Mid American Health Services, Inc.

National Labor Relations Board - Board Decisions

Feb 4, 1980

247 N.L.R.B. 752 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mid American Health Services, Inc. and Bakery,
Confectionery and Tobacco Workers International
Union, AFL-CIO, CLC, Local Union No. 180,'
Petitioner. Case 30-RC-3199
February 4, 1980
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed by Bakery, Confectionery
and Tobacco Workers International Union, AFL-
CIO, CLC, Local Union No. 180, under Section 9(c)
of the National Labor Relations Act, as amended, a
hearing was held before Hearing Officer David A.
Rotter on September 29, 1977. Subsequently, the
Regional Director for Region 30 transferred this case
to the National Labor Relations Board for decision
pursuant to Section 102.67(h) of the Board's Rules
and Regulations, Series 8, as amended. Thereafter, the
Employer filed a brief contending that the Board
lacked jurisdiction in this proceeding.
The Board has reviewed the rulings made by the
Hearing Officer in this case, and has concluded that
they are free from prejudicial error. Accordingly,
those rulings are hereby affirmed.
The Board has carefully considered the entire
record in this proceeding, and, on that basis, finds:
1. Mid American Health Services, Inc. (herein
called the Employer), a Wisconsin corporation, owns
and operates six extended care nursing homes in that
State. Mid American in turn is owned by Great Lakes
Adventists Health Services, Inc., which functions as
the regional arm of the Seventh Day Adventist
Church and operates the church's health care delivery
system in the four-state area consisting of Illinois,
Indiana, Wisconsin, and Michigan. River Pines Com-
munity Health Center, the nursing home involved in
this proceeding, is located in the village of Whiting,
Wisconsin.
During calendar year 1976, a representative period,
the Employer received gross revenues in excess of
$500,000. During that time, the Employer purchased
and received at its River Pines facility goods valued in
excess of $5,000 directly from points outside Wiscon-
sin.
The Employer contends that the Board's assertion
of jurisdiction in this proceeding would substantially
impair its practice of religion and infringe upon its
constitutional rights in contravention of both the
establishment and free exercise clauses of the first
' On August 17, 1978, the Tobacco Workers International Union and the
Bakery and Confectionery Workers International Union merged, forming the
Bakery, Confectionery and Tobacco Workers International Union, AFL-
C10, CLC. The name of the Union herein, formerly Bakery, and Confection-
ery Workers International Union of America, AFL-CIO-CLC, Local Union
No. 180, has been amended to reflect this change.
247 NLRB No. 109
amendment to the Constitution, as interpreted by the
Supreme Court.
In support of the contention, the Employer stresses,
inter alia, that, as a matter of religious principle and
on the basis of Holy Scripture, the church teaches that
an individual may not properly relinquish his or her
own spiritual autonomy by joining a labor union.
Moreover, the Employer contends that, as a direct
result of its religious beliefs, institutions of the church
may not deal or bargain with labor unions.
In addition, the Employer contends that the
church's operation of the nursing home here in issue
merits first amendment protection because the opera-
tion of health care facilities is an integral and
inseparable part of the church's spiritual and religious
mission. In this connection, the Employer points out
that the home contains a large chapel which is used by
the Adventists for religious services,2 that the church
operates under strict dietary laws, that the physician
employed by the home works at a ministerial rate of
pay and frequently engages in spiritual conversation
with patients at the home, and that the home is subject
to the decisions of a "spiritual emphasis committee"
which discusses matters concerning all six of the
nursing homes that are operated by Mid American
Health Services, Inc., in Wisconsin.'
With respect to the home's employees, the record
reveals that only 3 employees in the 146-member
bargaining unit are Seventh Day Adventists (approxi-
mately 2 percent). However, the Employer stresses
that both during their orientation program and
throughout their employment at River Pines new
employees are told about the church's medical mis-
sion, the establishment of the nursing home, its
identification with the church, and some of the
theological beliefs of the church. In addition, the
Employer points out that all members of management
at the home are Seventh Day Adventists, except the
director of nursing.
In N.L.R.B. v. Catholic Bishop of Chicago,4 the
Supreme Court held that because the Board's assertion
of jurisdiction raised serious constitutional questions it
was first necessary to determine whether the legisla-
tive history of the Act manifested a clearly expressed
affirmative intention, on the part of the Congress, that
the Board assert jurisdiction in such cases. Finding no
such clear expression of legislative intention, the Court
declined to construe the Act in a manner which
would, in turn, necessitate resolution of the serious
constitutional questions which an assertion of jurisdic-
tion would otherwise raise.
' The record reveals, however, that all religious faiths are regularly
permitted to use the chapel to conduct church services.
'The committee's function is to select procedures for effectively informing
the public that the home is run by Seventh Day Adventists, and to devise new
methods for making Adventists more accessible to the public.
' 440 U.S. 490 (1979).
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MID AMERICAN HEALTH SERVICES
In the instant proceeding, the initial question which
must be resolved is whether the legislative history of
the National Labor Relations Act, as amended,
manifests a clearly expressed affirmative intention that
the Board assert jurisdiction here. We find that such
an intention was expressed in the legislative history of
the 1974 health care amendments to the Act.'
