Carroll College, Inc.

National Labor Relations Board - Board Decisions

Aug 26, 2005

345 N.L.R.B. 254 (N.L.R.B. 2005)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
345 NLRB No. 17
254
Carroll College, Inc. and International Union, United
Automobile, Aerospace & Agricultural Imple-
ment Workers of America—UAW, Petitioner.
Case 30–RC–6594
August 26, 2005
DECISION ON REVIEW AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
The issue presented in this case is whether the Em-
ployer, a private liberal arts college “affiliated” with the
Presbyterian Church that expressly concedes that it is an
employer within the meaning of Section 2(2) of the Act,
is nevertheless exempt from application of the Act by
virtue of the Religious Freedom Restoration Act
(RFRA).1 On January 13, 2005, the Acting Regional
Director for Region 30 issued a Decision and Direction
of Election in the above-entitled proceeding. Following
the Board’s decision in University of Great Falls,2 where
the Board stated that RFRA does not require the Board to
alter the analysis that it has consistently undertaken un-
der NLRB v. Catholic Bishop of Chicago3 in determining
whether the assertion of jurisdiction over an employer
would involve a significant risk of infringement of First
Amendment rights, the Acting Regional Director con-
cluded that asserting jurisdiction over the Employer
would not violate the First Amendment. Consequently,
the Acting Regional Director determined that he need not
address the Employer’s RFRA claim.
Thereafter, in accordance with Section 102.67 of the
National Labor Relations Board’s Rules and Regulations,
the Employer filed a timely request for review. The Em-
ployer contended, inter alia, that the Acting Regional
Director erred by not directly addressing its claim that
application of the Act to it would substantially burden its
free exercise of religion under RFRA, but instead analyz-
ing whether the Board has jurisdiction over it under
Catholic Bishop, supra. The Employer expressly con-
ceded that under Catholic Bishop it is subject to the
Board’s jurisdiction.
By Order dated May 11, 2005, the Board granted the
Employer’s request for review solely with respect to the
Acting Regional Director’s application of RFRA.4 The

1 42 U.S.C. § 2000bb-1.
2 331 NLRB 1663 (2000), enf. denied 278 F.3d 1335 (D.C. Cir.
2002).
3 440 U.S. 490 (1979).
4 The Board denied the Employer’s request for review of the Acting
Regional Director’s finding that the Employer’s faculty are not mana-
gerial employees within the meaning of NLRB v. Yeshiva University,
444 U.S. 672 (1980), or supervisors within the meaning of Sec. 2(11) of
the Act. The Board also denied review of the Acting Regional Direc-
tor’s determination that the Employer’s librarians should be permitted
election was conducted as scheduled on February 11,
2005, and the ballots were impounded pending the
Board’s Decision on Review. The Petitioner and the
Employer filed briefs on review.5 An amicus curiae brief
was also filed.6
In accordance with the decision of the United States
Court of Appeals for the District of Columbia Circuit in
NLRB v. University of Great Falls,7 we disavow the
Board’s decision in University of Great Falls to the ex-
tent that it can be read to conflate the analysis of a RFRA
claim with the analysis of a Catholic Bishop jurisdic-
tional exemption claim.8 Consistent therewith and con-
trary to the Acting Regional Director, we independently
consider the Employer’s RFRA claim. Having carefully
considered the entire record in this proceeding, including
the briefs on review and amicus curie brief, we conclude
that application of the Act to the Employer does not vio-
late RFRA. Thus, we affirm the Acting Regional Direc-
tor’s decision for the reasons set forth below.
I. FACTS
The Employer, Carroll College, is a private coeduca-
tional liberal arts college located in Waukesha, Wiscon-
sin. The College is divided into two schools: the school
of liberal arts and science and the school of graduate and
professional studies. The College offers 35 liberal arts
and professional majors and in the fall of 2003 had an
enrollment of 2986 students. There are 104 faculty
members in the petitioned-for unit.
Soon after the College was established in 1846, it “af-
filiated” with the Presbyterian Church. Today, that af-
filiation is recognized in the Articles of Incorporation,
which provide that the College is “related” to the Synod
of Lakes and Prairies of the United Presbyterian Church
(the Church).9

to vote subject to challenge because there was insufficient evidence to
determine whether they should be included in the unit.
5 The Employer’s request for oral argument is denied as the record
and briefs adequately present the issues and the positions of the parties.
