Motherhouse of the Sisters of Charity of Cincinnati, Ohio

National Labor Relations Board - Board Decisions

Sep 23, 1977

232 N.L.R.B. 318 (N.L.R.B. 1977)

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.
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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