Univ Grt Falls v. NLRB

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 4, 2001 Decided February 12, 2002

No. 00-1415

University of Great Falls,

Petitioner

v.

National Labor Relations Board,

Respondent

Montana Federation of Teachers,

Intervenor

On Petition for Review and Cross-Application for

Enforcement of an Order of the National

Labor Relations Board

Nicholas Trott Long argued the cause and filed the briefs

for petitioner.

Gene C. Schaerr argued the cause for amici curiae Associ-

ation of Southern Baptist Colleges and Schools, et al., in

support of petitioner. With him on the brief were James D.

Jordan and Nicholas P. Miller.

David A. Seid, Attorney, National Labor Relations Board,

argued the cause for respondent. With him on the brief were

Arthur F. Rosenfeld, General Counsel, John H. Ferguson,

Associate General Counsel, Aileen A. Armstrong, Deputy

Associate General Counsel, and David Habenstreit, Supervi-

sory Attorney.

J.C. Weingartner and David J. Strom were on the brief for

intervenor.

Before: Sentelle and Rogers, Circuit Judges, and

Williams, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge Sentelle.

Sentelle, Circuit Judge: The University of Great Falls

("University") petitions this Court for review of a National

Labor Relations Board's ("NLRB" or "Board") Decision and

Order in an unfair labor practice proceeding against the

University. University of Great Falls, 331 N.L.R.B. No. 188

(Aug. 31, 2000) ("Great Falls"). The University argues that it

is exempt from NLRB jurisdiction under the doctrine of

NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979), and

the Religious Freedom Restoration Act, 42 U.S.C. ss 2000bb

et seq. (1994). The Board, however, concluded that the

University did not "have a 'substantial religious character,' "

and asserted jurisdiction. Great Falls, 331 N.L.R.B. No. 188,

at 4. Because we agree with petitioner that it is exempt from

NLRB jurisdiction under Catholic Bishop, we grant the

petition for review, vacate the decision and order, and deny

the Board's cross-petition for enforcement. Because we de-

termine that the NLRB lacks jurisdiction over the University,

we do not reach the University's alternative claim that the

Board erred in its determination that the collective bargain-

ing unit included faculty, but not deans, as non-managerial

employees.

I. Background

On October 16, 1995, the Montana Federation of Teachers,

AFT, AFL-CIO ("the Union") petitioned the NLRB to recog-

nize the Union as the collective bargaining agent for the

faculty of the University of Great Falls. The University

declined to recognize the Union. The NLRB's Regional

Director ordered a hearing. In that hearing and in all

subsequent administrative proceedings, the University raised

and preserved two principal objections to Board jurisdiction

over it under the National Labor Relations Act ("NLRA" or

"Act"). First, the University argued, the Board lacks juris-

diction over the University of Great Falls because it is a

religiously operated institution not subject to the NLRA

pursuant to the Supreme Court's decision in NLRB v. Catho-

lic Bishop of Chicago, 440 U.S. 490 (1979). Second, the

University argued, even if it were subject to the jurisdiction

of the Board, the Board could not order it to engage in

collective bargaining with the Union because to do so would

violate the Religious Freedom Restoration Act, 42 U.S.C.

ss 2000bb et seq. (1994) ("RFRA"), by substantially burden-

ing the religious freedom of the University and its owners-

Sisters of Providence, a Roman Catholic religious order-in

the absence of a compelling governmental interest. While

the University also preserved its objection to the bargaining

unit, it is the religious/jurisdictional issues that are dispositive

of the present litigation.

After the hearing, the NLRB Regional Director issued a

decision extensively exploring the evidence of religious faith,

practice and mission at the University and ultimately conclud-

ed that Catholic Bishop did not preclude Board jurisdiction

over the University because "the propagation of a religious

faith is not a primary purpose of UGF. Rather, the purpose

and function of the institution are primarily secular." Deci-

sion and Direction of Election, University of Great Falls,

Case 19-RC-13114, slip op. at 11 (NLRB Region 19, Feb. 20,

1996). As to the RFRA argument, the Director concluded

that a collective bargaining order would not substantially

burden the institution's free exercise of religion and that

RFRA does not preclude the NLRB's assertion of jurisdiction

over the employer. The Regional Director ordered the rep-

resentation election by mail ballot of a defined faculty bar-

gaining unit. The election occurred between March 8 and

March 26, 1996, but the ballots were impounded pending an

administrative review of the Director's decision. In the ad-

ministrative review, the Board considered only the Religious

Freedom Restoration Act issue and the bargaining unit objec-

tion. In November of 1997 it affirmed the Regional Director

as to the bargaining unit, and ruled that the Religious Free-

dom Restoration Act argument was moot by reason of the

Supreme Court's decision in City of Boerne v. Flores, 521

U.S. 507 (1997), which it construed as declaring the RFRA

unconstitutional. See University of Great Falls, 325

N.L.R.B. 83, 83 n.2. (1997).

