UNIVERSIDAD CENTRAL DE BAYAMON, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Union de Profesores Universitarios, Intervenor, 793 F.2d 383

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 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. 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.

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”. 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. 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. 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 Lemon v.

Kurtzman; in both cases, “[r]eli-gious 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] 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. 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. 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 is made on the basis of ability and experience; University bylaws require only that applicants “possess the appropriate academic degrees, be of a sound moral character and show traits of pedagogical qualities”. The University does not require any religious observance on the part of its lay faculty and guarantees them full academic freedom. Since 1970, apart from receiving government funds, see n. 7, infra, the University has been financially self sufficient. Although the University offers masses at a church adjoining the campus, attendance by students is optional.

The one required theology course, Analysis of Biblical History and Literature, is taught by both lay and religious faculty and focuses on an historical and literary analysis of Biblical texts. The teachers are not required to follow a specified religious analysis. The three required philosophy courses — ethics, logic, and the philosophy of man — cover a wide variety of thinkers, including religious and atheist writers. Painting, as we are required to do, a “general picture of the institution, composed of many elements”, Roemer v.

Board of Public Works of Maryland, 426 U.S. 736, 758, 96 S.Ct. 2337, 2350, 49 L.Ed.2d 179 (1976), we find that the University meets the picture of an “institution with admittedly religious functions but whose predominant higher education mission is to provide their students with a secular education”. Tilton v. Richardson, 403 U.S. 672, 687, 91 S.Ct. 2091, 2100, 29 L.Ed.2d 790 (1971). The mandatory theology and philosophy courses “only supplement a curriculum covering ‘the spectrum of a liberal arts program’ ” and are taught “in an atmosphere of intellectual freedom”.

Roemer, 426 U.S. at 755-57, 96 S.Ct. at 2349-50. The “central purpose” of the faculty is not “the inculcation of religious values” in the student body, Cuesnongle v. Ramos, 713 F.2d 881, 883 (1st Cir.1983) (finding Central University of Bayamon to be less pervasively religious than a parochial school), but is rather to provide a high quality academic education. Thus, as with other religiously affiliated universities analyzed by the Supreme Court, see Roemer, 426 U.S. at 755-59, 96 S.Ct. at 2349-51; Hunt v.

McNair, 413 U.S. 734, 743-44, 93 S.Ct. 2868, 2874, 37 L.Ed.2d 923 (1973); Tilton, 403 U.S. at 685-89, 91 S.Ct. at 2099-2101, we find that “religious indoctrination is not a substantial purpose or activity” of the University. Tilton, 403 U.S. at 687, 91 S.Ct. at 2100. The fact that the Dominican Order controls a majority of the University’s Board of Trustees does not change our analysis.

In Tilton, 403 U.S. at 686-87, 91 S.Ct. at 2099-2100, the four colleges were admittedly governed by Catholic religious organizations, and in Hunt, 413 U.S. at 743-44, 93 S.Ct. at 2874, the college was wholly controlled by the South Carolina Baptist Convention. See also, Roemer, 426 U.S. at 758-59, n. 21, 96 S.Ct. at 2350-51, n. 21 (even where religious organization wholly controls a college, the college may still be found not to be “pervasively sectarian”).

Thus, although we have little difficulty in accepting that the statement by the Archbishop of San Juan that the University was “not a Catholic university” merely reflected a power struggle between the Dominican Order and the Catholic hierarchy over control of the University, we do not find the issue to be of overwhelming importance. Even accepting that the Dominican Order, a clearly religious organization, controls the University, we find that the “general picture” of the University remains one of a more secular, rather than sectarian, university.

We also note that it is precisely because the University is similar in character to the colleges in Tilton, Roemer, and Hunt that it is able to receive governmental aid. Although the fact that the University is eligible for federal aid is not dispositive of the Catholic Bishop inquiry, see infra p. 911, it is relevant to the analysis of the institution’s religious nature. Indeed, the Supreme Court in Catholic Bishop referred to the aid-to-school cases in its analysis of the risk of entanglement that could ensue between the religious parochial schools and the government.

