N.L.R.B. v. St. Louis Christian Home

• Decision Date: 11 November 1981
• Docket Number: No. 80-2031,80-2031
• Citation: 663 F.2d 60
• Parties: 108 L.R.R.M. (BNA) 2969, 92 Lab.Cas. P 13,109 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ST. LOUIS CHRISTIAN HOME, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 60

663 F.2d 60

108 L.R.R.M. (BNA) 2969, 92 Lab.Cas. P 13,109

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ST. LOUIS CHRISTIAN HOME, Respondent.

No. 80-2031.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 17, 1981.

Decided Nov. 11, 1981.

William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Paul J. Spielberg, Deputy Asst. Gen. Counsel, Miriam Szapiro (argued), N. L. R. B., Washington, D. C., for petitioner.

McMahon, Berger, Breckenridge, Hanna, Linihan & Cody, Thomas O. McCarthy, Ralph E. Kennedy, St. Louis, Mo., for respondent.

Before BRIGHT, HENLEY, and ARNOLD, Circuit Judges.

BRIGHT, Circuit Judge.

The National Labor Relations Board (NLRB) petitions this court under section 10(e) of the National Labor Relations Act (the Act), 29 U.S.C. § 160(e) (1976), for enforcement of an order directing St. Louis Christian Home (the Home) to bargain collectively with the Nursing and Convalescent Division, Local 50, Service Employees International Union, AFL-CIO, CLC (the Union), as bargaining agent for the Home's childcare workers, a maintenance employee, and a storeroom clerk. This case presents the question of whether the Supreme Court's decision in NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 99 S.Ct. 1313, 59 L.Ed.2d 533 (1979), exempting lay teachers in church-operated schools from NLRB jurisdiction, covers lay employees in church-operated institutions other than schools. We conclude that the employees of the respondent Home do not fall within the Catholic Bishop exemption. Accordingly, we grant enforcement of the NLRB's order.

I. Background.

The St. Louis Christian Home is an emergency residential treatment center for battered, abused, and neglected children between the ages of five and seventeen. It is organized as a nonprofit Missouri corporation and is an agency of the National Benevolent Association, the social service arm of the Christian Church Disciples of Christ (Christian Church). The Home was originally established in 1905 as an orphanage exclusively serving members of the Christian Church, but later changed its orientation. From the early 1960's through the early 1970's, the Home treated emotionally disturbed children from throughout Missouri, and in the early 1970's, the Home embarked on its current enterprise of treating battered, abused, and neglected children from the St. Louis area. ¹

The Home has facilities to accommodate thirty-two children and has completed construction of a cottage that will increase its capacity to forty-eight children. The Missouri Division of Family Services refers children to the Home, which accepts them as space becomes available. Children stay for an average of six weeks, during which time they remain wards of the state while a state social worker attempts to find permanent placement for them. The Home assists the state in placing the children, and provides the children with extensive therapy through social workers. Most of the children attend public school while staying at the Home, but those few (no more than six) unable to do so because of physical or mental problems attend classes in the Home.

Federal, state, and local governments provide the largest source of funds for the Home. Its funding pattern breaks down as follows:

Government: 55%

Christian Church: 19%

Investment income: 13%

Gifts: 6%

Bequests: 5%

Gifts in kind: 2%

The Missouri Division of Family Services does not license church-affiliated care institutions such as the Home, but such a care institution must fulfill the same requirements necessary for licensing of comparable nonreligious institutions in order to receive state funds for its services to abused children. For example, the Home must supply the state with copies of its constitution and bylaws, budget intake procedures, and personnel policies, as well as a list of its employees, their salaries, and records of their physical examinations. To comply with another state requirement, the Home must provide each child an opportunity for religious expression according to the religious preference of the child's family. The Home must obtain parental consent before a child attends a religious service of any church, including the Christian Church, if the practice of the church varies from the religious preference of the child or the child's family.

The Union petitioned for certification as bargaining agent for the Home's childcare workers, maintenance man, and storeroom clerk on December 4, 1979. All of the employees in the bargaining unit are lay workers. State regulations prescribe minimum qualifications for childcare workers: they must be over 21 years of age, have graduated from high school, pass yearly physical examinations, and be able to prepare meals and administer prescribed medication. Religious affiliation is not a factor in selection of these employees, and the record does not show how many, if any, belong to the Christian Church. ²

Following a representation hearing on January 7, 1980, the Regional Director of the NLRB certified the unit as appropriate for collective bargaining on January 18, 1980. The Union won the election held February 15, 1980, and on February 26, 1980, the Regional Director certified the Union as bargaining representative for the designated employees. The Home refused to bargain, contesting the NLRB's asserted jurisdiction as a violation of the first amendment and the standards set out in NLRB v. Catholic Bishop of Chicago, supra. The Union filed an unfair labor practices charge, and on August 27, 1980, the NLRB found the Home in violation of sections 8(a)(1) and (5) of the Act, 29 U.S.C. §§ 158(a)(1), (5) (1976), and ordered the Home to bargain with the Union. The case has come before this court on an application for enforcement and cross-petition for review of the NLRB order.

