Bon Secours Hospital, Inc.

BON SECOURS HOSPITAL, INC. 115 Bon Secours Hospital, Inc. and Hospital Employees Local Union No. 1273, Laborers International Union of North America, AFL-CIO, Petitioner. Case 5-RC-10821 March 4, 1980 DECISION ON REVIEW AND DIRECTION BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE On June 19, 1979, the Regional Director for Region 5 issued a Decision and Direction of Elec- tion in the above-entitled proceeding in which he found that the Board had jurisdiction herein, and directed that an election be held in an appropriate voting group of dietetic assistants to determine if they wish to be included in the existing nonprofes- sional unit currently represented by the Petitioner. In his decision, the Regional Director rejected without discussion Bon Secours Hospital, Inc.'s (hereinafter referred to as the Hospital or the Em- ployer) contention that the Board was precluded from asserting jurisdiction herein by virtue of the recent Supreme Court decision in N.L.R.B. v. Catholic Bishop of Chicago, et al., 440 U.S. 490 (1979). Thereafter, in accordance with Section 102.67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Employer filed a timely request for review of the Regional Director's decision on the grounds, inter alia, that the Regional Director failed properly to consider the effect of Catholic Bishop on the Board precedent in deciding to assert jurisdiction in this case involving an institution owned by a Catholic religious order.' The Petitioner filed a response in opposition to the Employer's request for review. On July 17, 1979, the Board, by telegraphic order, granted the Employer's request for review only with regard to the issues of jurisdiction.2 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. i The Employer's request that the Board grant a hearing on review on the issues raised by the request for review is hereby denied, as the posi- tions of the parties are adequately set forth in their submissions in this proceeding. a In its request for review and in a subsequent letter to the Board char- acterized as a supplemental request for review, the Employer also claimed that its was denied procedural due process due to the manner in which the hearing was conducted, and that the wording of the ballot was unclear. While the latter problem was corrected by the Board in its tele- graphic order, the Board denied review on the remaining issue raised by the request for review Further, we take administrative notice of the fact that an election was conducted in this proceeding on July 19, 1979. and that the ballots have been impounded pending our decision on review 248 NLRB No. 19 The Board has considered the entire record in this case with respect to the issue under review, in- cluding the briefs on review, 3 and finds that a question affecting commerce exists concerning the representation of certain employees of the Employ- er within the meaning of Section 9(c)(1) and Sec- tion 2(6) and (7) of the Act, 4 and that it will effec- tuate the purposes of the Act to assert jurisdiction herein. he Employer is a hospital owned and operated by the Sisters of Bon Secours, a Catholic religious order with its headquarters at Marriottsville, Mary- land. In addition to the 217-bed facility located in Baltimore, Maryland, the sole operation with which we are concerned herein, the Employer owns and operates hospitals and nursing homes in Michigan, Massachusetts, Virginia, Pennsylvania, and Miami. At its Baltimore facility, the Employer employs 475 workers of whom 225 are represented by the Petitioner and are covered by the current collective-bargaining agreement executed between the Petitioner and the Hospital. As stated above, this case arose out of the Petitioner's desire to expand the scope of its bargaining unit to include four unrepresented dietetic assistants. The hospital facility herein is administered by a nonCatholic director whose responsibilities include the planning, organizing, and directing of the Hos- pital. His associate director, Sister Theophane Klin- gelhofer, is a member of the above-mentioned reli- gious order, and is also the president of the Hospi- tal's board of trustees. Except for the fact that Sister Theophane, in her professional capacity, has control over the food services department of the Hospital, and was a signatory to the collective-bar- gaining agreement on behalf of the Hospital in her capacity as president of the board of trustees, the record is silent as to her duties.5 With regard to the religious character of the Hospital, the facility does contain a chapel with a chaplain who conducts regular religious services 3 On August 10, 1979, the Petitioner filed a "Motion Ne Recipiatur" in which it requested thai the Employer's brief on review not be accepted by the Board, or, in the alternative, that the designated portions of that brief be removed from the Board's consideration because some of the fac- tual statements therein are not found in the record of the hearing in this proceeding On August 16, 1979, the Employer filed a response to the Petitioner's motion requesting that the motion be denied While we will not strike the pertinent sections of the brief, nor refuse to accept it, we do not, in accordance with established Board practice, rely on facts not established in the record in reaching our decision herein. 