Catholic Bishop, 440 U.S. at 501-04, 99 S.Ct. at 1319-20. Based on our review of the record, we affirm our earlier ruling that the University is distinctly different from a religious elementary or secondary school. Cuesnon-gle v. Ramos, 713 F.2d 881, 883 (1st Cir. 1983). A religious mission does not pervade the entire University system, with teachers playing a key role in the transmission of a particular religious faith to the student body.

Thus, the very premise on which Catholic Bishop was based — that a significant risk of entanglement existed because of the unique role played by teachers in secondary schools — is conspicuously absent here. We therefore decline to extend the holding of Catholic Bishop to the University simply on the basis of the University’s religious character. Further, we do not find that the jurisdiction subsequently conferred would create an impermissible entanglement between government and religion because of the University’s religious nature. 2.

Nature of NLRB Activity The fact that the University is not identical to a parochial school does not, however, end our inquiry. As we noted above, whether governmental activity engenders excessive entanglement with religion is the result of several related elements; apart from the character and purpose of the institution affected, we also look at the nature of the activity engaged in or mandated by the government, and the resulting relationship between government and the religious organization. Lemon, 403 U.S. at 615, 91 S.Ct. at 2112.

In Catholic Bishop, the nature of the schools was so pervasively religious that the Court easily found a strong likelihood of entanglement. It is possible, however, that even in only partially sectarian institutions, a significant risk of entanglement could exist if the governmental activity involved was such that it directly affected the particular religious facets of the institution. We conclude, however, that NLRB involvement with the University would not be of the kind that would create an impermissible entanglement between government and religion.

First, the Board will become involved with the University only at the point that an unfair labor practice charge is filed. Radio Officers’ Union v. NLRB, 347 U.S. 17, 53, 74 S.Ct. 323, 342, 98 L.Ed. 455 (1954) (without a charge, the Board has no authority to issue a complaint); NLRB v. Vemi-tron Electrical Components, 548 F.2d 24, 27 (1st Cir.1977) (Board can only proceed when charge is filed and employer named as respondent). After the filing of a complaint, the Board does have broad authority to make a full and complete investigation. NLRB v.

Fant Milling Co., 360 U.S. 301, 308, 79 S.Ct. 1179, 1183, 3 L.Ed.2d 1243 (1959). But the Board does not have carte blanche to expand the charge as it wills; it is limited to “ ‘practices which are related to those alleged in the charge and which grow out of them’ ”. Id., quoting National Licorice Co. v. NLRB, 309 U.S. 350, 369, 60 S.Ct. 569, 579, 84 L.Ed. 799 (1940).

This activity on the part of the Board is quite different from the continuous auditing surveillance feared by the Supreme Court in Lemon, 403 U.S. at 619, 91 S.Ct. at 2114. (“A comprehensive, discriminating, and continuing state surveillance will inevitably be required to ensure that these [government] restrictions are obeyed and the First Amendment otherwise respected.”) This restricted involvement of a labor board has been recognized by other courts. In Catholic High School Ass’n v.

Culvert, the Second Circuit held that New York State labor board jurisdiction over Catholic parochial schools would not create excessive entanglement between the religious schools and the government. Among other factors, the court noted that “the State Board’s supervision over the collective bargaining process is neither comprehensive nor continuing”. 753 F.2d 1161, 1167 (2nd Cir.1985).

The Ninth Circuit, in holding that the NLRB had jurisdiction over a religiously affiliated hospital, explained that “Board jurisdiction will produce only incidental intrusion by requiring examination of [the hospital’s] actions and conduct only with respect to specific charges which may be filed in the limited area of collective bargaining and labor relations”. St. Elizabeth Community Hospital v. NLRB, 708 F.2d 1436, 1442 (9th Cir.1983). Second, many of the unfair labor practices that will be presented to the Board will be entirely secular.

For example, in the case before us, there is no assertion by the University that the promulgation of new academic requirements or the denial of reinstatement for the strikers was motivated by any religious considerations. Similarly, among the University’s list of the various potential union demands that could implicate religious concerns, there are a number that are sufficiently secular to be a legitimate subject of union bargaining, with any relevant religious considerations taken into account when necessary.

