N.L.R.B. v. Hanna Boys Center
| Decision Date | 30 October 1991 |
| Docket Number | I,AFL-CI,No. 89-70385,89-70385 |
| Citation | 940 F.2d 1295 |
| Parties | 138 L.R.R.M. (BNA) 2733, 60 USLW 2132, 119 Lab.Cas. P 10,870, 121 Lab.Cas. P 10,110 NATIONAL LABOR RELATIONS BOARD, Petitioner, and Social Services Union Local 535 SEIU,ntervenor, v. HANNA BOYS CENTER, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
John D. Burgoyne, N.L.R.B., Washington, D.C., for petitioner.
George J. Tichy II, Littler, Mendelson, Fastiff & Tichy, Vincent A. Harrington, Jr., Van Bourg, Weinberg, Roger & Rosenfeld, San Francisco, Cal., for respondent.
Before SCHROEDER, CANBY and NOONAN, Circuit Judges.
Hanna Boys Center appeals the National Labor Relation Board's order requiring Hanna to bargain with Social Services Union Local 535 of the Service Employees International Union. Hanna contends that the National Labor Relations Act does not confer jurisdiction over Hanna on the Board, or, if it does, that the exercise of such jurisdiction violates the religion clauses of the first amendment. Hanna also objects to the Board's delay of over six years in reviewing Hanna's appeal of the decision to assert jurisdiction, and the Board's refusal, in light of that delay, to reopen its certification determination to receive evidence of current facts. We affirm.
This appeal arises out of the Union's protracted and vigorously contested attempt to represent certain lay non-faculty employees of Hanna, a residential school for boys that is owned and, arguably, operated by the Roman Catholic Church. The Union has intervened in this appeal. The parties dispute the degree of control and supervision exercised by the Church and the degree to which religion suffuses the school's mission. They also dispute the degree to which religion affects the duties of the employees that are the subject of this dispute: lay child-care workers, recreation assistants, cooks, cooks' helpers, and maintenance workers. Hanna asserts that the school is closely supervised by the Church, that its religious mission pervades its operations, and that every employee plays a role in furthering that mission. The Board's actions are based on a different view of the facts. The Board characterizes Hanna's religious mission, and its supervision by the Church, as minimal. More important to its ruling, the Board also found that the duties of the employees involved here are overwhelmingly secular.
Hanna provides education and residential supervision for boys aged ten through seventeen, pursuant to California's Nonprofit Religious Corporation Law, Cal.Corp.Code Secs. 9110-9690 (West.Supp.1991). Its Articles of Incorporation in effect at the time of the Board's 1981 assertion of jurisdiction state that its purpose is
[t]o provide for the protection, care and education of homeless or neglected children; to provide homes for them; to provide, alone or in conjunction with other organizations, for their mental, moral, physical and spiritual training during their minority and thereafter; and to assist, financially and otherwise, other nonprofit tax exempt organizations engaged in similar or related activities.
In September 1980, the Union petitioned the Board for permission to conduct an election to determine representation of certain of the non-teacher employees of Hanna. Hanna and the Union stipulated that two bargaining units were appropriate. Unit A, the one involved in this appeal, consisted of child-care workers, recreation assistants, cooks, cooks' helpers, and maintenance workers. This unit voted in favor of union representation. Unit B, which voted against Union representation, consisted of all office clerical employees. All professional workers, priests, nuns, and religious brothers were excluded from both units. Because only Unit A voted in favor of representation, it alone was the subject of the Board's bargaining order that we now review.
In February 1981, the Regional Director asserted jurisdiction, finding that Hanna was not a "church-operated" school within the holding of NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 99 S.Ct. 1313, 59 L.Ed.2d 533 (1979) (). In March 1981, the Board granted Hanna's request for review of the Director's assertion of jurisdiction. An election was held on March 18, 1981. The ballots in that election were impounded, pending board review of the assertion of jurisdiction.
