Petition for review of N.L.R.B. decision and order finding petitioner in violation of 29 U.S.C. § 158(a)(5), (1); cross-petition for enforcement of that order. Petition granted, order set aside and cross-petition denied.
Moore, Smith and Mulligan, Circuit Judges.
This is a petition by the employer Niagara University (Niagara) to review and set aside a decision and order of the National Labor Relations Board (the Board) issued on November 17, 1976, reported at 226 N.L.R.B. No. 154. The Board has made a cross-petition for the enforcement of its order. The petition is granted and the cross-petition is denied.
Niagara is a Roman Catholic institution of higher learning located in Niagara, New York which was founded by the Congregation of the Mission more commonly known as the Vincentian Order. It was chartered by the Regents of the University of the State of New York in 1883. The composition of the faculty is part lay and part religious. On August 8, 1975 the Niagara University Lay Teachers Association (the Union) filed a representation petition with the Board seeking to represent a bargaining unit comprised of all full-time lay faculty employed at the University. This proposed unit would have excluded all faculty who were members of religious orders. At the representation hearing Niagara contended that the appropriate unit was one that included all full-time faculty both lay and religious. The decision of the Regional Director dated October 3, 1975 found that the full-time faculty consisted of 134 lay and 21 religious members. The latter was comprised of 18 Vincentian Fathers, 17 in the Eastern Province and one in the New England Province, and three nuns from differing religious orders, one of whom was a Daughter of Charity under the jurisdiction of the Superior General of the Vincentian Order. The Regional Director concluded that the Vincentian priests and the Daughter of Charity did not share a "community of interest with the lay faculty" and therefore they were excluded from the unit.*fn1 The Board by a two-to-one vote denied review of the decision because it raised no substantial issue.
On December 17, 1975 an election was conducted in which the Union prevailed by a vote of 81 to 46 and was certified by the Board as the exclusive representative of the full-time lay faculty on December 29, 1975. On April 12, 1976 the University sent employment contracts for the 1976-77 academic year directly to the individual faculty members represented by the Union. In May 1976 the Union requested that Niagara bargain with respect to rates of pay, wages, hours and other terms and conditions of employment. Niagara refused to so bargain in order to obtain judicial review of the Board's unit determination. The Union filed an unfair labor practice charge and on June 7, 1976 the Board issued a complaint charging Niagara with refusing to bargain in violation of §§ 8(a)(5) and (1) of the National Labor Relations Act, 29 U.S.C. § 158(a) (5), (1). On June 15, 1976 the University answered defending on the ground that the unit was inappropriate since it excluded the full-time religious faculty. On July 22, 1976 the Board denied Niagara's petition for reconsideration. General Counsel filed a motion for summary judgment which was granted on November 17, 1976. The Board held in its decision on that motion that Niagara had engaged in unfair labor practices under §§ 8(a)(1) and (5) of the Act. This petition for review was filed by Niagara on December 6, 1976.
Admittedly the scope of review here is narrow. The determination of the appropriate bargaining unit involves an exercise of informed discretion by the Board and its decision will rarely be disturbed. Packard Motor Car Co. v. NLRB, 330 U.S. 485, 491, 91 L. Ed. 1040, 67 S. Ct. 789 (1947). However, as we have consistently held, where the Board's order is not supported by substantial evidence or is either arbitrary or unreasonable, this court will deny enforcement. E.g., Szabo Food Services, Inc. v. NLRB, 550 F.2d 705, 707 (2d Cir. 1976); NLRB v. Solis Theatre Corp., 403 F.2d 381, 383 (2nd Cir. 1968); Empire State Sugar Co. v. NLRB, 401 F.2d 559, 562 (2d Cir. 1968). We hold that here the Board's order was arbitrary and inconsistent with its clarification order as well as its prior decisions and that its conclusions were not supported by substantial evidence in the record.
The Regional Director whose findings were not disturbed by the Board found that the "University (Niagara) holds title to all the buildings and property on the campus." Moreover, the Regional Director found that:
Niagara University is governed by a seventeen member Board of Trustees, of whom not more than one-third shall be priests of the Congregation of the Mission generally referred to as the Vincentian Fathers.
At the present time, five members of the Board, including the Chairman, are members of the Vincentian Fathers. Further, the Provincial of the Congregation of the Mission, Eastern Province of the United States is required by the ...