Full opinion text
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.
TORRUELLA, Circuit Judge (dissent- ing). Although the majority’s well-reasoned opinion commands my highest respect, I am compelled to dissent because, to my view, it is contrary to the strict mandates of the First Amendment and the explicit and implicit holdings of N.L.R.B. v. Catholic Bishop of Chicago, 440 U.S. 490, 99 S.Ct. 1313, 59 L.Ed.2d 533 (1979). I. N.L.R.B. v. Catholic Bishop of Chicago In Catholic Bishop the Court was faced with the exercise of jurisdiction by the Board over lay teachers in certain high schools operated by the Catholic Church. Up to that time the Board standards permitted the assumption of jurisdiction over religiously sponsored organizations if they were merely religiously associated, as compared, to where they were completely religious in nature, in which case the Board declined jurisdiction. In Catholic Bishop the Board assumed jurisdiction principally on the ground that the high schools in question, in addition to providing a Roman Catholic oriented education, also provided a traditional secular education and thus were not “completely religious” schools. Catholic Bishop, 440 U.S. at 494 n. 7, 99 S.Ct. at 1316 n. 7. The Court rejected the Board’s exercise of jurisdiction over the high schools, basing its decision on statutory grounds but giving clear indication of the serious constitutional questions at issue. Catholic Bishop, supra, at 504, 99 S.Ct. at 1320. Initially, in the context of what I am about to discuss, I believe that the key phrase used by the Court in Catholic Bishop is “church-operated school.” See 440 U.S. at 501-504, 99 S.Ct. at 1319-20. See also N.L.R.B. v. Bishop Ford Central Catholic High School, 623 F.2d 818, 823 (2d Cir.1980) (“[t]he Catholic Bishop Court employed the term ‘church operated’ not in the restricted sense now seized upon by the Board, but rather as a convenient method of characterizing schools with a religious mission.”). It is the existence of such an institution that brings into play the potential for conflict prohibited by the Religion Clauses. There should be no question but that Universidad Central de Bayamón (University) is a “church-operated school.” To quote from the majority opinion: ... There is no doubt that the University is a religiously affiliated school and that religion is a facet of the school’s existence. Op. at 909. The record shows a lot more, however. The University is the creation of the Dominican Order, and is recognized by the Sacred Congregation for Catholic Education as a Dominican institution, affiliated with the Catholic Church. When founded in 1961 by the Order, it was in fact the Metropolitan San Juan Campus of Catholic University of Puerto Rico, which has its main campus in Ponce. One of its main objectives was, and is, the philosophical preparation of students. In 1964, the Regional Vicar of the Dominican Order and two other Dominican priests incorporated Universidad Central de Bayamón as a non-profit association and transferred the campus to the Dominican Convent in Bayamón. Thereafter through 1970, several buildings were constructed by the Order on the Convent’s grounds, for use by the University. In 1970, by reason of an internal dispute between the Order and the Church’s local hierarchy as to who would control the University, the University separated from Catholic University of Puerto Rico. In 1980 an agreement was reached between the Master General of the Order and the Archbishop of San Juan, which acknowledged a pastoral connection between the University and the Archdiocese of San Juan, but reserved to the Dominican Order all matters relating to the religious orientation, educational philosophy, and internal discipline of the University. The University is at the top of an integrated Catholic school system, owned and operated by the Dominican Order. As such, the University owns and operates two elementary and secondary schools. Those schools are governed by the Board of Trustees of the University. The President of the University, who is also the Regional Vicar of the Dominican Order, is their Chief Executive Officer. The principals of the schools report directly to the Vice President of the University. In 1980, the University began operating a seminary called the Center for Dominican Studies in the Caribbean (CEDOC). In 1982 the University restructured CEDOC’s program to provide for two years of study leading to a master’s degree in theology. The program is open to any qualified student, lay or religious, but its primary objective is the preparation of candidates for priesthood. The CEDOC is both physically and academically a part of the University. Yet, the Board declined to exercise jurisdiction over CEDOC “because of the pervasively religious character of the program.” At 908 n. I. The University is governed by a self-perpetuating Board of Trustees, a majority of whom must be and are members of the Dominican Order. These include the Regional Vicar of the Order, the Prior of the Dominican Convent of Our Lady of the Rosary, and the President of the University. The executive committee of the University, which runs the University between meetings of the Board, is composed of five members, a majority of which must be members of the Dominican Order. The board of trustees is composed of ten members, six of