St. Elizabeth Community Hosp. v. N.L.R.B.

• Decision Date: 21 August 1980
• Docket Number: I,AFL-CI,No. 78-2959,78-2959
• Citation: 626 F.2d 123
• Parties: 105 L.R.R.M. (BNA) 2570, 89 Lab.Cas. P 12,223 ST. ELIZABETH COMMUNITY HOSPITAL, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Hospital and Institutional Workers' Local 250, SEIU,ntervenor.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 123

626 F.2d 123

105 L.R.R.M. (BNA) 2570, 89 Lab.Cas. P 12,223

ST. ELIZABETH COMMUNITY HOSPITAL, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent and Hospital and Institutional Workers' Local 250, SEIU AFL-CIO, Intervenor.

No. 78-2959.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Jan. 15, 1980.

Decided Aug. 21, 1980.

J. Mark Montobbio, San Francisco, Cal., for petitioner.

Lynne Deitch, Washington, D. C., argued, for respondent.

David Rosenfeld, Van Bourg, Allen, Weinberg & Roger, San Francisco, Cal., for intervenor.

On Petition to Review a Decision of the National Labor Relations Board.

Before SNEED, PREGERSON, and ALARCON, Circuit Judges.

PER CURIAM:

This case arose on a petition for review and cross-application for enforcement of an order of the NLRB requiring the St. Elizabeth Community Hospital, a charitable institution owned and operated by a religious order, the Sisters of Mercy, to enter into collective bargaining with the Hospital and Institutional Workers, Local 250, SEIU, AFL-CIO (Union). The Board found that the hospital had violated §§ 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1) and (5), by refusing to bargain with the Union or to provide information relevant to collective bargaining.

We find that the Hospital's First Amendment challenge to the Board's jurisdiction was timely raised, and we remand to the Board for further consideration in light of NLRB v. Catholic Bishop, 440 U.S. 490, 99 S.Ct. 1313, 59 L.Ed.2d 533 (1979).

FACTS

In March 1977, the Union filed petitions with the Board seeking to represent four groups of employees of the Hospital. A representation hearing was held on March 28, 1977, at which the focus was on the status of different hospital employees. The Hospital did not question the Board's jurisdiction at that hearing. The Board's Regional Director, on May 20, 1977, determined the status of the various employees, defined four collective bargaining units and directed that an election be held. On June 1, the Hospital requested the Board to review the Regional Director's determinations regarding the eligibility to vote of several employees. The Board, by a telegraphic order, denied review on June 15, except as to those employees who the Hospital had contended were supervisors. As to these persons the Board's telegraphic order directed that they be permitted to vote, subject to challenge, and that their eligibility to vote could be determined after the election.

The next day, June 16, the election was held with the result that three of the bargaining units rejected union representation, while the fourth, consisting of service and maintenance employees, cast 43 votes for and 35 votes against union representation, with 14 votes being challenged. Objections to the conduct of the election were filed by the Hospital alleging that Union observers had improperly kept a voter list and that the Board's failure to make a more prompt final ruling on the supervisory status of the three head nurses and supply supervisor had impeded the Hospital's campaign efforts and misled employees as to their supervisors' views.

The Regional Director conducted an ex parte investigation and thereafter, on August 30, rendered a supplemental decision overruling these objections and disposing of the challenges to the votes of particular employees. The Hospital sought review of this decision by the Board on September 8, arguing for the first time in this proceeding that the Board lacked jurisdiction on First Amendment grounds. By a telegraphic order of November 20, the Board denied review. It also deferred consideration of the challenge to the central service supply supervisor's vote pending a revised tally of the ballots. This revised tally showed 45 votes for union representation, 40 votes against, and 3 undetermined challenged ballots. The Union was certified on December 1.