Following affirmance, the Regional Director issued a sup-

plemental order in January 1998 certifying the Union as the

exclusive collective bargaining representative of the faculty

bargaining unit. Thereafter, the Union requested that the

University bargain collectively. The University refused.

The Board's Acting General Counsel issued an unfair labor

practice ("ULP") against the University for its refusal to

bargain collectively. The Board heard the case on cross-

motions for summary judgment. After receiving the briefs of

the parties on the RFRA issue, and reviewing the evidence

received by the Regional Director in the representation and

election proceedings, the Board granted the summary judg-

ment motion of the general counsel, denied the motion of the

University, and held that the University had committed an

unfair labor practice by its refusal to bargain with the Union

as the exclusive representative of the bargaining unit under

sections 8(a)(5) and (1) of the Act. Great Falls, 331 N.L.R.B.

No. 188, at 4.

Unlike the earlier proceedings, the Board did not dispense

with RFRA on the basis of its unconstitutionality under City

of Boerne v. Flores. The Board recognized that City of

Boerne addressed only the constitutionality of the Act as

applied to state and local law; that two circuits, the Eighth in

Christians v. Crystal Evangelical Free Church, 141 F.3d 854

(8th Cir.), cert. denied, 525 U.S. 811 (1998), and the Ninth in

Sutton v. Provident St. Joseph Medical Center, 192 F.3d 826

(9th Cir. 1999), had held explicitly that the Supreme Court's

decision did not invalidate RFRA as applied to federal law;

and that two others, including this one, had issued decisions

assuming without deciding that RFRA is constitutional as

applied to federal law. See Adams v. Commissioner of

Internal Revenue, 170 F.3d 173 (3d Cir. 1999); Alamo v.

Clay, 137 F.3d 1366 (D.C. Cir. 1998). The Board further

"recognized that it is beyond its authority, as an administra-

tive agency, to adjudicate the constitutionality of congression-

al enactments ... a matter left to the courts." Great Falls,

331 N.L.R.B. No. 188, at 1. Therefore, the Board proceeded

on the assumption that RFRA is constitutional as a limitation

on federal statutory interpretation. The Board, however,

ultimately determined that RFRA is not implicated in this

case because, in the Board's view, the protection afforded the

free exercise of religion under RFRA is less stringent than

that provided to religious institutions under Catholic Bishop,

and that therefore, if the Board's jurisdiction was not divest-

ed by Catholic Bishop, it plainly would survive the test of

RFRA. The Board ruled that it did have jurisdiction under

the Catholic Bishop test. The Board proceeded, then, to

track the reasoning of the Regional Director, reviewing in

detail the evidence of the religiosity of the University, and

ultimately agreeing with the Regional Director that "the

[University] is not involved with a religious institution in such

a way that the Board's exercise of jurisdiction would even

create a significant risk that First Amendment rights will be

infringed." Id. at 4 (emphasis in original).

The Board therefore concluded that the Union continued as

the exclusive representative of the bargaining unit under

section 9(a) of the Act; that the refusal of the University to

bargain was in violation of sections 8(a)(5) and (1) of the Act;

and that the University had therefore engaged in unfair labor

practices. The University filed the present petition for re-

view.

II. Analysis

"Since Catholic Bishop, the Board has decided on a case-

by-case basis whether a religion-affiliated school has a 'sub-

stantial religious character' " and whether it is subject to the

NLRB's jurisdiction and to the requirements of the National

Labor Relations Act. Great Falls, 331 N.L.R.B. No. 188, at

2. "The Board has not relied solely on the employer's

affiliation with a religious organization, but rather has evalu-

ated the purpose of the employer's operations, the role of the

unit employees in effectuating that purpose, and the potential

effects if the Board exercised jurisdiction." Id. at 2-3 (em-

phasis added). In making this evaluation the "Board consid-

ers such factors as the involvement of the religious institution

in the daily operation of the school, the degree to which the

school has a religious mission and curriculum, and whether

religious criteria are used for the appointment and evaluation

of faculty." Id. at 3 (emphasis added). The NLRB "will

consider, on a case-by-case basis, all aspects of a religious

school's organization and function that [it deems] relevant."