whom are members of the Dominican Order and all of whom are Roman Catholics. The Regional Vicar, Father Van Rooij, has been President of the University and Secretary of its board of trustees since 1970. The president of the University must be a member of the Dominican Order. He appoints all University officials and employees, including deans, department heads and members of the faculty. He also grants tenure. He has the power to adopt the curricula and standards, policies and procedures of the University. He interprets the by-laws and all regulations, and his decisions in this regard are final. The religious mission of the University as a “church operated school” is further accentuated by various of its constituting documents. The agreement with the Archbishop (see footnote 1) binds the University “to keep the faith of the Roman, [Apostolic] and Catholic Church, and a catholic educational] philosophy.” The by-laws of the University state that it is a “Catholic-oriented civil institution.” The bulletin distributed to students indicates that the University is a “liberal arts institution denom-inationally affiliated with the Roman Catholic Church, and the Dominican Order,” and that “B.C.U. is preeminently a Catholic oriented university.” It also advises students that “[r]egular masses are held daily in the Catholic Church of the Dominican Order adjoining the campus.” All students, regardless of their course of study, are required to take at least three credits of theology and nine credits of philosophy in order to receive a degree. The required theology courses are normally taught by priests and the suggested text was prepared by a Dominican priest. The theology and philosophy courses are taught from a Catholic point of view, and their purpose is formative, rather than simply informative. Most of the faculty members are Roman Catholics. All are apprised of their responsibility to adhere to the Catholic philosophy of the institution. That philosophy is applied in the selection and hiring of faculty members. In fact the hiring contract requires faculty members “[t]o know, respect and uphold the University’s philosophy.” The Faculty Regulations state that it “shall at all times put into practice [the University’s] philosophy of being a Catholic-oriented institution.” Among the causes for rescission of a faculty contract, or o'f tenure, are violations of the standards established by the University, “especially those pertaining to personal behavior” and “offenses to the Christian morality.” Approximately 10% of the University’s faculty are priests, who are included in the representation unit certified by the Board. This is significantly different from the situation in Catholic Bishop, where only lay teachers sought representation. In my opinion, it is difficult to understand how the University’s integrated educational system, which commences at the parochial school level, continues through high school into college, and ends with a religious graduate school, can be perceived as anything but a church-operated school with a religious mission. It would appear senseless to me for the University to have imposed all its religious requirements regarding, for example, the composition of its management, if promotion of the Catholic religion were not its objective. Granted that, perhaps when dealing with university-level students, a “softer sell” is possibly more effective than other approaches appropriate at the parochial school level, but that merely is a reflection of the University’s proselytizing tactics, not a negation of its religious mission. To my view the evidence in this case is overwhelming that the University is “church operated” within the meaning of Catholic Bishop. The Board and the majority are still relying sub silencio on the “completely religious” versus “religiously associated” test rejected by the Court in Catholic Bishop, supra, 440 U.S. at 494 n. 7, 99 S.Ct. at 1316 n. 7. The Catholic Bishop standard is whether the school is a church-operated school. Once this threshold issue is passed, the reviewing court is then required to determine, again under Catholic Bishop, whether the Board’s assumption of jurisdiction over the church-operated school presents a significant risk of infringing on Religion Clauses rights. Id. at 502, 99 S.Ct. at 1319. II. The First Amendment and the Standard of Review It may not be coincidental that the concepts embodied in the Religion Clauses are contained in the first clauses of the First Amendment. I make this asseveration conscious of the fact that state-church entanglement and freedom from religious persecution, the principal subject-matters of those clauses, were among the most important concerns in the list of evils sought to be guarded against by the Founding Fathers. Indeed, the Supreme Court has indicated that these interests “plainly rank high in the scale of our national values.” Catholic Bishop, 440 U.S. at 501, 99 S.Ct. at 1319. The Religion Clauses forbid two quite different kinds of government encroachment upon religious freedom. The establishment clause bars a state from promoting religion or adopting a hostile attitude towards religion, Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). The free exercise clause recognizes the right of every person to choose his own course in the pursuit of his religious beliefs, free from