Ukiah Valley Medical Center

National Labor Relations Board - Board Decisions

Sep 29, 2000

332 N.L.R.B. 602 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 602
Ukiah Adventist Hospital d/b/a Ukiah Valley Medical
Center and California Nurses Association. Case 20–
RC–17458
September 29, 2000
ORDER DENYING REVIEW AND REMANDING
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
The National Labor Relations Board has delegated its
authority in this matter to a three-member panel, which
has considered the Employer’s request for review of the
Regional Director’s Order Denying Motion to Transfer
Proceeding and Reopening the Hearing (relevant portions
are attached as an appendix), in which he found that as-
serting jurisdiction over the Employer did not violate
either the First Amendment of the Constitution or the
Religious Freedom Restoration Act, 42 U.S.C. § 2000
(bb)–1. The Employer’s request for review is denied as
it raises no substantial issues warranting review.
The facts, which are not in dispute, are set forth in de-
tail in the attached Regional Director’s Order. Briefly,
the Employer is an acute care hospital operated and man-
aged by the Seventh Day Adventist Church. The Peti-
tioner seeks to represent a unit of the Employer’s regis-
tered nurses (RNs). On December 8, 1998, the Regional
Director issued an order finding that the Board’s asser-
tion of jurisdiction over the Employer would violate nei-
ther the Religious Freedom Restoration Act (RFRA) nor
the First Amendment.1
In accordance with Section 102.67 of the National La-
bor Relations Board’s Rules and Regulations, the Em-
ployer filed a timely request for review of the Regional
Director’s Order, arguing that the Regional Director’s
assertion of jurisdiction over the Employer, a Seventh
Day Adventist religious institution, would violate the
Free Exercise and Establishment Clauses of the First
Amendment, and RFRA.2 For the reasons set forth by
the Regional Director, as well as the additional reasons
discussed below, we find that asserting jurisdiction over
the Employer does not conflict with RFRA, or violate the
First Amendment.
As found by the Regional Director, the Board has pre-
viously asserted jurisdiction over similar institutions op-
erated by the Seventh Day Adventist Church. For exam-
ple, in Mid American Health Services, 247 NLRB 752
(1980), the Board determined that asserting jurisdiction
over the Seventh Day Adventist employer was not pre-
cluded by the First Amendment. See also Cap Santa
Vue, Inc. v. NLRB, 424 F.2d 883 (D.C. Cir. 1970).

1 Pursuant to a motion filed by the Employer, the Regional Director
had bifurcated the hearing, limiting the presentation of evidence to the
issue of the Board’s jurisdiction. In his Order, the Regional Director
also directed that the hearing be reopened to take evidence on the re-
maining issues.
2 The Employer also requested that the Board stay the reopening of
the hearing. On December 31, 1998, the Board granted the Employer’s
request to stay the reopening of the record pending the Board’s ruling
on the jurisdictional issue.
Subsequently, in Employment Division v. Smith, 494
U.S. 872 (1990), the Supreme Court held that the Gov-
ernment’s enforcement of neutral and generally applica-
ble laws against religiously motivated conduct did not
run afoul of the First Amendment even absent a showing
of compelling government interest. In response to the
Supreme Court’s decision in Smith, Congress enacted
RFRA in 1993 to restore the “compelling interest” stan-
dard that had been utilized in pre-Smith First Amendment
cases. See generally Douglas Laycock & Oliver S.
Thomas, Interpreting the Religious Freedom Restoration
Act, 73 Tex. L. Rev. 209, 217–219 (1994); University of
Great Falls, 331 NLRB No. 188 (2000). It is therefore
necessary for us to reexamine the question of asserting
jurisdiction over a health care institution operated by the
Seventh Day Adventist Church.3
RFRA defines “the exercise of religion” as “the exer-
cise of religion under the First Amendment,” and it is
clear from the legislative history of RFRA that Congress
intended that courts would look to free exercise cases
prior to Smith for guidance in determining whether the
exercise of religion has been substantially burdened.4
3 In University of Great Falls, 325 NLRB 83 (1997), the Board ini-
tially held that the question of whether asserting jurisdiction over the
employer violated RFRA was moot on grounds that in City of Boerne v.
Flores, 521 U.S. 507 (1997), the Supreme Court had found RFRA to be
unconstitutional. Subsequently, however, in University of Great Falls,
supra, the Board reconsidered the issue and concluded that it would
assume that RFRA is constitutional as it applies to the National Labor
Relations Act and Board proceedings. The Board cited its longstanding
position that it is beyond its authority, as an administrative agency, to
adjudicate the constitutionality of congressional enactments. It also
noted that several courts had concluded that Flores addressed only the
constitutionality of RFRA as applied to State law, and had either held
or assumed that the statute was constitutional as applied Federal law.
See, e.g., Christians v. Crystal Evangelical Free Church, 141 F.3d 854
(8th Cir. 1998), cert. denied 525 U.S. 811 (1998).
4 S. Rep. No. 111. 103d Cong., 1st Sess. at 8 (1993). See discussion
in University of Great Falls, supra. In University of Great Falls, we
stated that in cases raising free exercise claims, we would continue to
be guided by the Supreme Court’s pre-Smith decision in NLRB v.
Catholic Bishop of Chicago, 440 U.S. 490 (1979), in which the Su-
preme Court held that the Board could not assert jurisdiction over lay
teachers in parochial schools. This case, however, presents issues that
the Court did not have to address in Catholic Bishop. In Catholic
Bishop, the Supreme Court examined the legislative history of the Act
and found “no clear expression of an affirmative intention of Congress”
that the Act covers teachers in church-operated schools. In the absence
of such an intention, the Court said that the Board could not assert
jurisdiction, since to do so would create a “significant risk” that First
Amendment rights would be infringed and would therefore pose serious
constitutional questions. The Court noted that its ruling was in keeping
with the “prudential policy” that Acts of Congress ought not to be
332 NLRB No. 59
UKIAH VALLEY MEDICAL CENTER 603
In cases decided prior to Smith, the Supreme Court
held that to show a free exercise violation, the religious
adherent has the obligation to prove that a governmental
regulatory mechanism burdens the adherent’s practice of
his or her religion by pressuring the adherent to commit
an act forbidden by the religion or by preventing him or
her from engaging in conduct or having a religious ex-
perience which the faith mandates. Hobbie v. Unem-
ployment Appeals Commission of Florida, 480 U.S. 136,
140–141 (1987); Sherbert v. Verner, 374 U.S. 398, 404
(1963). This interference must be more than an incon-
venience; the burden must be substantial and an interfer-
ence with a tenet or belief that is central to religious doc-
trine. See Thomas v. Review Board, 450 U.S. 707 (1981)
(burden exists when State’s regulation puts “substantial
pressure on an adherent to modify his behavior and to
violate his beliefs”).
As noted above, the Employer here is a hospital oper-
ated by the Seventh Day Adventist Church. According
to the Employer, the teachings of the Adventist faith pro-
hibit Adventist institutions such as Ukiah from recogniz-
ing or bargaining with unions. The Employer states that
the Church prohibits its members from participating in
labor unions, paying dues to labor unions, or operating
with the presence of labor unions, and that the Church
strictly adheres to these prohibitions to the point where
the Church was prepared to divest itself of another health
care facility should the employees have voted to union-
ize.5
It is well settled that should a union become certified
as the collective-bargaining representative of the Em-
ployer’s employees, the Employer is legally obligated to
bargain with the union or risk legal sanctions under the

