglement between government and religion. The Board's Regional Director rejected the University's position, finding that the University's aim of providing a " 'humanistic education at an academic level' " was "entirely secular." The University's request for review of the Regional Director's decision was denied by the Board as raising "no substantial issues warranting review."
In a ballot election, the vote of the faculty was 41 to 9 in favor of representation by the Union and the Union was certified on February 7, 1980. Standing by its belief that the Board had improperly asserted jurisdiction, the University refused to bargain with the Union. In May and July of 1980, the University promulgated new requirements regarding faculty credentials without notifying or bargaining with the Union. Six professors were discharged in May and two professors were discharged in July for failing to meet the new requirements. Because of the University's refusal to bargain, the Union struck the University in September 1980, but returned to work unconditionally in November 1980. Fifteen striking employees were not reinstated by the University.
The Union brought unfair labor practices proceedings in 1980 and 1981, complaining of the University's refusal to bargain, its unilateral changes in employment conditions, and its failure to reinstate the strikers. Hearings were held before an administrative law judge in March 1982 and March 1983. The ALJ found the University had not adduced any new evidence concerning its religious character that would justify overturning the Regional Director's decision regarding the Board's jurisdiction and that no impermissible entanglement between government and religion would occur as the result of such jurisdiction. 1 In December 1984, a three member panel of the NLRB affirmed the ALJ's finding that jurisdiction over the University was proper because its "academic mission is secular". 2 The Board ordered the University to bargain collectively with the Union upon request, to rescind the unilateral changes upon request of the Union, and to offer those employees discharged or denied reinstatement
full and immediate reinstatement to their former positions.
The University contends that the Supreme Court decision in NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 99 S.Ct. 1313, 59 L.Ed.2d 533 (1979), requires us to find that the NLRB has no jurisdiction over a religiously affiliated institution such as the University. In Catholic Bishop, the Supreme Court held that the exercise of NLRB jurisdiction over lay teachers in two Roman Catholic parochial schools presented a "significant risk" of infringing the establishment clause of the First Amendment and therefore, absent an affirmative intention of Congress, the Court would not interpret the National Labor Relations Act as conferring such jurisdiction. 440 U.S. at 501-09, 99 S.Ct. at 1319-23. The University argues that allowing NLRB jurisdiction over a religiously affiliated university would create a similar risk of violating both the establishment and free exercise clauses of the First Amendment. Because we find that the religious nature of the University is significantly different from that of the Catholic secondary schools at issue in Catholic Bishop, and because we find that NLRB involvement with the University will be circumscribed in important ways, we conclude that NLRB jurisdiction over the University will not create a significant risk of violating either the establishment or free exercise clause. We therefore decline to extend the holding of Catholic Bishop to the University in this case, and hold that the jurisdiction assumed on the authority of the National Labor Relations Act is proper.
To determine whether application of the National Labor Relations Act to the University presents a significant risk of violating the establishment clause, we apply the three-part test set out by the Supreme Court: (1) the statute must have a secular purpose; (2) the statute's primary effect must neither advance nor inhibit religion; and (3) the statute must not foster excessive government entanglement with religion. Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971).
There is no doubt in this case that NLRB jurisdiction meets the requirements of having a secular purpose and effect. 3 In determining whether it also meets the standard of not fostering excessive entanglement between government and religion, however, we must look at several related factors: the character and purpose of the institution affected, the nature of the activity engaged in or mandated by the government, and the resulting relationship between government and the religious organization. Lemon v. Kurtzman, 403 U.S. at 615, 91 S.Ct. at 2112.
In Catholic Bishop, the Supreme Court found a significant risk of entanglement by focusing primarily on the nature and purpose of the institutions affected. According to the Court, the holding in Catholic Bishop was premised on the "critical and unique role of the teacher in fulfilling the mission of a church-operated school". 440 U.S. at 501, 99 S.Ct. at 1319. The Supreme Court noted that the schools in Catholic Bishop were similar to those at issue in Lemon v. Kurtzman; in both cases, "[r]eligious authority necessarily pervades the school system". 440 U.S. at 501, 99 S.Ct. at 1319 (quoting Lemon v. Kurtzman, 403 U.S. 602, 617, 91 S.Ct. 2105, 2113, 29 L.Ed.2d 745 (1971). In Lemon and its progeny, the "key role" played by teachers in religious elementary and secondary schools was "the predicate for [the Court's] The Central Bayamon University differs significantly from the secondary schools at issue in Catholic Bishop. There is no doubt that the University is a religiously affiliated school and that religion is a facet of the school's existence. The University was founded by the Dominican Order in 1961 and was incorporated as a non-profit association in 1964 by three Dominican priests. The University is governed by a Board of Trustees, the majority of whom must be and are members of the Dominican Order. The President of the University, who has broad powers and authority, similarly must be a member of the Dominican Order. The University defines itself in its bylaws and school bulletin as a "Catholic-oriented" institution, requires its students to take one course in theology and three in philosophy, and it offers regular masses in a church adjoining the campus.
conclusions" that governmental aid to such schools creates an impermissible entanglement between government and religion. Catholic Bishop, 440 U.S. at 501, 99 S.Ct. at 1319. In Catholic Bishop, the Court found that Board jurisdiction over faculty-administration relationships in schools permeated with a religious mission would similarly create a significant risk of entanglement. Catholic Bishop, 440 U.S. at 502-03, 99 S.Ct. at 1319-20
Despite these religious aspects, however, the University's religious character is significantly less dominant than that of religious elementary and secondary schools. The University defines its objective as the provision of a "humanistic education at an academic level" and has an open admissions policy, recruiting applicants of all creeds. Hiring of faculty personnel...
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