Catholic Charities of Buffalo, New York, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1975

220 N.L.R.B. 9 (N.L.R.B. 1975)

CATHOLIC CHARITIES OF BUFFALO, N.Y., INC. 9
Catholic Charities of Buffalo , New York, Inc.' and
American Federation of State, County and Munici-
pal Employees, AFL-CIO, Council 66,2 Petitioner.
Case 3-RC-6155
August 27, 1975
DECISION AND DIRECTION OF ELECTION
BY MEMBERS FANNING , JENKINS , AND PENELLO
A petition in the instant proceeding was filed by
American Federation of State, County and Munici-
pal Employees, AFL-CIO, Council 66, herein called
Petitioner, on October 9, 1974. On November 27,
1974, the Acting Regional Director for Region 3 dis-
missed the petition. Thereafter, Petitioner filed an
appeal of the Acting Regional Director's dismissal
and, on February 12, 1975, the Board, through its
Deputy Executive Secretary, reinstated the petition
and remanded the case to the Regional Director for
Region 3 for the purpose of conducting a hearing on
the petition. The Regional Director was further di-
rected to transfer the case to the Board for decision
after the hearing.
Pursuant to the Board's direction, a hearing was
thereafter held before Hearing Officer Richard L.
Friend and following the hearing the case was trans-
ferred to the Board for decision. No briefs have been
filed by either the Employer or Petitioner upon the
transfer of this case to the Board.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's rul-
ings made at the hearing and finds that they are free
from prejudicial error. They are hereby affirmed.
Upon the entire record in this case, the Board
finds:
1. The Employer is a New York State nonprofit
corporation. At the hearing herein, both Petitioner
and the Employer urged the Board to assert jurisdic-
tion over the Employer. In reaching our decision
here, we have independently examined the record to
see whether the assertion of jurisdiction is warranted.
The Employer operates seven departments perti-
nent here. It has district offices in a number of cities
in New York State; a health and geriatrics depart-
ment; a marriage counseling center; a drug program;
a family and children's department; a community
development department; and the Monsignor Carr
1 Name as amended at the hearing.
2 Name as amended at the hearing.
Institute, which is an outpatient psychiatric clinic.
The Employer has 44 locations, of which 37 -are in
the Buffalo, New York, metropolitan area. The other
seven are in cities in New York State located from 10
miles to roughly 70 miles from Buffalo.
During the fiscal year ending June 30, 1974, the
Employer had revenues in excess of $2,656,000. Dur-
ing that period, it received for its various programs
approximately $135,000 from the Federal Govern-
ment, in excess of $163,900 from the State, and in
excess of $388,300 from the county. The Employer
also had in excess of $233,000 in purchases from out-
side the State of New York during that period, and
performed services for certain "related institutions"
for which it was reimbursed in excess of $125,000.
The "related institutions" referred to above are 10
in number and consist of certain nursing homes,3
homes for the aging,4 and children's institutions.' The
parties stipulated that the various nursing homes and
homes for the aging meet the Board's direct mone-
tary standards for the assertion of jurisdiction over
nursing homes and homes for the aging.
During the fiscal year ending June 30, 1974, these
related institutions had gross expenditures in excess
of $3,975,000, and received in excess of $469,000
from the Federal Government, in excess of
$1,389,000 from the state government, and in excess
of $509,000 from the county government.
The Employer is incorporated separately from the
related institutions and Petitioner does not seek to
represent any of the related institutions' employees.
Each of the related institutions is itself separately in-
corporated and has its own board of directors. How-
ever, it appears the Employer owns certain of these
related institutions 6 The other institutions are owned
by the religious orders that operate them.
With respect to the budgeting of the related insti-
tutions, each institution projects its expected income
and expenses and the difference between the two fig-
ures is requested from the Employer. That request is
reviewed by the Employer's budget committee and a
figure which the related institution will receive is
then arrived at? The Employer has an institutional
labor relations policy that it encourages the related
institutions to adopt, but the choice of implementa-
3 St. Francis ' in Williamsville , New York; St. Clare 's in Lockport, New
York, St. Joseph's in Olean, New York, St. Luke's in Batavia, New York;
and St . Mary's in Niagara Falls, New York St. Mary's also has, within its
confines , Bishop McNulty Hall.