For example, the union could indeed bargain for contract provisions requiring that layoffs of clerical and lay faculty be implemented in some form of a seniority order or could bargain for contract rules requiring that course assignments be made on the basis of faculty preference, with seniority to govern in the event of competing preferences. The University, on its part, in maintaining its position on mandatory subjects of bargaining, would be free to take into account any religious concerns it may have. See NLRB v. Salvation Army of Massachusetts Dor-chester Day Care Center, 763 F.2d 1, 8 & n. 9 (1st Cir.1985).

Finally, in a case where a union bargaining demand or a Board order would truly interfere with the University’s religious freedom, the University is free to refuse to bargain with the union or to comply with the order, and to test its position before us. The fact that the University’s religious character is not sufficient to insulate it from Board jurisdiction does not mean that it has completely lost the shield of the First Amendment. See Newspaper Guild v.

NLRB, 636 F.2d 550 (D.C.Cir.1980) (although newspaper is not immune from NLRB jurisdiction merely because it is an agency of the press, certain of its activities are legitimately within the zone of First Amendment protection and must be protected in NLRB orders). The University lists a number of union demands that could potentially interfere with the University’s admittedly religious facets. We take quite seriously the University’s concern that certain union demands could potentially interfere with its religious character.

We expect, however, that the NLRB will also consider these claims seriously and will ensure that its orders are shaped so as to pass constitutional muster. For example, one of the University’s main concerns appears to revolve around limitations on its freedom to discharge faculty for religious reasons. The law is clear, however, that even a discharge based in part on protected union activity will not be considered an unfair labor practice if the employer can show that the individual would have been discharged in any event for a non-union reason. NLRB v.

Transportation Management Corp., 462 U.S. 393, 103 S.Ct. 2469, 76 L.Ed.2d 667 (1983). Such a reason could certainly be one based on religious considerations. Thus, the Board may not find that the University has engaged in an unfair labor practice if the University shows it has discharged an employee for religious reasons. See Catholic High School Ass’n v. Culvert, 753 F.2d at 1168-69. Both in determining whether the University has engaged in an unfair labor practice, and in fashioning a remedial order, see Passaic Daily News v.

NLRB, 736 F.2d 1543, 1556-59 (D.C.Cir.1984) (court ordered Board remedy tailored to accommodate newspaper’s First Amendment rights), the Board is constitutionally required to consider and accommodate the University’s legitimate First Amendment rights. In any instance in which the University feels the Board has failed, and that its First Amendment rights have indeed been violated, we stand ready to hear that claim.

Thus, given the form of NLRB jurisdiction over the University, and the safeguards that accompany that involvement, we do not find that a significant risk of entanglement between government and religion will occur as the result of this type of governmental involvement with a religiously affiliated institution. Jurisdiction may therefore be assumed under the National Labor Relations Act, and such jurisdiction is constitutional. B. Free Exercise Claim The University argues that allowing Board jurisdiction would create a significant risk of violating the free exercise clause of the First Amendment.

According to the University, this violation would occur through the immediate, symbolic invasion of church autonomy, through Board decisions that will impede the University’s free exercise of religion, and through the “chilling effect” that will result from the University’s knowledge that religiously motivated decisions will be subject to review by the Board. To determine whether a statutory enactment would violate the free exercise clause, the Supreme Court has examined: (1) the extent to which a statute actually burdens the exercise of a religious belief, Tony and Susan Alamo Foundation v.

Secretary of Labor, 471 U.S. 290, 105 S.Ct. 1953, 1963, 85 L.Ed.2d 278 (1985); (2) the existence of a compelling state interest to justify the burden on religious beliefs; and (3) the extent to which an exemption from the statute would impede the objective sought to be advanced by the statute. U.S. v. Lee, 455 U.S. 252, 257-59, 102 S.Ct. 1051, 1055-56, 71 L.Ed.2d 127 (1982); Wisconsin v. Yoder, 406 U.S. 205, 220-21, 92 S.Ct. 1526, 1535-36, 32 L.Ed.2d 15 (1972); EEOC v. Mississippi College, 626 F.2d 477, 486 (5th Cir. 1980).

