St. Elizabeth Community Hospital

National Labor Relations Board - Board Decisions

Jan 20, 1982

259 N.L.R.B. 1135 (N.L.R.B. 1982)

ST. ELIZABETH COMMUNITY HOSPITAL 1135
St. Elizabeth Community Hospital and Hospital and The court of appeals, in its per curiam opinion issued
Institutional Workers Union, Local 250, SEIU, August 21, 1980, Judge Sneed dissenting,2 remanded the
AFL-CIO. Case 20-CA-13574 case to the Board for consideration of Respondent's first
amendment challenge to the Board's assertion ofjurisdic-
January 20, 1982 tion in light of the Supreme Court's decision in N.L.R.B.
v. Catholic Bishop of Chicago. 3
SUPPLEMENTAL DECISION AND Accordingly, the remand was heard before me on May
ORDER 14, 1981, in San Francisco, California. Upon a review of
BY MEMBERS JENKINS, ZIMMERMAN, AND the entire record, the proceedings, and briefs filed by the
BYMMER EKHUNTER ZIMRAGeneral Counsel and Respondent, I make the following:
HUNTER
On September 15, 1981, Administrative Law I. BACKGROUND
Judge James M. Kennedy issued the attached Deci- The facts relating to the nature of Respondent's busi-
sion in this proceeding.' Thereafter, Respondent ness are not in dispute. Respondent is a California non-
and the Charging Party filed exceptions and sup- profit corporation, licensed as an acute care hospital,
porting briefs. servicing the community of Red Bluff, California. The
Pursuant to the provisions of Section 3(b) of the corporation is owned and operated by the Omaha (Ne-
National Labor Relations Act, as amended, the Na- braska) Provinciate of the Sisters of Mercy, a pontifical
order of the Roman Catholic Church.' The Omaha Pro-tional Labor Relations Board has delegated its au- order of the Roman Catholic Church The Omaha Provinciate operated 14 health care facilities in the western
thority in this proceeding to a three-member panel. portion of the United States. Nationally, the order oper-
The Board has considered the record and the at- ates, through other provinciates and mother houses inde-
tached Decision in light of the exceptions and pendent of the provinciates, some 100 hospitals. Re-
briefs and has decided to affirm the rulings, find- spondent's California corporate charter sets forth two
ings, and conclusions of the Administrative Law purposes of the corporation. Its specific and primary pur-
Judge and to adopt his recommendation. 2 pose is to "own, operate and manage a charitable hospi-
tal .... " Its other general purpose is to operate the
ORDER hospital "in compliance with the objectives and philos-
ophy" of the Sisters of Mercy. Furthermore, the charter
sets forth some limitations on the nature of the medical
Relations Act, as amended, the National Labor Re- services to be performed. It prohibits "any direct abor-
lations Board adopts the recommendation of the tion or any other medical or surgical services or proce-
Administrative Law Judge and hereby orders that dures in conflict with the officially adopted policies of
the original Order in St. Elizabeth Community Hos- . . . the moral teachings of the Roman Catholic
pital, 237 NLRB 849 (1978), be, and it hereby is, Church." It concludes, stating that the hospital will en-
reaffirmed. deavor to provide medical assistance to "all persons re-
gardless of race, color or religious affiliation."
The Board's original Decision and Order in this proceeding is report- The corporate charter also provides that Respondent's
ed at 237 NLRB 849 (1978). board of directors be composed of 50 percent Sisters of
2 In adopting the underlying Decision, we note a recent court opinion Mercy or mercypersons. 5 All of the directors are select-
in accord with the result reached herein. N.L.R.B. v. St. Louis Christian
Home, 663 F.2d 60 (8th Cir. 1981), enfg. 251 NLRB 1477 (1980) ed and approved by the Omaha Proviciate. They usual-
ly come from the local community. They are not re-
DECISION ON REMAND quired to be Roman Catholics but must follow the cor-
porate charter and enforce the philosophy of the hospi-
STATEMENT OF THE CASE tal. The title to the real property on which the hospital is
located rests with Respondent Corporation.
