St. Elizabeth Community Hosp. v. N.L.R.B.
| Decision Date | 22 June 1983 |
| Docket Number | I,AFL-CI,No. 82-7098,82-7098 |
| Citation | 708 F.2d 1436 |
| Parties | 113 L.R.R.M. (BNA) 3157, 97 Lab.Cas. P 10,245 ST. ELIZABETH COMMUNITY HOSPITAL, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Hospital and Institutional Workers Union Local 250, Service Employees International Union,ntervenor. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Thomas J. Dowdalls, San Francisco, Cal., for petitioner.
Lynne Deitch, N.L.R.B., Washington, D.C., for respondent.
David A. Rosenfeld, VanBourg, Allen, Weinberg & Roger, San Francisco, Cal., for intervenor.
Petition from the National Labor Relations Board.
Before TANG and POOLE, Circuit Judges, and THOMPSON, * District Judge.
St. Elizabeth Community Hospital, of Red Bluff, California, petitions for review of a National Labor Relations Board decision and order finding violations of section 8(a)(1) and 8(a)(5) of the National Labor Relations Act, 29 U.S.C. Sec. 158(a)(1) and (5) (the Act), and requiring the hospital to enter into collective bargaining with the union elected to represent hospital service and maintenance employees. The hospital contends that since it is owned and operated by a religious order of the Catholic Church, Board jurisdiction would produce excessive entanglement between government and religion in violation of the First Amendment's free exercise and establishment clauses. It also claims abuse of discretion by the Board in overruling the hospital's objections to a union representation election and error in rulings on challenges to ballots cast during the election.
We hold that the Board's assertion of jurisdiction over St. Elizabeth does not violate the First Amendment because it neither produces excessive government entanglement nor infringes the religious beliefs of those who own and operate the hospital. Further, we find no abuse of the Board's discretion in overruling the hospital's election objections and no error in the rulings on ballot challenges.
The Sisters of Mercy, a religious order of the Catholic Church, owns and operates St. Elizabeth. The hospital, a non-profit California corporation licensed by the state as an acute care hospital, is one of approximately 22 such facilities maintained by the Order's Omaha, Nebraska Provinciate.
In March 1977, Hospital and Institutional Workers, Local 250, SEIU, AFL-CIO (the union) filed petitions with the Board seeking to represent four groups of employees at St. Elizabeth. After a representation hearing, the Board's Regional Director defined four bargaining units at the hospital and directed that elections be held. St. Elizabeth requested the Board review the Regional Director's determinations that certain employees were eligible to vote. The Board denied review except that it directed that those employees whom the hospital contended were supervisors be permitted to vote subject to challenge.
The election was held on June 16, 1977. Three of the hospital's bargaining units rejected union representation but the fourth, consisting of service and maintenance employees, chose union representation by a vote of 43 to 35, with 14 challenged votes. The hospital filed objections to the election. The Board had permitted three head nurses and a supply supervisor, whom the hospital claimed were supervisors and not within the bargaining units, to vote subject to challenge. St. Elizabeth objected that the Board's failure to rule on their supervisory status before the election allowed other employees to believe they favored the union and prevented the hospital from using them to campaign against the union. St. Elizabeth further complained that union observers kept an unauthorized list of voters at the polls.
On August 30, 1977, the Regional Director overruled the hospital's election objections and made rulings on the challenged ballots. St. Elizabeth requested that the Board review this supplemental decision and for the first time asserted that the Board's assumption of jurisdiction violated both religion clauses of the First Amendment. The Board denied the hospital's request for review of the Regional Director's decision but deferred ruling on challenges to the vote of the supply supervisor pending a revised vote count. The revised tally yielded 45 votes for and 40 votes against union representation, with challenges to three votes unresolved. 1 The Regional Director certified the union as the bargaining representative of the service and maintenance employees on December 1, 1977.
On January 6, 1978, the Regional Director issued a complaint charging that St. Elizabeth had committed unfair labor practices in violation of section 8(a)(1) and (a)(5) of the Act by refusing to bargain with the union or to provide information essential to bargaining. The hospital admitted it had refused to bargain but denied it had refused to furnish the necessary information, and again challenged the Board's jurisdiction over it on First Amendment grounds.