Allowing NLRB jurisdiction over the University would have only a limited effect, if any, on the University’s direct exercise of its religious beliefs. The University does not claim that Catholic doctrine forbids collective bargaining or requires it to engage in unfair labor practices. See St. Elizabeth Community Hospital v. NLRB, 708 F.2d 1436, 1442-43 (9th Cir.1983). There is no evidence that NLRB jurisdiction meets the required standard of having a “coercive effect” on the practice of religion on the part of any members of the University. See Abington School District v.

Schempp, 374 U.S. 203, 223, 83 S.Ct. 1560, 1572, 10 L.Ed.2d 844 (1963). The University is concerned, however, that its religious freedom could be “chilled” because of the very existence of Board review. This concern is quite possibly overrated by the University because, as discussed above, the Board is required to be sensitive to and to accommodate the University’s religious concerns. However, to the extent that NLRB jurisdiction may create an incidental burden on religion, we find that it is justified by a compelling state interest.

There is a compelling government interest in minimizing economic disruptions caused by labor unrest. NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 42, 57 S.Ct. 615, 626, 81 L.Ed. 893 (1937). This interest clearly extends to universities. In affirming Board jurisdiction over private, nonprofit educational institutions, we concurred in the Board’s recognition that “universities affect commerce more than they once did, being now more involved in private commercial activity, and receiving extensive federal support”. NLRB v. Wentworth Institute, 515 F.2d 550, 554 (1st Cir.1975).

Thus, even if Board jurisdiction has an incidental effect on the exercise of religion, this minimal intrusion is justified by the state’s compelling interest in collective bargaining. See Catholic High School Ass’n v. Culvert, 753 F.2d 1161, 1171 (2nd Cir.1985) (minimal intrusion caused by “chilling” effect justified by New York State’s interest in collective bargaining). III. Inclusion of Dominican Priests in the Bargaining Unit The University contends that the Board improperly included four or five Dominican priests in the unit of “all full-time faculty members”.

The University urges that the priests have a “community of interest” with their employer that diverge from those of other employees, and that inclusion of the priests in the bargaining unit would subject them to a “conflict of loyalties”. It notes that, in similar cases, the Board has excluded members of a religious order from a bargaining unit. Carroll Manor Nursing Home, 202 N.L.R.B. 67, 68 (1973); Seton Hill College, 201 N.L.R.B. 1026, 1027 (1973).

We need not decide whether, not having raised this objection in the representation proceeding, the University may raise it now, or whether the priests actually have a community of interest with the University that is distinct from that of the other employees. An employer cannot avoid an obligation to bargain with respect to an entire unit of employees by arguing that some employees were improperly included, unless the inclusion of the contested employees would affect the unit’s majority status. See Walla Walla Union-Bulletin v. NLRB, 631 F.2d 609, 614-15 (9th Cir.1980); Glen Manor Home for Jewish Aged v.

NLRB, 474 F.2d 1145, 1150 (6th Cir.), cert. denied, 414 U.S. 826, 94 S.Ct. 130, 38 L.Ed.2d 59 (1973). Here, it appears that, at most, five priests were included in the unit. Because the union won by a vote of 41-9, we cannot find that the inclusion of those priests had an effect on the election outcome. The University is free to seek a unit clarification, pursuant to 29 C.F.R. § 102.-60 (b), or may refuse to bargain over the rights of the contested employees so as to bring that particular question before the court. See Walla-Walla Union Bulletin, 631 F.2d at 615. IV.

Conclusion The Board’s jurisdiction over the religiously affiliated Central Bayamon University does not create a significant risk of violating the establishment or the free exercise clauses of the First Amendment. Jurisdiction over the University is therefore properly assumed under the National Labor Relations Act. The University’s petition for review is denied and the Board’s order is enforced. . The ALJ did conclude that the University was not required to bargain with the Union concerning any terms and conditions relating to the Center for Dominican Studies in the Carribbean ("CEDOC").

CEDOC is a two-year course of study leading to a Master of Divinity degree in Theology. The primary objective of the program is the formation of candidates for the priesthood. CEDOC has its own board, its own admissions committee and hires and pays for its own professors. The ALJ found that the exercise of NLRB jurisdiction over CEDOC would be improper because of the pervasively religious character of the program. . The panel also affirmed that jurisdiction over CEDOC would not be proper. .

