Niagara University

National Labor Relations Board - Board Decisions

Dec 16, 1976

227 N.L.R.B. 313 (N.L.R.B. 1976)

NIAGARA UNIVERSITY 313
Niagara University, Employer-Petitioner and Niagara
University Lay Teachers Association. Case 3-UC-
104
December 16, 1976
DECISION AND CLARIFICATION OF
UNIT
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND PENELLO
On December 17, 1975, pursuant to the Regional
Director's Decision and Direction of Election in Case
3-RC-6410 an election was held in a unit of all full-
time lay faculty excluding among others the religious
faculty employed by the Employer at Niagara Uni-
versity. However, as provided by the Regional
Director in his Decision, as subsequently modified by
the Board pursuant to the Employer's request for
review, four members of religious orders other than
the Eastern Province of the Congregation of the
Mission (Vincentian), which operates Niagara Uni-
versity, were permitted to cast challenged ballots. The
Union won the election by a vote of 81 to 46.
Consequently, the four challenged ballots of the
religious faculty here in question had no effect on the
results of the election and thus their unit placement
was not resolved in that proceeding. The Union was,
in due course, certified. On February 10, 1976, the
Employer duly filed under Section 9(c) of the
National Labor Relations Act, as amended, its
petition in the present proceeding seeking a resolu-
tion of the unit placement of these challenged voters.
Thereafter a hearing was held before Hearing Officer
John J. Matchulat of the National Labor Relations
Board. Following the close of the hearing, the
Regional Director for Region 3 transferred this case
to the Board for decision. Thereafter, both parties
filed briefs.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.
In dispute is the unit placement of Father Joseph
M. Lachowski, Sister John Francis Gilman, Sister
Mary Balthasar, and Sister Mary J. Minella, whom
the Employer would include in the certified unit and
the Union would exclude. All are regular full-time
professors who sign regular employment contracts
and have the same working conditions as lay faculty
expressly included in the unit, but all are also
members of religious orders and thus would seem to
come within the religious faculty exclusion of the unit
description. Nevertheless, as indicated above, the
Regional Director in his Decision and the Board on
the Employer's request for review held that the above
four be permitted to cast challenged ballots, a result
necessarily raising a question concerning their unit
placement despite the exclusionary language of the
unit description.
The Union, in urging the exclusion of the priest and
three nuns, relies primarily on the Board's decision in
Seton Hill College.2 There the Board excluded from a
faculty unit nuns who were members of the order that
owned and operated the college. It predicated its
result primarily on two grounds: First, it concluded
that as the nuns were members of the order operating
the college they were "in a sense a part of the
employer" which, especially in light of their vow of
obedience, would place them as members of the
bargaining unit in a position of conflicting loyalties
and thus precluded their inclusion. Second, it held
that their vow of poverty resulted in a divergence of
economic interests between the lay faculty and
themselves and thus the two groups had "different
interests." In the present case the first is raised only
with respect to Father Lachowski and Sister Gilman,
and the second, with regard to all four religious in
question.
As stated above, Niagara University is operated by
the Vincentian Fathers, Eastern Province. Father
Lachowski is a Vincentian of the New England
Province and thus is under a Superior of that
province at all times. Nevertheless, while he is living
at Niagara University, a Vincentian of the Eastern
Province is his acting Superior. But even at such
times, the succeeding higher levels of authority over
him are those of his New England Province and not
those of the Eastern Province, as would be the case
were he a member of the latter province. In any event,
there is no evidence that Father Lachowski is a
member of the province of Vincentian Fathers which
is responsible for the Employers' operations.
Sister Gilman is a member of the Daughters of
Charity Religious Order. Her immediate Superior is
at Buffalo, New York, with the next higher Superior,
an International Superior at Albany, who shares her
authority with another International Superior, a
priest, appointed by Rome to assure compliance of
the order with canon law. That priest is also an
International Superior of the Vincentians. However,
this tie of the Daughters of Charity to the Vincentians
is too remote to support a conclusion that Sister
Gilman is subject to the authority of the Employer.