6 On June 30, 2005, the Board granted the request of the Linda Loma
University Medical Center, Adventist Health, and Adventist Health
System Sunbelt Healthcare Corporation to file an amicus brief and
accepted the brief that accompanied the request.
7 278 F.3d 1335 (D.C. Cir. 2002).
8 Because the Employer has not contested the Board’s assertion of
jurisdiction, we need not pass on the D.C. Circuit’s rejection of the
Board’s test for determining whether an educational institution is ex-
empt from the Board’s jurisdiction under Catholic Bishop, supra. Uni-
versity of Great Falls, 278 F.3d at 1343.
9 The Synod of Lakes and Prairies of the United Presbyterian Church
is a clustering of Presbyterian Churches in the upper midwest that have
joined together to agree on a broad set of common values, goals, and
charitable endeavors. Eight colleges are currently affiliated with the
Synod.
CARROLL COLLEGE, INC. 255
The College and the Church are parties to a covenant,
which they renew periodically. The College’s president,
Frank Falcone, described the covenant as “broad” and
testified that it is “a general agreement on general princi-
ples” that the College and the Church share. More spe-
cifically, the covenant commits the board of trustees to
the following: (1) “recognize and affirm its origin and
heritage in the concern of the Church for intellectual and
spiritual growth of its students, faculty, administration,
and staff”; (2) “offer education of high quality committed
to the wholeness of life interpreted and illumined by the
Christian faith”; (3) continue to be a liberal arts institu-
tion that offers classes with a goal of academic excel-
lence; (4) relate to the whole Church; (5) recognize op-
portunity to provide leadership to the Church; (6) admin-
ister church gifts faithfully; (7) be nondiscriminatory in
its admissions and employment policies; and “seek to
instill in its students the ideals of rigorous pursuit of
truth, freedom of thought and investigation, and respect
for differing opinions”; (8) be maintained and perpetu-
ated to merit regional and national recognition for quality
leadership; and (9) nominate and elect at least one Pres-
byterian minister in each elected class of the board of
trustees.
The College’s mission statement, approved by the
board of trustees in 1995, provides in full:
• We will provide a superior educational oppor-
tunity for our students, one grounded in the
liberal arts tradition and focused on career
preparation and lifelong learning.
• We will demonstrate Christian values by our
example.
• We shall succeed in our mission when our
graduates are prepared for careers of their
choice and lives of fulfillment, service and
accomplishment.
The board of trustees also adopted a Statement of
Christian Purpose. The statement provides in part:
The Christian purpose of Carroll College is summa-
rized in its motto “Christo et Litteris”—for Christ and
Learning. By means of a faculty dedicated to the Chris-
tian purpose and assured of the academic freedom nec-
essary to the performance of its tasks, the college seeks
to provide a learning community devoted to academic
excellence and congenial to Christian witness. To this
learning community, the college welcomes all inquir-
ers.
The College’s president testified that the statement “is
an attempt to clarify that the Christian values are the un-
derpinning of the institution but to recognize that inquiry
will take us in a lot of different directions and people
should feel free to speak their minds.” The Carroll Com-
pact, which defines “the values and expectations of the
college community,” and is published in the annual
course catalog, makes no reference to the Church or any
other organized religion.
The Church does not exert any type of administrative
control over the College. The board of trustees is the
chief governing entity of the College. Currently, there
are 33 members of the board of trustees, including the
College’s president and alumni College president. The
trustees serve 3-year terms. Trustees are not required to
be Church members. The board of trustees is self-
selected, so the Church has no power to nominate or
elect any trustees. The bylaws direct that the trustees
must elect three Presbyterian ministers to the board. Cur-
rently, there is one Presbyterian minister on the board,
and the College is seeking to fill the other two vacancies.
The bylaws direct that trustee nominees should “respect
the Christian commitment and will seek to maintain the
Christian ideals and purposes of the college.” President
Falcone testified that this is a subjective requirement.
The College’s articles of incorporation prohibit the es-
tablishment of any requirements that limit the admission
of students, election of trustees, or appointment of fac-
ulty to members of the Presbyterian denomination. Ad-
ditionally, there is no evidence that faculty are required
to subscribe to the Christian faith or to teach or promote
the goals or values of the Church or Christianity in gen-
eral. In fact, President Falcone testified that “all are free
to speak their minds” and that the College would not
exclude from the faculty anyone who held a world view
different from the Christian world view. To this extent,
there is also no evidence that the Church could require
dismissal of faculty for engaging in conduct contrary to
its teachings, or for advocating ideas contrary to Christi-
anity or the Presbyterian Church.