As the Ninth Circuit has noted: "The purpose of the National Labor Relations Act is clearly secular — to minimize industrial strife burdening interstate commerce by protecting employees’ rights to organize and bargain collectively. NLRB v. Jones & Laughlin, 301 U.S. 1, 42-43, 57 S.Ct. 615, 626-27, 81 L.Ed. 893 (1937). And the Act’s primary effect is to require collective bargaining and reduce labor disruptions, rather than to promote or deter acceptance of the Catholic faith.” St. Elizabeth Community Hospital v. NLRB, 708 F.2d 1436, 1441 (9th Cir.1983). .

The characteristics of religiously affiliated colleges such as the University stand in strong contrast to those of elementary and secondary schools. The Supreme Court has noted that " *[t]he affirmative if not dominant policy’ of the instruction in pre-college church schools is ‘to assure future adherents to a particular faith by having control of their total education at an early age’ ”. Tilton, 403 U.S. at 686-87, 91 S.Ct. at 2099-2100 (quoting Walz v. Tax Commission, 397 U.S. 664, 671, 90 S.Ct. 1409, 1412, 25 L.Ed.2d 697 (1970)).

These “parochial schools involve substantial religious activity and purpose”, Lemon, 403 U.S. at 616, 91 S.Ct. at 2113, and indeed their "raison d'etre ... is the propagation of a religious faith”. Lemon, 403 U.S. at 628, 91 S.Ct. at 2118 (Douglas, J., concurring) . We also find that the ALJ did not commit reversible error when he excluded some evidence regarding the official designation of the University as a "Catholic” institution, subject to the supervision of the Holy See.

First, the ALJ did reopen the hearing specifically to hear evidence regarding the relationship between the University and the Catholic hierarchy, and only certain additional documents, offered during the hearing, were excluded. Second, even if all the requested evidence had been admitted, we do not see how it would have changed the ultimate conclusion. The excluded evidence was offered to prove that the University was indeed a "Catholic" institution, subject to the supervision of a religious organization. But the issue of control is simply one factor in the analysis of impermissible entanglement.

Indeed, we reach our conclusion on the assumption that some religious organization — be it the Dominican Order or the Catholic Church — does control the University. This case is, therefore, quite different from Burns Electronic Security Services, Inc. v. NLRB, 624 F.2d 403 (2d Cir. 1980), relied on by petitioner. In Burns, the court found that "unusual circumstances” merited the conclusion that the ALJ should have accepted new evidence at the unfair labor practices proceeding.

These circumstances included the fact that the requested evidence was disposi-tive of a critical issue in the unit certification question and the record compiled at the original representation hearing was clearly deficient. Burns, 624 F.2d at 408-10. . From 1977 to 1978, the University received various federal grants totaling $5,042,298, of which $350,000 was direct aid to the University. From 1980 to 1983, the University received $3,750,000 in federal grants, seventy-five percent of which was student aid and $425,000 of which was direct institutional assistance. .

In cases analyzing the application of Title VII to religious institutions, courts have similarly found that the authority of the Equal Employment Opportunity Commission to engage in a wide-ranging investigation of a college’s hiring practice does not result in "on-going interference with the college’s religious practices.” EEOC v. Mississippi College, 626 F.2d 477, 488 (5th Cir.1980), cert. denied, 453 U.S. 912, 101 S.Ct. 3143, 69 L.Ed.2d 994 (1981).

The Fifth Circuit came to this conclusion regarding a college whose purpose was to "provide a college education in an atmosphere saturated with Christian ideals," and whose character was found by the court to be "pervasively sectarian.” Id. at 479, 487. . Although we have discussed the nature of the University’s religious character in a separate section, it is useful to note that it is largely due to the fact that the University is not a pervasively sectarian institution that many of the employment issues affecting its faculty will be exclusively or primarily secular. .

Examples of potential union demands include: elimination of the faculty regulation subjecting teachers to dismissal for "personal behavior" inconsistent with University standards, such as the procuring or urging the procurement of an abortion; defining the “offenses to Christian morality" for which tenure may be rescinded; demands that faculty members have the "right” to urge, publish, and disseminate views critical of Catholic doctrine; and demands that biology teachers have the “right” to refuse to teach creation theory.