JAMES M. KENNEDY, Administrative Law Judge: On The hospital currently employs approximately 20 em-
August 24, 1978, the National Labor Relations Board ployees. Four of these individuals are members of the
issued its original Decision and Order in this proceeding order. One of these is Director Barry's assistant the
granting the General Counsel 's Moton for Stlummary other three are associated with the pastoral care depart-Judgment.' The Board found that Respondent St. Eliza- ment. The purpose of that department is to provide spiri-
beth Communithy Hospital had committed unfair laborn ( f tual assistance to patients and staff as needed. This in-practices within the meaning of Section 8(a)(5) and (I) of uds a continual ffort on thir part to kp th spirite tiol L r R tios A, hein t A b r celudes a continual effort on their part to keep the spiritthe National Labor Relations Act, herein the Act, by re-
fusing to bargain with the Charging Party, Hospital and 626 F.2d 123
Institutional Workers Union, Local 250, SEIU, AFL- 440 U.S. 490 (1979).
CIO. Thereafter, Respondent petitioned the United ' Unlike other orders of the Catholic Church, a pontifical order reports
States Circuit Court of Appeals for the Ninth Circuit for directly to the Pope, not indirectly through an Archdiocese.
review of the Board's Order and the Board's cross-peti- I A mercyperson is an individual who is not a member of the order,
tion for enforcement. but who has embraced the philosophy of the Sisters. R. Michael Barry.tion for enforcement. the hospital's administrator is a mercyperson and he, together with the
four members of the order who are assigned to Respondent. sit on its
'237 NLRB 849 (1978). board of directors.
259 NLRB No. 156
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JAMES M. KENNEDY, Administrative Law Judge: On l t r t it t ti .
J . 1 d inistrative La Judge: On The hospital currently employs approximately 250 em-
, t ti l l ti r , l ^s oro t s i i i l are e bers f the
l i plyee. Fou of these in d vidualsare member of
granting the General Counsel's Motion for Summary o O of th e toral care teJudgent' Th Bord fundthatResondet S. Elza- other three are associated with the pastoral care depart-t.' r f t t t t. liz - ^ et pups ^ta depart ent is to provide spiri-
betb Community Hospital had committed unfair labor metThpuosofhadprmntitorvdepr-
practicesuwithinythe meanital haf Sctionmittd ufa) r land of tual assistance to patients and staff as needed. is i -ti i ti l , ir .1 . ithe National Labo elation ct, erein he ct, y - elud *
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1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Christian brotherhood alive as it relates to providing about the lifestyles of epmployees when they are not at
patient care. work. She cited an occasion where a managerial employ-
As in all Catholic hospitals, Bibles, crucifixes, and ee at another hospital was asked to resign because he en-
other religious symbols can be found throughout. The gaged in wife swapping, conduct not meeting the Chris-
hospital has a chapel which is used by Catholic priests tian morality standard.
for religious services such as communion. Clergymen of With regard to Respondent's ability to engage in col-
the other faiths use it as well. When not in use, it is open lective bargaining, Administrator Barry testified that he
to patients. could see a potential for conflict if the hospital negotiat-
All hospital meetings open with a prayer and a prayer ed an agreement containing a "just cause" clause govern-
is said twice daily over the hospital's public address ing the discharge of employees. He suggested that
system. Hospital employees are not required to partici- Church doctrine and the just cause concept would
pate in these ceremonies, although some do. Further- become antagonistic in the event an employee was dis-
more, the pastoral care department may ask the assist- covered performing prohibited tasks such as providing
ance of an employee to ready the chapel for a religious birth control devices or performing abortions. In examin-
service. That duty is, however, not mandatory and may
the d part- ing this hypothetically, while I do not wish to predictbe refused. In that circumstance, naturally, the depart-be refused. In that circumstance, nat rally, the future, it appears to me that his concern is factuallyment relies on employees who are willing to perform
that task. An employee may, however, be required to unwarranted. An employer may, of course, choose not tothat task. An employee may, however, be required to
awaken, dress, and otherwise prepare a patient for a reli- engage in a certain type of business, as Respondent has
gious servicee. s here. It deliberately chooses not to engage in birth con-
Respondent observes religious holidays in the sense trol assistance or abortions. The fact that its refusal is
that they are celeberated; in addition, Respondent's em- based on religious grounds appears to me to be of no sig-
ployees receive seven paid holidays per year: all are Fed- nificance, for a hospital may also choose not to perform
eral holidays, including Christmas. other types of medical services, whether for religious
Consistent with the teachings of the Catholic Church, reasons or simply because it deems them to be good busi-
and with its corporate charter, Respondent declines to ness. In the event that an employee engaged in prohibit-
provide birth control services and assistance and will not ed business, it seems unlikely that an arbitrator would
perform abortions in circumstances where the procedure find his subsequent discipline not to be for just cause. In
is not medically indicated. In addition, of course, it will any event, the probability of such an incident is very low
not engage in the practice of euthanasia, which in any indeed, particularly as there are other hospitals in the
event is prohibited by state laws governing homicide. community which provide the services in question.
