Mercy Hospital of Buffalo

National Labor Relations Board - Board Decisions

Jul 24, 1980

250 N.L.R.B. 949 (N.L.R.B. 1980)

MNIRCY HOSPITAIA OF BUI FFALLO Mercy Hospital of Buffalo and Buffalo & Western New York Hospital & Nursing Home Council, AFL-CIO, Petitioner. Case 3-RC-7660 July 24, 1980 DECISION AND CERTIFICATION OF REPRESENTATIVE BY MI MBI RS JE NKINS, PENFI. 10, AND TRUESDALEF Pursuant to authority granted it by the National Labor Relations Board under Section 3(b) of the National Labor Relations Act, as amended, a three- member panel has considered a determinative chal- lenge in an election held on December 27 and 28, 1979,1 and the Regional Director's report recom- mending disposition of same. 2 The Board has re- viewed the record in light of the exceptions and briefs, and hereby adopts the Regional Director's findings and recommendations. The election was conducted in a unit comprised of full-time and regular part-time business office clerical employees of the Employer. The sole chal- lenged ballot was that of Sister Mary Blanche, a member of the Religious Sisters of Mercy. The Re- gional Director found that because the Employer's bylaws require that one more than one-half of the members of its board of trustees must be members of the Religious Sisters of Mercy, the Order con- trols the operation of the hospital. He therefore concluded that Sister Mary Blanche, as a member of the Order, is "related" to the Employer and rec- ommended that the challenge to her ballot be sus- tained. In excepting to this recommendation, the Em- ployer argues that the Regional Director impropre- ly relied upon the fact that Sister Mary Blanche had made vows of poverty and obedience, and that based on these and other grounds his recommenda- tion is in conflict with the holdings of the courts in Niagara University v. N.L.R.B., 558 F.2d 1116 (2d Cir. 1977), denying enforcement of 226 NLRB 918 (1976); and N.L.R.B. v. Saint Francis College, 562 F.2d 246 (3d Cir. 1977), denying enforcement of 224 NLRB 907 (1976). We find these contentions to be without merit. In Niagara University, the Board issued a bargain- ing Order based on its decision to exclude from the bargaining unit faculty who were members of the Eastern Province of the Congregation of the Mis- sion (the Vincentians) on the grounds that they did not share a community of interest with the lay fac- I The election was cinducted pursuant Io .i Stipulatl ilm for Certifial- lion Upont Consent l Fclion Ih talils was 33 for. and 32 .igallt,. the petitiloner there ia l. I ch;llenlgcd ballot. ia lumber suffiTlcnt tl Iaffect the results of the clcction Perillent part, of the report ari alltached hereto ai% ain Appendi x 250 NLRB No. 136 ulty. In denying enforcement, the court found that the Vincentians did not have legal title to the grounds and buildings of the university and could constitute not more than one third of the member- ship of the board of trustees. Accordingly, it con- cluded that the Vincentians did not operate the university and therefore that the religious faculty could not be said to be identified with the employ- er. The court also rejected the Board's reliance on the Vincentians' vow of poverty as a basis for ex- clusion. In so doing the court pointed out that there was no contractual obligation for the Vincen- tians to return to the university any part of the sal- aries of their members who worked at the school. In Saint Francis College, the court denied en- forcement of a bargaining order because the Board had excluded from the bargaining unit those facul- ty who were members of the Province of the Most Sacred Heart of Jesus Regular of Saint Francis of Penance (the Franciscans). In so doing, the court found that there was nothing in the record to sup- port the Board's finding that, because of their vows of obedience and their shared commitment, the Franciscan faculty differed from the lay faculty in terms of their employee-employer relationship. It also rejected the Board's finding that the noncon- tractual return of part of the Franciscan faculty's wages to their monastery, which in turn made annual donations to the college, supported a find- ing that they had different salary and benefits from the lay faculty and therefore had a different com- munity of interest. In contrast to these cases, here not only do the Employer's bylaws require that a majority of the board of trustees be members of the Religious Sis- ters of Mercy, but also the Hospital administrator is a member of both the Order and the board of trust- ees. Furthermore, contrary to the Employer's as- sertions, the Regional Director did not rely upon Sister Mary Blanche's vow of obedience, her vow of poverty, or the ultimate disposition of her salary, and in the circumstances here we find it un- necessary to do so. We therefore find that the cases cited by the Employer are distinguishable from the instant case. In view of the fact that the Order not only has majority control of the board of trustees, but fur- ther controls the-day-to day operation of the hospi- tal, 3 we find that the Order administers the Em- :' In Saint Franco, College. the court alluded hti the emploer" iconiiten- tion that although ui majonriy fr ihe memberr of the hboard of Irusteec "ert