Tressler Lutheran Home for Children v. N.L.R.B.

• Decision Date: 26 April 1982
• Docket Number: No. 81-1302,81-1302
• Citation: 677 F.2d 302
• Parties: 110 L.R.R.M. (BNA) 2197, 63 A.L.R.Fed. 821, 94 Lab.Cas. P 13,502 TRESSLER LUTHERAN HOME FOR CHILDREN, t/a Frostburg Village of Allegany County Nursing Home, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

Page 302

677 F.2d 302

110 L.R.R.M. (BNA) 2197, 63 A.L.R.Fed. 821,

94 Lab.Cas. P 13,502

TRESSLER LUTHERAN HOME FOR CHILDREN, t/a Frostburg Village of Allegany County Nursing Home, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 81-1302.

United States Court of Appeals Third Circuit.

Argued March 3, 1982.

Decided April 26, 1982.

Ronald M. Katzman (argued), Thomas E. Brenner, Goldberg, Evans & Katzman, Harrisburg, Pa., for petitioner.

Eric Moskowitz (argued), W. Christian Schumann, 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, N. L. R. B., Washington, D.C., for respondent.

Before HUNTER, WEIS and HIGGINBOTHAM, Circuit Judges.

OPINION OF THE COURT

WEIS, Circuit Judge.

A nursing home affiliated with the Lutheran Church contends that application of the National Labor Relations Act to it would be a violation of the free exercise clause of the First Amendment. Relying on its own precedents, which cited specific statutory authorization, the Board rejected the jurisdictional challenge. The employer also objected to various union campaign activities, which it contended tainted a representation election at the home. We conclude that the First Amendment defense is not applicable in the circumstances of this case, and that the Board's bargaining order must be enforced.

After a majority of the employees voted in a Board election for representation by a union, the nursing home employer filed objections to the union's campaign activities. The Regional Director investigated the complaints, found them insubstantial, and certified the union as bargaining representative. When the employer refused to bargain, the union filed unfair labor practice charges and the Board entered summary judgment against the home.

Tressler Lutheran Home for Children operates a facility known as the Frostburg Village of Allegany County Nursing Home in Frostburg, Maryland. Tressler's Board of Directors is elected by the Central Pennsylvania and Maryland Synods of the Lutheran Church in America. Tressler is a non-profit entity dedicated to charitable work under the auspices of the Church.

The Home provides health care to individuals regardless of religious affiliation and its employees are not limited to adherents of the Lutheran Church. Operation of the Home is in furtherance of Lutheran practice in implementing the biblical corporate works of mercy. All employees are oriented in the Christian doctrine that, in caring for "one of these, the least of My brethren, you did it unto Me." Other than an orientation in this general philosophy, there is no evidence that any specific religious indoctrination of employees or patients occurs.

The Home enjoys tax exempt status as a religious organization. At one time it received income from the Lutheran Church, but its operating funds currently come from the patients, the majority of whom are eligible for Medicare and Medicaid. CETA funds are used to pay several employees.

The Home contested the jurisdiction of the Board at every stage of the proceedings on First Amendment grounds. The Board, however, following its rulings in Mid American Health Services, Inc., 247 N.L.R.B. 752 (1980), and Bon Secours Hospital, Inc., 248 N.L.R.B. 115 (1980), rejected the Home's objections. The Board had expressed doubt about its authority to adjudicate constitutional issues in these earlier cases, and instead relied upon specific authorization in the health care institution amendments to the Act. As the Board saw it, the Home's operations were essentially secular in nature, and were similar to those institutions that had no religious affiliations.

The Home's complaints about the pre-election activities included objections to a letter allegedly containing unspecified misrepresentations sent by the union two days before the balloting. Other literature the union circulated included questionnaires addressed to the employees on subjects to be contained in a collective bargaining agreement. Leaflets and letters discussed matters in controversy such as union dues, and accused the employer of having "continually lied and misrepresented the truth."

The Board rejected some challenges as being unsupported. Others were rejected as being matters that could be expected in normal campaigning. In addition, the employer had the opportunity to answer the material before the election, and did so in most instances.

Affidavits by various employees to the effect that they had been verbally abused by pro-union employees were also filed. Some stated that employees were told that if they did not vote for the union, its supporters would make life miserable for them. In another incident, racist remarks were made. The Board, however, found that there was no evidence that the speakers were members of the organizing committee or that the union had authorized the statements.