construed to raise constitutional issues if other possible constructions
were available. In this case, however, as explained below, we are deal-
ing with a situation where Congress has previously expressed a clear
affirmative intention that the Board assert jurisdiction over hospitals
operated by religious organizations. Thus, Catholic Bishop is not de-
terminative of the issues presented here. See Bon Secours Hospital, 248
NLRB 115, 116–117 (1980). Accord: Tressler Luther Home for Chil-
dren v. NLRB, 677 F.2d 302, 305–306 (3d Cir. 1982); St. Elizabeth
Hospital v. NLRB, 715 F.2d 1193, 1196 (7th Cir. 1983); St. Elizabeth
Community Hospital v. NLRB, 708 F.2d 1436, 1440 (9th Cir. 1983).
5 The Employer notes that the Church’s governing institution have
consistently reaffirmed these prohibitions. Thus, in 1957, the Church’s
General Conference (its highest governing body) issued a “Statement
on Unionization of Our Church Institution” which provided that “not
being able, because of religious conviction, to share in measures of
coercion, either of labor or capital, we believe that participation in
industrial strife accompanied by unfair and unjust practices, either by
employers or employees, would subject our consciences to the guilt of
sin and the condemnation of the Supreme Judge.” The Church’s North
American Division reiterated the Church’s position on unions in a 1972
resolution, and in 1983, the General Conference held that the Church
would have to divest itself of a health care institution in Wisconsin if
employees there were successful in forming a union.
provisions of the National Labor Relations Act. There-
fore, unless the Employer wishes to risk these conse-
quences, it appears that the Employer will be compelled
to engage in conduct that is expressly prohibited by its
religion, i.e., recognizing and bargaining with the Peti-
tioner. Thus, although the Employer’s primary purpose
is secular, we will assume for purposes of the decision
that asserting jurisdiction over the Employer creates a
“substantial burden” on the Employer’s free exercise of
religion within the meaning of RFRA.
The determination that asserting jurisdiction substan-
tially burdens the Employer’s free exercise of religion
does not, however, end our inquiry. Rather, under
RFRA, we must decide whether assertion of the Board’s
jurisdiction is in furtherance of a compelling governmen-
tal interest, and is the least restrictive means of furthering
that interest.
Under this analytical framework, it is clear that appli-
cation of the Act to the Employer is not precluded by
RFRA. The Board and the courts have found that the
government has a compelling interest in preventing labor
strife and in protecting the rights of employees to organ-
ize and bargain collectively with their employers over
terms and conditions of employment. In the first case to
find the National Labor Relations Act constitutional, the
Supreme Court stated that “employees have as clear a
right to organize and select their representatives as an
employer has to organize its business and select its own
officers and agents.” NLRB v. Jones & Laughlin Steel
Corp., 301 U.S. 1, 33 (1937).6 See generally City Dis-
posal Systems v. NLRB, 465 U.S. 822 (1984). The right
of employees to self-organization is constitutionally pro-
tected; it is a fundamental right implicit in the Fist
Amendment’s free assembly language. Shelton v.
Tucker, 364 U.S. 479, 485–487 (1960); Thomas v.
Collins, 323 U.S. 516, 532 (1945). In Cap Santa Vue,
Inc. v. NLRB, 424 F.2d 883 (D.C. Cir. 1970), the court,
in holding that the Board’s application of the good faith
bargaining requirement to all employers was sufficiently
compelling to justify the regulation of religion-based
conduct, stated that “enforcement of the obligation to
bargain collectively was crucial to the statutory scheme.”
424 F.2d at 889–890, citing NLRB v. American National
st
at
42.]
6 The Supreme Court stated in NLRB v. Jones & Laughlin Steel
Corp.:
Experience has abundantly demonstrated that the recognition of
the right of employees to self-organization and to have
representatives of their own choosing for the purpose of
collective bargaining is often an essential condition of industrial
peace. Refusal to confer and negotiate has been one of the mo
prolific causes of strife. This is such an outstanding fact in the
history of labor disturbances that it is a proper subject of
judicial notice and requires no citation of instances. [301 U.S.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 604
Insurance Co., 343 U.S. 395 (1952). The court held that
the bargaining requirements under the Act were suffi-
ciently invested with the public interest to justify apply-
ing the good faith bargaining requirement to the Seventh
Day Adventist employers. Cap Santa Vue, 424 F.2d at
890.
The Board has previously found application of the Na-
tional Labor Relations Act to church-operated health care
institution to be the legislative expression of a “compel-
ling state interest,” relying on the congressional debate
over the 1974 amendments and an awareness of the na-
tional history of labor strife that led to passage of the
Wagner Act and to the subsequent amendments extend-
ing coverage to the health care industry. St. Elizabeth
Community Hospital, 259 NLRB 1135, 1138–1139
(1982), enf. 708 F.2d 1436 (9th Cir. 1983). The legisla-
tive history of the 1974 amendments clearly expresses
Congress’ intent that the Board assert jurisdiction over
health care institutions that are owned, operated and/or
managed by religious institutions. Mid American Health
Services, supra at 753; Bon Secours Hospital, supra;
Tressler Lutheran Home for Children v. NLRB, supra; St.
Elizabeth Hospital v. NLRB, supra; St. Elizabeth Com-
munity Hospital v. NLRB, supra. In Mid American
Health Services, the Board observed that the Senate re-
jected any amendment that would have maintained a ju-
risdictional exemption for hospitals owned, supported,
controlled, or managed by a particular religion, religious
corporation, or religious association.7 The Board stated:

The health-care amendments, inter alia, removed
the preexisting jurisdictional exemption accorded
nonprofit hospitals by Section 2(2) of the Act.6
Given earlier Board determinations,7 the repeal of
the exemption 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 proceeding. Thus, the church advo-
cated an amendment which would have maintained a
jurisdictional exemption for any hospital which “op-
poses unionization because of historically held reli-
gious teachings or tenets.”8 No such amendment
was introduced by any member of the Congress.
Senator Ervin did introduce9 a proposed proviso to
the new Section 2(14) of the amendments setting
forth the definition of a “health care institution”

7 See 120 Cong. Rec. S. 6963–6964 (daily ed. May 2, 1974). See
also the discussion in St. Elizabeth Community Hospital, 259 NLRB at
1137.
which would have maintained a jurisdictional ex-
emption for hospitals, “owned, supported, con-
trolled, or managed by a particular religion or by a
particular religious corporation or association.” The
Ervin amendment was rejected by the Senate.10 This
legislative 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 responsibilities11 removes in our judg-
ment, any doubt that the Congress clearly intended
the Act to apply to health care institutions operated
by religious institutions in general and the Seventh
Day Adventist Church in particular.8
____________________
6 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.”
7 See Butte Medical Properties, 168 NLRB 266 (1967) (pro-
prietary hospitals); University Nursing Homes Inc., 168 NLRB
263 (1967) (proprietary nursing homes and related facilities);
Drexel Homes, Inc., 182 NLRB 1045 (1970) (nonprofit nursing
homes and related facilities).
8 See, generally, “Hearings on S. 794 S. 2292 Before the Sen-
ate Subcommittee on Labor of the Committee on Labor and Pub-
lic Welfare, 93d Cong. 1st sess.” 483–547 (1973) (hereinafter
Senate Hearings)
9 120 Cong. Rec. S.6950 (daily ed., May 2, 1974).
10 120 Cong. Rec. S.6963–6964 (daily ed., May 2, 1974).
11 Sec. 19, added to the Act by the health care amendments,
states:
Any employee of a health care institution who is a member
of an adheres to established and traditional tenets or teachings
of a bona fide religion, body, or sect which has historically
held conscientious objections to joining or financially sup-
porting labor organizations shall not be required to join or fi-
nancially support any labor organization as a 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 employees form 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
8 Mid American Health Services, supra at 753. See St. Elizabeth
Community Hospital, 259 NLRB at 1137. In support of his proposal,
Senator Ervin discussed the position of the Seventh Day Adventists,
i.e., that their hospitals were one of the “evangelistic tools” the church
used to accomplish its religious mission. A spokesman maintained that
recognition of a labor union in a church-owned hospital would violate
the religious tenets of the Seventh Day Adventists. In opposition,
Senator Cranston noted that religiously affiliated hospitals were sup-
ported by a variety of governmental subsidies and grants, that their
health-care operations were the same as non religious institutions, and
that both drew on the same manpower pool. 120 Cong. Rec. 12950–
12957, cited in Tressler Lutheran Home for Children v. NLRB, 677
F.2d 302, 304 (3d Cir. 1982).
UKIAH VALLEY MEDICAL CENTER 605
designate such funds, then to any such fund chosen by the
employee.
Indeed, Sec. 19 closely resemble another proposal submitted to Con-
gress in 1973 by the Seventh Day Adventist Church itself. See Senate
hearings, supra, fn. 8, at 509–510. In Catholic Bishop of Chicago, su-
pra, the Supreme Court characterized Sec. 19 as “reflecting congres-
sional sensitivity to First Amendment guarantees.”
Finally, we agree with the Regional Director that ap-
plying the Act to the Employer is the least restrictive
means of furthering the government’s compelling interest
of preventing labor strife and protecting the employees’
ability to exercise their rights under Section 7 of the Act.9
We are mindful that Congress and the courts have been
sensitive to the needs flowing from the Free Exercise
clause, but every person cannot be shielded from all the
burdens incident to exercising every aspect of the right to
practice religious beliefs. As the Supreme Court has
stated, “[w]hen followers of a particular sect enter into
commercial activity as a matter of choice, the limits they
accept on their own conduct as a matter of conscience
and faith are not to be superimposed on the statutory
schemes which are binding on others in that activity.”
U.S. v. Lee, 455 U.S. at 259. The RNs that the Petitioner
seeks to represent do not forfeit their statutory rights
simply because of the Employer’s beliefs.10 “[R]eligious
beliefs can be accommodated, but there is a point at
which accommodation would radically restrict the oper-
ating latitude of the legislature, and that ‘[t]o maintain an
organized society that guarantees religious freedom to a
great variety of faiths requires that some religious prac-
tices yield to the common good.’” See U.S. v. Lee, 455
U.S. at 259 citing Braunfeld v. Brown, 366 U.S. 599,
605–606 (1961). See also Cantwell v. Connecticut, 310
U.S. 296, 303–304 (1940) “the [First] Amendment em-
braces two concepts—freedom to believe and freedom to