In July 1987, six years and four months after the election and the Board's grant of review, the Board upheld the Director's assertion of jurisdiction, but with a different rationale. Hanna Boy's Center & Social Services Union, Local 535, SEIU, 284 N.L.R.B. 1080 (1987). The Board held that jurisdiction was properly asserted, relying on its earlier ruling in Jewish Day School of Greater Washington, 283 N.L.R.B. 757 (1987). In Jewish Day School, the Board ruled that Catholic Bishop did not prohibit jurisdiction over all employees of church-operated schools, but rather only over teachers employed by church-operated schools.
As to the Hanna employees at issue here, the Board noted that, "with the exception of child-care workers, the record is silent with respect to how these employees are in any way connected to the possible religious mission of the Center." 284 N.L.R.B. at 1083. It also rejected Hanna's argument that the child-care workers are "analogous to teachers":
There is no indication in the record that the child-care workers are required to, or do in fact, involve themselves in the religious or secular teaching of the entrants. The child-care workers function as someone akin to a 'dormitory monitor' ... The child-care workers are clearly less involved in the religious inculcation of the entrants than the teachers are. The sensitive first amendment issues surrounding the assertion of jurisdiction over teachers noted by the Court in Catholic Bishop are not involved in the assertion of jurisdiction over the child-care workers and other unit members in the present case.
Hanna moved for reconsideration, and sought to submit evidence as to the "current" facts supporting Hanna's position that Board jurisdiction was prohibited by Catholic Bishop, and violated the religion clauses. The Board denied these motions. After an unsuccessful attempt by Hanna to enjoin the Board from exercising jurisdiction, 1 the Board, in February 1988, counted the ballots. Unit A, the employees at issue here, voted for Union representation, and in April 1988, the Board certified the Union as their representative. Hanna objected to the election and to the certification.
In order to obtain review of the Board's decision, Hanna refused to bargain with the Union or to provide it with information pertinent to representation. In March 1989, the Board found Hanna to have engaged in unfair labor practices and issued an order requiring Hanna to bargain with the Union. The Board based its ruling on the record before the Board in the 1980-81 proceedings. The Board refused to reopen the factual record, ruling that the evidence offered was not newly discovered and previously unavailable evidence in existence at the time of the original proceedings. The Board further ruled that there were no special circumstances justifying reopening those proceedings. This appeal followed.
Before we turn to the merits of the Board's decision, we consider the effect of the Board's delay in ruling on Hanna's appeal of the Board's original assertion of jurisdiction. Hanna raises two arguments based on that delay, one of which concerns the scope of the factual record under review. Hanna argues first that, on account of the delay, the Board's order to negotiate
should not be enforced. Alternatively, Hanna argues that the Board should have reopened the record to admit evidence of "current" facts, and based its review on that evidence.
The APA requires that all administrative agencies, including the Board, conclude any matter submitted to them "within a reasonable time." 5 U.S.C. Sec. 555(b). The delay in this case can hardly be called "reasonable." It is egregious, and we deplore it. There is no suggestion here that either Hanna or the Union contributed to this delay. As it turns out, however, the beneficiary of that delay is Hanna, which has received over six years of reprieve from the Board's jurisdiction which it resists on this appeal. The victims are the employees who voted in 1981 for union representation.
The APA does not require refusal to enforce an administrative order as a remedy for failure to abide by section 555(b). We decline to impose such a sanction, when its effect would only be to continue the deprivation of the right of these employees to union representation, as provided by the NLRA. Instead, we adopt the practice of the Second and Seventh Circuits when faced with similar Board-caused delay:
We believe that frustration of the policies of the [LMRA] is an inevitable result of the egregious administrative delay in this case no matter how we rule. Because we conclude that fewer policies are frustrated by enforcement than by nonenforcement, we choose the former.
NLRB v. Parents & Friends of the Specialized Living Center, 879 F.2d 1442, 1457 (7th Cir.1989), quoting NLRB v. Star Color Plate Serv., 843 F.2d 1507, 1509-10 (2d Cir.), cert. denied, 488 U.S. 828, 109 S.Ct. 81, 102 L.Ed.2d 58 (1988).
In conjunction with its motion for reconsideration of the Board's decision, Hanna sought to introduce evidence of "substantial changes in Hanna's corporate status, Bylaws, Mission Statement and actual duties of employees within the unit" that had occurred after 1981. The Board rejected that evidence, ruling that the proffered evidence was neither "newly...
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