St. Elizabeth's in Lancaster , New York; St. Vincent's in Dunkirk, New
York; and St. Anthony's in Hamburg , New York
5 Immaculate Heart of Mary Home and St. Rita's Home.
6 These are St . Francis', St. Clare's, St. Joseph 's, St. Luke's, St. Mary's, St.
Elizabeth 's, and St. Vincent's.
7 During the year, the Employer continues to monitor the related institu-
tions' budgetary matters. Supplementary allocations are sometimes sought
due to changes in the physical plant or in a patient 's needs and these alloca-
tions must be approved by the Employer.
220 NLRB No. 5
10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion is left to each institution. The Employer exercis-
es no direction or supervision of the related institu-
tions' hiring or firing practices , or the related institu-
tions' discipline or direction of their employees.
The fact that the Employer is a nonprofit corpora-
tion does not mean that the Board is precluded from
asserting jurisdiction here.8 Rather, we conclude that
the Employer is engaged in commerce within the
meaning of the Act and meets every discretionary
jurisdictional standard we have applied to date for
the assertion of jurisdiction. We note also that in the
fiscal year ending June 30, 1974, the Employer per-
formed services for institutions which are themselves
engaged in commerce for which it was reimbursed in
excess of $125,000, and thus we find that it would
effectuate the policies of the Act to assert jurisdiction
herein .9
2. The Petitioner is a labor organization within the
meaning of the Act.
3. A question affecting commerce exists concern-
ing the representation of employees of the Employer
within the meaning of Sections 9(c)(1) and 2(c) and
(7) of the Act.
4. Petitioner seeks a unit of all full-time and regu-
lar part-time professional and technical employees
employed by the Employer at all its 44 locations. The
Employer, while in agreement with Petitioner as to
which of the Employer's classifications are profes-
sional10 and which are technical ," and in agreement
that the unit should include both professional and
technical classifications at its 44 locations,'2 would
also include all its other employees 13 in the unit.
Also, while Petitioner would exclude from the unit all
employees who are members of religious orders, the
Employer took no position at the hearing as to the
status of such employees.
The parties are in agreement that, whatever the
structure of the proposed unit, should it include both
professional and nonprofessional employees the pro-
fessional employees should be permitted to vote as a
separate voting group to determine whether or not
s Maritime Advancement Programs, 152 NLRB 348 (1965).
9 See, e.g., The Children's Aid Society, 218 NLRB No 108 (1975) (advisory
opinion ); Roman Catholic Archdiocese of Baltimore, Archdiocesan High
Schools, 216 NLRB No. 54 (1975).
1e The parties stipulated that the caseworkers 1, caseworkers II, casework-
ers III , the program directors , and the psychologists are professional em-
ployees.
1 The parties stipulated that the community aides are technical employ-
ees.
17 We have independently evaluated the record and are in agreement with
the parties' stipulation as to the professional and technical status respective-
ly of the employees noted above at fns . 10 and 11.
13 This includes its clerks stenographers , typists, telephone operators, ac-
counting clerks , transportation aides , cooks, ,janitors, and cleaning ladies.
The parties agreed that the medical doctors and the accountant should be
excluded from any unit as managerial employees and that the bookkeeper
and stenographic supervisor should be excluded as supervisors.
they desire to be represented as part of the overall
unit . Such an approach is mandated by Section
9(b)(1) of the Act and our Direction of Election has
taken this into account.
We conclude that an appropriate unit in this case
may consist of those caseworkers, program directors,
and psychologists whom the parties have stipulated
to be technical employees, excluding all the
Employer's other employees.
The Employer employs approximately 200 em-
ployees and there is no prior history of collective bar-
gaining among the employees Petitioner seeks to rep-
resent . The caseworkers, who are about 75 in
number, are located throughout the Employer's 7
pertinent facilities14 while the 2 psychologists are lo-
cated at the Monsignor Carr Institute. The commu-
nity aides, who total nine in number, are located in
the community development department, and the
clerical and maintenance employees are located
throughout the Employer's operation.