There is no evidence that students are required to at-
tend religious services. There is also no evidence that
the Church exercises any influence over course content
or book selection. While the College, pursuant to the
articles of incorporation, requires students to take one
religious course (4 credits) to graduate, the administra-
tion and faculty have interpreted this requirement
broadly. Students may satisfy the requisite course by
taking and passing classes that deal with values and eth-
ics but are not specifically within the religious studies
curriculum. Some examples of classes that students may
take to complete the religious course requirement include
“Bioethics,” “Literature in Black America,” and “Playing
Crazy: Cultural Constructions of Madness.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD256
The College is not financially dependent on the
Church. The majority of the College’s revenue, ap-
proximately 70 percent, comes from student tuition. The
remaining revenue is derived from fundraising and en-
dowment draw. There is no evidence that any of the Col-
lege’s revenue comes from the Church. The College
owns the property on which it is located.
II. ANALYSIS
A. Revision of the Appropriate Legal Standard
for Analyzing RFRA Claims
1. Background
Prior to 1990, courts occasionally utilized a balancing
test whereby State or governmental actions that substan-
tially burdened the free exercise of religion could only be
justified if they were the least restrictive means of
achieving a compelling governmental interest. See, e.g.,
Sherbert v. Verner, 374 U.S. 398 (1963); Wisconsin v.
Yoder, 406 U.S. 205 (1972). However, in the landmark
case of Department of Human Resources of Oregon v.
Smith, 494 U.S. 872 (1990), the Supreme Court held that
the free exercise clause of the First Amendment is not
violated by the enforcement of a generally applicable
neutral law (i.e., one that passes through duly elected
legislatures with a neutral purpose) that burdens religious
conduct. In particular, the Court rejected the contention
that such an application of law was unconstitutional ab-
sent a showing of a compelling government interest.
In direct response to the Court’s decision in Smith, su-
pra, Congress enacted RFRA. In RFRA, Congress
sought to restore the “compelling interest” standard that
had been applied in Sherbert, supra, Yoder, supra, and
several other pre-Smith free exercise decisions. RFRA
applied to every law in the United States and provided
that: “Government shall not substantially burden a per-
son’s exercise of religion even if the burden results from
a rule of general applicability,” unless “it demonstrates
that application of the burden to the person—(1) is in
furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that com-
pelling governmental interest.” RFRA was subsequently
declared unconstitutional by the Supreme Court in City
of Boerne v. Flores, 521 U.S. 507 (1997).10 The Court
held that Congress lacked the authority under Section 5
of the Fourteenth Amendment to impose RFRA on State

10 Boerne involved local land use law applied to a Catholic church in
Boerne, Texas, that sought a building permit to demolish the entire
structure in order to build a larger structure. The city denied the appli-
cation pursuant to an ordinance requiring preapproval by the Boerne
Historic Landmark Commission. Archbishop Flores sued on the basis
of RFRA to trump the local land use law.
and local Governments, and therefore RFRA was uncon-
stitutional as applied to State and local law.
Since Boerne, supra, the debate over RFRA has shifted
to whether it is constitutional as applied to Federal law.11
Appellate courts that have squarely addressed the ques-
tion have held that RFRA governs the activities of Fed-
eral officers and agencies.12 However, other appellate
courts and commentators continue to doubt RFRA’s va-
lidity.13 Nevertheless, in University of Great Falls, su-
pra, the Board assumed that RFRA is constitutional as
applied to the Act and Board proceedings. See also
Ukiah Valley Medical Center, 332 NLRB 602 fn. 3
(2000). We do the same here.
2. The Board and court’s decision in
University of Great Falls
In University of Great Falls, 331 NLRB 1663 (2000),
enf. denied 278 F.3d 1335 (D.C. Cir. 2002), unlike the
current case, the employer claimed both that it was ex-
empt from the Board’s jurisdiction under Catholic
Bishop, supra, and that application of the Act to it would
violate RFRA. Relying on Jewish Day School of Greater
Washington, 283 NLRB 757 (1987), and its progeny, the
Board found that it was proper to assert jurisdiction un-
der Catholic Bishop. The Board also addressed the em-
ployer’s RFRA claim as follows.