9 Sec. 7 provides that:
Employees shall have the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to en-
gage in other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection, and shall
also have the right to refrain from any or all such activities
except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a
condition of employment as authorized in section 8(a)(3).
In Cap Santa Vue, Inc. v. NLRB, 424 F.2d 883 (D.C. Cir. 1970), the
court held that two employers, who were practicing members of the
Seventh Day Adventist Church, violated the Act by refusing to bargain
with a union certified at two of their convalescent centers. The court
held that notwithstanding the Church’s prohibition against joining or
bargaining with a labor union, the nursing homes were obligated to
recognize and bargain with the certified union. The court held that the
union’s certification did not impede the right of the Seventh Day Ad-
ventist owners to hold their beliefs and foreseeing no significant intru-
sion into the employers’ religious beliefs, ordered them to comply with
the Act’s secular purpose.
10 Of the approximately 170 RNs, about 20 are Church members.
act. The first is absolute but in the nature of things the
second cannot be. Conduct remains subject to regulation
for the protection of society”. As the Regional Director
noted, the Seventh Day Adventist Church owns and op-
erates many health care institutions throughout the
United States, employing thousands of employees, many
of whom are not Church members. Application of the
National Labor Relations Act to these institutions is the
least restrictive means of accomplishing the goals of the
Act: ensuring the rights of those employees to self-
organization and to have representatives of their own
choosing, and promoting industrial peace and avoiding
disruptions to the delivery of vital health care services
through the practice and procedure of collective bargain-
ing. Conversely, as the Regional Director noted, grant-
ing an exemption to the Employer and to other Church-
operated health care institutions would defeat Congress’
intent in enacting the National Labor Relations Act, by
denying many thousands of employees the opportunity to
self-organize and choose bargaining representation, as
well as by putting vital health care services in jeopardy.
Accordingly, we agree with the Regional Director that
asserting jurisdiction over the Employer is warranted,11
and we remand this case to the Regional Director for
further appropriate action consistent with this decision.
APPENDIX
ORDER DENYING MOTION TO TRANSFER
PROCEEDING AND REOPENING HEARING
Upon a petition duly filed under Section 9(c) of the National
Labor Relations Act, a hearing was held before a hearing offi-
cer of the National Labor Relations Board on October 8 and 9,
1998.1 The hearing was adjourned indefinitely for the reasons
discussed below.
On October 8, the Employer filed a motion to bifurcate the
hearing on the jurisdictional and unit issues and to transfer the
jurisdictional issue to the Board. In support of its motion, the
Employer asserts that this case presents novel questions of con-
stitutional and federal law regarding whether the Board should
11 As we find that asserting jurisdiction over the Employer does not
violate the RFRA under the stricter “compelling interest” standard, a
fortiori there is no violation of the free exercise clause of the First
Amendment under the standard set forth in Smith.
Member Hurtgen concludes that the Board should construe the Act
so as to avoid a constitutional issue is such a construction is “fairly
possible.” See his concurrence in University of Great Falls, 331 NLRB
No. 188 citing Edward J. DeBartalo v. NLRB, 463 U.S. 147, 157
(1983). In the instant case, as set forth here, it is not “fairly possible’ to
conclude that Congress intended to exclude employers like Ukiah Val-
ley. Thus, the Board must resolve the constitutional issue. Member
Hurtgen agrees with his colleagues that assertion of jurisdiction would
not be unconstitutional, i.e., contrary to the First Amendment. Further,
Member Hurtgen agrees with his colleagues that assertion of jurisdic-
tion would not be contrary to RFRA.
1 All dates here refer to calendar year 1998 unless otherwise indi-
cated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 606
assert jurisdiction over the Employer, a Seventh Day Adventist
institution which, for religious reasons, cannot recognize or
bargain with a labor union. The Employer further asserts that
the Board should address in the first instance, the applicability
of the Religious Freedom and Restoration Act of 1993 (RFRA),
42 U.S.C. Section 2000(bb) et seq., to the instant case because
the same issue is currently before the Board in University of
Great Falls, 325 NLRB 83 (1997).2 The Employer refiled its
motion to transfer this proceeding to the Board on October 9.
Contrary to the Employer, the Petitioner asserts that this matter
should not be transferred to the Board; that the Employer is
subject to the Board’s jurisdiction; and that the Employer’s
motion should be denied.
Because of the jurisdictional issue presented, the Employer’s
motion to bifurcate the hearing and limit the presentation of
evidence to the jurisdictional issue was granted. Upon the
completion of the presentation of evidence, the hearing was
adjourned indefinitely, and the parties were given the opportu-
nity to brief the jurisdictional issues raised by the Employer.
Both parties timely submitted briefs on the jurisdictional issue.
Pursuant to the provisions of Section 3(b) of the Act, the
Board has delegated its authority in this proceeding to the un-
dersigned. Upon the underlying record,3 I find as follows:

2 In University of Great Falls, supra, the Board, on November 8,
1997, issued a Decision on Review and Order in a representation case
asserting jurisdiction over a liberal arts university that was founded by
a religious order of the Sisters of Providence, St. Ignatius Province of
the Catholic Church. In so doing, the Board affirmed a Regional Direc-
tor’s decision that jurisdiction was warranted under NLRB v. Catholic
Bishop of Chicago, 440 U.S. 490 (1979). In its decision, the Board
noted that it need not reach the issue as to whether asserting jurisdiction
over the employer violated the Religious Freedom and Restoration Act
of 1993 (RFRA) because the Supreme Court in City of Boerne v. Flo-
res, 117 S.Ct. 2157 (1997), had found the RFRA to be unconstitutional
thereby rendering the issue moot. Thereafter, on July 21, 1998, the
Acting General Counsel issued a complaint alleging that the employer
had refused to bargain with the certified union in violation of Sec.
8(a)(1) and (5) of the Act. A motion for summary judgment was filed
and, on September 1, the Board issued an order transferring the pro-
ceeding to the Board and a Notice to Show Cause why summary judg-
ment should not be granted. On September 30, the Board issued an
Order and Notice to Parties of Opportunity to Submit Statements. In its
order, the Board noted that the employer had, in response to the Notice
to Show Cause, pointed out that one Circuit Court of Appeals had
found that the RFRA was not unconstitutional as applied to federal law
and another had “assumed” without deciding that it was constitutional
as applied to federal law. In these circumstances, the Board concluded
it must address the RFRA issue and the parties were given until No-
vember 2, to submit briefs with the Board.
3 At the hearing, the parties agreed that the Employer would provide
at a later date, a full copy of the Employee Opinion Survey received
into evidence as E. Exh. 72. That document was received by the Re-
gion on October 15. As there has been no objection raised to its inclu-
sion in the record, it is hereby included as E. Exh. 72(a).
As discussed below, at the hearing, the Petitioner adduced evidence
from the Employer’s CEO, Valorie Devitt, to the effect that Redbud
Hospital in Clearlake, California, is also a part of Adventist Health.
The parties agreed that the Union would provide at a later date, a copy
of a collective bargaining agreement between Redbud Hospital and the
association representing its employees. However, on October 19, in
lieu of the collective bargaining agreement, the Petitioner submitted the
1. The parties stipulated that the Employer meets the Board’s
monetary standards for the assertion of jurisdiction. However,
the Employer has reserved its contention that the Board lacks
jurisdiction over the Employer for the reasons cited in its mo-
tion to transfer to the Board. Based on the parties’ stipulation,4
I find that the Employer is a California nonprofit religious cor-
poration engaged in the operation of an acute care hospital in
Ukiah, California, and with a place of business at that location.
Within the most recent calendar year, the Employer earned
gross revenues in excess of $250,000 and purchased and re-
ceived at its Ukiah, California, facility, goods and services
valued in excess of $5000, directly from points outside the
State of California. Accordingly, I find that the Employer is a
health care institution within the meaning of Section 2(14) of
the Act and that it meets the commerce standards for the asser-
tion of jurisdiction by the Board.
2. The parties stipulated, and I find, that the Petitioner is a
labor organization under the Act.
3. As noted above, the Employer asserts that the Board lacks
jurisdiction over the Employer under the RFRA and the free
exercise and establishment clauses of the First Amendment of
the United States Constitution and that this case should be
transferred to the Board to decide these issues in the first in-
stance. The Employer also requests that if the Board deter-
mines that it has jurisdiction over the Employer, it should none-

Declaration of Michael Allen dated October 14. In his declaration,
Allen recites that he represents the Redbud Community Hospital Em-
ployees Association (RCHEA) which was certified as the exclusive
collective bargaining representative of a unit of all hospital employees
who were not supervisory or confidential employees under the Califor-
nia Government Code Section 3500, Meyers-Milias-Brown Act, and a
resolution of the board of directors of the Redbud Community Hospital.
According to this declaration, the Seventh Day Adventists purchased
the assets of Redbud Community Hospital and began managing it in
1997. In a letter dated November 7, 1997, Adventist Health (on behalf
of Adventist Redbud Community Hospital) agreed to extend recogni-
tion to RCHEA as the exclusive collective bargaining representative of
employees in the unit described above should a majority of the employ-
ees hired be employees who had previously worked in bargaining unit
positions. According to the declaration, since the Seventh Day Advent-
ists began managing Redbud Community Hospital, they have negoti-
ated two agreements with RCHEA containing terms and conditions of
employment for the Redbud Hospital employees. The most recent of
these agreements was ratified by the members of RCHEA in approxi-
mately September 1998 and is being finalized for signature. According
to the declaration, no copy is currently available.
The Employer has objected to the receipt of this declaration into
evidence as it is not the document the parties agreed the Petitioner
would submit and because it is hearsay with regard to the truth of the
matters asserted in the declaration and letter.
I have declined to receive the document proffered by the Petitioner
and have placed in a rejected exhibits file as Exh. 1. In so doing, I note
that this document is not what the parties agreed the Petitioner would
submit. Further, in determining whether the Board may assert jurisdic-
tion over the Employer, I find no basis for examining the consistency
with which various entities of the Seventh Day Adventist Church may
or may not adhere to its tenets.
4 After the close of the hearing, the parties entered into a joint stipu-
lation regarding the facts with regard to whether the Employer meets
the Board’s monetary standards for the assertion of jurisdiction. These
documents are hereby included in the record as Jt. Exhs. 1 and 2.
UKIAH VALLEY MEDICAL CENTER 607
theless grant the Employer an exemption from the Act. The
Petitioner takes the opposite position.
Background: The Employer’s Operation and
the Instant Petition
As indicated above, the Employer is a religious nonprofit
corporation operating an acute care hospital in Ukiah, Califor-
nia. The Employer formed in 1988 when Ukiah Adventist
Hospital, formerly called Hillside Community Hospital of
Ukiah,5 took over the operation of Ukiah General Hospital, a
hospital which was not affiliated with the Seventh Day Advent-
ist Church. At the hearing, the Employer represented that it
currently operates out of four buildings, located on Dora, Les-
lie, Hospital and Perkins Drives in Ukiah. The Employer is the
only hospital in Ukiah and it provides health care services to
the general public. The Petitioner seeks to represent a unit
comprised of approximately 160 of the Employer’s registered
nurses, most of whom are not members of the Seventh Day
Adventist Church.
The Seventh Day Adventist Church
Alan Rainach was the primary witness for the Employer at
the hearing. Rainach is a member of the Seventh Day Advent-
ist Church and is both the Director of the Public Affairs and
Religious Liberty Department for the Pacific Union Conference
of the Seventh Day Adventist Church and the President of the
Church-State Council of Seventh Day Adventists.6 Rainach

