Roman Catholic Archdiocese of Baltimore

ROMAN CATHOLIC ARCHDIOCESE 249 Roman Catholic Archdiocese of Baltimore, Arch- diocesan High Schools and Baltimore Archdioce- san Lay Teachers' Organization, Petitioner. Case 5-RC-8932 January 21, 1975 DECISION AND DIRECTION OF ELECTION BY ACTING CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Nicholas E. Karatinos. After the hearing and pursuant to Section 102.67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, and by direction of the Regional Director for Region 5, this proceeding was transferred to the Board for decision. Thereafter the Employer and the Petitioner filed briefs in support of their respective positions. 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. Upon the entire record in this proceeding, the Board finds: 1. The Petitioner seeks to represent certain lay professional employees of the Employer, which owns the land and buildings of five private, religiously oriented high schools located within the Archdiocese of Baltimore, Maryland, which are the subjects of the petition. The schools are operated by various religious orders under an agreement with the Arch- diocese to provide a principal, who is thereafter approved by the Archdiocese, and to assign members as teachers . The principal hires the faculty and is responsible for the school. The high schools are: Cardinal Gibbons, Baltimore, Maryland, operated by the Brothers of Mary; Archbishop Keough, Baltimore, Maryland, operated by the School Sisters of Notre Dame ; Martin Spalding, Severn, Maryland, operated by the Sisters of Notre Dame; Bishop Walsh, Cumberland, Maryland, operated by the Christian Brothers; and Archbishop Curley, Balti- more Maryland, operated by the Franciscan Fathers. Severn is 10 miles south of Baltimore, Cumberland is 160 miles west. Archbishop Keough and Cardinal Gibbons High Schools are adjacent to one another and about 10 miles from Archbishop Curley High School. The operating budgets of the five schools range from about $380,000 to more than $670,000, and total close to $3 million. The schools purchase goods and services from outside the State of Maryland, ranging in value from about $30,000 to more than $90,000 and amounting to a little less than $300,000 for all five. One or more of the schools uses national testing services; receives financial aid through Federal programs; has graduates attending colleges outside the State of Maryland; raises funds across state lines ; and has students who reside in States other than Maryland. Thus it is clear that statutory jurisdiction is present. The Employer contends that the Board should nonetheless not exercise its jurisdiction because the schools are autonomous and individually do not meet the $1 million jurisdictional standard which the Board has applied previously to private schools. Alternatively, the Employer urges that, although the sole purpose of the schools is not religious education, religion is taught as an individual subject and the atmosphere and philosophy of the schools is to provide an education based on Christian principles. Contrary to the Employer, we conclude that the five schools together form an appropriate unit for the purposes of collective bargaining and that they constitute a single enterprise for jurisdictional pur- poses. The Employer's administrative organization in- cludes a division of elementary and secondary education under a superintendant, directors of elementary and secondary education, and an Arch- diocesan board of education with responsibility for both elementary and secondary education. School principals are provided by the appropriate religious order but are approved by the Employer. The Employer's division of schools employs a director of instructional personnel who assists all the schools in the Archdiocese in filling teacher vacan- cies, including 20 schools termed "private" by the parties which neither party would include in the unit. There is, however, no requirement that teachers be referred or approved by the Archdiocese before they are hired. The division of schools also prints a school calendar and a "Handbook of Policies." The schools, however, may and do establish their own calendars. The handbook was prepared by a committee includ- ing lay teachers, principals, and the division of schools with the participation of the Petitioner and applies only to the five schools sought in the petition. Following its preparation it was revised and ap- proved by the Employer's board of education. The handbook is used by the principals as a guideline for policies, wages, and stipends. Although the Employer and the Petitioner agree that the Employer has not formally recognized the 216 NLRB No. 54 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Petitioner, they have maintained a relationship since about 1966 and the Employer has negotiated such matters as the wage scale at the schools and the individual teachers contract used at four of the five schools. Similarly, the Employer has exercised ultimate control over the faculty wage scale. The teacher's contract published in the handbook lists the Archdiocese, the superintendent of schools , and the school principal as parties. Although the schools establish their own tuitions, which differ from school to school, the tuition is reviewed by the Employer and is subject to its approval. The land and buildings of the schools are owned by the Employer , which is responsible for capital improvements, and in the past the Employer has directly subsidized the five schools, as well as provided tuition grants to individual pupils at these schools. The subsidies and tuition grants are now being phased out and are currently made to only two of the schools, which the Employer indicated would also be eliminated in the future . That, however, is speculative. In at least one instance the Archdiocese 's superin- tendent of schools was identified to the State of Maryland as the individual vested with ultimate authority for governing and operating one of the five schools. The Employer has participated in the resolution of grievances arising between faculty members and their schools, although assertedly on an ad hoc basis, and maintains copies of teacher contracts. Uniform health and pension plans are available to all employees in the Archdiocese, although employer contributions are made by the individual schools. It is apparent that the Employer maintains a significant degree of control over the schools, has in the past negotiated with the Petitioner over terms and conditions of employment in the unit sought, represents