The Board found that the threshold question in deter-
mining whether there has been a violation of RFRA is
whether the assertion of jurisdiction over the employer
would result in a “substantial burden” on the employer’s
free exercise of its religion. In the free exercise area, the
Board follows the Supreme Court’s decision in Catholic
Bishop, which held that the Board could not assert juris-
diction over lay teachers in church-operated schools be-
cause to do so would create a “significant risk” that First
Amendment rights would be infringed. Catholic
Bishop’s requirement that the Board avoid even a “sig-

11 Recently, in Cutter v. Wilkinson, 125 S.Ct. 2113 (2005), a case in-
volving the constitutionality of sec. 3 of the Religious Land Use and
Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc-1(a)(1)–
(2), the Supreme Court remarked that it has not had the occasion to rule
on the constitutionality of RFRA as applied to the Federal Government.
Cutter v. Wilkinson, 125 S.Ct. at 2118 fn. 2.
12 See Guam v. Guerrero, 290 F.3d 1210, 1221 (9th Cir. 2002);
Henderson v. Kennedy, 265 F.3d 1072, 1073 (D.C. Cir. 2001); Kiku-
mura v. Hurley, 242 F.3d 950, 958 (10th Cir. 2001); Young v. Crystal
Evangelical Free Church, 141 F.3d 854, 856 (8th Cir. 1998); O’Bryan
v. Bureau of Prisons, 349 F.3d 399 (7th Cir. 2003).
13 See La Voz Radio de la Communidad v. F.C.C., 223 F.3d 313 (6th
Cir. 2000) (“Assuming for the sake of argument that RFRA is constitu-
tional as applied to the federal government . . . which we doubt.”); U.S.
v. Grant, 117 F.3d 788, 792 fn. 6 (5th Cir. 1997) (noting doubt as to
continued viability of RFRA in federal context). See also Marci A.
Hamilton, The Religious Freedom Restoration Act Is Unconstitutional,
Period, 1 U. Pa. J. Const. L. 1 (1998).
CARROLL COLLEGE, INC. 257
nificant risk of infringement,” is, according to the
Board’s opinion in University of Great Falls, a stricter
standard than the “substantial burden” standard set forth
in RFRA. Therefore, the opinion assumed, RFRA does
not require the Board to alter the analysis that it has con-
sistently undertaken under Catholic Bishop in determin-
ing whether the Board’s assertion of jurisdiction over an
employer would involve a significant risk of infringe-
ment of First Amendment rights. The Board opined that
inasmuch as RFRA prohibits only those governmental
actions that “substantially burden” the free exercise of
religion, it follows that when the Board applies Catholic
Bishop and finds that the exercise of the Board’s jurisdic-
tion over an employer involves no significant risk of in-
fringement of religious rights, RFRA’s purposes have
been considered and satisfied, as well. The Board found
that the employer was not involved with a religious insti-
tution in such a way that the Board’s exercise of jurisdic-
tion would create a significant risk that First Amendment
rights would be infringed. Thus, the Board’s assertion of
jurisdiction over the employer also would not “substan-
tially burden” its free exercise of religion under RFRA.
Consequently, the Board concluded that it need not ad-
dress whether the assertion of jurisdiction was the least
restrictive means of achieving a compelling governmen-
tal interest. University of Great Falls, 331 NLRB at
1665–1666.
Subsequently, the D.C. Circuit rejected the Board’s in-
terpretation of Catholic Bishop and declined to enforce
the Board’s Order. The court rejected the Board’s “sub-
stantial religious character” test and instead adopted the
tripartite test suggested by then-Judge Breyer in his plu-
rality opinion in Universidad Central de Bayamon v.
