Catholic Charities of Buffalo, New York, Inc.

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.]