compulsion by governmental authority, which includes the right of nonbelief. Johnson v. Board of County Commissioners, 528 F.Supp. 919 (D.N.M. 1981). Notwithstanding this dichotomy, the Framers understood these two components to be compatible and mutually supportive. Thus, to the extent that these clauses reinforce one another, doctrines developed under one clause may also be relevant to the other. See Gillette v. United States, 401 U.S. 437, 91 S.Ct. 828, 28 L.Ed.2d 168 (1971); Walz v. Tax Commission, 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970); Surinach v. Pesquera de Busquets, 604 F.2d 73, 79 (1st Cir.1979). See also Tribe, supra note 5, at 814-15, 834. There is sufficient overlapping of issues in the present case to allow for the joint discussion of the questions raised respecting both components of the Religion Clauses. See Abington School District v. Schempp, 374 U.S. 203, 222, 83 S.Ct. 1560, 1571,10 L.Ed.2d 844 (1963); Catholic Bishop of Chicago v. N.L.R.B., 559 F.2d 1112, 1131 (7th Cir.1977), aff'd, 440 U.S. 490, 99 S.Ct. 1313, 59 L.Ed.2d 533 (1979). Two concepts are important in providing a framework for analysis of the rights established by the Religion Clauses. The first concept is the core ideal of religious autonomy. Tribe, supra, at 812. Clearly, without the right to conduct one’s own affairs free from governmental influence, religious freedom and the concomitant rights guaranteed by the First Amendment would be meaningless. See Laycock, Towards a General Theory of the Religion Clauses: The Case of Church Labor Relations and the Right of Church Autonomy, 81 Colum.L.Rev. 1373 (1981). The second concept concerns the fact that, almost inevitably, religious activity “is inherently associational, interposing the religious community or organization between the state and the individual believer.” Tribe, supra, at 812. These two concepts interplay. In many situations individual religious rights are ultimately the ones affected notwithstanding that the questioned governmental action initially, or on its face, is directed at an organization, and even though its collective rights may also be in jeopardy. Laycock, supra. The net result of this interplay of rights is that, in many cases, although the issue is framed in terms of determining whether the autonomy of a religious organization has been breached by the governmental action, individual religious rights are also at issue. I believe that such is the present case. Although the questions before us primarily affect appellant as an organization, individual religious rights are also ultimately affected: those of the teachers, those of the students, those of the parents of the students, those of the religious members of the university community. The governmental action here challenged has a chilling effect on the exercise of individual religious rights also. Underlying any analysis of whether challenged governmental conduct is violative of the Religion Clauses, whether involving individual or organizational rights or a combination of both, there are two fundamental principles: voluntarism, standing for the proposition “that Religion or this duty which we owe our Creator and the Manner of discharging it, can be directed only by reason and conviction, not by force or violence,” and separatism, sometimes called the “nonentanglement” principle, which reflects James Madison’s position that both religion and government can best achieve their high purposes if each is free from the other’s influence. In testing for compliance with these principles, which ensure the autonomy of religious organizations (and ultimately of individuals as well), it is required that the challenged governmental action be at least justifiable in secular terms. Tribe, supra, at 835. Thus has evolved the three-pronged test proclaimed in Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971), requiring that the questioned governmental action have a secular purpose, a primarily secular effect, and an absence of excessive religious entanglement. Even if it can be shown that governmental action is not directed at a religious aspect of the organization’s life, if the essential effect of this action is to influence the pursuit of a religious tradition, the action must be struck down. Tribe, supra, at 839. The Supreme Court has expanded this requirement to demand that any non-secular effect be remote, indirect and incidental, thus compelling a high standard of review from the judiciary to determine whether this stringent rule has been met. See Committee for Public Education v. Nyquist, 413 U.S. 756, 93 S.Ct. 2955, 37 L.Ed.2d 948 (1973); Surinach, supra, 604 F.2d at 79; Tribe, supra, at 840. See also Buckley v. Valeo, 424 U.S. 1, 64-65, 96 S.Ct. 612, 656, 46 L.Ed.2d 659 (1974). This precept of stricter judicial review is also triggered by the presence of administrative entanglement, a notion that focuses on institutional interference with religion by the state and which comes into conflict with the core ideal of religious autonomy. Tribe, supra, at 866. See also Committee for Public Education v. Nyquist, supra. In my opinion the Board’s assumption of jurisdiction over appellant, as well as its subsequent actions, has a non-secular effect upon appellant that is not remote, indirect and incidental, and creates a significant risk of administrative entanglement