NLRB, 793 F.2d 383 (1st Cir. 1985) (en banc). See
NLRB v. University of Great Falls, 278 F.3d 1334, 1340–
1344 (D.C. Cir. 2002). Applying that tripartite test, the
Court concluded that the Board did not have jurisdiction
for the reasons discussed by the Supreme Court in
Catholic Bishop. Thus, the court did not need to reach
the university’s claim that the application of the Act to it
would violate RFRA. However, it explicitly asserted as
follows:
Contrary to the Board’s view that “RFRA does not re-
quire the Board to alter the analysis that it has consis-
tently undertaken under Catholic Bishop,” Great Falls,
331 NLRB [1663–1665], RFRA presents a separate in-
quiry from Catholic Bishop. Under Catholic Bishop,
the NLRB must determine whether an entity is alto-
gether exempt from the NLRA. We have laid forth a
bright-line test for the Board to use in making this de-
termination. However, a ruling that an entity is not ex-
empt from Board jurisdiction under Catholic Bishop
may not foreclose a claim that requiring that entity to
engage in collective bargaining would “substantially
burden” its “exercise of religion.” 42 U.S.C. § 2000bb-
1(a). Moreover, even if the act of collective bargaining
would not be a “substantial burden,” RFRA might still
be applicable if remedying a particular NLRA violation
would be a “substantial burden.” As none of these
questions are properly before us, we need not explore
them further. [University of Great Falls, 278 F.3d at
1347.]
3. Revised approach
We accept the D.C. Circuit’s analysis that a ruling that
an entity is not exempt from Board jurisdiction under
Catholic Bishop does not automatically foreclose a
RFRA claim that requiring that entity to engage in col-
lective bargaining would “substantially burden” its exer-
cise of religion.14 Accordingly, we disavow the Board’s
decision in University of Great Falls to the extent that it
can be read to conflate the analysis of a RFRA claim
with analysis of a Catholic Bishop jurisdictional exemp-
tion claim. If a party brings a RFRA claim before the
Board, we will analyze it independently of any Catholic
Bishop exemption claim.15
RFRA provides that: “Government shall not substan-
tially burden a person’s exercise of religion even if the
burden results from a rule of general applicability,”
unless “it demonstrates that application of the burden to
the person—(1) is in furtherance of a compelling gov-
ernmental interest; and (2) is the least restrictive means
of furthering that compelling governmental interest.” 42
U.S.C. § 2000bb-1(a)–(b). Therefore, to establish a
prima facie case under RFRA’s substantial bur-
den/compelling interest/least restrictive means frame-
work, a claimant must show that application of the Act
will substantially burden its ability to freely exercise its
sincere religious beliefs. The burden of proof is on the
claimant to show a substantial burden. See Diaz v.

14 Cf. Ukiah Valley Medical Center, 332 NLRB 602 (2000) (the
Board statutorily authorized to assert jurisdiction over hospital operated
by the Seventh-day Adventist Church; however, based on the religious
practices of the Adventists which prohibit its members from participat-
ing in labor unions, paying dues to labor unions, or operating within the
presence of labor unions, the Board assumed that requiring the Advent-
ists to bargain with a union would constitute a “substantial burden” on
their free exercise of religion but nonetheless found that application of
the Act furthers a compelling governmental interest and is the least
restrictive means of furthering that interest). Chairman Battista and
Member Schaumber did not participate in Ukiah and find it unneces-
sary to pass on all aspects of Ukiah’s holding.
15 In fact, in this case, the Board has no choice but to analyze the
Employer’s RFRA claim separately because, as mentioned above, the
Employer has not contested the Board’s assertion of jurisdiction under
Catholic Bishop, supra.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD258
Collins, 114 F.3d 69, 71–72 (5th Cir. 1997). Only if the
claimant carries this burden, will the Board, under
RFRA, have to establish that the Act serves a compelling
governmental interest and that application of the Act is
the least restrictive means of accomplishing that compel-
ling interest.
While RFRA does not define what constitutes a “sub-
stantial burden” on the exercise of religion,16 Section
2000bb-(b)(1) of RFRA explains that a purpose of RFRA
is “to restore the compelling interest test as set forth in
Sherbert v. Verner, 374 U.S. 398 (1963), and Wisconsin
v. Yoder, 406 U.S. 205 (1972), and to guarantee its appli-
cation in all cases where free exercise of religion is sub-
stantially burdened[.]” This language, as well as the leg-
islative history, instructs that “substantial burden” should
be interpreted by reference to Supreme Court jurispru-
dence. See S. Rep. No. 111, 103d Cong., 1st Sess. at 8
(1993). A definition derived from the Supreme Court’s
pre-Smith decisions is that a substantial burden arises
when the Government compels a religious adherent to
engage in conduct that his religion forbids or prevents
him from engaging in conduct that his religion requires.
See Hobbie v. Unemployment Appeals Commission of
Florida, 480 U.S. 136, 140–141 (1987); Sherbert v.