Trustee of St. Joseph's College, 282 N.L.R.B. 65, 68 n.10

(1986).

In this case, the Regional Director rested his conclusion

that the Board had jurisdiction on the proposition that "prop-

agation of a religious faith is not the primary purpose of the

[University], but rather that the University's purpose and

function are primarily secular." Great Falls, 331 N.L.R.B.

No. 188, at 3-4. In reaching the same conclusion on the

unfair labor practice proceeding, the Board expressly ap-

proved the Regional Director's reasoning, noting that the

finding

relied, among other things, on the following: (1) the

curriculum does not require the Catholic faith to be

emphasized, nor is there in fact a particular emphasis on

Catholicism; (2) the Respondent's board of trustees is

not required to establish policies consistent with the

Catholic religion; (3) the University's president and oth-

er administrators are lay persons who need not be

members of the Catholic faith; (4) faculty members are

not required to be Catholics, to teach Church doctrine, or

to support the Church or its teachings; (5) students may

come from any religious background, and no preference

is given to applicants of the Catholic faith; of approxi-

mately 1450 students, only about 32 percent are Catholic;

and (6) although undergraduate students are required to

take one course in religious studies, the course does not

have to be one involving Catholicism.

Id. at 4. After reciting these express findings, the Board

declared that "the Regional Director had ample grounds for

his conclusion that the [University] does not have a 'substan-

tial religious character' as did the schools involved in Catholic

Bishop." Id. Therefore, the Board again expressed its

adoption of the Regional Director's conclusion.

The University, supported by religious institutions which

also claim exemptions from NLRB jurisdiction under Catholic

Bishop,1 contends that the very inquiry by the NLRB into the

University's religious character, and the resulting determina-

tions that the University "does not have a religious mission"

and that "the propagation of a religious faith is not a primary

purpose" of the University, University of Great Falls, Case

19-RC-13114, slip. op. at 10-11 (NLRB Region 19, Feb. 20,

1996), are in violation of the principles of the Supreme Court's

decision in Catholic Bishop. We agree.

The Board reached the wrong conclusion because it applied

the wrong test. As Catholic Bishop was decided on grounds of

constitutional avoidance, we give no deference to the NLRB's

application of this exemption to the National Labor Relations

Act. Although we normally defer to an agency's interpreta-

tion of ambiguous statutory language under Chevron U.S.A.

Inc. v. Natural Resources Defense Council, Inc., 467 U.S.

837, 843-44 (1984), "here another even more important princi-

ple of judicial restraint weighs upon us," which is that "Fed-

eral courts traditionally have sought to avoid constitutional

questions if at all possible." Meredith Corp. v. FCC, 809 F.2d

__________

1 The following entities filed a single Amicus Curiae brief in

support of the University: The Association of Southern Baptist

Colleges and Schools, The Association of Christian Schools Interna-

tional, Loma Linda University & Medical Center, Brigham Young

University, Catholic University, University of the Incarnate Word,

Pacific Union College, La Sierra University, Baylor University,

Saint Leo University, The Seventh-Day Adventist Church-State

Council, and Adventist Health.

863, 872 (D.C. Cir. 1987) (citing Ashwander v. Tennessee

Valley Authority, 297 U.S. 288, 345-48 (1936) (Brandeis, J.,

concurring)). In other words, the constitutional avoidance

canon of statutory interpretation trumps Chevron deference.

See, e.g., Edward J. DeBartolo Corp. v. Florida Gulf Coast

Bldg. & Constr. Trades Council, 485 U.S. 568, 574-75 (1988);

Chamber of Commerce of United States v. FEC, 69 F.3d 600,

605 (D.C. Cir. 1995); Bell Atlantic Telephone Cos. v. FCC, 24

F.3d 1441, 1445 (D.C. Cir. 1994). The Supreme Court, in

Catholic Bishop, construed the NLRA so as to avoid deciding

whether jurisdiction "was constitutionally permissible under

the Religion Clauses of the First Amendment." Catholic

Bishop, 440 U.S. at 499. It did so in the absence of " 'the

affirmative intention of the Congress clearly expressed' " to

impose Board "jurisdiction over teachers in church-operated

schools." Id. at 500-01. The application of Catholic Bishop

to the facts of this case is thus an interpretation of precedent,

rather than a statute, and for the court an occasion calling for

the exercise of constitutional avoidance. "We are not obligat-

ed to defer to an agency's interpretation of Supreme Court

precedent under Chevron or any other principle." Akins v.