In August 1978, the Board rejected the hospital's First Amendment defense as untimely and granted the General Counsel's motion for summary judgment, finding St. Elizabeth's refusal to bargain and provide information to be in violation of the Act and ordering the hospital to bargain with the union.
St. Elizabeth petitioned this court for review of the Board's order and the Board applied for enforcement. In St. Elizabeth Community Hospital v. NLRB, 626 F.2d 123 (9th Cir.1980), this court held, Sneed, J., dissenting, that the hospital's First Amendment challenge had been timely. This court remanded to the Board for development of facts relevant to the jurisdictional issue in light of NLRB v. Catholic Bishop, 440 U.S. 490, 99 S.Ct. 1313, 59 L.Ed.2d 533 (1979).
The Board held a supplemental hearing following the remand and concluded that the Act authorized exercise of jurisdiction over St. Elizabeth and that its jurisdiction did not violate the First Amendment. The Board found that asserting jurisdiction over the hospital would cause only a slight risk of entanglement between government and religion and would not infringe free exercise of the religious beliefs of the Sisters of Mercy. It reaffirmed its prior decision and order requiring St. Elizabeth to bargain with the union.
St. Elizabeth again petitioned this court for review of the Board's supplemental decision and order. The Board cross-applied for enforcement and the union has intervened in the proceedings.
St. Elizabeth claims that the Board cannot order it to bargain with the union because to allow the Board jurisdiction would produce the excessive government entanglement prohibited by the First Amendment's establishment clause and would impermissibly infringe upon the free exercise of the religious beliefs of the institution's owners in violation of the free exercise clause.
In reviewing the Board's initial decision and order, this court remanded the case to the Board in light of the Supreme Court's opinion in Catholic Bishop, 440 U.S. 490, 99 S.Ct. 1313. Catholic Bishop is not really applicable, however. The Supreme Court relied on the National Labor Relations Act's legislative history rather than constitutional grounds in holding that the Board did not have jurisdiction over lay teachers at Catholic high schools. The Court found "no clear expression of an affirmative intention of Congress" that the Act cover teachers in church-operated schools and held that the Board could not require parochial schools to recognize unions as bargaining agents for their teachers. 440 U.S. at 504-506, 99 S.Ct. at 1320-1322. Consequently, the Court never reached the issue of unconstitutionally excessive entanglement.
However, Congress expressed an unmistakable intention that the Act cover non-profit hospitals when it amended the Act in 1974 to include health care institutions. 2 29 U.S.C. Sec. 152; Catholic Bishop, 440 U.S. at 505, 99 S.Ct. at 1321. In fact, during debate on that measure, the Senate rejected an amendment which would have exempted hospitals operated by religious organizations. 120 Cong.Rec. 12,968 (1974). This legislative history indicates an affirmative intention of Congress to subject church-operated hospitals to Board jurisdiction, raising constitutional issues left unresolved by Catholic Bishop. Although this court declined to decide the jurisdictional issue in St. Elizabeth, 626 F.2d 123, it is now ripe for resolution.
The establishment clause of the First Amendment provides that "Congress shall make no law respecting an establishment of religion...." It was designed to protect against "sponsorship, financial support, and active involvement of the sovereign in religious activity." Walz v. Tax Commission, 397 U.S. 664, 668, 90 S.Ct. 1409, 1411, 25 L.Ed.2d 697 (1970); Lemon v. Kurtzman, 403 U.S. 602, 612, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971). However, Lemon, 403 U.S. at 614, 91 S.Ct. at 2112; Walz, 397 U.S. at 670, 90 S.Ct. at 1412. But while the "course of constitutional neutrality in this area cannot be an absolutely straight line ... we will not tolerate either governmentally established religion or governmental interference with religion." Walz, 397 U.S. at 669, 90 S.Ct. at 1411.
To determine whether the Act violates the establishment clause in conferring Board jurisdiction over the institution operated by this religious order, we apply the Supreme Court's three-part analysis: (1) the statute must have a secular purpose; (2) the statute's principal or primary effect must neither advance nor inhibit religion; and (3) the statute must not foster excessive government entanglement with religion. Lemon, 403 U.S. at 612-613, 91 S.Ct. at 2111; EEOC v. Pacific Press Publishing Ass'n, 676 F.2d 1272, 1281 (9th Cir.1982).
In this case the government activity easily passes...
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