5 The record contains a document titled “Ukiah Valley Medical Cen-
ter Departmental Policy and Procedure Manual,” which describes the
history of the Employer. According to this manual, the Employer is a
private, voluntary, nonprofit hospital that depends solely on revenue
from patient services rendered. The manual relates that Ukiah Advent-
ist Hospital was formerly called Hillside Community Hospital of Ukiah
(herein called Hillside). On September 1, 1978, Hillside took the name
Ukiah Adventist Hospital and became a member of Adventist Health
System-West, which is described more fully below The manual states
that in August 1988, Ukiah Adventist Hospital acquired the assets of
Ukiah General Hospital and expanded its number of licensed beds from
43 to 94, with physical facilities located on two campuses, Dora Street
(51 beds) and Hospital Drive (43 beds). In 1992, a nine-bed addition
was made to the Hospital Drive campus. This document further relates
that in 1996, Inhome Health Agency was consolidated into the Em-
ployer’s operations; in 1997, the Employer purchased and remodeled an
adjacent one-acre property of a former restaurant to accommodate its
Outpatient Physical Therapy/Rehab and Mammography services; and
in the winter of 1997, the Employer constructed a 16 bed perinatal unit
at its Hospital Drive site and relocated such services from its Dora
Street site to its Hospital Drive site.
The manual states that the Employer is currently licensed by the
State of California for 102 acute beds and 15 transitional care beds and
provides special facilities/services of critical care unit; basic emergency
medical services (24-hour service, with physicians, licensed registered
nurses, obstetrical level II nursing and pediatricians on duty), health
promotion, operating room, recovery room, outpatient surgery center,
physical therapy/rehabilitation, respiratory therapy, pharmacy/IV,
medical imaging (i.e., radiology/nuclear medicine/CT scanning, MRI),
medical library, occupational medicine, and laboratory/pathology.
6 According to Rainach, the Public Affairs and Religious Liberty
Department monitors legislation that impacts on the Church in the five
western states of the Pacific Union Conference (i.e., California, Ari-
zona, Nevada, Utah, and Hawaii).
testified regarding the history of the Church which is also
briefly described in a document contained in the record entitled
“1998 Seventh Day Adventist Church Yearbook.”7 Rainach
also testified regarding the hierarchy, beliefs and policies of the
Seventh Day Adventist Church and its relationship to Ukiah
Valley Medical Center.
Church Hierarchy
According to Rainach, the Church’s highest administrative
body worldwide is its General Conference, which has its head-
quarters in Silver Spring, Maryland. The record includes a
document entitled: “Working Policy North American Division
of the General Conference of Seventh Day Adventists 1997–
1998 Edition,” which contains the constitution and bylaws of
the General Conference. This document is described on its face
as “the authoritative voice of the Church in matters relating to
the administration of the work of the Seventh Day Adventist
denomination in all parts of the world.” This document further
states that the work of all organizations in every part of the
world must be administered in “full harmony with the policies
of the General Conference and of the divisions respectively,”
and that “no departure from these policies shall be made with-
out prior approval from the General Conference Committee
except as provided in the ‘Working Policy.’
Under the General Conference, the Church is divided into
approximately 13 geographical units called divisions. The
North American Division encompasses the United States and
Canada, Bermuda and a few outlying Pacific islands. Under
the North American Division is the Pacific Union Conference
which covers the states of California, Arizona, Nevada, Utah,
and Hawaii.
According to Rainach, the Church operates a number of dif-
ferent religious ministries, including a hospital system of which
Ukiah Valley Medical Center is a part.8 Rainach testified that
7 As described by Rainach and the Church’s 1998 yearbook, the
Church grew out of a religious revival movement in the 1820s and
1830s known as the Second Great Awakening, which propounded the
belief that Christ would imminently return to earth. Dates were pre-
dicted for this “Second Advent,” the last major date being October 22,
1844. When the Second Advent did not occur as predicted, Advent
believers splintered into a number of different groups including a group
called the Adventists. In 1860, because of this group’s belief in the
imminent return of Christ and their conviction to observe the Sabbath
from Sundown Friday to sundown Saturday, they became known as the
Seventh Day Adventists.
According to Rainach, the Seventh Day Adventist Church is unique
among Protestant groups because of its conviction that it is a propheti-
cally inspired movement to prepare the world for the return of Christ.
Rainach testified that the Church grew from a few thousand members
in the 1800s to about 10 million persons today. The Church was
largely confined to North American until 1874 when its first missionary
work began. Currently, it operates in approximately 204 countries and
has an expansive educational and medical system all over the world. In
this regard, the Church’s 1998 yearbook discloses that the Church
operates 161 hospitals and sanitariums; 313 clinics and dispensaries;
and 92 nursing homes and retirement centers. As of 1995, the assets
for its health care institutions were valued at approximately 5 billion
dollars.
8 Other ministries/departments of the Church include the public af-
fairs and religious liberty department of which Rainach is the director;
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 608
the hospital system is considered to be an integral part of the
Church’s ministries and that health work “is very, very closely
connected to the evangelistic work of preaching the gospel of
Jesus Christ . . . health work is what opens the doors of minds
and hearts to the love of Jesus Christ . . . .”
The Church’s Working Policies With Regard to
Health Care Institutions
Section G40 of the Working Policy North American Divi-
sion of the General Conference document, entitled, “Statement
of Operating Principles for Health Care Institutions,” states that
the mission of the Church includes “a ministry of healing to the
whole person—body, mind and spirit.” This section further
states:

2. Health care institutions (hospitals, medical/dental clinics,
nursing and retirement homes, rehabilitation centers, etc.)
function as an integral part of the total ministry of the Church
and follow church standards including maintaining the sa-
credness of the Sabbath by promoting a Sabbath atmosphere
for staff and patients, avoiding routine business, elective diag-
nostic services, and elective therapies on [sic] Sabbath. These
standards also include the promotion of an ovolacto-
vegetarian diet free of stimulants and alcohol and an envi-
ronment free of tobacco smoke. Control of appetite shall be
promoted, use of drugs with a potential for abuse shall be con-
trolled, and techniques involving the control of one mind by
another shall not be permitted. The institutions are governed
as a function of the Church with activities and practices
clearly identified as the unique Christian witness of Seventh
Day Adventists.

This section further provides that the Church’s health care
institutions are to give high priority to human life, personal
dignity and human relationships; primary prevention and health
education; respect for laws and regulations of the land; and
operating in a fiscally responsible manner. It further states with
respect to the staff of health care institutions:

7. The mission of institutions in representing Christ to the
community, and especially to those who utilize their services,
is fulfilled through a compassionate, competent staff which
upholds the practices and standards of the Seventh Day Ad-
ventist Church. In the development of the staff, institutions
regularly schedule classes which assist the staff in keeping up
to date professionally, growing in understanding, and in shar-
ing the love of God. Long-range staff planning supports for-
mal education of prospective staff including utilizing an insti-
tution for clinical practice for students.
The Church’s Beliefs and Policy Regarding Labor
Organizations
Section HR 30 of the North American Division Working
Policy for 1997–1998 sets forth the Church’s position prohibit-
ing any involvement with labor organizations. This section

the education department; the Sabbath school department; the youth
ministry; the women’s ministry; the health and temperance ministry;
the inner city ministries; and the Adventist Development and Relief
Agency.
confirms the Church’s historic teaching that Church members
refrain from joining or financially supporting labor organiza-
tions and refrain from recognizing or bargaining with labor
organizations.9 The record also contains writings by one of the
Church’s founders, Ellen G. White, including “The Ministry of
Healing” and other compilations of her published writings in
which she expounds on the Church’s disavowal of any associa-
tion with labor unions and the Biblical bases for its beliefs in
this regard.10 These works apparently date from approximately
the turn of the 20th Century.
9 This section states as follows:

HR 30 Relationship of Church Members and Church Institu-
tions to Labor Organizations

HR 30 05 Biblical Background—The Seventh Day Adventist
Church for more than a century has taught its members and in-
structed administrators of its Church institutions that the Holy Bi-
ble clearly instructs that Christ is to be Lord of the life of every
Church member and Church institution and that He is to be the ul-
timate authority to which they will submit their decisions and re-
lationships (Acts 2:36; 5:29; Colossians 3:23, 24). The Church
has historically taught that its members and institutions dare not
violate their individual or corporate consciences by supporting
organizations, policies, or activities incompatible with the princi-
ples set forth in the Holy Scriptures (Isaiah 8:12, 13; 2 Corin-
thians 6:14-18).

HR 30 10 Historical Position-1.