Thus, from the foregoing we find that neither Father
I The Employer's request for oral argument is hereby denied as the 2 201 NLRB 1026 ( 1973).
record , including the parties' briefs, adequately presents the issues and the
parties' positions
227 NLRB No. 33
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lachowski nor Sister Gilman is precluded from being
included in the unit because "part of the employer"
or because of necessarily divided loyalties with
respect to the Union and collective bargaining.
As indicated in Seton Hill, the Board considered the
vow of obedience of the clerical professors with
respect to the order that owned and operated the
college. Here we have found that the vows of Father
Lachowski and Sister Gilman are in a sense too
remote to the Vincentians, Eastern Province, to come
within that category. As for Sister Balthasar and
Sister Minella, they are members of orders3 unrelated
to the Vincentians.
Despite the lack of relationship to the order owning
and operating the college, the Union seems to take
the position that the vow of obedience disqualifies all
these members of the religious faculty from inclusion
in the unit. In support of this position, it points to
testimony which it claims shows that Superior in each
order-the case of Sister Minella excepted-must
approve employment at Niagara and must be con-
sulted with respect to contract renewals and "can
resign religious faculty members." The evidence is
less than clear concerning the degree of control the
Superiors have over the members of their orders. In
any event, we deem such matters irrelevant here, for
we fail to see why an individual's reasons for
accepting, renewing, or resigning employment is a
pertinent consideration with respect to their unit
placement while employed. Also, we believe it is of
some consequence to note that the testimony in this
record is consistent to the effect that the obligations
under the vow of obedience are concerned with
matters of religion and not with the individual's
professional conduct as a professor, or with their
activities with respect to labor or other professional
organizations. There is no contrary evidence. In
short, we can perceive no basis for concluding that
the religious vow of obedience, ipso facto, as the
3 Sisters of Saint Francis , Third Order Regular, and Our Lady of Victory,
Missionary Sisters, respectively
In support of its position to exclude all religious faculty, the Union
points to certain testimony to the effect that the president of Niagara, a
member of the Vincentian Order, used his personal influence in securing
Sister Gilman's employment at the University when apparently no position
was open Assuming the events transpired as the testimony indicates, we fail
to see their relevance, for there is no basis for also assuming that the
president 's concern for Sister Gilman was based on the fact that both were
members of religious orders-and we doubt , even if that were so, it would
really matter . Moreover, it appears the president knew of Sister Gilman
through her activities in the field of teaching and through ajob interview in
which he learned that she needed employment , as the college where she
taught was closing down In these circumstances , the alleged favoritism on
behalf of Sister Gilman hardly would seem to be something concerning
religious connections . Certainly, the Union would not seriously argue that no
lay professor ever received preferential employment consideration because
he knew a college president and that, if he did, he should be excluded from a
bargaining unit of lay professors.
Union seems to argue, requires exclusion of the
religious faculty in the issue from the Unit .4
As noted previously, the second basis for excluding
the religious faculty in Seton Hill College was related
to the vow of poverty taken by them. Here, Father
Lachowski and the three sisters involved have also
taken that vow. However, in this case, unlike in Seton
Hill, we find that this vow does not establish a
separate community of interest between the lay and
religious faculty. In the Seton Hill case, the nuns'
salary was paid directly to their order. In turn, the
order paid most of it over to the college, which the
order also owned and operated. The sisters them-
selves received only a living allowance. As a result of
this arrangement, the sisters could have no real
interest in the size of their salaries, for ultimately
those salaries amounted to little more than account-
ing transactions on the college's books. However,
Father Lachowski and the sisters here concerned
each receive the paychecks from the University and
all but Sister Minella send them to their superiors and
receive in turn a living allowance.5 But the size of
their paychecks is a matter of objective consequence
to them, for the excess over their expenses goes to
support the various activities of their own orders
which include care for sick and retired members, and,
in the case of Father Lachowski, maintenance of a
preparatory school for indigent boys.
