Motherhouse of the Sisters of Charity of Cincinnati, Ohio

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Motherhouse of the Sisters of Charity of Cincinnati, Ohio and Ice, Storage, Scrap Metal and Grain Warehousemen, Local No. 105, affiliated with the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America. Case 9-RC-11302 September 23, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS, PENELLO, AND MURPHY Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer James A. Murphy. Following the hearing and pursuant to Section 102.67 of the National Labor Relations Board Rules and Regulations and Statements of Procedure, Series 8, as amended, by direction of the Regional Director for Region 9, this case was transferred to the Board for decision. Thereafter, the Employer filed a brief which has been duly consid- ered. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this case, the Board finds: The Order is a nonprofit religious organization, the Sisters of Charity of Cincinnati, Ohio. Petitioner seeks to represent a unit of 73 lay employees at the Order's Mt. St. Joseph, Ohio, complex known as the Motherhouse. Motherhouse Operations The Motherhouse is a partially cloistered convent and is the permanent and legal residence of the Order. The Motherhouse is located on 300 acres of land and is composed of several adjacent buildings including a main residence building, a second large resident building, a small residence, and several service buildings. The service buildings include a kitchen, laundry, and power plant. Motherhouse buildings also include Mother Margaret Hall. This building has been leased by the Sisters for $50,000 per year to the Good Samaritan Hospital of Cincinnati,' a private nonprofit hospital which operates the building as a nursing home. Approxi- mately 129 Sisters reside at the Motherhouse. An I The Hospital is located 12 miles from the Motherhouse complex. The Order owns the Hospital's buildings and property. However, the Hospital is in the process of purchasing the land and buildings pursuant to a lease- mortgage arrangement entered into with the Order. The Order receives $500,000 annually from the Hospital pursuant to this agreement. Approxi- mately 30 percent of this amount is annually allocated to principal. 232 NLRB No. 44 additional 95 Sisters are patients in the nursing home located in Mother Margaret Hall. The 73 lay employees which Petitioner seeks to represent are employed as follows: 32 part or full- time kitchen employees; 3 drivers; I garage service- man; 19 housekeepers (maids and janitors); 3 laundry employees; 6 maintenancemen; 3 grounds- keepers; and 6 power plant employees. 1. Services to Mother Margaret Hall As noted above, Mother Margaret Hall is operated as a nursing home. In addition to the 95 Sisters of Charity who are patients there, the home cares for 25 close relatives of Sisters. The Hospital employs all health care personnel at the nursing home. In addition, the Hospital bills the Order for the care provided infirm Sisters and the relatives of Sisters who are unable to make any financial contribution.2 Pursuant to an agreement with the Hospital, the Motherhouse provides complete laundry and food service for patients assigned to the nursing home. In fiscal year 1975, the Motherhouse received from the Hospital approximately $200,000 as compensation for food services and $20,000 as compensation for laundry services. The Motherhouse is also compen- sated by the Hospital for maintenance work per- formed on Mother Margaret Hall and for certain housekeeping services provided the nursing home. The Motherhouse is similarly compensated for expenses incurred in providing heat to the nursing home. 2. Services to the College of Mt. St. Joseph The Motherhouse also provides laundry services to the College of Mt. St. Joseph, 3 a small private college located on land directly across the road from the Motherhouse complex, for which it received $11,000 in fiscal year 1975. In addition, the Motherhouse provides power to the College for which it received approximately $225,000 in 1975. Employee Activities The exact breakdown as to the percentage of time which the 73 lay employees herein allocate to each of the activities in the complex is not clearly set forth in the record. However, the record indicates that 41 of the 73 lay employees, or 56 percent of the unit sought, allocate 40 or more percent of their time to services provided the nursing home. Of these 41 2 Petitioner does not seek to represent any employees employed by the Hospital at Mother Margaret Hall. 3 The Order owns the college buildings and the property on which the College is located. The Order leases the property and buildings to the College for S I per year. 318 MOTHERHOUSE OF THE SISTERS OF CHARITY employees, 9 also allocate some portion of their time to services performed for the College. In addition, at least 28 of the 32 remaining employees-and perhaps all 32-allocate an unspecified amount of time to services performed for the nursing home. This latter group provides no services for the College. The time of the 73 employees which is not