Initially, the Board authorized a bargaining unit consisting of service and maintenance employees, nursing and physiotherapy assistants, clerks, orderlies, and dietary, housekeeping and laundry employees. In later proceedings, licensed practical nurses were included in the unit, despite the employer's contention that they were supervisors. The Home petitioned for review and the Board filed a cross-application for enforcement.

Tressler's principal argument on appeal is that the Board's assumption of jurisdiction violates both the establishment and free exercise clauses of the First Amendment. According to Tressler, collective bargaining would impede its religious mission because the process of inquiry into aspects of collective bargaining and resolution of unfair labor practice charges itself would create an improper entanglement between church and state. The Board, however, asserts that Tressler's services-providing health care to those in need-are humanitarian rather than religious in nature, and that the Home does not engage in religious training or indoctrination.

We agree with the Board that it has no authority to rule on constitutional questions, see Califano v. Sanders, 430 U.S. 99, 109, 97 S.Ct. 980, 986, 51 L.Ed.2d 192 (1977); Johnson v. Robison, 415 U.S. 361, 368, 94 S.Ct. 1160, 1166, 39 L.Ed.2d 389 (1974); Oestereich v. Selective Service Board, 393 U.S. 233, 242, 89 S.Ct. 414, 419, 21 L.Ed.2d 402 (1968), (Harlan, J., concurring), and that the issue here is one for the courts. We begin by reviewing a case where the Supreme Court deliberately avoided the constitutional issue raised here.

In NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 99 S.Ct. 1313, 59 L.Ed.2d 533 (1979), the Court held that the Board exceeded its jurisdiction when it ordered the Bishop of Chicago to engage in collective bargaining with lay teachers in the diocesan high schools. The Court was able to rely upon statutory interpretation since it found no evidence of Congressional intent to include parochial schools within the scope of the Act. Id. at 505-06, 99 S.Ct. at 1321-22. But the Court did note the difficult questions of state entanglement which would arise if such religious institutions had been included. Id. at 499-501, 99 S.Ct. at 1318-19.

Fear of governmental entanglement was based on two potential sources of conflict-actions labeled as unfair labor practices were said to be mandated by religious creed, and topics of mandatory bargaining would "implicate sensitive issues that open the door to conflicts between clergy-administrators and the Board, or conflicts with negotiators for unions." Id. at 503, 99 S.Ct. at 1320. The Court emphasized that "(p)arochial schools involve substantial religious activity and purpose," and that their employment relationships differ from those in nonreligious schools. Id. at 503-04, 99 S.Ct. at 1320-21, quoting Lemon v. Kurtzman, 403 U.S. 602, 616, 91 S.Ct. 2105, 2113, 29 L.Ed.2d 745 (1971).

A better understanding of the issues here is seen by assessing the differences between the case at hand and Catholic Bishop. Unlike that case, here there is an express Congressional pronouncement on the jurisdiction of the Board over religious hospitals and nursing homes. In 1974, the Act was amended to include non-profit hospitals within its scope. 29 U.S.C. § 152 (1976). During the debate on the legislation, Senator Ervin offered an amendment which would have exempted hospitals operated by religious organizations. 120 Cong.Rec. 12950 (1974). In support of his proposal, the Senator discussed the position of the Seventh Day Adventists that their hospitals were one of the "evangelistic tools" the church used to accomplish its religious mission. A spokesman maintained that recognition of a labor union in a church-owned hospital would violate the religious tenets of Seventh Day Adventists. 120 Cong.Rec. 12950-55.

In opposition, Senator Cranston noted that religiously-affiliated hospitals were supported by a variety of governmental subsidies and grants, that their health-care operations were the same as non-religious institutions, and that both drew on the same manpower pool. 120 Cong.Rec. 12955-7. Upon consideration, the Senate rejected the amendment.

The primary function of a nursing home is care of the elderly and infirm. We recognize that the religious atmosphere and motivation at the Tressler Home are beneficial to the well-being of the patients, but the actual physical care given is comparable to that furnished by secular facilities. In that sense the religious atmosphere is secondary to that of direct patient care. The raison d'etre of parochial schools, however, is the teaching of religious doctrine. Thus, the "critical and unique role of the teacher in fulfilling the mission of a church-operated school," as found in Catholic Bishop, 440 U.S. at 501, 99 S.Ct. at 1319 differs from the main function of those who give personal attention to the elderly and infirm. Nor do we have the situation in Tressler of...