itself to the public and the State of Maryland as an integrated enterprise , and may be considered as such for the purposes of assertion of the Board's jurisdiction. The Archdiocese also contends that the Board should not assert its jurisdiction because of its religious character. However, the Board's policy in the past has been to decline jurisdiction over similar institutions only when they are completely religious, not just religiously associated, and the Archdiocese concedes that instruction is not limited to religious subjects. That the Archdiocese seeks to provide an education based on Christian principles does not lead to a contrary conclusion. Most religiously associated institutions seek to operate in conformity with their religious tenets. In view of the foregoing, and because the Employer meets the standard we have applied in the past, we find that it is an employer engaged in commerce or in an industry affecting commerce within the meaning of the Act and that it will effectuate the purposes of the Act to assert jurisdiction in this proceeding. 2. The labor organization involved claims to represent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of employees of the Employer within the meaning of Sections 2(6) and (7) and 9(c)(1) of the Act. 4. The Petitioner seeks an election in a unit comprising all full-time and regular part-time lay (nonreligious) professional faculty members, includ- ing teachers, nurses, librarians, guidance and admin- istrators ; but excluding religious, office clericals, maintenance, teachers aides (part-time paraprofes- sionals), cafeteria workers, guards, and supervisors as defined in the Act. The Employer contends that vice principals, department chairmen, athletic directors, business managers, and nurses should be excluded from the unit, while the Petitioner would include them. The Petitioner contends that vice principals share a community of interest with the remainder of the faculty and, although they may be in charge of a school in the principal's absence, they are not supervisors within the meaning of the Act. Contrary to the Petitioner, however, we conclude that vice or assistant principals are supervisors and must be excluded from the unit. Initially we note that it is unlikely that the individual in charge in the princi- pal's absence would not possess supervisory authori- ty. But our conclusion does not rest on that reasoning alone. The record establishes that vice principals have the authority to reprimand teachers and to insure compliance with school regulations; they also evaluate the performance of teachers, and may assign substitute teachers. Although department chairmen do not possess the final authority to hire or fire teachers, they are required to evaluate the performance of teachers and interview applicants, and make effective recommen- dations with respect to hiring or retaining teachers. The record establishes that the principals would not hire a teacher over the objections of the chairman of the department in which the proposed faculty member would teach. It is clear, therefore, that department chairmen are supervisors within the meaning of the Act, whom we shall exclude from the unit. As the Petitioner asserts, athletic directors are department chairmen and the same standards are applicable. However, we note, in addition, that in at least some instances athletic directors have inde- pendently hired coaches without prior approval from the principal and have effectively recommended both ROMAN CATHOLIC ARCHDIOCESE 251 the hiring and termination of coaches. They, too, will be excluded from the unit as supervisors. With the exception of one part-time nurse at Cardinal Gibbons High School, the nurses do not teach courses. Nurses are not on the faculty wage scale and the availability of faculty fringe benefits to nurses varies from school to school. In agreement with the Employer, we conclude that the nurses lack a sufficient community of interest with the faculty members to be included in the unit, since their training, skills, and duties are unrelated to those of the faculty and their compensation and benefits are determined on a different basis. The Petitioner would include, and the Employer would exclude, business managers . Although the Petitioner contends that the interests of business managers are more nearly aligned with those of the faculty than of the administration, the Employer contends that they are either supervisors or manage- rial employees. Business managers assist the school principals and other administration officials in the preparation of school budgets and other fiscal matters, and in some instances have direct responsi- bility for building maintenance and the operation of school cafeterias . Some of the business managers also teach a limited number of courses; one, however, has a private business , works part time, and teaches no courses. Business managers are not paid on the faculty wage scale but based on an individual arrangement, although they are eligible for the same benefits. Employees supervised by the business We leave the setting of the date for the election to the discretion of the Regional Director in consultation with the parties in view of the special managers are not professional unit employees and we might not conclude on that factor alone that their exclusion from the unit sought here was required, nor are we convinced that their duties require the conclusion that they are managerial employees. However, the combination of their supervisory and, perhaps, managerial duties with their otherwise limited community of interest with employees in the unit persuades us that they lack sufficient common interests to be included in the unit found appropri- ate. For that reason we shall exclude them. We find that the following employees of the Employer-Roman Catholic Archdiocese of Balti- more, Archdiocesan High Schools-have a sufficient community of interest to constitute a unit appropri- ate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All full-time and regular part-time lay (nonreli- gious) professional faculty members, including teachers, librarians, and guidance; but excluding administrators, religious, office clericals, teachers aides (part-time paraprofessionals), cafeteria workers, assistant or vice principals, department chairmen, business managers, nurses, athletic directors, guards and supervisors as defined in the Act. [Direction of Election' and Excelsior footnote omitted from publication.] considerations involved in conducting elections at educational institutions.