On Application for Enforcement of an Order of the National Labor Relations Board Board No. 6-CA-8811.
Aldisert, Rosenn and Hunter, Circuit Judges. Rosenn, Circuit Judge, concurring.
HUNTER, III Circuit Judge:
The National Labor Relations Board [NLRB] has petitioned for enforcement of its unfair labor practice order against St. Francis College for refusal to bargain with the faculty union. Although first amendment and religious discrimination arguments have been presented, only basic principles of appropriate unit determinations are involved here. Because we find the exclusion of faculty Franciscans from the faculty bargaining unit to be unreasonable and arbitrary, the petition will be denied.
St. Francis College [the college] is a small private liberal arts college in Loretto, Pennsylvania. On October 21, 1974, the "St. Francis College Education Association, Pennsylvania Education Associate/NEA" [the union] filed a representation petition with the NLRB. The proposed faculty bargaining unit excluded those faculty members who are also members of the Franciscan Order. At the representation hearing the college objected, unsuccessfully, to the exclusion of the Franciscans.
On April 8, 1975, the union won the representation election. The college, however, refused to bargain, asserting again that the exclusion of the Franciscans vitiated the appropriateness of the bargaining unit, as well as being a violation of their religious rights. At the ensuing unfair labor practice proceeding,*fn1 the NLRB held that the college had violated Section 8(a)(1), (5) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1), (5). The Board's cease and desist order requires the college to bargain with the union. The college has still refused to bargain, so the NLRB petitions here for enforcement of its order.
The only issue before us is the appropriateness of the Board's determination of the faculty bargaining unit. Although the excluded faculty members are members of the Franciscan Order, their exclusion was based on grounds that are neutral in terms of religion.
A bargaining unit is that group of employees who will determine whether they will be represented by a union. If a majority of the group vote in favor of the union, then all members of the unit will be represented, as a unit, by the union in negotiations with the employer over wages, hours, and other conditions of employment.
Generally, units are chosen in terms of job descriptions and not of individuals who may have those jobs.*fn2 The National Labor Relations Act provides that "the Board shall decide in each case whether . . . . the unit . . . . shall be the employer unit, craft unit, plant unit, or subdivision thereof." 29 U.S.C. § 159(b).
The NLRB is given wide discretion in determining the bargaining unit.*fn3 The only statutory guidance is the goal of assuring employees "the fullest freedom in exercising the rights guaranteed by this Act." 29 U.S.C. § 159(b). It has often been repeated that the NLRB need not select the most appropriate unit -- any unit that is an appropriate one will do, even if there are several better possible units.*fn4 It follows that NLRB unit determinations are rarely disturbed.*fn5 As we have recently observed, in order to overturn an NLRB unit determination, we would have to find that the Board has acted in a manner that is "unreasonable and arbitrary." Memorial Hospital v. NLRB, 545 F.2d 351 (3d Cir. 1976).
In selecting units that will assure employees full freedom in exercising their section 7 rights -- 29 U.S.C. § 157 -- the Board often relies upon a criterion of "community of interest," looking at such factors as
(1) similarity in the scale and manner of determining earnings; (2) similarity in employment benefits, hours of work and other terms and conditions of employment; (3) similarity in the kind of work performed; (4) similarity in the qualifications, skills and training of the employees; (5) frequency of contact or interchange among the employees; (6) geographic proximity; (7) continuity or integration of production processes; (8) common supervision and determination of labor-relations policy; (9) relationship to the administrative organization of the employer; (10) history of collective bargaining; (11) desires of the affected employees; (12) extent of union organization.
R. Gorman, Labor Law: Unionization and Collective Bargaining 69 (1976). Libbey-Owens-Ford Co. v. NLRB, 495 F.2d 1195, 1200 (3d Cir.), cert. denied 419 U.S. 998, 42 L. Ed. 2d 272, 95 S. Ct. 313 (1974); Wil-Kil Pest Control Co. v. NLRB, 440 F.2d 371, 375 (7th Cir. 1971).