accounted for by services to the College or to Mother Margaret Hall is allocated to domestic services performed for the Sisters who reside at the Motherhouse. Discussion The Employer contends, inter alia, that the applica- tion of the Act to its Motherhouse operations would constitute an attempt to regulate the free exercise of religion contrary to the first amendment to the United States Constitution. We find no merit in this contention. There is no allegation in the instant case that to require compliance with the provisions of the Act contravenes any official doctrine of the Church with which the Order is associated and that it would therefore be required to violate religious tenets in order to comply with the provisions of the Act. Further, the Board has heretofore stated that, while its general practice is to decline jurisdiction over nonprofit religious organizations, the Board will assert jurisdiction over those operations of such organizations which are, in the generally accepted sense, commercial in nature.4 Accordingly, we conclude that it would not be unconstitutional to apply the Act to the Employer. The Employer contends, in the alternative, how- ever, that the Board should not exercise its discretion to assert jurisdiction over its operations herein inasmuch as the services rendered by the employees which Petitioner seeks to represent are supplied on a noncommercial basis in connection with and in furtherance of religious objectives. For the reasons set forth below, we find merit in the Employer's contention. The Board has stated that the question whether jurisdiction is properly asserted over a nonprofit religious organization depends upon the application of a two-fold test: (I) Is the employer engaged in activities which are commercial in the generally accepted sense, and (2) do the employees sought to I The First Church of Christ. Scientist in Boston, Massachusetts. 194 Nl.RB 1006(1972). 1 The First Church of Chri.tr, Scientist, supra. 8 Employer's three laundry and six powerhouse employees allhcate a substantial portion of their time to services performed for the College of Mtr. St. Joseph. These activities, even if commercial in nature, standing alone would not warrant a direction of election in the petitioned-for unit. 7 Contrary to the dissent. Member Penello would not apply the holding in The Rhode Island (Catholic Orphan A Nlum, a A'k a St .41Aosius Home. 224 NLRB 1344 (1976L. in resolving the jurisdictional issue herein fior the reasons stated in the dissenting opinion in that case. be represented allocate a substantial amount of time to activities which are commercial in nature?5 Inasmuch as the only arguably commercial activity to which large numbers of unit employees allocate substantial time consists of services performed for the nursing home located in Mother Margaret Hall, the determinative question herein is whether the Order's activities with respect to the nursing home are commercial in the generally accepted sense. As noted above, the Order leases Mother Margaret Hall to Good Samaritan Hospital which owns and operates it as a nursing home. The Order in return supplies various services to the facility for which it is reimbursed by the Hospital. While the Board would not ordinarily decline to assert jurisdiction over an institution which engages commercially in the sup- plying of food, laundry, and power services to a nonprofit hospital engaged in the operation of a nursing home facility, we find that the unique circumstances herein justify a finding that such services are, in fact, supplied on a noncommercial basis. The nursing home located in Mother Margaret Hall is essentially maintained for the purpose of enabling infirm members of the Order to continue the practice of their religion and their existence as part of the religious community, as well as to provide them with subsistence. Indeed it appears, based on the record as a whole, that the home would not exist but for the fact that its occupants, in the main, are Sisters belonging to the religious Order. Thus, the facility is located on the convent grounds; the Order owns the land and buildings in which the home is located; the facility serves only members of the Order and a few relatives of members who cannot afford other arrangements; and the Order pays the total cost of patient care services. Under these circumstances, we conclude that the nursing home facility in essence exists for the purpose of enabling infirm members of the Order to participate in the religious community. We further conclude that, since the services provided by the Order to the home are ancillary to the above-stated objective, the Order supplies such services on a noncommercial basis 7 and in furtherance of its religious objectives." Accordingly, we find that it will not effectuate the Member Murphy notes that the Motherhouse is providing services to itself to enable its members to continue to reside in the religious community. The Rhode Island Catholic Orphan Asylum, supra, relied on in the dissent, is inapposite since the services offered there were provided to the public. In any event, she