Verner, 374 U.S. 398, 404 (1963). Stated differently, a
substantial burden exists when the Government’s regula-
tion puts “substantial pressure on an adherent to modify
his behavior and to violate his beliefs[.]” Thomas v. Re-
view Board of Indiana Employment Section Division, 450
U.S. 707, 717–18 (1981).
The “substantial burden” inquiry is plainly different
from the Catholic Bishop “significant risk” inquiry under
which the Board must determine whether an entity is
altogether exempt from the Board’s jurisdiction.17

16 RFRA had defined “exercise of religion” as “the exercise of relig-
ion under the First Amendment to the Constitution.” 42 U.S.C. §
2000bb-2(4) (1999). The Religious Land Use and Institutionalized
Persons Act (RLUIPA), Pub. L. No. 106-274, §§ 7–8, 114 Stat. 803,
806 (2000), altered the definition to “any exercise of religion, whether
or not compelled by, or central to, a system of religious belief.” 42
U.S.C. § 2000cc-5(7)(A), incorporated by 42 U.S.C. § 2000bb-2(4).
17 In analyzing the RFRA claim in University of Great Falls, supra,
the Board applied Catholic Bishop, supra. To this end, because Catho-
lic Bishop predated Smith, supra, the Board thought that it was follow-
ing Congress’ directive to “look to the free exercise cases prior to Smith
for guidance in determining whether the exercise of religion has been
substantially burdened.” University of Great Falls, 331 NLRB at 1664,
citing S. Rep. No. 111, 103d Cong., 1st Sess. at 8 (1993). The pre-
Smith cases that Congress referred to in RFRA’s text and legislative
history were the handful of cases where the Court applied the Sherbert
test and said that governmental actions that substantially burden a reli-
gious practice must be justified by a compelling governmental interest
and must be the least restrictive means of furthering that compelling
governmental interest. See 42 U.S.C. § 2000bb-(a)–(b)(1). By enact-
ing RFRA, Congress sought to restore that standard. Id. Catholic
B. Application of RFRA to the Employer
We find that the Employer has not carried its burden of
proving that application of the Act would substantially
burden its free exercise of religion.18
Should the Petitioner become certified as the collec-
tive-bargaining representative of the Employer’s faculty,
the Employer will be legally obligated to bargain with
the Petitioner in good faith or risk legal sanctions under
the Act. The Employer argues that requiring it to bargain
with the Petitioner will substantially burden its free exer-
cise of religion because it will interfere with its right to
decide autonomously whether faculty members are satis-
factorily conforming to the Protestant theological tradi-
tion and, more specifically, to the tenets of the “re-
formed” Presbyterian Church.19 This contention, how-
ever, is not supported by the evidence.20
First, based on the record, the Employer has not car-
ried its burden of demonstrating that a bargaining obliga-
tion would place a substantial burden on it with regard to
the interaction between the faculty’s educational conduct
and content and the University’s religious commitment.
In fact, despite the general pronouncements set forth in
some of the Employer’s constitutive documents that ap-
pear in the record and are outlined above, the Employer’s
free exercise rights are not implicated in this case. There
is nothing in the record to indicate that the Employer
uses any religious criteria in its hiring process or deci-
sions or that faculty members must agree to any particu-
lar statement of beliefs. In fact, the Employer’s Articles
of Incorporation specifically prohibit discrimination in
admissions and employment decisions based on religion.
Furthermore, there is nothing in the record to indicate

Bishop, however, does not fall within this line of cases. Its framework
is not analogous to RFRA’s substantial burden/compelling interest/least
restrictive means framework; therefore, the case is not controlling in
analyzing RFRA claims.
18 In its Brief on Review, the Employer contends that under RFRA,
the Board cannot apply the Act to it “unless the Board can conclude
that the evidence demonstrates that it is more probable than not that this
substantial cost burden imposed on Carroll is necessary to the realiza-
tion of the secular values of the NLRA and, in addition, application of
the NLRA in this context is the only means by which these values can
be realized.” The Employer, thus, erroneously imports a balancing test
into the RFRA analysis without any support. As discussed above,
RFRA utilizes a burden shifting analysis. Moreover, the Board has no
obligation to demonstrate the value of applying the Act to the Em-
ployer, unless and until the Employer demonstrates that such applica-
tion constitutes a substantial burden.