Fralnclc.an.i. the ()rdCr did nIot ioill ialld adnlulnliter Ihc cilnplot er l t x the court nmpllcitli mlas hal.c fiund Ih.ll nlitrll it l c llltrl of a board of trulstets h, U rehgl tlt oirder dioet til . llltitltel U bai. fir cxcludilrlg nlnimher. of that order fronm i hbrg.aining u1lill rc rtcpeCf.tllls dis.agree il t t1 s eiit.l asl noted l hoie there exist here thne iddltiodlla f.ictlor that the himpitil .adniltitir.lor i s t ln l cr et f thLe () rdcr 949 I) C< ISI()NS ()F NATIONAL I AB()R REI.ATI()NS B()ARI) ployer. We therefore further find that Sister Mary Blanche as a member of the Order is, in a sense, part of the Employer and that her relationship with the Employer is fundamentally different from that of the employees in the bargaining unit. Accord- ingly, we adopt the Regional Director's recommen- dation that the challenge to her ballot be sustained. CERTIFICATION OF REPRESENTATIVE It is hereby certified that a majority of the valid ballots have been cast for Buffalo & Western New York Hospital & Nursing Home Council, AFL- CIO and that, pursuant to Section 9(a) of the Act, the foregoing labor organization is the exclusive representative of all the employees in the following appropriate unit for the purposes of collective bar- gaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment: All full-time and regular part-time business office clerical employees including cashiers, file clerks, credit clerks, NCR operators, chief insurance clerks, general insurance clerks, ad- mission clerks, and switchboard operators em- ployed by the Employer at its 556 Abbott Road, Buffalo, New York, facility, excluding all licensed practical nurses and technical em- ployees, service and maintenance employees, registered nurses, professional employees, ac- counts payable clerks, casual employees, guards and supervisors as defined in the Act. APPENDIX THE CHALLENGE Sister Mary Blanche The ballot of Sister Mary Blanche was challenged by the Petitioner's observer on the basis of her membership in the Order of the Sisters of Mercy. The Petitioner takes the position that Sister Mary Blanche is not an eligible voter because she is a member of the order which owns and operates Mercy Hospital of Buffalo and because she has taken traditional vows of poverty and obedience and gives a substantial portion of her wages back to the Order. The Employer takes the position that Sister Mary Blanche is an eligible voter and that her vows of poverty and obedience do not create any conflict of interest which would bar her inclusion in the unit. The investigation revealed that the Religious Sisters of Mercy is the sponsoring organization of Mercy Hospital of Buffalo. Mercy Hospital of Buffalo is a separate cor- poration which holds title to the buildings and land on which the hospital is located and which operates the hos- pital under the direction of its Board of Trustees. The by-laws of the corporation require that one more than half of the members of the Board of Trustees be mem- bers of the Religious Sisters of Mercy. The Board of Trustees is currently comprised of seventeen members, nine of whom are members of the Order. One of these nine is the Hospital Administrator, Sister Sheila Marie Walsh. Sister Mary Blanche is paid at an hourly rate which is comparable to the rates of pay of other employ- ees in the unit with comparable length of service. Sister Mary Blanche's check is sent directly to Our Lady of Mercy Generalate in Orchard Park, New York. As a member of the Order, Sister Mary Blanche has taken vows of poverty, chastity and obedience as well as a vow of service to the poor, sick and uneducated. The Board has excluded members of religious orders from a bargaining unit when the individual is a member of the Order which owns and administers the employing entity, on the basis that the member is "In a sense part of the employer" which with ties of allegiance and obedi- ence to the Order would place members of a baragining unit in a position of conflicting loyalties.2 In the cases where the Board has included members of religious orders, the individuals were members of orders other than the order which owned and administered the em- ploying entity,3 or the employing entity was a separate corporation whose board of trustees was comprised of a majority of lay persons and only a minority of members of the Order. 4 The undersigned concludes that although Mercy Hos- pital of Buffalo is a separate corporation, its by-laws re- quire that one more than half of the members of the Board of Trustees be members of the Order. Therefore, the undersigned finds that the Order controls the oper- ation of the hospital and Sister Mary Blanche as a member of the Order, is related to the Employer. Ac- cordingly, the undersigned recommends that the chal- lenge to Sister Mary Blanche's ballot be sustained and that Sister Mary Blanche be excluded from the unit. SUMMARY Having recommended that the challenge to the ballot of Sister Mary Blanche be sustained, the undersigned fur- ther recommends that a Certification of Representative issue. 2 Scron Hill College, 201 NLRB 1026, 1027; Si. Rove De Limar Hospital Inc., 223 NLRB 151 I; Saint .Anthony Center, 220 NLRH 10()9. 1011 Niugarar Univerrity. 227 NI.RH B13 D'Youville Collegec 225 NLRB 792 95)