II. Discussion.

A. Interstate Commerce.

The Home initially contends that it is not an employer engaged in commerce within the meaning of sections 2(6) and (7) of the Act, 29 U.S.C. §§ 152(6), (7) (1976), ³ and as a result, its activities are outside the ambit of the NLRB's jurisdiction as defined in 29 U.S.C. § 160(a). ⁴ Congress intended to grant the NLRB, under the commerce clause, the broadest possible jurisdiction permitted by the Constitution. See NLRB v. Reliance Fuel Oil Corp., 371 U.S. 224, 226, 83 S.Ct. 312, 313, 9 L.Ed.2d 279 (1963); NLRB v. Alexander, 595 F.2d 454, 456 n.3 (8th Cir.), cert. denied, 444 U.S. 899, 100 S.Ct. 209, 62 L.Ed.2d 135 (1979); NLRB v. Erlich's 814, Inc., 577 F.2d 68, 70-71 (8th Cir. 1978). The NLRB sets discretionary jurisdictional standards expressed as a minimum level of gross annual revenues, and Congress explicitly approved this policy in the Landrum-Griffin Act of 1959, 29 U.S.C. § 164(c)(1) (1976). The NLRB has set the jurisdictional standard for "day care centers, institutions involving specialized care and custody of children" at $250,000 in gross annual revenues. See The Rhode Island Catholic Orphan Asylum, a/k/a St. Aloysius Home, 224 NLRB 1344, 1345 n.6 (1976); Salt and Pepper Nursery School and Kindergarten No. 2, 222 NLRB 1295 (1976); cf. NLRB v. Kent County Association for Retarded Citizens, 590 F.2d 19 (1st Cir. 1978) (approving extensions of St. Aloysius Home standard to other nonprofit charitable institutions). Accordingly, because the Home's gross revenues in 1979 approximated $600,000, the NLRB exercised jurisdiction over the Home. Thus, the Home falls within the above jurisdictional standard.

The Home contends that because its children all come from Missouri and it purchases supplies solely from Missouri suppliers, it does not affect interstate commerce regardless of the size of its annual income. In addition to applying the $250,000 jurisdictional standard, the Board based its assertion of jurisdiction on findings that in 1979 the Home paid in excess of $16,000 for telephone and electricity to companies engaged in interstate commerce. This amount of interstate purchases supports NLRB jurisdiction over the Home. In other cases involving lesser sums, courts have approved the Board's exercise of jurisdiction, in light of the broad grant of power to the NLRB. See, e. g., NLRB v. Maxwell, 637 F.2d 698 (9th Cir. 1981) ($6,000 sufficient); Von Solbrig Hospital, Inc. v. NLRB, 465 F.2d 173 (7th Cir. 1972) ($4,925 sufficient); NLRB v. Inglewood Park Cemetery Association, 355 F.2d 448 (9th Cir.), cert. denied, 384 U.S. 951, 86 S.Ct. 1572, 16 L.Ed.2d 548 (1966) ($3,000 sufficient); NLRB v. Aurora City Lines, Inc., 299 F.2d 229 (7th Cir. 1962) ($2,000 sufficient). Accordingly, we hold the Board properly exercised jurisdiction in these proceedings.

The Home also contends that the Board's jurisdiction does not extend to nonprofit institutions which do not affect commerce. The argument relies on the dissent of NLRB Member Penello in Lighthouse for the Blind of Houston, 248 NLRB 1366 (1980), which the Fifth Circuit adopted in denying enforcement of the NLRB bargaining order in NLRB v. Lighthouse for the Blind of Houston, 653 F.2d 206 (5th Cir. 1981). In that case, the court found the relationship between employer and employee to be rehabilitative rather than commercial in nature, and thus not suitable for collective bargaining. In contrast, the Home has a commercial, not rehabilitative, relationship with its employees in the bargaining unit. The record here supports the Board's determination that the operations of the Home (a nonprofit corporation) affect commerce. See generally NLRB v. Catholic Bishop of Chicago, supra, 440 U.S. at 511-18, 99 S.Ct. at 1324-27 (Brennan, J., dissenting) (discussing legislative history); NLRB v. Kent County Association for Retarded Citizens, supra, 590 F.2d at 20-23.

B. First Amendment.

The Home argues that the NLRB's assertion of jurisdiction over it will lead to violation of both the establishment and free exercise...