Respondent, like all hospitals in the State, is regulated
by the State Department of Health and is annually li- I. THE SCOPE OF THE COURT'S REMAND ORDER
censed by it. If it, or any other hospital, wishes to in- This case was originally decided by the Board in sum-
crease the number of beds by constructing a hospital ad- mary judgment proceedings; accordingly, no testimony
dition or wishes to provide new equipment involving or documentary evidence was then adduced. Respondent
substantial cost, it must demonstrate the community's had raised its first amendment challenge to the Board's
need to a local board and then obtain the approval of the jurisdiction during postelection procedures. The Board
Department of Health. It is exempt from Federal income rejected it as not timely, but the court, in denying en-
taxation. It does not receive any public grants, although forcement of the 8(a)(5) order which followed, held it
some patients pay their fees through Federal, state, or was. The court's remand requires the Board to consider
county medical assistance programs.county medical assistance programs. this case "in light" of N.L.R.B. v. Catholic Bishop of Chi-
In conclusion, it is fair to say that Respondent, as op- c , . cc c
cago, supra. It did not specifically discuss the applicabil-erated by the Sisters of Mercy, is a health care institutionr . i the
which attempts to combine medical science with that ty of the 1974 health care amendments to the Act, par-which attempts to combine medical science with that
teaching of Christ encouraging the healing of the sick. ula ecton and (14)
As the General Counsel concedes, the Sisters of Mercy When the Congress was considering that particular
"try to inculcate into each employee the idea that service amendment, it was aware that religious institutions oper-
to the patients is service to the Lord." Both employees ated a large number of hospitals in the United States,
and patients are given statements of Respondent's philos- and, in fact, considered exempting one or more religions
ophy to that effect. Thus, while Respondent's employees from the amendment's coverage in order to avoid a con-
are not required to be Roman Catholics and are not re- flict with those churches' religious doctrines.
quired to participate in religious activities, nonetheless The court did not discuss the congressional intent with
they are held to a standard of conduct which is meas- respect to Section 2(2) and (14), although it may have
ured by the Sisters' perception of "Christian morality." done so by implication as its order requires the Board to
This concept appears to be somewhat fluid in application deal with the constitutionality of the Act insofar as it is
for as Sister Mary Kieran Harney, a director, said, the applied to this Respondent. Catholic Bishop, of course,
hospital would frown on an employee espousing philos- was not decided by the Supreme Court until 1979 some 5
ophies contrary to those of the church while at work, years after the passage of the health care amendments.
implying that for the most part such conduct would be Moreover, Catholic Bishop dealt with educational institu-
ignored if it occurred outside the hospital. Nevertheless, tions rather than hospitals and nursing homes. The Court
it appears that the hospital could become concerned held that since the Act did not specifically authorize
,
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tients,.could
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t r ll t ue a to m that h r i t
ent relies on e ployees ho are illing to perfor u t e d An employer m ay of conce, cs notuao
t t t . l , i t enwarranted. An employer may, of course choose not to
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ST. ELIZABETH COMMUNITY HOSPITAL 1137
coverage of parochial schools, the Board's exercise of ju- See, generally, "Hearings on S. 794 S. 2292 Before the Senate
risdiction over them was erroneous. Subcommittee on Labor of the Committee on Labor and PublicWelfare, 93d Cong.. 1st sess." 483-547 (1973) (hereinafter Senate
Because of the differing natures of the two types of in- Hearings).
stitutions, it appears appropriate to deal with the applica- 120 Cong. Rec. S.6950 (daily ed.. May 2, 1974).
bility of the 1974 amendments before addressing any con- '0 120 Cong. Rec. S.6963-64 (daily ed.. May 2, 1974).