4The Employer refused to stipulate that it is engaged in commerce within the meaning of the Act, and further refused to furnish any com- merce data at the hearing. The Regional Director found, however, based on evidence brought forth at the hearing, that the Employer meets the Board's jurisdictional standards for a health care institution. The Employ- er did not raise this issue on review.T 5 In addition, there is evidence in the record indicating that at least one employee was not aware of the fact that the religious order is cur- rently directly running the Hospital SON SECOURS HOSPITAL, INC. 115~~~~~~~~~~~~~~~~~~~~~~~~ 116 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD for those patients and staff who wish to attend, and the announcements for these services are made on the Hospital's loudspeaker system. Further, there are crucifixes, religious statues, and paintings throughout the Hospital. The Hospital does not, however, restrict admission of patients to only those of the Catholic denomination, and does not employ only individuals of the Catholic faith. As stated above, the Regional Director conclud- ed, without advancing any rationale, that Catholic Bishop, in which the Supreme Court held that the Board could not assert jurisdiction over church-op- erated secondary schools, did not preclude the Board from asserting jurisdiction herein. Further, in making this determination, the Regional Direc- tor relied on Board precedent predating the Su- preme Court case. Relying principally upon the Supreme Court's decision in Catholic Bishop, the Employer contends that the Board should not assert jurisdiction in the instant case because such jurisdiction would in- fringe on the guarantees of the first amendment. The Employer also claims that the Regional Direc- tor improperly based his ruling on Board precedent predating the Supreme Court case, without analyz- ing the impact of the Court's decision on that pre- cedent, in determining that jurisdiction should be asserted. Further, the Employer argues that there is little factual distinction between the situation in Catholic Bishop, involving a Catholic-owned and operated secondary school, and that herein of a Catholic-owned and operated hospital. The Em- ployer therefore requests that the Board reverse the Regional Director and refuse to assert jurisdic- tion herein. The Petitioner, on the other hand, maintains that the Supreme Court's decision in Catholic Bishop is not applicable to the Board's exercise of jurisdic- tion herein, involving nonprofessional employees of a Catholic hospital, as the ruling in Catholic Bishop is limited to church-operated schools. It also argues that the Court's decision rests on the statutory con- struction that there exists no clear congressional intent to have the Act cover teachers in church-op- erated schools, whereas there is such a clear ex- pression of that intent as to employees of religious hospitals. Further, the Petitioner asserts that no first amendment issues would be raised by the Board's assertion of jurisdiction in a situation in- volving hospital employees because of the substan- tial factual distinctions between a church-operated school and a church-operated hospital. In support of this argument, it points to the 9-year history of collective-bargaining with the Hospital which has raised no incident of the first amendment conflicts feared by the Court. For the reasons set forth below, we agree with the Petitioner's position that the Board should assert jurisdiction herein, and we hereby affirm the Regional Director's Decision and Direction of Election. In reaching our decision in the instant case, we must first examine the Supreme Court's decision in Catholic Bishop. At issue in that case, in the Court's view, was whether or not the Board properly as- serted jurisdiction over two church-operated sec- ondary schools. The Board found it had jurisdic- tion based on an application of its policy of declin- ing to assert jurisdiction over religiously related fa- cilities when they are completely religious, but not when they are just religiously associated, 6 the latter being the status of the schools in Catholic Bishop. Subsequently, based on this decision, the Board issued bargaining orders in both cases. 7 Thereafter, the Court of Appeals for the Seventh Circuit disapproved the Board's reliance on the "completely religious-merely religiously associat- ed" standard, and denied enforcement of the afore- mentioned bargaining orders based on its conclu- sion that the Board's assertion of jurisdiction over religious schools conflicts with the guarantees of the first amendment. 