FEC, 101 F.3d 731, 740 (D.C. Cir. 1997) (en banc), vacated on

other grounds, 524 U.S. 11 (1998). "There is therefore no

reason for courts--the supposed experts in analyzing judicial

decisions--to defer to agency interpretations of the Court's

opinions." Id. This is especially true where, as here, the

Supreme Court precedent, and subsequent interpretation, is

based on constitutional concerns, an area of presumed judi-

cial, rather than administrative, competence. Id. In short,

Chevron deference is not required. We therefore are gov-

erned by the Supreme Court's decision in Catholic Bishop, as

we read it, not as it is read by the Board.

In Catholic Bishop the Court feared that NLRB jurisdic-

tion over church-operated schools "will necessarily involve

inquiry into the good faith of the position asserted by the

clergy-administrators and its relationship to the schools' reli-

gious mission." Catholic Bishop, 440 U.S. at 502 (emphasis

added). As the Court stated, "[i]t is not only the conclusions

that may be reached by the Board which may impinge on

rights guaranteed by the Religion Clauses, but also the very

process of inquiry leading to findings and conclusions." Id.

(emphasis added). The Court predicted that if the NLRA

conferred jurisdiction, the Board could not "avoid entangle-

ment with the religious mission of the school in the setting of

mandatory collective bargaining." Id. Here the Board has

engaged in the sort of intrusive inquiry that Catholic Bishop

sought to avoid. As the Court feared, the Board has gone

"beyond resolving factual issues" and engaged in inquiry into

the "religious mission" of the University. Id. Here the

"very process of inquiry leading to findings and conclusions"

by the Board, as well as the Board's conclusions have impli-

cated the First Amendment concerns at issue in Catholic

Bishop. See id. at 502. The NLRB's "substantial religious

character" test with its multifaceted analysis not only creates

the same constitutional concerns that led to the Supreme

Court's decision in Catholic Bishop, it is so similar in princi-

ple to the approach rejected in Catholic Bishop that it is

inevitable that we must reject this "new" approach.

Moreover, since Catholic Bishop, at least a plurality of the

Supreme Court itself has rejected "inquiry into ... religious

views" as "not only unnecessary but also offensive," Mitchell

v. Helms, 530 U.S. 793, 828 (2000) (plurality opinion), declar-

ing that "[i]t is well established, in numerous other contexts,

that courts should refrain from trolling through a person's or

institution's religious beliefs." Id.; see also Employment

Div., Dep't of Human Res. of Ore. v. Smith, 494 U.S. 872, 887

(1990); Serbian Eastern Orthodox Diocese v. Milivojevich,

426 U.S. 696, 718 (1976). The prohibition on such intrusive

inquiries into religious beliefs underlay the decision in Presid-

ing Bishop v. Amos, 483 U.S. 327 (1987), in which the

Supreme Court upheld an exemption in Title VII of the Civil

Rights Act as applied to the firing of a janitor by a church-

owned gymnasium. There the Court noted the difficulty of

judicially deciding which activities of a religious organization

were religious and which were secular. "The line is hardly a

bright one," the Court observed, "and an organization might

understandably be concerned that a judge would not under-

stand its religious tenets and sense of mission." Id. at 336.

For this reason, even those Justices who filed separate con-

currences in the judgment, expressed a belief that a non-

profit institution owned or operated by a church should be

exempted from "a case-by-case determination whether its

nature is religious or secular" under Title VII. Id. at 340,

345.

Similar concerns were raised in Universidad Central de

Bayamon v. NLRB, 793 F.2d 383 (1st Cir. 1986) (en banc), a

case with facts remarkably close to those before us. Bayam-

on involved a " 'Catholic-oriented' institution of higher learn-

ing founded by the Dominican Order of the Roman Catholic

Church," which "holds itself out to students, faculty and

community as a Catholic school." 793 F.2d at 399-400.