The caseworkers are responsible for applying pro-
fessional skills in obtaining information from those
seeking assistance ; for counseling clients and family
members; and for aiding them in the utilization of all
available resources. The levels of responsibility in-
crease from caseworker I through caseworker III, but
the basic job function in each instance is one of in-
formation gathering, evaluation, and then counsel-
ing.
While the requirements for the community aide ca-
tegory list no necessary minimum educational re-
quirement, the community aide's job, as with that of
the caseworkers, is one of information gathering,
evaluation of needs, and development of plans. The
community aides are expected to exercise indepen-
dent judgment in such pursuits. The Employer's
other employees, in contrast, do no such interviewing
or evaluation of clients or families.
The caseworkers and community aides attend vari-
ous professional educational conferences which other
employees do not attend and the caseworkers and
community aides also attend in-service training ses-
sions from which other employees are excluded.
All of the Employer's employees are subject to the
same personnel policies and share the same fringe
benefits and it may occur that the same supervisor
will be in charge of caseworkers and community
aides, as well as other employees.
Although in rare instances clerical employees have
progressed to the community aide category, clerical
employees do no interviewing or evaluating of clients
and families, and of course the maintenance employ-
ees' duties and functions are also clearly different
14 The program director in the resettlement section of the Employer's
comptroller's office is classified as a caseworker also.
CATHOLIC CHARITIES OF BUFFALO, N.Y., INC. I I
from that of the community aides and the profession-
al employees. On the other hand, community aides
may progress to caseworker I status, either through
attainment of the necessary education or, in certain
instances, through a waiver of that educational re-
quirement. The Employer has indicated an express
policy of promoting community aides in such a latter
manner.
On the basis of the foregoing, we find that the job
functions of those employees the parties stipulated to
be professional and technical employees differ sub-
stantially from those of the other employees. While
all the Employer's employees share certain benefits
and may share supervision in common, the differ-
ence in the nature of their work and qualifications
for performing such work set the professionals and
technicals apart from the other employees to such a
degree that we conclude that the balance of the
Employer's employees need not be included in a unit
with the professionals and technicals. Accordingly,
we shall exclude them from the unit.
Petitioner would exclude certain religious person-
nel, i.e., approximately 13 or 14 nuns and 1 priest,15
while the Employer has taken no position on their
inclusion or exclusion.
It appears that the nuns work in various of the
categories which the parties have stipulated are pro-
fessional and they perform their job duties in the
same manner as nonreligious professionals. Howev-
er, the nuns receive a salary which is much lower
than that of their nonreligious counterparts and that
salary is turned over to their various orders. The
nuns are then given a certain amount of money by
the orders. The nuns have different medical coverage
than the other employees and also receive an extra
week of vacation for their annual retreat which the
other employees do not receive. The nuns are subject
to transfer at the instruction of the heads of their
orders regardless of what might be the wishes of the
Employer respecting such transfer.16
Based on the foregoing, we conclude that all the
religious personnel should be excluded from the unit
found appropriate herein." Although their job activi-
ty and working conditions may be the same as the
nonreligious employees, we believe the two groups'
underlying interests are so divergent as to warrant
the exclusion of the religious personnel from the
unit."
i5 The priest is a marriage counselor.
16 Further, the Employer has provided housing for certain nuns working
in the family or community development department which it has not of-
fered its nonreligious employees.
'r This includes the priest, who is also a member of an order and who
would therefore appear to have the same restrictions on his salary and on
his transfer possibilities as the nuns , who are members of orders.
18 See , e.g., Carroll Manor Nursing Home, 202 NLRB 67 (1973); Selon Hill
College, 201 NLRB 1026 (1973).
We therefore find that the following employees
may constitute a unit appropriate for purposes of col-
lective bargaining within the meaning of Section 9(b)
of the Act:
All full-time and regular part-time professional
employees, including caseworkers I, caseworkers
II, caseworkers III, program directors, and psy-
chologists, and all regular full-time and regular
part-time community aides employed at all the
Employer's locations; but excluding all other
employees, including members of religious or-
ders, medical doctors, accountants, managerial
employees, guards, and supervisors as defined in
the Act.