The unit here included "all full time faculty" but excluded "members of the Franciscan Order." The unit consisted of 66 faculty members. Six full-time faculty members were excluded from the unit because they are members of the Franciscan Order.
According to the record, St. Francis College was founded by the Third Order Regular of St. Francis sometime over a century ago. In 1966, however, lay persons were elected to the college board of trustees, separating the college and the Order as two distinct, non-profit entities. In the fiscal year 1973-74, the Order released the college from debts resulting from the Order's original investments in exchange for a tract of land. Also during that year, for the first time Franciscan faculty members were placed under contractual agreements "largely identical" to those the lay teachers had. In the words of President's Report for that year, the Franciscans no longer volunteered the greater part of their time for college work, but were paid in full for the specific job for which each had been hired. The report also noted that the Franciscans "donated to the College, from the amount received through salaries, a total unrestricted gift [of approximately 50% of the salary amounts]." Ex. 2, p. 3.
At the representation hearing the mechanics of that donation were sorted out as follows: The Franciscan faculty had the right to receive their own paychecks. The college vice-president testified specifically that if a Franciscan asked to have his salary check sent to him individually, the college would comply. Instead, because each Franciscan had taken a vow of poverty, each had asked the college to send the checks directly to the St. Francis monastery, where the Franciscan faculty live. About eighteen or nineteen Franciscans live at that particular monastery; they are not all involved with work at the college -- indeed, only the six faculty members concern us here.*fn6
The monastery functions as an individual unit within the larger Franciscan Province. The monastery pays its members' living expenses, and cares for the old, infirm or needy Franciscans. The additional money, which is contributed to by the individuals residing at the monastery, is then divided by the monastery among favorite charities, of which St. Francis is a prime recipient.
Of the available fringe benefits, the Franciscans participate in the short-term income disability plan, but not in the pension or medical insurance programs. In all other respects -- concerning wages, hours, and conditions of employment -- the Franciscans are treated the same as lay faculty members.
The exclusion of the Franciscans was based on the Board's decision in Seton Hill College, 201 N.L.R.B. 1026, 201 NLRB No. 155, 82 LRRM 1434 (1973). In Seton Hill, the college buildings and grounds were owned by the Order of the Sisters of Charity of Seton Hill [the Order]. The college, separately incorporated, leased the college property for one dollar a year. Half of the college board of trustees were Sisters of the Order. The Mother General of the Order was a trustee; the local bishop was honorary chairman.
On the faculty were 34 lay teachers and 58 Sisters of the Order. The Sisters were referred to the college by the Mother General, and hired by the college president, also a Sister
in the same manner and under the same standards that apply to the lay faculty The College has a uniform salary scale which, on its face, applies to all members of the faculty. All faculty members sign a standard form employment contract and work the same number of hours. They have similar teaching assignments in all the departments . . . . All faculty members enjoy academic freedom, tenure, and faculty status.
Nonetheless the Sisters were excluded from the faculty bargaining unit. The differences stressed by the Board were 1) the Sisters took vows of poverty, and of obedience to the Mother General -- a basic obedience relating to the year's assignment; 2) the Sisters did not receive remuneration directly from the college: their wages, less living expenses, were paid directly to the Order which, by agreement with the college, returned a fixed percent of the salaries as an annual gift; 3) the Sisters' life and medical insurance premiums were paid by the Order; 4) the Sisters were not eligible for Social Security and did not participate in the faculty insurance and annuity program; and 5) the Order provided housing for the Sisters.
Altogether, these differences meant, according to the Board, that the Sisters lacked a "community of interest" with the lay faculty members. Community of interest is used by the Board as a guide in selecting a unit whose members will have similar interests in their wages, hours, and other conditions of employment. However, it has not been traditionally applied as an inquiry into employee states of mind, motives, or individual preferences. Thus it was a significant ...