19 Put another way, the Employer argues that requiring it to bargain
with the Petitioner will substantially burden its free exercise of religion
because it will interfere with its right to decide whether the faculty is
“discharging the Christian objectives and purpose of the institution.”
20 The Employer bases its entire RFRA argument on testimony of
President Falcone in response to questions asked by its counsel. It is
telling that these questions and answers fill less than 2 pp. of the other-
wise thorough 874-page record.
CARROLL COLLEGE, INC. 259
that a faculty member was ever disciplined, dismissed, or
denied tenure, a promotion, or a merit-based salary in-
crease for engaging in conduct contrary to the teachings
of the Church, or for advocating ideas contrary to Chris-
tianity or the Presbyterian Church. Indeed, President
Falcone testified that the Employer is tolerant of views
that may not conform to Presbyterian theological world
views and that as a result faculty members are free to
speak their minds.
Second, and more importantly, the Petitioner is not yet
certified as the faculty’s collective-bargaining representa-
tive and consequently, no specific religion-based con-
flicts have emerged.21 Hypothetical transgressions ad-
vanced by the Employer or the mere potential for trans-
gression is not enough to satisfy RFRA’s substantial bur-
den component. The burden must be “a demonstrable
reality,” not merely a speculative possibility, Beck v.
Washington, 369 U.S. 541, 558 (1962), and compliance
with the regulation must be directly contrary to the
claimant’s religious beliefs. Wisconsin v. Yoder, 406
U.S. at 214–2115. As a result, at this stage, the proper
inquiry before us is whether the broad requirement that
the Employer bargain in good faith with the Petitioner
upon certification, without more, violates RFRA.22 We
conclude that it does not. While the collective-
bargaining process will undoubtedly result in some im-
pact on the Employer’s operation, that is the case for any
employer obligated to bargain with a union.23 The
process does not, however, in and of itself, substantially
burden the Employer’s free exercise of religion.24
Requiring the Employer to bargain in good faith with
the Petitioner, upon certification, would not substantially
burden its free exercise of religion. Under First Amend-
ment law, courts (and administrative agencies) are not
obliged to determine the truth or falsity of any tenet of
religious doctrine. Hobbie v. Unemployment Appeals
Commission of Florida, 480 U.S. at 144 fn. 9. Neverthe-
less, in order to make out a threshold RFRA claim (i.e.,
that the general bargaining obligation that accompanies a

21 See Tressler Lutheran Home v. NLRB, 677 F.2d 302, 306 (3d Cir.
1982).
22 See Tressler Lutheran Home v. NLRB, 677 F.2d at 306. The
Board will apply the same analysis if the Petitioner is ultimately certi-
fied as the employees’ representative and the Employer subsequently
contests the Petitioner’s certification by refusing the Petitioner’s re-
quest to bargain. At that point, since no bargaining would have taken
place, no potential religious based conflict would have emerged. See
id.
23 See St. Elizabeth Community Hospital v. NLRB, 708 F.2d 1436,
1442 (9th Cir. 1983).
24 See EEOC v. Mississippi College, 626 F.2d 477, 488 (5th Cir.
1980) (“[T]he relevant inquiry is not the impact of the statute upon the
institution, but the impact of the statute upon the institution’s exercise
of its sincerely held religious beliefs.”).
certification of representative would facially violate
RFRA), a claimant must offer evidence to indicate what
the practices and underlying tenets of its faith are and
how requiring it to collectively bargain with a union
would conflict with those practices and tenets and there-
fore be a substantial burden on its free exercise of relig-
ion.25 In this case, the Employer did not offer a single
piece of evidence to indicate what the tenets of the Pres-
byterian faith are and how requiring it to collectively
bargain with the Petitioner would conflict with those
tenets and hence be a substantial burden on its free exer-
cise of religion. The Employer argues that because it is a
“Presbyterian Protestant College . . . there is no dogma or
particular ‘Faith’ to propagate.” However, accepting the
Employer’s assertion as true, this does not excuse the
Employer from producing evidence to satisfy its burden
of proving that its free exercise of religion will be sub-
stantially burdened by application of the Act. This case
is in stark contrast with Ukiah, supra, where the em-
ployer offered voluminous evidence to demonstrate that
the teachings of the Adventist faith prohibit Adventist
institutions, such as Ukiah, from recognizing or bargain-
ing with unions. Ukiah, 332 NLRB at 603, 607–609.