Based on the biblical principles described in HR 30 05 (and
many other sources), the Seventh Day Adventist Church hereby
confirms its long-standing teaching that Church members should,
and institutions must, remain free and independent from organiza-
tions which might violate a member’s conscience or interfere with
the fulfillment of the mission of the Church, through its institu-
tions, as follows:
a. Seventh Day Adventist Church members are following the
historic teaching of the Church when they refuse to join or finan-
cially support labor unions or similar organizations.
b. Seventh Day Adventist institutions are following the his-
toric teaching of the Church when they refuse to recognize labor
unions as bargaining units o [sic] to enter into contractual negotia-
tions with them or similar organizations. Institutions and admin-
istrators on all levels shall seek counsel from the North American
Division Public Affairs and Religious Liberty Department and the
North American Division administration if confronted with re-
quests to recognize a labor union as a bargaining unit or to enter
into contractual negotiations with such organizations.
2. The Seventh Day Adventist Church does not engage in po-
litical or economic activities that seek to destroy the labor move-
ment. However, the Church will exercise its lawful right to pro-
tect itself and its institutions from involvement with labor unions,
just as it endeavors to protect the rights of conscience of members
who conscientiously practice the teaching of the Church in this
regard.
3. Through sermons, personal counseling, church publica-
tions, and other media, church and institutional administrators as
well as pastors should inform Seventh Day Adventist Church
members as institutional employees of the Bible principles and
the historic teachings on which the Church’s position is based.
[HR 30 15 which lists resource materials related to the Church’s
position is omitted.]
10 In addition, the record contains a document entitled “Counsels
From the Spirit of Prophecy on Labor Unions and Confederacies”
UKIAH VALLEY MEDICAL CENTER 609
The Organizational Structure of the Church’s
Health Care System
The record reflects that the Church’s health care system in
North America is headed by a Church-owned and operated
parent organization called North American Health Care Corpo-
ration. Under this parent organization are regional Church-
owned organizations that serve as the regional governing bod-
ies for the Employer and other Church hospitals. The Em-
ployer herein falls under Adventist Health System/West d/b/a
Adventist Health under the Pacific Union Region.11 Adventist
Health is a nonprofit corporation organized exclusively for
religious purposes.
A document introduced into the record by the Employer enti-
tled “Physician Partners With Adventist Health,” discloses that
Adventist Health operates approximately 19 hospitals in Cali-
fornia, Hawaii, Oregon, and Washington. In addition, it owns,
leases, or manages over 50 health care business units and an
additional 225 health care businesses, partnerships, affiliations,
joint ventures, and “discrete programs” in this four state area
and generates approximately $1 billion annually in revenue.
The Ukiah Valley Medical Center
The record contains the Articles of Incorporation and
Amendments thereto for the Ukiah Valley Medical Center.
This document states that the Employer is a religious corpora-
tion organized under the nonprofit religious corporation law
“exclusively for religious purposes.”
The Employer’s CEO, ValGene Devitt, testified that the
primary purpose of the Employer is to provide health care. In
this regard, Rainach testified that the Employer provides health
care services comparable to those provided by non-Adventist
hospitals. As indicated above, Ukiah Valley Medical Center is
the only hospital in Ukiah and it serves the general public.
CEO Devitt testified that she is a member of the Church.
She testified that each Adventist Health hospital, including the
Employer, has two boards of directors: a legal board which is
the same as that of Adventist Health and which handles major
financial issues; and a local governing board which deals with
quality, staffing and other local issues within the facility. The

prepared by the Public Affairs and Religious Liberty department of the
Church’s General Conference; a memo from the October 8, 1968, Gen-
eral Conference and Union Conference Presidents Meeting; a Position
Statement by the Church on Labor Unions dated October 16–20, 1972;
a document entitled “Seventh Day Adventists, Business Cartels and
Labor Unions,” by John Stevens, President, Church State Council of
Seventh Day Adventists; and minutes from the September 19, 1957
minutes of the General Conference Committee, all of which also dis-
cuss the Church’s position against labor unions and the reasons for that
position. The parties have stipulated that the principles set forth in one
of these documents, “Seventh Day Adventists, Business Cartels and
Labor Unions,” apply to the Employer herein, including those of alle-
giance to Christ; due benevolence; autonomy; faithful witness; privi-
lege and responsibility; prophetic insight; and service; fellowship; and
baptismal vow. Rainach testified that all of these principles of the
Church would be violated if the Employer is required to recognize a
labor union.
11 The Employer is listed in the Seventh Day Adventist Church year-
book 1998, which, according to Rainach, indicates that it falls within
the Church’s 501(c)(3) tax exemption.
amendments to the Articles of Incorporation for both the Em-
ployer and Adventist Health disclose that the directors of both
boards must be members in good standing of the Seventh Day
Adventist Church.
As indicated above, among the Church-based policies ap-
plied by the Employer is not serving meat in its cafeteria.12 The
Employer also restricts the performance of abortions to certain
specified circumstances13 and observes the Sabbath from sun-
down on Friday evening to sundown on Saturday evening by
performing only essential activities during that period. Volun-
teers also distribute cards and flowers to patients during this
period.
Rainach testified that religious pictures are posted in the
Employer’s facility and the parties stipulated, and I find, that
Church-related materials are generally available throughout the
Employer’s facility, including the hallways adjacent to the
nursing units and patient rooms, but not in patient rooms.
The Employer has a pastoral care department comprised of a
senior chaplain and a staff of chaplains, who provide “pas-
toral/emotional care to patients, families, volunteers, and hospi-
tal employees through visitation, spiritual counseling, crisis
intervention, grief support, prayer and spiritual emphasis
groups.” The record contains a number of excerpts from the
Employer’s policies and procedures manual that relate to the
role of the senior chaplain and other chaplains in carrying out
this function. The Employer maintains a chaplain’s office at its
facility.
Included in the excerpts from the Employer’s departmental
policy and procedure manual for the pastoral care department is
an excerpt entitled: “Standard of Care For A Member of A Care
Team.” (According to Devitt, the care team includes the
nurses, discharge planners, therapists, chaplain, and any other
care providers at the Employer’s facility who are involved with
a patient.) This document states that the members of the care
team should, inter alia, take measures for implementing and
supporting the patient’s spiritual needs by informing the patient
of the availability of the chaplain for support; informing the
patient’s minister of hospitalization if requested or indicated;
by providing for privacy; and by observing the protocols of the
patient’s religion in regard to diet or rituals. However, the re-
cord does not disclose whether the registered nurses have been
specifically informed of the contents of this document, its re-
quirements or its applicability to them. The record further re-
flects that the Employer does not require its registered nurses to
indoctrinate patients into the Seventh Day Adventist religion or
to disseminate religious materials unless a patient specifically
requests such materials.
CEO Devitt testified that a brochure which discusses, inter
alia, the Employer’s religious mission and goals is sent to all
persons requesting job applications from the Employer.14 The
12 The record reflects that the Employer will serve meat to patients
upon request.
13 Such circumstances include those involving rape or incest; the
likelihood of the child being deformed or retarded; or if the mother is
unwed and under 15 years of age.
14 This brochure discusses briefly the Church and its health care mis-
sion, including the fact that it is a nonsmoking and alcohol-free hospital
with a cafeteria that serves vegetarian food; that employees are ex-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 610
Employer also shows a video to applicants who come to the
Employer’s facility which likewise explains its mission and
goals. According to Devitt, she also makes an orientation pres-
entation to new employees which includes coverage of the Em-
ployer’s mission statement,15 vision statement,16 and a brief
history of the Church and the health care ministry within the
Church.
Although the record does not disclose the precise number of
registered nurses who are members of the church, Devitt ac-
knowledged in her testimony that perhaps as few as 20 of the
Employer’s 170 registered nurses are church members. She
testified that the Employer does not require its registered nurses
to be church members but stated that “we would hope through
the selection process, both them selecting us and us selecting
them, that we have many common values.”
The record includes the bylaws for the nursing staff in a
document titled “Departmental Policy & Procedure Manual.”
The bylaws pertain to the philosophy, purpose, objectives,
standards, governance, and disciplining of the nursing staff.
This document states that the role of the professional registered
nurse is to “assume accountability for the delivery of nursing
care within the institution.” The document does not describe
any specific religious purpose or function that is to be carried
out by the registered nurses nor does it state that nurses are
evaluated based on a duty to carry out any religious functions.
Marie Ann Vear testified that she is employed by the Em-
ployer as a full-time registered nurse in the intensive care unit.
According to Vear, she has previously worked for non-
Adventist hospitals (i.e., Ukiah General Hospital for 7 years
and Tahoe Forrest Hospital for 2 years) and has worked for at
the Employer’s facility since 1989. She testified that there had
been no changes in her work duties as a result of working for an
Adventist hospital as opposed to a non-Adventist hospital.
Analysis
As stated above, the Employer contends that the Board
should consider this case in conjunction with University of
Great Falls, supra, and that the Board should decline to assert
jurisdiction over it because (1) application of the Act to the
Employer would violate the RFRA; (2) application of the Act

pected to dress modestly; that the Sabbath is observed by not having
routine and noncritical activities conducted on the Sabbath; and that
employees will see the Employer’s religious mission statements on
display throughout the hospital. The brochure further states that “if the
values discussed here meet your personal and philosophical goals, you
may be just the person we are looking for to step in and fill an impor-
tant role on our team of dedicated and caring workers.”
15 The mission statement referred to by Devitt is a one-page docu-
ment titled: “Ukiah Valley Medical Center–Adventist Health Statement
of Mission.” This document states, inter alia, that the Center will oper-
ate: “in a manner consistent with the philosophy of the Seventh Day
Adventist Church. This philosophy strives for a balance of physical,
mental and spiritual health through prevention and treatment of disease,
allowing each person to achieve his or her full potential.”
16 The vision statement is a one-page document stating, inter alia,
that the Center is a “continuation of the healing ministry of Christ” and
will be known for “providing quality health care through personalized
services, technical excellence, and efficient use of resources in a coop-
erative environment.”
to the Employer would violate the rights of the Hospital, its
officers and Board members under the free exercise clause of
the First Amendment; (3) application of the Act to the Em-
ployer would entangle the Board in questions of Church doc-
trine, in violation of the establishment clause of the First
Amendment; and (4) even if the exercise of jurisdiction were
not precluded by the RFRA or the Constitution, the same
underlying policy considerations require the Board to grant an
exemption to the Employer from the requirements of the Act.
The Petitioner takes opposing positions on these issues.
The RFRA prohibits the “[government] from “substantially
burden[ing] a person’s exercise of religion even if the burden
results from a rule of general applicability unless the govern-
ment can demonstrate that the burden “(1) is in furtherance of a
compelling governmental interest; and (2) is the least restrictive
means of furthering that . . . interest.”17
In City of Boerne v. Flores, 521 U.S. 507 (1997), the Su-
preme Court held that the RFRA was unconstitutional as ap-
plied to State law because Congress had exceeded its enforce-
ment powers under Section 5 of the Fourteenth Amendment.
Since the Supreme Court rendered its decision in Boerne, the
Eighth Circuit, in In Re Young, 141 F.3d 854, 857 (8th Cir
1998), has found that the RFRA to be constitutional as applied
to federal law.18 As the Eighth Circuit stated with regard to the
RFRA and the Supreme Court’s decision in Flores:

17 The RFRA states, in relevant part:

(a) Findings

The Congress finds that—
(1) the framers of the Constitution, recognizing free exercise
of religion as an unalienable right, secured its protection in the
First Amendment to the Constitution;
(2) laws “neutral” toward religion may burden religious exer-
cise as surely as laws intended to interfere with religious exercise;
(3) governments should not substantially burden religious ex-
ercise without compelling justification;
(4) in Employment Division v. Smith, 494 U.S. 872 (1990) the
Supreme Court virtually eliminated the requirement that the gov-
ernment justify burdens on religious exercise imposed by laws
neutral toward religion; and
(5) the compelling interest test as set forth in prior Federal
court rulings in a workable test for striking sensible balances be-
tween religious liberty and competing prior governmental inter-
ests.

