D'Youville College

National Labor Relations Board - Board Decisions

Jul 30, 1976

225 N.L.R.B. 792 (N.L.R.B. 1976)

792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D'Youville College, Employer-Petitioner and D'You-
ville College Chapter, American Association of Uni-
versity Professors . Case 3-UC-106
July 30, 1976
DECISION AND CLARIFICATION OF UNIT
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
Upon a petition filed in Case 3-RC-6498, the Re-
gional Director for Region 3 directed on December
23, 1975, that an election be held among all the full-
time faculty at the Employer's Buffalo, New York,
establishment, excluding, inter aka, four of the facul-
ty who were members of the Order of the Grey Nuns
of the Sacred Heart whom the parties had agreed to
include in the unit. Upon the Employer's request for
review, the Board directed that the Grey Nuns be
permitted to cast challenged ballots. The election was
held on February 4, 1976; the four Grey Nums cast
challenged ballots. As the Union won the election by
a substantial margin, the challenged ballots were in-
sufficient in number to affect the results, and, in con-
sequence, no final resolution was made in the repre-
sentation proceeding concerning the eligibility of the
Grey Nuns. On February 12, 1976, the Union was
certified as the bargaining representative of all the
Employer's full-time faculty, excluding among others
"faculty who are members of the Grey Nuns."
On March 15, 1976, the Employer filed its petition
in the present proceeding seeking clarification with
respect to the unit placement of the Grey Nuns. A
hearing was held before Hearing Officer George Mc-
Namara. Following the close of the hearing, the Re-
gional Director for Region 3 transferred this pro-
ceeding to the Board for decision. Thereafter, the
Employer filed a brief.
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 proceeding, the
Board finds:
The four professors, whose unit placement is here
in issue, are, as indicated above, members of the Or-
der of Grey Nuns.' The Regional Director excluded
them from the all-faculty unit despite the agreement
of the parties to include them, based on his conclu-
sion that Seton Hill College, 201 NLRB 1026 (1973),
was controlling. We find, however, that the situation
dealt with in that case differs from this one in two
significant regards. First, the nuns excluded from the
lay unit in Seton Hill were members of the religious
order that owned and administered the college and
thus were, as the Board there pointed out, " in a sense
part of the employer," which with ties of allegiance
and obedience to the order would place them as
members of a bargaining unit in a position of con-
flicting loyalties.2 That situation does not exist here.
To be sure, D'Youville College was founded by the
Order of Grey Nuns. However, around 1970 the col-
lege was reorganized as a corporation under the laws
of the State of New York. At that time, a board of
trustees was established and vested with ownership
of the Employer's buildings and other property and
given responsibility to establish the policy and to ad-
minister the affairs of the college. It is specified by
the corporate charter that no more than one-third of
the members of the board of trustees may be mem-
bers of religious orders, including the Order of Grey
Nuns. Consequently, there is no basis for holding in
this proceeding that the four nuns are in any manner
affiliated with the Employer except in their capacity
as faculty members signing a standard employment
contract.
Second, in Seton Hill the petitioner sought a unit
limited to the lay faculty; i.e., a unit specifically ex-
cluding the religious faculty (the employer there
sought to include them). Here, of course, the parties
agree to include the religious faculty in the unit with
the lay faculty. To be sure, the situation of the four
nuns in this proceeding is characterized by certain
factors which the Board held in Seton Hill tended to
show that the sisters there lacked a sufficient commu-
nity of interest to warrant including them in a unit
with the lay faculty. Thus, for example, here as in
Seton Hill the nuns have taken a vow of poverty and,
consequently, retain from their salaries only neces-
sary living expenses, with the remainder being re-
turned by way of a gift to their employer. Neverthe-
less, where as here the parties themselves are satisfied
that there is a sufficient community of interest to
justify including the religious in the same unit with
the lay faculty and also where as here no statutory or
other overriding policy consideration exists preclud-
ing such inclusion, we can perceive no reason for not
accepting the agreement of the parties to such an
all-faculty unit. It is, of course, they who are closest
1 The individuals involved are Sisters Kathleen Connor, Virginia Carley,
Joan Maureen McInerney , and Denise Roche
2 See 201 NLRB at 1027
225 NLRB No. 104
D'YOUVILLE COLLEGE
to the situation and, thus, it is to be expected that
they would reach an informed responsible decision
as to what will provide a satisfactory basis for collec-
tive bargaining . Consequently , as the Order of Grey
Nuns does not own or administer the college, we find
in view of the agreement of the parties that the four
Grey Nuns whose unit placement is in issue can ap-
propriately be included in the unit of lay faculty. Ac-
cordingly , we shall amend the certification to provide
for their inclusion.
ORDER
793
It is hereby ordered that the unit set forth in the
Certification of Representative issued on February
12, 1976, in Case 3-RC-6498 is hereby amended to
provide as follows: All full-time faculty of D'You-
ville College, including professional librarians, divi-
sion chairpersons, and members of the Order of Grey
Nuns, but excluding part-time faculty, administrative
employees, nonprofessional employees, head librari-
an, guards and supervisors as defined in the Act, and
excluding all other employees.