between the state and the religious organizations. III. The Entanglement and Non-Secular Effects In determining whether a significant risk of entanglement exists, again we need not go much further than Catholic Bishop. There the Court said: Good intentions by government — or third parties — can surely no more avoid entanglement with the religious mission of the school in the setting of mandatory collective bargaining than in the well-motivated legislative efforts consented to by the church operated schools which we found unacceptable in Lemon, Meek [v. Pittenger, 421 U.S. 349, 95 S.Ct. 1753, 44 L.Ed.2d 217], and Wolman [v. Walter, 433 U.S. 229, 97 S.Ct. 2593, 53 L.Ed.2d 714]. The Board argues that it can avoid excessive entanglement since it will resolve only factual issues such as whether an anti-union animus motivated an employer’s action. But at this stage of our consideration we are not compelled to determine whether the entanglement is excessive as we would were we considering the constitutional issue. Rather, we make a narrow inquiry whether the exercise of the Board’s jurisdiction presents a significant risk that the First Amendment will be infringed. Moreover, it is already clear that the Board’s action will go beyond resolving factual issues. The Court of Appeals’ opinion refers to charges of unfair labor practices filed against religious schools. The court observed that in those eases the schools had responded that their challenged actions were mandated by their religious creeds. The resolution of such charges by the Board, in many instances, will necessarily involve inquiry into the good faith of the position asserted by the clergy-administrators and its relationship to the school’s religious missions. It 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. The Board’s exercise of jurisdiction will have at least one other impact on church-operated schools. The Board will be called upon to decide what are “terms and conditions of employment” and therefore mandatory subjects of bargaining. See 29 U.S.C. § 158(d). Although the Board has not interpreted that phrase as it relates to educational institutions, similar state provisions provide insight into the effect of mandatory bargaining. The Oregon Court of Appeals noted that “nearly everything that goes on in the schools affects teachers and is therefore arguably a ‘condition of employment’.” The Pennsylvania Supreme Court aptly summarized the effect of mandatory bargaining when it observed that the “introduction of how narrowly the scope of negotiation is defined, necessarily represents an encroachment upon the former autonomous position of management.” Inevitably the Board’s inquiry will implicate sensitive issues that open the door to conflicts between clergy-administrators and the board, or conflicts with negotiators of unions____ The church-teacher relationship in a church-operated school differs from the employment relationship in a public or other nonreligious school. We see no escape from conflicts flowing from the Board’s exercise of jurisdiction over teachers in church-operated schools and the consequent serious First Amendment questions that would fol-low____ 440 U.S. at 501-04, 99 S.Ct. at 1319-20 (emphasis supplied, citations omitted). The present case arises precisely “in the setting of mandatory collective bargaining,” predicted by the Court in Catholic Bishop to bring about the prohibited entanglement. Id. In the present case the University unilaterally promulgated new requirements regarding faculty credentials without first notifying or bargaining with the Union, an action found by the Board to be contrary to Section 8(a)(5) of the Act (29 U.S.C. § 158(a)(5)) because it constitutes violation of the duty to bargain concerning a mandatory subject of bargaining. 29 U.S.C. § 158(d) (“terms and conditions of employment”). See, e.g., N.L.R.B. v. Bumup & Sims, Inc., 379 U.S. 21, 85 S.Ct. 171, 13 L.Ed.2d 1 (1964). The Court in Catholic Bishop unambiguously found such action by the Board to constitute infringement of the First Amendment rights of the church-operated schools in question. Yet unexplainedly the majority goes on to rationalize the appropriateness of Board action, right out from under the protection afforded by the Catholic Bishop umbrella. According to the majority, Catholic Bishop is not implicated. First it states that the Board will only become involved after an unfair labor practice charge is filed, thus making unnecessary “continuous auditing surveillance” (Op. at 911). Next it claims that many of the charges will be entirely secular (slip op. at 14) and that where the University’s religious freedom is truly involved it can refuse to bargain and test its position in court {id. at 912). Finally, the majority indicates that it “takes quite seriously the University’s concern that certain union demands could potentially interfere with its religious character,” but voices the unrealistic hope “that the N.L.R.B. will also consider these claims seriously and will ensure that its orders are shaped so as to pass constitutional muster” {id. at 913). I must confess to having some difficulty with the proposition that condemning the University to interminable ad hoc litigation, for the purpose of allowing it to conclude what are the boundaries of its religious freedom, is not “continuous auditing