Writing for half of an equally-divided en banc court, then-

Judge Breyer concluded that the analysis in Catholic Bishop

applies equally well, not only to institutions that are " 'perva-

sively sectarian,' " but also to a "college that seeks primarily

to provide its students with a secular education, but which

also maintains a subsidiary religious mission." Bayamon, 793

F.2d at 398-99. This conclusion is unsurprising; an exemp-

tion solely for "pervasively sectarian" schools would itself

raise First Amendment concerns-discriminating between

kinds of religious schools. See Larson v. Valente, 456 U.S.

228, 244 (1982) ("The clearest command of the Establishment

Clause is that one religious denomination cannot be officially

preferred over another"). Judge Breyer reasoned that "to

fail to apply Catholic Bishop here is to undercut that opin-

ion's basic rationale and purpose." Bayamon, 793 F.2d at

402. He found that Board jurisdiction posed just as great a

risk of the "kind of 'entanglement'--arising out of the inquiry

process itself," as the Supreme Court feared in Catholic

Bishop. Id. at 401. He concluded the NLRB's "ad hoc

efforts, the application of which will themselves involve signif-

icant entanglement, are precisely what the Supreme Court in

Catholic Bishop sought to avoid." Id. at 402-03. For the

Board to exercise jurisdiction over an educational institution

where "the inculcation of religious values is at least one

purpose of the institution" and "to promise that courts in the

future will control the Board's efforts to examine religious

matters, is to tread the path that Catholic Bishop forecloses."

Id. at 402 (emphasis in original).

Here too we have the NLRB trolling through the beliefs of

the University, making determinations about its religious

mission, and that mission's centrality to the "primary pur-

pose" of the University. Smith teaches that "[i]t is no more

appropriate for judges to determine the 'centrality' of reli-

gious beliefs before applying a 'compelling interest' test in the

free exercise field, than it would be for them to determine the

'importance' of ideas before applying the 'compelling interest'

test in the free speech field." Smith, 494 U.S. at 886-87. It

cannot be any more appropriate for a Regional Director or

the full Board to engage in such a determination. Indeed,

"[j]udging the centrality of different religious practices is akin

to the unacceptable 'business of evaluating the relative merits

of differing religious claims,' " but that is what the Board has

set about doing. Id. at 887. The Supreme Court "[r]e-

peatedly and in many different contexts [has] warned that

courts must not presume to determine the place of a particu-

lar belief in a religion or the plausibility of a religious claim,"

id., and that admonition is equally applicable to the agencies

whose actions we review.

Despite its protestations to the contrary, the nature of the

Board's inquiry boils down to "is it sufficiently religious?"

The Regional Director's opinion approved by the Board and

the NLRB's brief before this Court present a dissection of

life and beliefs at the University. Before the NLRB's Hear-

ing Officer, the University president was questioned about

the nature of the University's religious beliefs and how the

University's religious mission was implemented: "So what

you are saying is that the first part of your Mission State-

ment here, to implement the Gospel values and the teaching

of Jesus within the Catholic tradition, may very well be

sometimes contrary, which oftentimes it is, to other religious

beliefs?" Transcript of Proceedings, University of Great

Falls, Case 19-RC-13114, at 84, Dec. 12, 1994. The presi-

dent was asked how to "jibe" the acceptance of other beliefs

at the University with its teaching mission: "If we are

teaching a course, we have a class here in witchcraft, and how

do we meld that into the teaching of beliefs that Jesus and

the strong Catholic tradition? They are contrary, aren't

they?" Id. Further, the president was required to justify

the method in which the University teaches gospel values,

and to respond to doubts that it was legitimately "Catholic."

He was asked, "What good is a Catholic institution unless we

espouse the values and the teachings and the traditions of the

Catholic Church?" Id at 85. This is the exact kind of

questioning into religious matters which Catholic Bishop

specifically sought to avoid. Catholic Bishop, 440 U.S. at 502

n.10 & 507-08.