The health care amendments, inter alia, removed
the preexisting jurisdictional exemption accorded non-
profit hospitals by Section 2(2) of the Act.6 Given
earlier Board determinations, ' the repeal of the exemp-
tion for nonprofit hospitals in effect brought all
privately owned health care institutions within the
Board's legal jurisdiction. The Seventh Day Adventist
Church, throughout the amendment process, opposed
repeal of the exemption, on grounds which included
those constitutional claims advanced in this proceed-
ing. Thus, the church advocated an amendment which
would have maintained a jurisdictional exemption for
any hospital which "opposes unionization because of
historically held religious teachings or tenets." No
such amendment was introduced by any member of
the Congress. Senator Ervin did introduce 9 a proposed
proviso to the new Section 2(14) of the amendments
(setting forth the definition of a "health care institu-
tion") which would have maintained a jurisdictional
exemption for hospitals "owned, supported, controlled
or managed by a particular religion or by a particular
religious corporation or association." The Ervin
amendment was rejected by the Senate. '° This legisla-
tive history, when coupled with the enactment by
Congress of other legislation specifically directed
toward the problem of potential conflict between an
employee's religious beliefs and collective-bargaining
responsibilities," removes, in our judgment, any doubt
that the Congress clearly intended the Act to apply to
health care institutions operated by religious institu-
tions in general and the Seventh Day Adventist
Church in particular.
'Public Law 93-360, 88 Stat. 397 (1974).
' Prior to the health care amendments, Sec. 2(2) provided in relevant part
that: "The term 'employer' . . . shall not include . . . any corporation or
association operating a hospital, if no part of the net earnings inures to the
benefit of any private shareholder or individual."
' See Butte Medical Properties. 168 NLRB 152 (1967) (proprietary
hospitals); University Nursing Home. Inc.. 168 NLRB 263 (1967) (proprietary
nursing homes and related facilities); Drexel Home. Inc., 182 NLRB 1045
(1970) (nonprofit nursing homes and related facilities).
' See, generally, "Hearings on S. 794 and S. 2292 Before the Senate
Subcommittee on Labor of the Committee on Labor and Public Welfare, 93d
Cong., Ist sess." 483-547 (1973) (hereinafter Senate Hearings).
120 Cong. Rec. 5.6950 (daily ed., May 2, 1974).
"'120 Cong. Rec. S.6963-64 (daily ed., May 2, 1974).
"Sec. 19, added to the Act by the health care amendments, states:
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 objec-
tions to joining or financially supporting labor organizations shall not be
required to join or financially support any labor organization as a
Having established that Congress clearly manifested
its intention that the Board assert jurisdiction, we turn
to the Employer's contention that an assertion of
jurisdiction is nonetheless precluded by the first
amendment. While the Board has ruled on constitu-
tional issues in the context of evaluating the construc-
tion and application of the Act, 2 there is some
question whether the Board has the authority to rule
on the constitutionality of the Act itself." Without
deciding the limits of our authority in this area, we
shall follow the clear legislative mandate that the
Board assert jurisdiction here. Any final determina-
tion concerning the constitutionality of that mandate
must, therefore, come from the courts, who have
unquestioned authority to review legislative enact-
ments in light of constitutional safeguards.
Having concluded that the legislative history of the
1974 health care amendments evidences a clear
legislative expression of congressional intention that
the Board assert jurisdiction here and in similar cases,
and as the Employer otherwise meets our discretion-
ary jurisdictional standards for the assertion of juris-
diction, we find it will effectuate the purposes of the
Act to assert jurisdiction in this proceeding.
2. The labor organization involved claims to repre-
sent certain employees of the Employer.
3. A question affecting commerce exists concerning
the representation of employees of the Employer
within the meaning of Sections 9(c)(1) and 2(6) and
(7) of the Act.
4. The parties have stipulated that the proposed unit
involved in this proceeding is an appropriate one
within the meaning of the Act. Accordingly, we find
that the following employees of the Employer, at its
Whiting, Wisconsin, facility, constitute an appropriate
unit for collective-bargaining purposes within the
meaning of Section 9(b) of the Act:
All nurses' aides, orderlies, housekeeping employ-
ees, laundry employees, food service employees,
activity employees, and maintenance employees
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 the Internal Revenue Code, 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.
Indeed, Sec. 19 closely resembles another proposal submitted to Congress in
1973 by the Seventh Day Adventist Church itself. See Senate Hearings, supra,
fn. 8, at 509-510. In Catholic Bishop of Chicago, supra, the Supreme Court
characterized Sec. 19 as "reflecting congressional sensitivity to First Amend-
ment guarantees."
' With respect to religious organizations, see Motherhouse of the Sisters of
Charity of Cincinnati Ohio, 232 NLRB 318, 319 (1977); The First Church of
Christ, Scientist in Boston. Massachusetts, 194 NLRB 1006, 1007-08 (1972).
" See Johnson. Administrator of Veterans' Affairs v. Robinson. 415 U.S. 368
(1974), citing with approval Justice Harlan's concurrence in Oestereich v.
Selective Service System Local Board No. II, Cheyenne. Wyoming, 393 U.S.
233, 242 (1968).
753
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employed by the Employer at its River Pines
Community Health Center, 1800 Sherman Ave-
nue, Whiting, Wisconsin, location; but excluding
registered nurses, licensed practical nurses, social
workers, office clerical employees, guards, profes-
sional employees, and supervisors as defined in
the Act.
[Direction of Election and Excelsior footnote omit-
ted from publication.]
754