Universidad Central De Bayamon v. National Labor Relations Board, and Union De Profesores Universitarios, Intervenor

793 F.2d 383, 122 L.R.R.M. (BNA) 2582, 1985 U.S. App. LEXIS 26381
CourtCourt of Appeals for the First Circuit
DecidedJune 13, 1986
Docket85-1074
StatusPublished
Cited by22 cases

This text of 793 F.2d 383 (Universidad Central De Bayamon v. National Labor Relations Board, and Union De Profesores Universitarios, Intervenor) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Universidad Central De Bayamon v. National Labor Relations Board, and Union De Profesores Universitarios, Intervenor, 793 F.2d 383, 122 L.R.R.M. (BNA) 2582, 1985 U.S. App. LEXIS 26381 (1st Cir. 1986).

Opinions

COFFIN, Circuit Judge.

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 [384]*384the 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.

I. FACTS

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 Profe-sores 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 hew 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 AU 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 AU’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 rein[385]*385statement full and immediate reinstatement to their former positions.

II. FIRST AMENDMENT CLAIM

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.

A. Establishment Clause

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.

1. Nature of the Institution

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

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793 F.2d 383, 122 L.R.R.M. (BNA) 2582, 1985 U.S. App. LEXIS 26381, Counsel Stack Legal Research, https://law.counselstack.com/opinion/universidad-central-de-bayamon-v-national-labor-relations-board-and-union-ca1-1986.