8 On a writ of certiorari, the case was then consid- ered by the Supreme Court, which affirmed the lower court's conclusion.9 However, while the Court stated that it saw "no escape from conflicts flowing from the Board's exercise of jurisdiction over teachers in church-operated schools and the consequent serious First Amendment questions that would follow" (440 U.S. at 504), it did not reach a decision on the respondent's constitutional claims. In its analysis, the Court first considered, at part IV, whether or not Congress intended that the Board have jurisdiction over church-operated schools. After examining the National Labor Rela- tions Act and its legislative history, and subsequent amendments with their legislative history, the Court concluded that "Congress did not contem- plate that the Board would require church-operat- ed schools to grant recognition to unions as bar- gaining agents for their teachers."' 0 Accordingly, the Supreme Court, based on its statutory construc- tion of the Act and its history, found that the o The Catholic Bishop of Chicago. A Corporation Sole, 220 NLRB 359 (1975), relying on Roman Catholic Archdiocese of Balrimore. Archdiocesan High Schools, 216 NLRB 249 (1975). 7 Catholic Bishop of Chicago, A Corporation Sole, 224 NLRB 1221, 1222 (1976) (Motion for Summary Judgment granted); Diocese of Fort Wayne- South Bend, Inc., 224 NLRB 1226 (1976) (Motion for Summary Judgment granted). 8 The Catholic Bishop of Chicago, A Corporation Sole v. N.L.R.B., 559 F.2d 1112 (1977). 9 N.L.R.B. v. Catholic Bishop of Chicago, et al., 440 U.S. 490. 'o Id. at 506. ___ __ --- --- -- - BON SECOURS HOSPITAL, INC. 117 Board lacked jurisdiction over the schools in ques- tion, and that it was unnecessary to resolve the first amendment issues raised by the case. While the Court found that the Act, its amend- ments, and the entire legislative history failed to provide evidence of a clear intent of Congress to include parochial schools within the Act's cover- age, it acknowledged that the 1974 health care amendments to the Act' ' provided a clear intent to provide employees of religiously operated hospitals with the Act's protections. The Court cites the congressional concern expressed during the debate regarding the 1974 health care amendments to the Act about the problems which might arise where an employee of a religious hospital could not bring himself to join or support a union because of his re- ligious beliefs. This concern resulted in an added provision to the amendments to deal with such a situation. 1 2 An even clearer expression of congressional intent to include within the Act's coverage em- ployees of hospitals operated by religious groups was the Senate's rejection of a proviso to the 1974 health amendments which would have exempted nonprofit hospitals "owned, supported, controlled, or managed by a particular religion or by a par- '' Public Law 93-360, 93d Cong., S3203, 88 Stat. 395. 12 29 U.S.C Sec 169: Any employee of a health care institution who is a member of and adheres to established and traditional tenets or teachings of a bona fide religion, body, or sect which has historically held conscientious objections to joining or financially supporting labor organizations shall not be required to join or financially support any labor organi- zation as a condition of employment; except that such employee may be required, in lieu of periodic dues and initiation fees, to pay sums equal to such dues and initiation fees to a nonreligious charitable fund exempt from taxation under section 501(c)(3) of title 26, chosen by such employee from a list of at least three such funds, designated in a contract between such institution and a labor organization, or if the contract fails to designate such funds, then to any such fund chosen by the employee. ticular religious corporation or association.""" Thus, in view of this legislative history, and espe- cially the refusal of Congress specifically to ex- clude religiously affiliated hospitals, we distinguish the situation herein from that in Catholic Bishop, and find that a clear mandate exists to assert juris- diction in the instant case.14 Accordingly, we assert jurisdiction in this proceeding. In addition, as no party has requested review of the Regional Director's determination of an appro- priate voting group, we find that the following em- ployees constitute an appropriate voting group eli- gible for inclusion in the existing nonprofessional unit currently represented by the Petitioner for col- lective-bargaining purposes within the meaning of Section 9(b) of the Act: All dietetic assistants employed by the Em- ployer at its Baltimore, Maryland, hospital, but excluding all other employees, professional employees, guards and supervisors as defined in the Act. DIRECTION It is hereby directed that the Regional Director for Region 5 shall, pursuant to the National Labor Relations Board Rules and Regulations, Series 8, as amended, within 10 days from the date of this De- cision on Review and Direction, open and count the valid ballots cast in an election held on July 19, 1979, and prepare and cause to be served on the parties a tally of ballots in accordance with Section 102.69 of the Board's Rules and Regulations, Series 8, as amended, which shall thereafter be applicable to the further processing of this matter. a 120 Cong Rec. 12950, 12968. " The Board relied on this same clear congressional mandate to assert jurisdiction in a case involving a church-operated nursing home in Mid- American Health Services, Inc., 247 NLRB No. 109 (1980). BON SECOURS HOSPITAL, INC. 117