(b) Purposes

The purposes of this chapter are—
(1) to restore the compelling interest test as set forth in Sher-
bert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406
U.S. 205 (1972) and to guarantee its application in all cases where
free exercise of religion is substantially burdened; and
(2) to provide a claim or defense to persons whose religious
exercise is substantially burdened by government.
18 In Alamo v. Clay, 137 F.3d 1366 (D.C. Cir. 1998), the D.C. Cir-
cuit found that a church did not have standing to challenge a Parole
Commission’s decision to deny parole to its pastor. In rendering its
decision, the court assumed, without deciding, that notwithstanding the
Supreme Court’s decision in Boerne, the RFRA was still valid law with
regard to its application to Federal law.
UKIAH VALLEY MEDICAL CENTER 611
[The] RFRA was enacted as a legislative response to the Su-
preme Court’s decision in Employment Div., Dep’t. of Human
Resources v. Smith, 494 U.S. 872, 110 S.Ct. 1595, (1990). In
Smith, the Supreme Court held that the First Amendment
“right of free exercise [of religion] does not relieve an indi-
vidual of the obligation to comply with a valid and neutral law
of general applicability on the ground that the law proscribes
(or prescribes) conduct that his religion prescribes (or pro-
scribes).” Id. at 879, 110 S.Ct. at 160 (quotations omitted). In
reaching this holding, the Supreme Court effectively over-
ruled precedent that had provided greater protection to indi-
viduals whose religious practices were burdened by the opera-
tion of neutral laws. See Id., at 883–885, 110 S.Ct. at 1602–04
(rejecting rule of Sherbert v. Verner, 374 U.S. 398, 83 S.Ct.
1790, (1963), that “governmental actions that substantially
burden a religious practice must be justified by a compelling
governmental interest”).

As noted above, the Board has delegated its authority to the
undersigned pursuant to Section 3(b) of the Act to determine
whether a question of representation exists and this requires a
determination of whether to assert jurisdiction over the Em-
ployer. Therefore, I decline to transfer this case to the Board
and will make a determination as to whether the Board may
properly assert jurisdiction over the Employer.
In Mid American Health Services, 247 NLRB 752 (1980), a
decision that predates the RFRA and the Supreme Court’s deci-
sion in Smith, the Board asserted jurisdiction over a health care
institution operated by an employer that stood in a similar hier-
archical relationship to the Seventh Day Adventist Church as
the Employer herein. In that case, the employer, a Wisconsin
corporation that owned and operated six extended care nursing
homes, was in turn owned by Great Lakes Adventists Health
Services, Inc., the regional arm of the Seventh Day Adventist
Church that operates the Church’s health care delivery system
in the States of Illinois, Indiana, Wisconsin, and Michigan.
Like the Employer in the instant case, the employer in Mid
American Services asserted that the Board’s assertion of juris-
diction over it would substantially impair its practice of religion
and infringe upon its constitutional rights in contravention of
the establishment and free exercise clauses of the First
Amendment to the Constitution. Like the Employer in the in-
stant case, the employer in Mid American Services, asserted
that as:

a matter of religious principle and on the basis of Holy Scrip-
ture, the church teaches that an individual may not properly
relinquish his or her own spiritual autonomy by joining a la-
bor 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.

The employer in Mid American Services further contended,
like the Employer in the instant case, that the Church’s opera-
tion of the nursing home at issue merited First Amendment
protection because the operation of its health care facilities was
an integral and inseparable part of the Church’s spiritual and
religious mission. As with the Employer in the instant case, the
majority of the employees in the proposed bargaining unit were
not members of the Seventh Day Adventist Church.
In determining whether to assert jurisdiction over the em-
ployer in Mid American Services, the Board first addressed the
Supreme Court’s decision in Catholic Bishop of Chicago, su-
pra,19 In addressing Catholic Bishop, the Board noted that the
Supreme Court had held that “because the Board’s assertion of
jurisdiction raised serious constitutional questions it was first
necessary to determine whether the legislative history of the
Act manifested a clearly expressed affirmative intention, on the
part of Congress, that the Board assert jurisdiction in such
cases.” The Board noted that in Catholic Bishop, the Supreme
Court had found no clear expression of legislative intent that
the Board assert jurisdiction over religious schools and had
“declined to construe the Act in a manner which would . . .
necessitate resolution of the serious constitutional questions
which an assertion of jurisdiction would otherwise raise.” 247
NLRB at 752.
The Board then examined the legislative history of the 1974
health care amendments to the Act20 and found that Congress
had clearly expressed an affirmative intention that the Board
assert jurisdiction over hospitals owned, operated or managed
by religious institutions. Accordingly, the Board asserted juris-
diction over the employer in that case. In so finding, the Board
stated the following:

The health care amendments, inter alia, removed the preexist-
ing jurisdictional exemption accorded nonprofit hospitals by
Section 2(2) of the Act. (footnote omitted). Given earlier
Board determinations, the repeal of the exemption for non-
profit 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 reli-
gious teaching or tenets.” No such amendment was intro-
duced by any member of the Congress. Senator Ervin did in-
troduce a proposed proviso to the new Section 2(14) of the
amendments (setting forth the definition of a “health care in-
stitution”) which would have maintained a jurisdictional ex-
emption for hospitals “owned, supported, controlled or man-
aged by a particular religion or by a particular religious corpo-
ration or association.” The Ervin Amendment was rejected
by the Senate. The legislative history, when coupled with the
enactment by Congress of other legislation specifically di-
rected toward the problem of potential conflict between an
employee’s religious beliefs and collective-bargaining re-

19 In Catholic Bishop, the Supreme Court held that the Board did not
have jurisdiction over the parochial schools in question because there
was no showing of a specific congressional intent to mandate their
coverage under the Act. The Supreme Court found that in the absence
of a clear expression of an affirmative intention by Congress that teach-
ers in church-operated schools be covered by the NLRA, the Supreme
Court would not construe the Act in a manner that could, in turn, call
upon the court to resolve difficult and sensitive questions arising out of
guarantees of Religion clause of the First Amendment.
20 Public Law 93–360, 88 Stat. 397 (1974).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 612
sponsibilities, removes, in our judgment, any doubt that the
Congress clearly intended the Act to apply to health care insti-
tutions operated by religious institutions in general and the
Seventh Day Adventist Church in particular. [Footnotes
Omitted.]

In asserting jurisdiction over the employer in Mid American
Services, the Board stated that by doing so it was following a
clear legislative mandate. 247 NLRB at 753. The Board’s in-
terpretation of the legislative history of Section 2(14) of the Act
in this regard has been affirmed by the courts. See, e.g., St.
Elizabeth Community Hospital v. NLRB, 708 F.2d 1436, (9th
Cir. 1983) (“This legislative history indicates an affirmative
intention of Congress to subject church-operated hospitals to
Board jurisdiction. . . .”); Tressler Lutheran Home v. NLRB,
677 F.2d 302 (3d Cir. 1982).21
The Board’s Mid American Services decision illustrates the
basis for distinguishing the employer in the instant case from
that in University of Great Falls, the case currently pending
before the Board. Thus, in University of Great Falls, the em-
ployer, a university owned and operated by a religious order of
the Catholic Church, contends that the Board lacks jurisdiction
over it because it is a religious school and the Supreme Court
found in Catholic Bishop, no clear expression in the legislative
history of the Act that the Board assert jurisdiction over reli-
gious schools. However, in Mid American Services and subse-
quent cases, the Board has found that the legislative history of
the health care amendments to the Act expresses the clear intent
of Congress that the Board assert jurisdiction over health care
institutions that, like the Employer, are owned, operated and
managed by religious institutions. Accordingly, the instant
case is plainly distinguishable from the Catholic Bishop line of
cases based on the Board’s analysis in Mid American Ser-
vices.22
In Mid American Services, the Board stated that “any final
determination concerning the constitutionality of that mandate
must . . . come from the courts, who have the unquestioned
authority to review legislative enactments in light of constitu-
tional safeguards.” Id. at 753.23 The Board thereupon asserted