surveillance” or does not have a substantial chilling effect on the exercise of those freedoms by the University. This religious organization is' constitutionally entitled to an autonomy that is inhibited by the Board’s actions in this case. See Laycock, Towards a General Theory of the Religion Clauses: The Cases of Church Labor Relations and the Right to Church Autonomy, supra. This situation is particularly disconcerting in the light of the pronouncements of this court in Surinach v. Pesquera de Busquets, 604 F.2d 73, 75-76 (1st Cir.1979) (Coffin, C.J.), in striking down a mere questionnaire sent to all schools, including parochial schools, inquiring into tuition costs: It is not the obligation of the schools to prove as a precondition for relief at this time that this precise scenario [the possibility that a questionnaire might lead to an economic regulatory scheme], which hardly can be called speculative, in fact will unfold. To the contrary, in the sensitive area of First Amendment religious freedoms, the burden is upon the state to show that the implementation of a regulation scheme will not ultimately infringe upon and entangle it in the affairs of a religion to an extent which the Constitution will not countenance. In cases of this nature, a court will often be called upon to act in a predictive posture; it may not step aside and await a course of events which promises to raise serious constitutional problems. (emphasis in original, footnotes omitted). The majority is now adopting the “trial run” posture rejected by this court in Suri-nach and by the Seventh Circuit in Catholic Bishop. See Catholic Bishop of Chicago v. N.L.R.B., 559 F.2d 1112, 1126 (7th Cir.1977), aff'd, 440 U.S. 490, 99 S.Ct. 1318, 59 L.Ed.2d 533 (1979). It is in fact allowing “the very process of inquiry leading to findings and conclusions,” condemned by the court in Catholic Bishop, as an “impinge[ment] on rights guaranteed by the Religion Clauses.” Catholic Bishop, supra, 440 U.S. at 502, 99 S.Ct. at 1319. In my opinion the Seventh Circuit best stated the case in Catholic Bishop: If a bishop, for example, should refuse to renew all lay faculty teacher contracts because he believed that the union had adopted policies and practices at odds with the religious character of the institutions, or because he wanted to replace lay teachers with religious-order teachers who had become available, under ecclesiastical law he would have the right if not the duty to take that action. Yet, under the National Labor Relations Act, he might well be found guilty of an unfair labor practice. The real difficulty is found in the chilling aspect thqt. the requirement of bargaining will impose on the exercise of the bishops’ control of the religious mission of the schools. To minimize friction between the Church and the Board, prudence will ultimately dictate that the bishop tailor his conduct and decisions to “steer far wider of the unlawful zone” of impermissible conduct. If, for example, a teacher should give a strong pro-union speech at a meeting one week and the next week would advocate the cause of birth control to his or her students or favor the availability to poor people of abortion, the bishop would be confronted with a choice of foregoing his right to discharge the heretical employee or do so at the risk of a protracted and expensive unfair labor practice proceeding before the Board which would certainly in part involve the Church’s religious policies and beliefs. In sum, it is unrealistic to say that an employer which has to honor a bargaining order is not substantially inhibited in the manner in which it conducts its operations. This is true of all bargaining orders but on the general industrial and commercial scene sound policy considerations have upheld this imposition, inhibiting though it may be, which policy declarations are found at 29 U.S.C. §§ 141 and 151. We do not disagree with the soundness of the legislative policy determinations which have been consistently upheld by the courts. We only say that when that imposition conflicts with the Religion Clauses that the First Amendment protective wall should prevail. 559 F.2d at 1123-1124 (citations omitted). As that court went on to say, “these paradigmatic situations ... are not merely fanciful horror tales devised by an employer who seeks to avoid labor board jurisdiction.” Id. at 1125. Rather they are situations readily foreseeable in the practical world of labor relations. Because the Board’s assertion of jurisdiction over the appellant violates the First Amendment, I dissent. See also Catholic High School Ass’n of Archdiocese v. Culvert, 573 F.Supp. 1550 (S.D.N.Y.1983), rev’d in part, 753 F.2d 1161 (2d Cir.1985). BREYER, Circuit Judge, with whom LEVIN H. CAMPBELL, Chief Judge and TORRUELLA, Circuit Judge, join. In NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 99 S.Ct. 1313, 59 L.Ed.2d 533 (1979), the Supreme Court, reading the National Labor Relations Act in light of the First Amendment’s Establishment Clause, held that the Labor Board lacked jurisdiction over “teachers in church-operated schools.” NLRB v. Catholic Bishop of Chicago, 440 U.S. at 507, 99 S.Ct. at 1322. The case before us involves, not secondary schools as in Catholic Bishop, but a college or university, called Universidad Central de Bayamon. The legal issue presented is whether C