The Employer contends that to deny its RFRA claim
would require us to question the sincerity of its religious
mission. The Employer is incorrect. Indeed, we accept
the Employer’s assertion that its constitutive documents
establish that it has a sincerely held purpose to instill
Christian values in its students. However, we find that
the Employer failed to carry its burden of showing that
any practices in furtherance of this sincerely held pur-
pose would be substantially burdened by application of
the Act.
Nor will application of the Act compel the Employer
to engage in conduct that its religion forbids or prevent it
from engaging in conduct that its religion requires. In-
deed, the Employer does not claim that Presbyterian doc-
trine forbids collective bargaining or requires it to engage
in unfair labor practices. Compare, St. Elizabeth Com-
munity Hospital v. NLRB, 708 F.2d at 1443 (the Board
asserts jurisdiction and court affirms finding no substan-
tial burden and therefore no free exercise violation re-
marking that, “Catholic doctrine does not counsel St.
Elizabeth to commit unfair labor practices or to refuse to
bargain with a labor union”), and Tressler Lutheran
Home v. NLRB, 677 F.2d at 306 (same for Lutheran re-
ligion) with Ukiah Valley Medical Center, 332 NLRB

25 It should be noted that the Employer does not claim that the
Board’s inquiry itself interferes with the free exercise of its religion.
To the extent that the inquiry itself is a concern, it raises a concern
regarding the constitutionality of RFRA. As discussed above, we as-
sume RFRA’s constitutionality.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD260
602 (the Board assumed that asserting jurisdiction over a
hospital operated by the Seventh-Day Adventist Church
and thereby requiring it to bargain with the union was a
substantial burden because the Church’s teachings pro-
hibit its members from participating in labor unions, pay-
ing dues to labor unions, or operating within the presence
of labor unions). Additionally, there is no evidence that
the fact that the Employer may have to bargain with the
Petitioner puts pressure on the Employer to modify its
religious behavior or to violate its beliefs.
We recognize that a certification of the Petitioner
would mean that terms and conditions of employment
would no longer be subject to the Employer’s unilateral
control. However, there is nothing on this record to sug-
gest that the Petitioner would wish to bargain about mat-
ters which, in the Employer’s view, relate to its funda-
mental Christian purpose. Thus, we need not pass on the
hypothetical issue that could arise if the Union were to
seek bargaining on such a matter and the Employer were
to refuse. Suffice it to say that the issue of mandatory
versus permissive subjects of bargaining is a difficult
one, and we would not here speculate that the subject
would be mandatory. In short, it would be premature to
deny jurisdiction because of the hypothetical possibility
that the fundamental religious Christian purpose of the
Employer would be subjected to the bargaining process.
On the record before us, the Employer cannot exempt
itself at the very threshold of the Act’s application. It has
not shown that the Board’s certification of the Petitioner
as the exclusive bargaining representative of its faculty
and the resultant generally applicable employer-
employee bargaining responsibility would substantially
burden its free exercise of religion. Accordingly, we
need not address RFRA’s additional requirements that
any such burden further a compelling governmental in-
terest and must be the least restrictive means of further-
ing that interest.
III. CONCLUSION
The D.C. Circuit’s opinion in NLRB v. University of
Great Falls, supra, has led us to reexamine our analysis
of RFRA claims. We agree that RFRA presents a sepa-
rate inquiry from Catholic Bishop, supra, and therefore
RFRA claims should be separately and directly ad-
dressed. A ruling that an entity is not exempt from
Board jurisdiction under Catholic Bishop may not fore-
close a claim that requiring that entity to engage in col-
lective bargaining would substantially burden its exercise
of religion. Consequently, we disavow the Board’s deci-
sion in University of Great Falls to the extent that it can
be read to conflate the analysis of a RFRA claim with
analysis of a Catholic Bishop jurisdictional exemption
claim. Nevertheless, having carefully considered the
entire record in this proceeding, we ultimately conclude
that application of the Act to the Employer does not vio-
late RFRA. The Employer has not shown that applica-
tion of the Act will substantially burden its ability to
freely exercise its sincere religious beliefs in any way.
As a result, we affirm the Acting Regional Director’s
decision for the reasons stated herein and remand this
case to him for further appropriate action.
ORDER
The Acting Regional Director’s Decision and Direc-
tion of Election is affirmed. This proceeding is re-
manded to the Acting Regional Director for further ap-
propriate action consistent with this Order.