21 In NLRB v. World Evangelism, Inc., 656 F.2d. 1349 (9th Cir.
1981), the Ninth Circuit further observed as follows:

In contrast to its practice with regard to private schools, the Board has
long asserted jurisdiction over non-profit religious organizations en-
gaged in commercial operations. See Christian Board of Publica-
tions, 13 NLRB 534, 547 4 LRRM 323 (1939), enfd. 113 F.2d 678, 6
LRRM 971 (8th Cir. 1940). In 1947 Congress rejected proposed
amendments to exempt all non-profit organizations from the Act.
Congress appeared to ratify the Board’s assertion of jurisdiction at
least as to the commercial activities of non-profit organizations.
H.R.Rep.No. 510, 80th Cong., 1st Sess. 31–32 (1947), reprinted in 1
NLRB Legislative History of the Labor Management Relations Act,
1947, at 535–36 (1948). See NLRB v. Wentworth Institute, 515 F.2d.
550, 554–55, 89 LRRM 2033 (1st Cir. 1975).
22 See, e.g., Livngstone College, 286 NLRB 1308 (1987); Jewish
Day School of Greater Washington, 283 NLRB 757 (1987); Trustees of
St. Joseph’s College, 282 NLRB 65 (1986).
23 This view was reiterated by the Board in St. Elizabeth Community
Hospital, 259 NLRB 1135, 1137 (1982), when, on remand from the
Ninth Circuit, it was ordered to consider the employer’s First Amend-
ment challenge to the Board’s assertion of jurisdiction in light of the
jurisdiction over the employer in Mid American Services with-
out addressing the employer’s challenges to the Board’s asser-
tion of jurisdiction under the free exercise and establishment
clauses of the First Amendment. Thus, under the Board’s
analysis in Mid American Services, the Employer is plainly be
subject to the Board’s jurisdiction.24
The Employer contends, however, that the enactment of the
RFRA mandates an analysis of the First Amendment issues
presented by the assertion of Board jurisdiction over its opera-
tions. In response to this contention, I have applied the tests
established under the free exercise clause of the First Amend-
ment as set forth in Employment Div., Dept. of Human Re-
sources v. Smith, supra, and in the RFRA, and the Supreme
Court’s test under the establishment clause of the First
Amendment as set forth in Lemon v. Kurtzman, 403 U.S. 602,
612 (1971), in order to establish whether the Board may validly
assert jurisdiction over the Employer. 25
In Smith, the Supreme Court held that neutral, generally ap-
plicable laws may be applied to religious practices even when
not supported by a compelling governmental interest. See City
of Boerne v. Flores, 521 U.S. 507. The Act clearly falls within
this broad category of statutes. And, as observed by the Ninth
Circuit, “Neither would anyone plausibly assert that the NLRA
is not a “valid law of general applicability.” NLRB v. Hanna
Boys Center, 940 F.2d. 1295 (9th Cir. 1991).
Under the Supreme Court’s analysis in Smith, application of
the Act to the employer would not violate the free exercise

Supreme Court’s decision in Catholic Bishop, supra. Upon remand,
the Board observed that: “Under normal circumstances, there is a
philosophical question regarding whether or not an administrative
agency, such as the Board, should attempt to determine the constitu-
tionality of its own act. [quote and citation to Mid American Services
omitted]. . . . This, however, is not the normal case. The court of ap-
peals has specifically directed the Board to determine whether or not
the assertion of jurisdiction over Respondent is constitutional.” Id. at
1137. The Board thereupon proceeded to apply the First Amendment
establishment test and found that jurisdiction was validly asserted over
the employer. Its decision was subsequently upheld by the Ninth Cir-
cuit. St. Elizabeth Community Hospital v. NLRB, supra, 708 F.2d 1436.
24 In order to determine whether to assert jurisdiction over the com-
mercial operations of religious organizations, the Board has generally
applied the following two-fold test: (1) Is the employer engaged in
activities which are commercial in the generally accepted sense? and
(2) do the employees sought to be represented allocate a substantial
amount of time to activities which are commercial in nature? See Ec-
clesiastical Maintenance Services, 325 NLRB 629 (1998), and River-
side Church, 309 NLRB 806 (1992). In the instant case, the Employer
is clearly engaged in the commercial operation of an acute care hospital
and the employees in question are registered nurses who spend all or
most of their work time providing health care to patients of the hospital
and none of their work time teaching patients or anyone else of the
specific religious beliefs of the Seventh Day Adventist Church. Thus,
to the extent this test is applicable to the Employer, its application
would plainly support the Board’s assertion of jurisdiction over the
Employer.
25 It is also noted that in light of the remand by the Ninth Circuit in
St. Elizabeth’s Hospital, requiring the Board to apply the First Amend-
ment establishment analysis, it appears sensible to include an analysis
of that First Amendment test in my analysis inasmuch as it has also
been raised by the Employer here.
UKIAH VALLEY MEDICAL CENTER 613
clause of the First Amendment even if the Employer’s exercise
of religion were severely infringed by Board jurisdiction, unless
the employer’s free exercise claim fell within one of two excep-
tions to Smith’s general rule. Id. As explained by the Ninth
Circuit in Hanna Boys Center, those two exceptions are for
“hybrid claims (those involving an alleged infringement of
another constitutional right in addition to the free exercise). Id.
at 1601–1602, and for claims arising in ‘a context that lends
itself to individualized governmental assessment of the reasons
for the relevant conduct. [e.g.,] where a ‘good cause’ standard
create[s] a mechanism for individualized exemptions.” Id. at
1305.
The Employer contends that the instant case falls within the
exemption involving claims arising in “a context that lends
itself to individualized governmental assessment of the reasons
for the relevant conduct” because the Board has in place a sys-
tem of exempting certain employers such as federal reserve
banks, domestic employees, government employees, etc. I will
not attempt to address each of the groups cited by the Employer
as exempted from Board jurisdiction and distinguish the rea-
sons for their exemptions. Suffice it to say that with regard to
certain exemptions, such as those for federal and state employ-
ees, there are other federal and state agencies, such as the Fed-
eral Labor Relations Authority (FLRA), which have been cre-
ated to perform a parallel function to the Board’s with regard to
such groups.
One of the cases relied upon by the Employer in support of
its exemption argument is the Supreme Court’s Catholic Bishop
decision. However, as noted above, in contrast to the situation
presented in Catholic Bishop, there is a clear legislative history
supporting the Board’s assertion of jurisdiction over health care
institutions operated by religious groups including, in particu-
lar, those institutions owned and operated by the Seventh Day
Adventist Church. In these circumstances, the second excep-
tion to Smith would not be applicable to the Employer. Inas-
much as the legislative history of Section 2(14) of the Act re-
flects that the Congress declined to exempt health care institu-
tions operated by the Seventh Day Adventist Church from the
Board’s jurisdiction when it was specifically requested to do so
by the Seventh Day Adventist Church, the legislative history
does not support the granting of the individualized exemption
requested by the Employer.
The Employer also contends that the instant case falls within
the “hybrid claims” exception to Smith (i.e., those involving an
alleged infringement of another constitutional right in addition
to the free exercise exception) because the assertion of Board
jurisdiction would infringe not only upon the Employer’s reli-
gious beliefs but would also burden its constitutional rights of
free speech and free association. I find no need to address this
contention because, as discussed below with respect to the Em-
ployer’s contentions regarding the RFRA, assuming that the
Employer’s claim is a “hybrid claim” under Smith, the Board’s
assertion of jurisdiction over the Employer would still pass
muster under the compelling state interest/strict scrutiny test as
discussed below.
Application of the RFRA Supports the Assertion of
Jurisdiction Over the Employer
The Ninth Circuit has stated that in construing and applying
the RFRA, it will look to its decisions prior to Smith, which
held that:

To show a free exercise violation, the religious adherent . . .
has the obligation to prove that a governmental regulatory
mechanism burdens the adherent’s practice of his or her relig-
ion by pressuring him or her to commit an act forbidden by
the religion or by preventing him or her from engaging in
conduct or having a religious experience which the faith man-
dates. This interference must be more than an inconvenience;
the burden must be substantial and an interference with a tenet
or belief that is central to religious doctrine.

Graham v. Commissioner, 822 F.2d. 844, 850–851 (9th Cir.
1987); Goehring v. Brophy, 94 F.3d 1294, 1299 (9th Cir. 1996).
Under the Ninth Circuit’s decisions, if a party is able to show a
substantial burden to his or her free exercise of religion, then
the Government must demonstrate that its regulatory mecha-
nism furthers a compelling interest; and (2) that it is the least
restrictive means of furthering that compelling state interest.
Id. See Wisconsin v. Yoder, 406 U.S. 205 (1972), and Sherbert
v. Verner, 374 U.S. 398 (1963).
With regard to whether the Board’s assertion of jurisdiction
over the Employer would substantially burden the practice of
religion by the Employer as an institution and by the Em-
ployer’s CEO, Boards of Directors and others involved with
recognition of a labor organization, I find that the application of
the Act would clearly burden the exercise of religion by the
Employer as an entity and by such persons. There is no dispute
either in the evidence presented herein or in the case law that
the Seventh Day Adventist Church has an established belief
against its members joining or bargaining with labor organiza-
tions that would be impacted by a certification of the Petitioner
here. Thus, the Employer has asserted that being required to
bargain with a labor organization runs against a central tenet of
its religious beliefs to the extent that it may be required to di-
vest itself of its facility herein if it is required to bargain with a
labor organization. Accordingly, I do not question that a certi-
fication of the Petitioner or the requirement to bargain with the
Petitioner would burden the Employer and its directors in the
exercise of their religious beliefs.
However, it is well established that the freedom of exercise
of religion is not absolute. See Yott v. North American Rock-
well Corp., 501 F.2d 398 (9th Cir. 1974).26 Case law has “long
drawn the distinction between the absolute freedom to hold
religious beliefs and the freedom of conduct based on religious
beliefs, which latter freedom may be curtailed in some circum-
stances for the protection of society.” Cap Santa Vue, Inc. v.

26 In Yott, supra, the Ninth Circuit ruled that an employee’s First
Amendment rights were not infringed by being forced to pay union
dues under a union-security clause even though it burdened his belief as
a Seventh Day Adventist against not associating with unions, the court
finding that the public and private interest in collective bargaining and
industrial peace outweighed the employee’s interest.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 614
NLRB, 424 F.2d. 883, (D.C. Cir. 1970),27 Cantwell v. Connecti-
cut, 310 U.S. 296, 303–304 (1940). In the instant case, what is
at issue is the application of the Act not to the holding of reli-
gious beliefs per se but to the Employer’s conduct based on
those beliefs with respect to its operation of its health care facil-
ity which serves the general public and employs many non-
Seventh Day Adventists employees, including registered
nurses, in order to provide care to its patients.
Thus, with regard to the second prong of the RFRA test, I
note that both the Board and the Courts have concluded the
Government has a compelling interest in applying the Act to
employers who, like the Employer, are religious entities en-
gaged in commercial enterprises, including hospitals. See Cap
Santa Vue, Inc. v. NLRB, supra; St. Elizabeth Community Hos-
pital, supra, 708 F.2d 1436; NLRB v. Hanna Boys Center, su-
pra, 940 F.2d at 1305. Thus, as stated by the Ninth Circuit in
St. Elizabeth Community Hospital, 708 F.2d at 1442:

the government has a compelling interest in regulating labor
relations so as to minimize industrial strife and disputes that
would disrupt the national economy. Congress considered la-
bor peace among nonprofit health care institutions important
enough to apply the Act to hospitals such as St. Elizabeth’s.