Catholic Bishop, along with the Court's subsequent deci-

sions in Presiding Bishop v. Amos, Smith, and Mitchell,

requires a different approach. Amici Curiae suggest a useful

approach to applying Catholic Bishop that avoids the pitfalls

encountered by the Board. This approach, drawn partially

from Judge Breyer's controlling opinion in Bayamon, would

exempt an institution if it (a) "holds itself out to students,

faculty and community" as providing a religious educational

environment (Bayamon, 793 F.2d at 400); (b) is organized as

a "nonprofit"(Bayamon, 793 F.2d at 403; Catholic Bishop,

440 U.S. at 497); and (c) is affiliated with, or owned, operat-

ed, or controlled, directly or indirectly, by a recognized

religious organization, or with an entity, membership of which

is determined, at least in part, with reference to religion

(Bayamon, 793 F.2d at 399-400; Catholic Bishop, 440 U.S. at

494). We find this Bayamon-based test to be such a useful

and accurate method of applying Catholic Bishop that we

adopt the same fully as to the first two steps, although we

need not determine whether we reach the full expanse of the

third step here. It is undisputed that the University is

"affiliated with ... a recognized religious organization," that

is, the Catholic Order of the Sisters of Providence, St. Ignati-

us Province. Therefore, we need not decide whether it would

be sufficient that the school be, for example, indirectly con-

trolled by an entity the membership of which was determined

in part with reference to religion.

Our approach avoids the constitutional infirmities of the

NLRB's "substantial religious character" test. It does not

intrude upon the free exercise of religion nor subject the

institution to questioning about its motives or beliefs. It does

not ask about the centrality of beliefs or how important the

religious mission is to the institution. Nor should it. "[R]eli-

gious beliefs need not be acceptable, logical, consistent, or

comprehensible to others to merit First Amendment protec-

tion," Thomas v. Review Bd., 450 U.S. 707, 714 (1981), and to

require an explanation of beliefs and how they are compatible

with other aspects of life at the University is to tread upon

that which the First Amendment protects. Further, this

three-part approach avoids asking how effective the institu-

tion is at inculcating its beliefs, an irrelevant inquiry that

permeates the NLRB proceedings below.

At the same time, however, it is a test that provides the

Board and the courts with some assurance that the institu-

tions availing themselves of the Catholic Bishop exemption

are bona fide religious institutions. The first prong of the

test, requiring an institution to show that it holds itself out as

providing a religious educational environment, even if its

principal academic focus is on "secular" subjects, Bayamon,

793 F.2d at 400, will help to ensure that the exemption is not

given to wholly secular institutions that attempt to invoke it

solely to avoid Board jurisdiction. Where a school, college, or

university holds itself out publicly as a religious institution,

"[w]e cannot doubt that [it] sincerely holds this view." Boy

Scouts of America v. Dale, 530 U.S. 640, 653 (2000). Indeed,

whether an institution holds itself out to the public as reli-

gious may be a far more useful inquiry than any undertaken

by the Board in this case. For such public representations

serve as a market check. While public religious identification

will no doubt attract some students and faculty to the institu-

tion, it will dissuade others. In other words, it comes at a

cost. Such market responses will act as a check on institu-

tions falsely identify themselves as religious merely to obtain

exemption from the NLRA. Thus, the requirement of public

identification helps to ensure that only bona fide religious

institutions are exempted.

The second element of the test, that the educational institu-

tion be organized as a non-profit entity, is consistent with the

emphasis in Catholic Bishop and Amos on the distinction

between non-profit institutions and profit-making businesses

that may be owned by or affiliated with religious institutions.

As the Amos Court noted, it is hard to draw a line between

the secular and religious activities of a religious organization.

See Amos, 483 U.S. at 336. However, it is relatively straight-

forward to distinguish between a non-profit and a for-profit

entity. It is also consistent with the history of the Board's

interpretation of the NLRA: "As the Supreme Court ob-

served in [Catholic Bishop], the Board's assertion of jurisdic-

tion over nonprofit educational institutions is a relatively

recent phenomenon." Bayamon, 793 F.2d at 403. Accord-

ingly, non-profit institutions have a more compelling claim to

a Catholic Bishop exemption than for-profit businesses.

Finally, as we observed above, the third element, at least in

its simplest form, is directly analogous to Catholic Bishop.

The school, college, or university must be "religiously affiliat-

ed." Catholic Bishop, 440 U.S. at 495.

This bright-line test will allow the Board to determine

whether it has jurisdiction without delving into matters of

religious doctrine or motive, and without coercing an edu-

cational institution into altering its religious mission to meet

regulatory demands. At the same time, this approach pro-

vides reasonable assurance that the Catholic Bishop exemp-

tion will not be abused.

