On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.
Bauer, Wood, Circuit Judges, and Bailey Brown, Senior Judge.*fn*
In this appeal St. Elizabeth Hospital, which is owned and operated by the Franciscan Sisters Health Care Corporation,*fn1 petitions for review of an order of the National Labor Relations Board (NLRB or Board) requiring the hospital to collectively bargain with the Chauffeurs, Teamsters and Helpers Local 26 (the union).*fn2 The NLRB cross-petitions for enforcement. St. Elizabeth contends that the order should not be enforced because: (1) the first amendment precludes NLRB jurisdiction; (2) Local 26 is an inappropriate bargaining unit; and (3) the election approving Local 26 as the certified collective bargaining representative should be set aside as improperly conducted. For reasons stated below we hold that the NLRB has jurisdiction and remand this case to the agency for an evidentiary hearing on the remaining issues.
In July, 1980, the union filed a petition with the NLRB seeking to represent the hospital's Boiler Room and Maintenance employees. The hospital and the union stipulated, among other things, that the Maintenance, Laundry and Linen Department employees constituted an appropriate collective bargaining unit and that the hospital was an employer engaged in commerce within the meaning of the National Labor Relations Act. 29 U.S.C. § 151 et seq. An election was held on September 25, 1980; the union won by a vote of 17 to 13. Three ballots were challenged. Thereafter the hospital filed timely objections and an administrative investigation followed. The NLRB Regional Director recommended that the hospital's objections be overruled and that the union be certified. The NLRB adopted the Director's recommendations. Despite union certification the hospital refused to bargain and the NLRB General Counsel issued a complaint against the hospital, alleging that its refusal to bargain violated Sections 8(a)(5) and (1), 29 U.S.C. §§ 158(a)(5) and (1), and Section 2(6) and (7), 29 U.S.C. § 152(6) and (7) of the National Labor Relations Act. The NLRB held that the hospital's refusal to bargain constituted an unfair labor practice and ordered the hospital to honor the union's request to bargain. This appeal followed.
St. Elizabeth argues that the NLRB unconstitutionally exceeded its jurisdiction when it ordered the hospital to engage in collective bargaining with Local 26. Relying on NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 59 L. Ed. 2d 533, 99 S. Ct. 1313 (1979), the hospital maintains that the NLRB's assertion of jurisdiction will "inevitably create an impermissible risk of government entanglement with the religious functioning of the hospital." Petitioner's br. at 12. In contrast, the NLRB asserts that the hospital waived the jurisdictional issue by: (1) stipulating to all the facts necessary to support NLRB jurisdiction; and (2) failing to raise the challenge until after the union had won the election. The NLRB also argues that even if the jurisdictional challenge was not waived, it has authority to assert jurisdiction over religious employers where, as here, the employer is engaged in secular operations substantially affecting commerce.
While the union concedes that "as a general proposition, the jurisdiction of the Board . . . may be questioned at any time," it maintains that the facts upon which the jurisdictional challenge depends must be raised at "the earliest stage appropriate under Board procedures." Respondent's br. at 6. Because the facts in the stipulation*fn3 focused on the hospital's secular role rather than on the hospital's religious mission, the NLRB insists that the hospital is barred from raising the challenge here.
We cannot agree. First, although the stipulation did not state that St. Elizabeth was a religious institution, the hospital's name connotes religious affiliation and nothing in the record indicates that its religious affiliation was not known to all parties. Thus, we find no merit in the NLRB's argument that the facts upon which the jurisdictional challenge is based were not raised in a timely fashion. More important, while failure to raise a constitutional challenge to NLRB jurisdiction until the unfair labor practice hearing may waive the jurisdictional challenge, St. Anthony Hospital Systems v. NLRB, 655 F.2d 1028 (10th Cir. 1981), modified sub nom. Beth Israel Hospital & Geratric Center v. NLRB, 688 F.2d 697 (10th Cir.), cert. dismissed, 459 U.S. 1025, 103 S. Ct. 433, 74 L. Ed. 2d 522 (1982), St. Elizabeth raised the issue in the representation proceeding. Because the hospital did not wait until the enforcement proceeding to first raise its constitutional challenge, the jurisdictional issue is properly before this court. St. Elizabeth Community Hospital v. NLRB, 626 F.2d 123 (9th Cir. 1980).
Determination of whether NLRB regulation of religiously affiliated institutions violates the first amendment turns on the nature of the institution's activity. Where the institution's primary activity is secular, assertion of NLRB jurisdiction does not violate the institution's first amendment rights. Tressler Lutheran Home for Children v. NLRB, 677 F.2d 302 (3d Cir. 1982); NLRB v. St. Louis Christian Home, 663 F.2d 60 (8th Cir. 1981). Where the primary function of the institution is integrally related to its religious mission, the first amendment precludes NLRB interference. NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 59 L. Ed. 2d 533, 99 S. Ct. 1313 (1978).
The record here reveals that the hospital operates essentially as a nonreligious institution. Its stated purpose is to provide health care services to the general public. These services are available to all members of the community regardless of religious affiliation. Thus, while St. Elizabeth's health care is administered in a religious atmosphere, that atmosphere is secondary to the hospital's actual physical care, which is comparable to health care furnished by secular hospitals. Tressler Lutheran Home for Children v. NLRB, 677 F.2d 302 (3d Cir. 1982). Based on this record, we hold that the involvement of the NLRB in mediating collective bargaining questions does not violate the hospital's first amendment rights. St. Elizabeth Community Hospital v. NLRB, 708 F.2d 1436 (9th Cir. 1983); NLRB v. St. Louis Christian Home, 663 F.2d 60 (8th Cir. 1981).
We do not believe that NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 59 L. Ed. 2d 533, 99 S. Ct. 1313 (1978) compels a contrary conclusion. Catholic Bishop involved the NLRB's attempt to order the Bishop of Chicago to collectively bargain with lay teachers in the diocesan high schools. Concluding that: (1) parochial schools involve substantial religious activity; (2) teachers in these schools have a critical role in fulfilling the schools' religious mission; and (3) the employment relationships in this environment differ from those in nonreligious schools, the Supreme Court held that the NLRB exceeded its jurisdiction. The Court also found no evidence that Congress intended to bring religious schools within the scope of the National Labor Relations Act.
In contrast, Congress specifically amended the National Labor Relations Act to include non-profit hospitals, 29 U.S.C. § 152(14). Moreover, Congress rejected a provision in that amendment excluding hospitals operated by religious organizations, concluding that religiously affiliated hospitals operated in essentially the same way as non-religious ...