stitutional question. Such analysis is clearly consistent Sec 19, added to the Act by the health care amendments,
with the Court's order to consider the matter in light of states:
Catholic Bishop. 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 had historically held
II. THE HEALTH CARE AMENDMENT OF 1974 conscientious objections to joining for financially supporting
labor organizations shall not be required to join or financially
In Mid American Health Services, Inc., 247 NLRB 752, support any labor organization as a condition of employment;
753 (1980), the Board set forth the history of the 1974 except that such employee may be required. in lieu of periodic
health care amendments and concluded they constituted dues and initiation fees, to pay sums equal to such dues and ini-
a clear congressional mandate to assert jurisdiction over tiation fees to a nonreligious charitable fund exempt from tax-
ation under section 501 (cX3) of the Internal Revenue Code,
church-operated health care institutions, in that instance chosen by such employee from a list of at least three such
an arm of the Seventh Day Adventist Church. In that funds, designated in a contract between such institution and a
case, the Board said: labor organization, or if the contract fails to designate such
funds, then to any such fund chosen by the employee.
The health care amendments, inter alia, removed Indeed, Sec. 19 closely resembles another proposal submitted to
the preexisting jurisdictional exemption accorded Congress in 1973 by the Seventh Day Adventist Church itself. See
Senate Hearings, supra, fn. 8 at 409-510. In Catholic Bishop of Chi-
nonprofit hospitals by Section 2(2) of the Act. cago, supra the Supreme Court characterized Sec. 19 as "reflecting
Given earlier Board determinations,7 the repeal of congressional sensitivity to First Amendment guarantees."
the exemption for nonprofit hospitals in effect
brought all privately owned health care institutions In Catholic Bishop, the Supreme Court held that the
within the Board's legal jurisdiction. The Seventh Board did not have jurisdiction over the parochial
Day Adventist Church, throughout the amendment schools in question because there was no showing of a
process, opposed repeal of the exemption on specific congressional intent to mandate their coverage
grounds which included those constitutional claims under the Act. Here, as the Board has held, such an
advanced in this proceeding. Thus, the church ad- intent is present Reviewing the congressional record re-
vocated an amendment which would have main- lating to the 1974 health care amendments, see the Gen-
tained a jurisdictional exemption for any hospital eral Counsel's Exhibit 2, it is quite clear that Congress
which "opposes unionization because of historically had the opportunity to specifically exclude religiously
held religious teachings or tenets." 8 No such amend- operated hospitals from the Act's coverage, but declined
ment was introduced by any member of the Con- to do so. Therefore, the conclusion is inescapable that
gress. Senator Ervin did introduces a proposed pro- Congress intended those hospitals to be covered by the
viso to the new Section 2(14) of the amendments 1974 amendments. To that extent, therefore, Catholic
(setting forth the definition of a "health care institu- Bshop of Chicago is distinguishable.
tion") which would have maintained a jurisdictional
exemption for hospitals "owned, supported, con- IV. TE CONSTITUTIONAL ISSUE
trolled or managed by a particular religion or by a Under normal circumstances, there is a philosophical
particular religious corporation or association." The question regarding whether or not an administrative
Ervin amendment was rejected by the Senate.'° agency, such as the Board, should attempt to detemine
This legislative history, when coupled with the en- the constitutionality of its own act. Indeed, the Board in
actment by Congress of other legislation specifically Mid American Health Services, Inc. supra, stated that it
directed toward the problem of potential conflict would follow the congressional mandate and leave to the
between an employee's religious beliefs and collec- courts the "final determination concerning the constitu-
tive-bargaining responsibilities," removes, in our tionality of that mandate .... " This, however, is not
judgment, any doubt that the Congress clearly in- the normal case. The court of appeals has specifically di-
tended the Act to apply to health care institutions rected the Board to determine whether or not the asser-
operated by religious institutions in general and the tion of jurisdiction over Respondent is constitutional.