The University of Great Falls easily satisfies this test. In

its course catalogue, mission statement, student bulletin, and

other public documents, it unquestionably holds itself out to

students, faculty, and the broader community as providing an

education that, although primarily secular, is presented in an

overtly religious, Catholic environment. The University pres-

ents itself as a "private, independent Catholic university

sponsored by the Sisters of Providence within the jurisdiction

of the Catholic Bishop of Great Falls-Billings." University of

Great Falls Catalogue, 1995-96, at 4. The University's mis-

sion statement does not just speak of general morality, but

rather of "offer[ing] students a foundation for actively imple-

menting Gospel values and the teachings of Jesus within the

Catholic tradition." University of Great Falls Mission State-

ment. The mission statement further explains that the Uni-

versity "provides students with the opportunity to obtain a

liberal education for living and making a living," "[a]s an

expression of the teaching mission of Jesus Christ." Id. To

that end, the University "offers students a foundation for

actively implementing Gospel values and the teachings of

Jesus within the Catholic tradition." Id. It fills its campus,

indeed, every classroom and office with Catholic icons, not

merely as art, but it claims as an expression of faith. Even

the NLRB's Regional Director conceded that the University

"refers to itself as a Catholic institution. It is listed in the

Catholic Directory, a compilation of all institutions in the

country recognized by the Church as being Catholic institu-

tions." Decision and Direction of Election, University of

Great Falls, Case 19-RC-13114, slip op. at 6 (NLRB Region

19, Feb. 20, 1996). It is a not-for-profit educational institu-

tion. Finally, it is sponsored by, its campus is owned by, and

control is ultimately reserved to, a recognized religious orga-

nization--the Sisters of Providence, a religious order of nuns.

To probe further into the University's beliefs is to needlessly

engage in the "trolling" that Amos, Smith, Mitchell, and

Catholic Bishop itself sought to avoid.

One danger of the NLRB's "substantial religious charac-

ter" approach, is that when the Board seeks to assert juris-

diction, it may minimize the legitimacy of the beliefs ex-

pressed by a religious entity. It may have done so here. By

emphasizing that only one-third of the student body is Catho-

lic; that the University has retained an open admission policy

and is available to all regardless of race color, gender, age,

religion, marital status, sexual orientation, and national ori-

gin; that the faculty need not be Catholic; that mass is not

required; and that other views, including other religious

views are tolerated, even respected, on campus, the Board

would minimize the religious nature of the University. After

making much of what is consistent with open-mindedness, the

Regional Director, and subsequently the Board, concludes

that "the purpose and function of the institution are primarily

secular." Decision and Direction of Election, University of

Great Falls, Case 19-RC-13114, slip op. at 11 (NLRB Region

19, Feb. 20, 1996). Thus the Board contends that the Univer-

sity is not entitled to the Catholic Bishop exemption. Howev-

er, "there is something impossibly artificial about limiting the

right in question to associations that formally and consistently

disparage people of the type that those associations seek to

exclude." Laurence H. Tribe, Disentangling Symmetries:

Speech, Association, Parenthood, 28 Pepp. L. Rev. 641, 650

(2001) (referring to freedom of association). Just as "freedom

[of association] must surely include the right to express one's

philosophy in implicit rather than explicit ways, to prefer

inculcating one's beliefs with a velvet glove rather than an

iron fist, and to opt for articulating one's views positively

rather than negatively, focusing on the part of the glass that

is 'half full' rather than on the part that is 'half empty,' " id.

at 648-49, so too must free exercise of religion-the freedom

that Catholic Bishop sought to preserve. If the University is

ecumenical and open-minded, that does not make it any less

religious, nor NLRB interference any less a potential in-

fringement of religious liberty. To limit the Catholic Bishop

exemption to religious institutions with hard-nosed proselytiz-

ing, that limit their enrollment to members of their religion,

and have no academic freedom, as essentially proposed by the

Board in its brief, is an unnecessarily stunted view of the law,

and perhaps even itself a violation of the most basic command

of the Establishment Clause-not to prefer some religions

(and thereby some approaches to indoctrinating religion) to

others. See Larson v. Valente, 456 U.S. 228, 244 (1982).

The Board argues, no doubt correctly, that wholly secular

institutions can and do teach "character, competence, and

community," as well as other caring values and virtues. But

that says nothing about the religious nature of the University.

Neither does the University's employment of non-Catholic

faculty and admission of non-Catholic students disqualify it

from its claimed religious character. Religion may have as

much to do with why one takes an action as it does with what

action one takes. That a secular university might share some

goals and practices with a Catholic or other religious institu-

tion cannot render the actions of the latter any less religious.