In these circumstances we fail to see any significant
difference-at least with respect to unit placement-
between Sister Minella and an unmarried lay profes-
sor who may choose to lead an austere life in material
terms and to contribute much of his earnings to, for
example, charity or scientific research. Certainly, no
serious contention would be entertained that such a
professor could not properly belong in a lay faculty
unit. In short, we do not believe that the way a person
chooses to spend his or her money6 is a relevant
consideration with respect to questions of unit
placement.?
5 Sister Minella puts hers in a checking account in her order's name but
on which she can write checks. She uses what she requires and ultimately
sends the remainder to her order's headquarters.
6 The alleged pertinence of questions on how money is spent seems in part
to rest on an unstated and unproven assumption that a desire for income is
somehow related to the particular manner in which it is spent , i e , on how
much it is needed The whole concept here is at best a morass with which this
Board has no special expertise to deal Furthermore, it is beside the point To
take an example , an independently wealthy lay professor would not be
excluded from a unit simply because he or she did not "need " the income or
had no interest in a pay raise.
I In view of this conclusion, we find that the Hearing Officer erred in
overruling the objections to his own questions concerning what the religious
faculty here involved did with their salary checks, except to the extent such
questioning was limited to whether they returned all or part of their salary to
the Employer . However , in the circumstances , the error was , as we have held
above, nonprejudicial . We also wish to note here that questions concerning
how the fathers and sisters arrange for the purchase of their habits, shoes,
NIAGARA UNIVERSITY 315
Finally, in support of the claim that a marked
difference in community of interest separates the lay
faculty and the four religious faculty members here
involved, attention is directed by the Union to the
facts that this -religious faculty is not tenured and does
not participate as does all the lay faculty in the
Employer's retirement plan, and that two of them are
not covered by the-health plan covering the lay
faculty. These differences do appear to be related to
the religious faculty being members, of orders. Thus, it
appears the orders provide security and care in
retirement and thus make other retirement arrange-
ments for their members unnecessary. However, as
important as these matters may be, they are hardly
the whole or even an overwhelmingly large part of the
employment situation, and they indicated little more
than a diversity of immediate interests that would be
found in any unit, such as one combining young and
old employees. Certainly, alone they are insufficient
to support a conclusion that the religious faculty
cannot properly be included in the same unit with the
lay faculty.
However, the problem before us is not to be
resolved by considering the various items raised
herein but rather by considering the situation as a
whole. As so viewed, we are faced-by way of
summary-with the following: First, Father Lachow-
ski and Sisters Gilman, Balthasar, and Minella are
not members of the order (or province of the order)
that owns and operates the Employer. Therefore, they
are not disqualified from inclusion in the unit on the
ground they are a part of the Employer with
necessarily conflicting loyalties. Second, they receive
their paychecks-and presumably are.paid the same
and any or all other personal items are irrelevant and involve personal
matters of no proper concern of this Board.
as lay faculty-which are for the most part paid over
to their own orders for purposes they deem desirable.
Clearly there is no basis for holding that a pay raise or
cut would be a matter of indifference to them. Third,
except for retirement, tenure, and to some extent
health insurance, their terms and , conditions of
employment are, insofar as the record indicates,
identical to those of the lay faculty. In view of these
considerations, we believe the situation here before us
is markedly different from that considered by the
Board in Seton Hill College, and thus we find not only
that the four can properly be placed in the lay faculty
but that they share a substantial professional and job
community interest with the -lay faculty requiring
their inclusion,8 at least absent a stipulation to the
contrary. Accordingly, we shall amend the unit
description in Case 3-RC-6410 to provide for their
inclusion.
ORDER
It is hereby ordered that the unit set forth in the
Certification of Representation issued on December
29, 1975, in Case 3-RC--6410 is hereby amended to
provide as follows:,
All full-time teaching faculty including depart-
ment chairmen employed by the Employer at its
Niagara University, New York, location, exclud-
ing office clerical employees, religious faculty who
are members of the Congregation of the Mission,
'Eastern Province, part-time faculty, ROTC facul-
ty, administrators, all other professional employ-
ees, guards and supervisors as defined in-the Act.
8 Cf., Saint Anthony Center, 220 NLRB 1009 (1975); D'Youville College,
225 NLRB 792 (1976)