Seventh Day Adventist Church in particular. While Respondent acknowledges there is no doctrine
of the Roman Catholic Church which, per se, condemns
unionization of its employees or precludes bargaining
6 Prior to the health care amendments, Sec. 2(2) provided, in with a union which is the exclusive representative of its
relevant part, that: "The term 'employer' . . . shall not include
.. any corporation or assocition operating a hospital, if no part employees, 6 it nonetheless asserts that the Board's asser-
of the net earnings inures to the benefit of any private shareholder
or individual." 6 Indeed, the Church officially encourages labor unions as a responsible
' See Butte Medical Properties. d/b/a Medical Center Hospital, means of implementing social justice in the workplace. Whether that en-
168 NLRB (1967) (proprietary hospitals); University Nursing Home. couragement is directed at itself as an employer is unclear. See "The
Inc., 168 NLRB 263 (1967) (proprietary nursing home and related Condition of Labor," Encyclical of Pope Leo XIII (1891), reprinted in
facilities); Drexel Home. Inc., 182 NLRB 1045 (1970) (nonprofit "Four Great Encyclicals: Labor, Education, Marriage, the Socialist
nursing homes and related facilities). Order." Paulist Press, New York New York (undated).
I
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t ti f r fi i l f t I C Bh th S C hl t the
brought all privately o ned health care institutions I n Ca t ho lcd Bidnot t he Supre e ourt held that the
it i t r ' l l j ri i ti . t sB o ar d, n o t h av e J se ctio r t r hi l
ay dventist hurch, throughout the a end ent s c h o o ls o ngessiona b ec au se t h er e w a s nothowing of a
process, opposed repeal of the exemption, on specific congressional intent to mandate their coverage
grounds hich included those constitutional claims un d e r it h e ctp er ev as the Board has held, such an
i "t en t *- t i l r -
i
t o t h e 19 74 h ea l t h c ar e
l ti i l
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* ri r to the health care a end ents, Sec. 2(2) provided, in ith a union hich is the exclusive representative of its
r l t rt, t t: The t ' l ' . ll i l e i n a t th B asser-
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1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of jurisdiction would foster excessive entanglement In Catholic Bishop of Chicago, supra, as in Lemon, the
between the Church and the State in the person of the Court was again concerned with religion and the State,
Board. It reaches this conclusion by asserting that the re- this time in the context of regulation of employee repre-
ligious environment of the hospital necessarily leads to a sentation through the Board. But it must be remembered
substantial potential for government entanglement with that Catholic Bishop, dealt with parochial school systems,
the affairs of the Church. The General Counsel dis- having an educational purpose through which religious
agrees, based on the evidence which he contends "fails doctrine can easily be taught, rather than as here, a hos-
to establish that the assertion of jurisdiction . . . would pital whose primary purpose is medical care and whose
impair the ability of Respondent or the Sisters of Mercy religious purpose is more neutral than that of a parochial
to practice their religion or that the assertion of jurisdic- school. But the Court did not decide Catholic Bishop on
tion would infringe on their constitutional rights under "excessive entanglement" grounds. Indeed it did not
the establishment clause or the free exercise clause of the decide any constitutional issue. Instead it held that, as
First Amendment." noted, the Congress had never specifically intended, in
In Lemon v. Kurtzman, 403 U.S. 602 at 612-613 (1971), passing the National Labor Relations Act, for the Board
the Supreme Court established a three-pong test to deter- to assert jurisdiction over parochial schools, a holding of
mine the constitutionality of church-government relation- statutory construction. However, the case has been read
ships: First, the statute must have a secular legislative to be broader than that and it appears from its decisional
purpose. Second, the law's principal primary effect must language, that the court of appeals, in this remand, is
be one that neither advances nor inhibits religion. Final- concerned with the constitutional tension which Re-
ly, the statute must not foster "an excessive entanglement spondent sees between the Act and the first amendment,
with religion." not statutory construction.
The first two tests are not at issue here. The legislative To put this alleged tension in perspective, I believe it
purpose of the Act, as amended, is a secular one: promo- is wise to recall first the constitutional underpinning of
tion of industrial peace in the health care industry. Fur- the National Labor Relations Act, as well as to note
ther, the primary purpose of the law is to grant certain some subsequent constitutional developments. In its
industrial rights to employees and employers; thus, it in original decision holding the Act constitutional the Su-
no way advances or inhibits religion. The question, preme Court said:
therefore, is whether the Act's assertion of jurisdiction
will foster excessive entanglement between Church and in its present application, the statute goes no further
State. than to safeguard the right of employees to self-or-
The Supreme Court has held that total separation of ganization and to select representatives of their own
Church and State is not possible in an absolute sense.7 choosing for collective bargaining or other mutual
To determine the extent of the entanglement, it said, protection without restraint or coercion by their
there must be an examination of the character and pur- employer.