The University of Great Falls in its mission statement defines

its mission "as an expression of the teaching mission of Jesus

Christ." In its expression of its philosophy and purpose, it

calls upon its faculty and staff to join with the students in

developing "character ... competence ... [and] commit-

ment." But it goes further than that. It defines character in

terms of recognition and acceptance of personal accountability

by the students "to themselves, to society, and to God."

Likewise, the Board's analysis of the governing structure of

the University is similarly inadequate to undermine the Uni-

versity's claim to religious exemption from Board jurisdiction.

The Board stresses the role of the "secular" board of trustees

in the control of the University. But, under the University's

charter, the Sisters of Providence retain the ultimate authori-

ty to "adopt or change the mission, philosophy, and values," of

the University, to "appoint and remove, with or without

cause, the President of the University," to remove Trustees,

to "approve the annual operating and capital budgets," and to

"approve an annual or longer term strategic plan" for the

University. Amended Bylaws of University of Great Falls

(1995), at 2-3. That they choose not to exercise these powers

may only demonstrate that they are satisfied that the Univer-

sity is fulfilling its religious mission. The president testified

that he meets with the Sisters once a quarter, which is as

frequently as the "secular" Board of Trustees convenes. The

corporate structure is similar to that found in Trustee of St.

Joseph's College, 282 N.L.R.B. 65 (1986), in which the Board

allowed exemption. The NLRB's attempt to distinguish that

case is unpersuasive. Both schools teach secular subjects,

both offer mass but do not require it, both have non-Catholic

faculty, both espouse belief in academic freedom. Both are

religious schools trying to find their place a twenty-first

century world without giving up what makes them religious.

Under the Board's "substantial religious character" ap-

proach, it is hard to see what school or university that does

not require attendance at religious services, or require stu-

dents and faculty to be of a particular faith, would qualify for

the Catholic Bishop exemption. Fortunately, as we have

explained, Catholic Bishop does not require such a rigid

approach, which would raise altogether different First

Amendment concerns. Instead, in determining whether an

institution is exempt from the NLRA under Catholic Bishop,

the Board should consider whether the institution (a) holds

itself out to the public as a religious institution; (b) is non-

profit; and (c) is religiously affiliated.2 If so, then the Board

must decline to exercise jurisdiction. Because we find the

University of Great Falls to be such an institution, we grant

the petition for review.

III. Other Claims

As the University is entitled to the Catholic Bishop exemp-

tion, we need not reach the University's claim that Board

jurisdiction would violate the Religious Freedom Restoration

Act, except to note the following: Contrary to the Board's

view that "RFRA does not require the Board to alter the

analysis that it has consistently undertaken under Catholic

Bishop," Great Falls, 331 N.L.R.B. No. 188, at 3, RFRA

presents a separate inquiry from Catholic Bishop. Under

Catholic Bishop, the NLRB must determine whether an

entity is altogether exempt from the NLRA. We have laid

forth a bright-line test for the Board to use in making this

determination. However, a ruling that an entity is not ex-

empt from Board jurisdiction under Catholic Bishop may not

foreclose a claim that requiring that entity to engage in

collective bargaining would "substantially burden" its "exer-

cise of religion." 42 U.S.C. s 2000bb-1(a). Moreover, even if

the act of collective bargaining would not be a "substantial

burden," RFRA might still be applicable if remedying a

particular NLRA violation would be a "substantial burden."

As none of these questions are properly before us, we need

not explore them further. Also, because we have concluded

that the University is not within the jurisdiction of the Board

under the NLRA, we need not consider the University's

alternative claim that the Board's determination of the bar-

gaining unit was erroneous.

__________

2 We need not and do not decide whether other indicia of religious

character might replace "affiliation" in other cases.

IV. Conclusion

The National Labor Relations Board's approach to deter-

mining jurisdiction under Catholic Bishop is flawed. The

"substantial religious character" inquiry raises the same con-

stitutional concerns that animated the Supreme Court's deci-

sion in Catholic Bishop. In applying the Supreme Court's

jurisprudence, we inquire whether the institution (a) holds

itself out to the public as a religious institution; (b) is non-

profit; and (c) is religiously affiliated. Because we find that

the University of Great Falls meets these criteria, and there-

fore is exempt from NLRB jurisdiction under Catholic Bish-

op, we grant the petition for review, vacate the decision and

order of the NLRB, and deny the Board's cross-petition for

enforcement. It is

So ordered.