The Hospital refused to bargain and on January 6, 1978, a complaint was filed charging the Hospital with unfair labor practices under §§ 8(a)(1) and (5) of the Act, 29 U.S.C. §§ 158(a)(1) and (5) (1976). As an affirmative defense in its January 13th answer to the unfair labor practice complaint, the Hospital again raised the issue of the Board's lack of jurisdiction on First Amendment grounds. In a Decision and Order dated August 28, 1978, the Board granted a motion of the General Counsel for summary judgment. In that decision, the Board dismissed the Hospital's defense on the ground that, "All issues raised by (the Hospital) . . . were or could have been litigated in the prior representation proceeding, and (the Hospital) does not offer . . . any newly discovered or previously unavailable evidence, nor does it

allege that any special circumstances exist herein which would require the Board," to find to the contrary. Thus the Board refused to address the merits of the Hospital's defense on the ground that the Hospital failed to claim that it had uncovered new evidence, unavailable at the time of the proceedings before the Regional Director. The Board therefore ordered the Hospital to bargain with the Union and to furnish, upon request by the Union, information necessary for bargaining purposes. The Hospital petitioned for review of the Board's order and the Board applied for enforcement. The Union's intervention completes the roster of parties before us.

JURISDICTION

The Board asserts that we should not consider the Hospital's First Amendment challenge to its jurisdiction because of the Hospital's failure to raise the issue "until late in the representation proceedings." Board's Brief, p. 7. It relies on Polynesian Cultural Center, Inc. v. NLRB, 582 F.2d 467, 472-73 (9th Cir. 1978). This reliance is misplaced. Unlike the employer in Polynesian Cultural Center, the Hospital in the instant case raised the First Amendment issue in the representation proceedings before the Board and did not defer its challenge to the enforcement proceedings. We think this is sufficient to require that the issue be considered by the Board although we acknowledge that the challenge was not made as promptly as it might have been.

The Hospital argues that the difficult and sensitive First Amendment questions described in NLRB v. Catholic Bishop, 440 U.S. 490, 99 S.Ct. 1313, 59 L.Ed.2d 533 (1979), are present in this case and require us to hold that the Board's failure to exempt the Hospital from the NLRA violates the First Amendment. Since the facts relevant to a determination of these issues were not developed by the Board, the case will be remanded to the Board for further proceedings on the question of the Board's jurisdiction in light of the Supreme Court's opinion in Catholic Bishop. For us to deal with the issue before the facts of this case have been fully established would amount to the giving of an advisory opinion which we must decline to do.

Since the jurisdictional issue has not yet been settled, it would not be appropriate for us to address the representation issues. The question of the propriety of the Board's certification of the Union depends, of course, upon whether the Board had jurisdiction to issue such certification.

Remanded.

SNEED, Circuit Judge (dissenting):

I respectfully dissent.

The Hospital raised its First Amendment challenge in timely fashion during the representation proceedings and chose to stand on the record it had made. The Hospital's request for review of the Regional Director's supplemental decision described the religious character of the Hospital and contended that the Board's assertion of jurisdiction violated the Free Exercise and Establishment Clauses. Significantly, the Hospital did not request an opportunity to develop further facts with respect to the issue. Although the Board's two-sentence order denying review did not specifically discuss any of the arguments advanced by the Hospital, it is evident that in denying review the Board rejected the First Amendment challenge. The jurisdictional issue was raised again in the unfair labor practice proceedings but, as the Board pointed out, the Hospital did not offer any newly discovered or previously unavailable evidence and did not allege any specific circumstances designed to strengthen its challenge. Under these circumstances we have a duty to decide the case on the record made by the Hospital.

Moreover, I seriously doubt that the Hospital can establish a record that would justify ousting the Board's jurisdiction. Short of establishing that a substantial part of the treatment provided by the Hospital consisted of "faith healing," unaugmented by the usual procedures of a modern hospital, any record that the Hospital might establish is very likely to present to the Board and the court issues not different materially from that presently before us. Therefore, I would decide this case now. My belief that this case is presently ripe for decision is in the final analysis shaped by my perception of the First Amendment as presently interpreted by the Supreme Court. Perhaps it will serve some useful purpose to set forth this perception. Although I conclude that the Board has jurisdiction in this case and that a remand is useless, I shall not extend this dissent by dealing with the merits of the substantive labor law issues of which the Hospital sought review. These will, I am certain, be decided in due course.

The Hospital's First Amendment challenge perhaps would succeed had the Supreme Court in the years since Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947), fashioned the "wall of separation between Church and State" to which Justice Black referred in his majority opinion in that case. 330 U.S. at 16, 67 S.Ct. at 512. This has not been the case, however. Whether one approaches the issue from the standpoint of the Establishment Clause or the Free Exercise Clause the Supreme Court teaches that accommodation more accurately describes the relationship between...