pose of the church-related institution affected, the nature That is a fundamental right. Employees have as
of the intrusion, and the resulting relationship between clear a right to organize and select their representa-
the government and the religious authority.8 In Lemon, tives for lawful purpose as the Respondent has to
the Court observed that "parochial schools involve sub- organize its business and select its own officers and
stantial religious activity and purpose." The Court also agents. [Emphasis supplied.] 1'
noted that the teachers had been directed to follow a
specific policy of proselytizing. It quoted a school hand- Subsequent to that decision the Supreme Court and
book for teachers which said, "Religious formation is not various circuit courts of appeal further clarified the dec-
confined to formal courses; nor is it restricted to a single laration of the fundmental right of employees to orga-
subject area" and concluded that teachers were to stimu- nize, finding it implicit in the first amendment's free as-
late interest in religious vocations and missionary work. sembly language Thomas v. Collins, 323 U.S. 516 at 432
Finally, the Court said that church "[d]octrines and faith (1944 ); Shelton v. Tucker, 364 U.S. 479 at 485-487 (1960);
are not inculcated or advanced by neutrals. With the best McLaughlin v. Tlendis, 398 F.2d 287 (7th Cir. 1968);
of intentions such a teacher would find it hard to make a American Federation ofState, County and Municipal Em-
total separation between secular teaching and religious ployees v. Woodward, 406 F.2d 137 (8th Cir. 1969). These
doctrine." 9 The hospital here has given no similar cases do no more than hold that the right of employees
instructions to its employees. The Court further observed to self-organization is constitutionally protected. They do
in Lemon that the state activities there in question re- not go on to say that the right to organize includes other
quired the state annually to oversee the salary supple- rights such as mandating employer recognition, collec-
ments and textbook purchasing programs under scrutiny. tive bargaining, or striking. Those rights are legislatively
This ongoing relationship created an impermissible exces- granted through regulatory enactments such as the Act.
sive governmental entanglement in the affairs of the Thus the Act has a clear constitutional foundation, even
church-operated schools. if that foundation is limited in scope. It cannot be said,
therefore, that the Act is simply an exercise of the gener-
Roemer v. Board of Public Works of Maryland, 426 U.S. 736 at 746 al legislative power. It is more than that. Consequently
(1976).
'Lemon v. Kurtzman. supra at 615. '° N.L.R.B. v. Jones & Laughlin Steel Corporation. 301 U.S. I at 33
'Id. at 616-619. (1937).
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t ll S q t t io th S C t
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ll i ]octrines ;
h el to n . T u c k er , 36 4 . . 4 79 at 4 85 4
87 ( 960 ;
Plen i , . ( t ir. );
f i ti f State, t i i l -
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ST. ELIZABETH COMMUNITY HOSPITAL 1139
when the Act and a constitutional right such as freedom quirement that employees be discharged only for
of religion become opposed, great care should be taken "good cause," it is conceivable that an employee
to protect both interests. could be discharged for participating in birth con-
Undoubtedly, the test set forth in the Court's decision trol and/or abortion procedures using hospital
in Serbet v. Verner, 374 U.S. 398 at 403 (1963), will be premises. Since those procedures are prohibited by
helpful in avoiding unnecessary infringement of either the Church, the Hospital surmises that an arbitrator
right." There the Court held that constitutional rights might require it to reinstate such an individual.