The unit set out above includes professional and
nonprofessional employees. However, as noted
above, the Board is prohibited by Section 9(b)(1) of
the Act from including professional employees in a
unit with employees who are not professionals unless
a majority of the professional employees vote for in-
clusion in such a unit. Accordingly, we must ascer-
tain the desires of the professional employees as to
inclusion in a unit with nonprofessional employees.
We shall therefore direct separate elections in the
following voting groups:
Voting group (a): All full-time and regular part-
time community aides employed at all the
Employer's locations; but excluding all profes-
sional employees including caseworkers I, case-
workers II, caseworkers III, program directors,
and psychologists, and all other employees, in-
cluding members of religious orders, medical
doctors, accountants, managerial employees,
guards, and supervisors as defined in the Act.
Voting group (b): All full-time and regular part-
time professional employees at all the
Employer's locations, including caseworkers I,
caseworkers II, caseworkers III, program direc-
tors, and psychologists; but excluding all other
employees, including community aides, mem-
bers of religious orders, medical doctors, ac-
countants, managerial employees, guards, and
supervisors as defined in the Act.
The employees in the nonprofessional voting
group (a) will be polled to determine whether or not
they wish to be represented by Petitioner.
The employees in voting group (b) will be asked
two questions on their ballot:
(1) Do you desire the professional employees
to be included in a unit composed of all profes-
sional employees and community aides of the
Employer for the purposes of collective bargain-
ing?
12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(2) Do you desire to be represented for the
purposes of collective bargaining by American
Federation of State , County and Municipal Em-
ployees, AFL-CIO, Council 66?
If a majority of the professional employees in vot-
ing group (b) vote "yes" to the first question , indicat-
ing their wish to be included in a unit with nonpro-
fessional employees, they will be so included. Their
vote on the second question will then be counted to-
gether with the votes of the nonprofessional voting
group (a) to determine whether or not the employees
in the whole unit wish to be represented by Peti-
tioner . If, on the other hand, a majority of profes-
sional employees in voting group (b) vote against in-
clusion , they will not be included with the
nonprofessional employees. Their votes on the sec-
ond question will then be separately counted to de-
termine whether or not they wish to be represented
by Petitioner. There is no indication in the record that
Petitioner would be unwilling to represent the profes-
sional employees separately if those employees vote
for separate representation . However, if the Union
does not desire to represent the professional employ-
ees in a separate unit even if those employees vote for
such representation , Petitioner may notify the Re-
gional Director to that effect within 10 days of the
date of this Decision and Direction of Election.
Our unit determination is based , in part, then,
upon the results of the election among the profes-
sional employees . However, we now make the fol-
lowing findings in regard to the appropriate unit:
1. If a majority of the professional employees vote
for inclusion in the unit with nonprofessional em-
ployees, we find that the following will constitute a
unit appropriate for purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All full-time and regular part -time professional
employees , including caseworkers I, caseworkers
II, caseworkers III, program directors , and psy-
chologists , and all regular full-time and regular
part-time community aides employed at all the
Employer's locations; excluding all other em-
ployees , including members of religious orders,
medical doctors , accountants , managerial em-
ployees, guards, and supervisors as defined in
the Act.
2. If a majority of the professional employees do
not vote for inclusion in the unit with nonprofession-
al employees, we find that the following two groups
of employees will constitute separate units appropri-
ate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act:
Voting group (a): All full-time and regular part-
time community aides employed at all the
Employer's locations ; but excluding all profes-
sional employees including caseworkers I, case-
workers II, caseworkers III, program directors,
and psychologists, and all other employees in-
cluding members of religious orders , medical
doctors, accountants, managerial employees,
guards , and supervisors as defined in the Act.
Voting group (b): All full-time and regular part-
time professional employees employed at all the
Employer's locations including caseworkers I,
caseworkers II, caseworkers III, program direc-
tors, and psychologists; but excluding all other
employees including community aides , members
of religious orders , medical doctors, accoun-
tants , managerial employees , guards , and super-
visors as defined in the Act.
[Direction of Election and Excelsior footnote omit-
ted from publication.]