would not follow that decision for the reasons set forth in her dissenting opinion in that case. Thus. the fees paid by the Hospital for the services the Motherhouse employees perform for the nursing home really amount to a partial refund of the fees paid by the Order to the Hospital for the services the latter provides the infirm nuns. 319 DECISIONS OF NATIONAL LABOR RELATIONS BOARD policies of the Act to direct an election in the petitioned-for unit. ORDER It is hereby ordered that the petition filed herein be, and it hereby is, dismissed. MEMBER JENKINS, dissenting: My colleagues in the majority have found that the services provided by the lay employees of the Motherhouse of the Sisters of Charity of Cincinnati, Ohio, are provided on a noncommercial basis in furtherance of the Order's religious objectives, and have therefore concluded that it will not effectuate the policies of the Act to direct an election in the petitioned-for unit. I disagree. The majority has reached this conclusion by ignoring clear Board precedent establishing the proper test for assertion of jurisdiction over eleemosynary institutions. In The Rhode Island Catholic Orphan Asylum, a/k/a St. Aloysius Home, 224 NLRB 1344 (1976), the Board established that the sole basis for declining or asserting jurisdiction over charitable organizations would be the impact of its activities on interstate commerce as measured by the same criteria applica- ble to noncharitable organizations. Accordingly, since the Employer's gross annual revenue exceeds our jurisdictional standards, I would assert jurisdic- tion herein. Prior to our decision in St. Aloysius Home, a majority of the Board had adhered to the view, that despite impact on interstate commerce, it could decline jurisdiction over a nonprofit institution whose objectives were primarily noncommercial in nature and intimately connected with its charitable purposes.9 This charitable exemption was premised on a broad interpretation of that portion of Section 2(2) of the Act referring to nonprofit hospitals. Whatever the soundness of such a policy, the deletion of this portion of Section 2(2) pursuant to the health care amendments of 197410 removed any statutory basis the Board may have had for declining jurisdiction over nonprofit organizations because of their charitable function or worthy purpose. The majority places great emphasis on the fact that the nursing home which receives services from the Order's lay employees provides care only for infirm 9 Ming Quong Children's Center, 210 NLRB 899 (1974). However, it was recognized that when such an organization had "a massive impact on interstate commerce" assertion of Board jurisdiction was warranted. Cornell University, 183 NLRB 329 (1970). Sisters and their close relatives. While recognizing the important role the nursing home provides in enabling continued participation in the religious community, my colleagues must concede that the nursing home and services ancillary thereto fulfill a traditional health care function as well. Moreover, an organization's religious orientation or the fact that it serves members of a particular religious group are not determinative of our assertion of jurisdiction." Accordingly, in Drexel Home, Inc., 182 NLRB 1045 (1970), the Board rejected the argument "that an institution's effect on commerce may be measured by its nonprofit status, its title, its religious affiliation, or its occupants." Id. at 1047. The attempt by the majority to distinguish St. Aloysius Home in footnote 7, supra, from the instant case focuses on class distinctions which are irrelevant to the test for assertion of jurisdiction over charitable institutions. Moreover, the asserted basis for their distinction disappears upon closer examination of the two cases. Granted, the Motherhouse provides custodial services for a special class of individuals, infirm Sisters and their close relatives, and so does not provide services for the general public on any kind of a commercial basis. However, St. Aloysius also provides custodial services for a special class of individuals, disturbed children referred by the Rhode Island Department of Welfare and Rehabilitation, and so it also does not provide services to the general public on a commercial basis. But more importantly the point which the majority ignores is that St. Aloysius Home announced that the sole basis for declining or asserting jurisdiction over charitable institutions would be not whether their own activities were commercial in character, but the impact of their activities, of their purchase and use of goods and services, on interstate commerce as measured by the same criteria applicable to noncharitable organiza- tions. Our inquiry ceases when we have determined whether an employer meets the designated discre- tionary jurisdictional standard. Cf. Drexel Home, Inc., supra. Thus, on the basis of the principles set forth in St. Aloysius Home, supra, I would find that it would effectuate the policies of the Act to assert jurisdiction herein. "' P.L. 93-360 (July 26, 1974). ' The National Lutheran Home for the Aged, 203 NLRB 408 (1973). 320