may suffer an "incidental burden" if a "compelling state
interest" in regulating other subjects can be shown. It With regard to the latter circumstances, as I have ear-
has long been held that certain conduct, though impelled lier alluded in the factual section of this Decision, it is
by religious beliefs, may be regulated or even prohibited highly unlikely that an arbitrator would reach such a de-
because of such a compelling interest. Reynolds v. United cision, particularly in view of the corporate charter's
States, 98 U.S. 145 (1878); Cantwell v. Connecticut, 310 specific prohibition. Moreover, the hospital's concern is
U.S. 296 at 303-304 (1940); Braunfeld v. Brown, 366 U.S. only speculation. It may well negotiate a collective-bar-
599 at 603-604 (1960); Cap Santa Vue, Inc. v. N.L.R.B., gaining contract covering such misconduct and it is cer-
424 F.2d 883 (D.C. Cir. 1970). tainly premature to assume that the Union would disre-
The issue then is whether or not the Act is a legislatve gard such policies. With regard to the first concern,
expression of a "compelling state interest." On the basis again, the matter seems entirely speculative and an un-
of the congressional debate over the 1974 health care likely scenario. Certainly it would not involve ongoing
amendments, as well as awareness of our national history scrutiny by the Board which can act only when charges
of labor strife leading first to the passage of the Wagner are filed. Even then the Board would have to respect the
Act, followed by subsequent amendments, one must con- argument. If it did not, review of alleged Board abuse is
elude that that it is. Cf. Jones & Laughlin Steel Corp., available in the courts of appeal. Even if that constituted
supra. Having reached that conclusion, all that needs be "entanglement," it would not be "excessive." According-
done is to determine if the Board's regulation of that in- ly, I conclude that in the circumstances of this case the
terest will involve it is "excessive" or only "incidental" Board's exercise of jurisdiction is appropriate.
entanglement in religion as described in Lemon v. Kurtz- To reiterate, even though the hospital is church-relat-
man, supra. ed, its primary purpose is the delivery of medical care.
Based on the facts adduced at the hearing, I find that There is little, if any, sectarian mission outwardly mani-
the risk of entanglement is slight and at worst can only fested in the hospital's purpose; indeed, the sectarian mis-
be incidental. That conclusion, it seems to me, is consist- sion of the teaching of Christ regarding healing is carried
ent with the District of Columbia Circuit's decision in out by example, not deliberate education. Therefore, I
Cap Santa Vue. Inc. v. N.L.R.B., supra, which presented conclude that the right of employees to select and be
a conflict even greater than that suggested here. There, represented by collective-bargaining agent will not inter-
the owners of two nursing homes were practicing mem- fere with the free exercise of religion or tend to establish
bers of the Seventh Day Adventist Church which, unlike a religion. Most importantly it will not result in excessive
the Roman Catholic Church, actually has a doctrine governmental entanglement in the Catholic religion, for
which in effect prohibits its members from joining or tere l e n ntmate continuing relationship be-
bargaining with labor unions. The Court held, nonethe- tween te or n Respondent.2
less, that the nursing homes were obligated to recognize
and bargain with the labor union which the Board hadCONCLUSIONS OF LAW
certified as the majority representative of their employ-
ees. It held that the certification in no way impeded the 1. Respondent St. Elizabeth Community Hospital, is an
right of the Seventh Day Adventist owners to hold to employer engaged in commerce within the meaning of
their beliefs and ordered them to comply with the Act's Section 2(2), (6), and (7) and a health care institution
secular purpose. The court in Cap Santa Vue foresaw no within the meaning of Section 2(14) of the Act.
significant intrusion on the owner's religious beliefs. The 2. Hospital and Institutional Workers Local Union No.
intrusion was, therefore, only incidental. 250, SEIU, AFL-CIO, is a labor organization within the
The only factor distinguishing that case from this is meaning of Section 2(5) of the Act.
that the nursing homes there did not make the "excessive 3. The assertion of jurisdiction by the Board over Re-
entanglement" argument which the hospital is making spondent will not cause the Board to become excessively
here. Even so, the only entanglements envisioned by the entangled in the affairs of Respondent insofar as it is a
hospital are the following: religious institution and therefore will not infringe upon
. It is conceiv e te H l m t d e the free exercise of the religious beliefs of its owners.1. It is conceivable the Hospital might discharge
an employee for failing to meet "Christian moral- RECOMMENDATION
ity" standards but the Bord might deem those stand-
ards a pretext if changes were brought under Sec- Upon the foregoing findings of fact and conclusions of
tion 8(a)(l) or (3) of the Act. law, pursuant to the remand orders of the United States
2. Assuming the Hospital negotiated a collective Court of Appeals for the Ninth Circuit and the Board, I
bargaining contract with the Union containing a re-
"2 This can be contrasted to the state health department's close regula-
Similarly, see NAACP v. Button, 371 US. 415 at 448 (1963). tion of the hospital, regulation to which it does not object.
,
t."

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ic in ff t r i its its rs fr j i i r t w b ti i l ti i
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.
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"
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1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recommend that the Board reaffirm the remedial order it
issued in St. Elizabeth Community Hospital, 237 NLRB
849 (1978).