As the Supreme Court noted years ago in NLRB v. Jones &
Laughlin Steel Corp., 301 U.S. 1 at 42 (1937):

Experience has abundantly demonstrated that the recognition
of the right of employees to self-organization and to have rep-
resentatives of their own choosing for the purpose of collec-
tive bargaining is often an essential condition of industrial
peace.

In the instant case, the Employer operates the only hospital
in Ukiah. It is open to the general public and it employs many
non-Adventist employees, including mostly non-Adventists as
registered nurses. In addition, on a nationwide basis, the Sev-
enth Day Adventist Church, through its health care network,
operates a substantial number of health care institutions em-
ploying thousands of employees. In the States of California,
Hawaii, Oregon and Washington alone Adventist Health oper-
ates 19 hospitals and annually generates approximately $1 bil-
lion in revenue. In sum, the Seventh Day Adventist Church
operates a substantial network in the health care industry and in
doing so, impacts many employees as well as the general public
which utilizes its services.
Thus, the determination as to whether to assert jurisdiction
over the Employer in the instant case, does not require the mere
balancing of a governmental regulatory scheme against the
burden imposed on the right of the Employer and its officials to
freely exercise their religion. Rather, we must balance the First
Amendment rights of employees (who are not members of the

27 In Cap Santa Vue, Inc. v. NLRB, supra, the D.C. Circuit affirmed
the Board’s finding that two employers who were practicing members
of the Seventh Day Adventist Church and who had religious beliefs in
accord with the Church, including that they were not permitted to have
anything to do with labor unions, had violated the Act by refusing to
bargain with a union certified by the Board as the exclusive representa-
tive of certain employees at the two convalescent centers operated by
the employers.
Employer’s Church) to associate with other employees in orga-
nizing a union for collective-bargaining purposes. See Thomas
v. Collins, 323 U.S. 516 at 532 (1944); Shelton v. Tucker, 364
U.S. 479 at 485–487 (1960); McLaughlin v. Tilendis, 398 F.2d
287 (7th Cir. 1968); State County Employees AFSCME v.
Woodward, 406 F.2d 137 (8th Cir. 1969). See also St. Eliza-
beth Community Hospital, 259 NLRB at 1138. Moreover, we
must also balance the Employer’s First Amendment rights
against the public interest in having health care services pro-
tected from disruption from industrial strife and disputes. In
these circumstances, despite the burden to the Employer’s First
Amendment free exercise rights, I find that the balance weighs
in favor of the application of the Act to the Employer.
Under the RFRA analysis, the last test under the free exer-
cise clause of the First Amendment requires a determination of
whether the assertion of Board jurisdiction is the least restric-
tive means of furthering the compelling state interests at stake.
I find that there is no less restrictive means available to the
assertion of Board jurisdiction herein. Thus, the Employer and
the other health care institutions owned and operated by the
Seventh Day Adventist Church comprise a sizable number of
the institutions delivering health care to the general public na-
tionwide. Collectively, these institutions employ thousands of
health care workers across the country, many of whom are ap-
parently not church members. Under such circumstances, to
grant an exemption to the Employer and to such other church-
operated health care institutions would potentially impact a
significant segment of the workforce in the health care industry
and “permit labor disagreements to threaten delivery of vital
medical services.” See St. Elizabeth Community Hospital v.
NLRB, supra at 1441. For such reasons, I find that declining to
assert jurisdiction over the Employer would “interfere with the
fulfillment of the government’s compelling interest in promot-
ing national labor peace.” Further, this conclusion is consistent
with the Congressional mandate supporting the Board’s asser-
tion of jurisdiction over institutions such as the Employer.
Accordingly, I find that the assertion of the Board’s jurisdiction
is the least restrictive means of furthering the compelling state
interests at stake here.
In sum, I find subjecting the Employer to the Board’s juris-
diction would not violate the free exercise clause of the First
Amendment under standards enunciated in Smith and the
RFRA.
Whether the Assertion of Jurisdiction By the Board Over the
Employer Violates the Establishment Clause of the First
Amendment to the Constitution
As the Ninth Circuit noted in NLRB v. Hanna Boys Center,
supra, 940 F.2d at 1303:

The establishment clause of the First Amendment re-
quires government neutrality with respect to religion. It
was intended to protect against ‘sponsorship, financial
support, and active involvement of the sovereign in reli-
gious activity. To pass constitutional muster, the Board’s
application of the NLRA to [an employer’s employees]
(1) must have a secular purpose, (2) must have a primary
effect that neither advances nor inhibits religion, and (3)
UKIAH VALLEY MEDICAL CENTER 615
must not foster excessive state entanglement with religion.
[Citations omitted.]

In Hanna Boys Center, the court concluded that Congress’
purpose in enacting the Act was secular—to minimize indus-
trial strife by protecting employees’ rights to organize and bar-
gain collectively. The court further concluded that the Act’s
primary effect “is to require collective bargaining and to reduce
labor disruptions, rather than to promote or deter the acceptance
or perpetuation of any religion.” 940 F.2d at 1303. As in
Hanna Boys Center, there is nothing in the instant case to sug-
gest that the Board’s assertion of jurisdiction over the Employer
will deviate from this secular purpose of primary effect.
Here, as in Hanna Boys Center, the only potential violation
of the establishment clause is in the “entanglement prong.” See
Lemon v. Kurtzman, 403 U.S. 602, 612 (1971). The Supreme
Court in Lemon articulated three factors that are to be weighed
in determining whether there is excessive entanglement: “the
character and purpose of the institutions that are benefited, the
nature of the aid that the State provides, and the resulting rela-
tionship between government and the religious authority.”
Lemon, 403 U.S. at 615. See also Hanna Boys Center, supra.
With regard to the first factor in Lemon (the character and
purpose of the institutions that are benefited), the Employer has
presented evidence to substantiate that its primary mission is to
carry out the mission of the Church. However, the record also
substantiates that as a practical matter, the Employer provides
health care services similar to those provided by any other
acute care hospital. Indeed, it is the only hospital in Ukiah.
While it appears that the members of the Employer’s boards of
directors and its CEO are church members and are obligated to
abide by the teachings of the Church, the record shows that the
Employer’s employees are not required to be members of the
Church or to be inculcated into that religion beyond being made
familiar with it in order to work for the Employer. Nor are the
employees required to expound the faith to the Employer’s or
to disseminate church literature. Indeed, the record reflects that
only about 20 of the 170 registered nurses employed at the
Employer’s facility are members of the Employer’s Church. In
sum, as in Hanna Boys Center, while the record reflects that the
Church’s mission and faith is “woven thoroughly into the insti-
tution,” it also establishes that the Employer’s primary purpose
is secular—to provide health care services to the general public.
With regard to the nature of the Government activity being
mandated, Board jurisdiction, there is ample evidence herein as
in Hanna Boys Center that the Employer’s religious character
and mission are furthered by persons other than the employees
petitioned for herein. Thus, most of the employees in the peti-
tioned-for unit are not members of the Employer’s Church.
Second, the employees in the petitioned-for unit are not in-
volved in teaching the tenets of the Employer’s religion to pa-
tients but, rather, in the provision of nursing services to patients
within the Employer’s facility. Further, those persons who are
responsible for disseminating the Church’s beliefs, such as the
Employer’s chaplains, would be excluded from the unit.
Finally, with regard to the relationship between the Govern-
ment and the religious authority, Board jurisdiction over the
employment relations between the employees in the petitioned-
for bargaining unit and the Employer will be confined to over-
seeing those issues arising in the area of collective bargaining
and labor relations. Because the unit employees’ duties are
overwhelmingly secular in nature, arbitration of grievances
arising out of that employment should not involve the Board in
issues of theology. Nor will it render any benefit to the Church
or any other religion or advance nonreligion over religion gen-
erally. Board jurisdiction will require governmental involve-
ment only with regard to specific charges that may be filed on
behalf of these employees. As stated by the court in Hanna
Boys Center, supra at 1304:

It will not involve the Board in continuing or systematic
monitoring of Church activities and should not involve moni-
toring the religious aspects of [the Employer’s] activities at
all. Board involvement will not create the reality or appear-
ance of the government’s supervising or collaborating with
the Church.

On the other hand, it is acknowledged that the assertion of
jurisdiction by the Board over the Employer will affront the
Employer’s religious tenet against joining or recognizing un-
ions if the Petitioner is ultimately certified by the Board. How-
ever, as the Court recognized in Lemon, “total separation be-
tween church and state . . . is not possible in an absolute sense.
Some relationship between government and religious organiza-
tion is inevitable.” Id. at 614.
In the instant case, where the Employer is engaged in a secu-
lar activity such as providing health care services; employs
nonchurch member employees who are not involved in pro-
pounding its religion; and where the Board’s involvement will
produce only an incidental intrusion in the limited area of col-
lective bargaining and labor relations, I find that the resulting
entanglement of the Board with the Employer is not sufficient
to create active involvement of the sovereign in religious activ-
ity.” Lemon, supra at 612.
In these circumstances, I find that it would not violate the es-
tablishment clause of the First Amendment to the Constitution
for the Board to assert jurisdiction over the Employer. As the
record reflects that the Employer meets the Board’s standards
for the assertion of jurisdiction over health care institutions, I
find that the Employer is engaged in commerce and that it will
effectuate the purposes of the Act to assert jurisdiction over the
Employer. In these circumstances, the Employer’s motion to
transfer this proceeding to the Board is denied and the record in
this matter will be reopened for the purpose of receiving evi-
dence on all remaining issues.