ON PETITION FOR REVIEW AND CROSS-APPLICATION FOR ENFORCEMENT OF AN ORDER DATED JANUARY 14, 1981 OF THE NATIONAL LABOR RELATIONS BOARD
Before Hunter, Weis and Higginbotham, Circuit Judges.
A nursing home affiliated with the Lutheran Church contends that application of the National Labor Relations Act to it would be a violation of the free exercise clause of the First Amendment. Relying on its own precedents, which cited specific statutory authorization, the Board rejected the jurisdictional challenge. The employer also objected to various union campaign activities, which it contended tainted a representation election at the home. We conclude that the First Amendment defense is not applicable in the circumstances of this case, and that the Board's bargaining order must be enforced.
After a majority of the employees voted in a Board election for representation by a union, the nursing home employer filed objections to the union's campaign activities. The Regional Director investigated the complaints, found them insubstantial, and certified the union as bargaining representative. When the employer refused to bargain, the union filed unfair labor practice charges and the Board entered summary judgment against the home.
Tressler Lutheran Home for Children operates a facility known as the Frostburg Village of Allegany County Nursing Home in Frostburg, Maryland. Tressler's Board of Directors is elected by the Central Pennsylvania and Maryland Synods of the Lutheran Church in America. Tressler is a non-profit entity dedicated to charitable work under the auspices of the Church.
The Home provides health care to individuals regardless of religious affiliation and its employees are not limited to adherents of the Lutheran Church. Operation of the Home is in furtherance of Lutheran practice in implementing the biblical corporate works of mercy. All employees are oriented in the Christian doctrine that, in caring for "one of these, the least of My brethren, you did it unto Me." Other than an orientation in this general philosophy, there is no evidence that any specific religious indoctrination of employees or patients occurs.
The Home enjoys tax exempt status as a religious organization. At one time it received income from the Lutheran Church, but its operating funds currently come from the patients, the majority of whom are eligible for Medicare and Medicaid. CETA funds are used to pay several employees.
The Home contested the jurisdiction of the Board at every stage of the proceedings on First Amendment grounds. The Board, however, following its rulings in Mid American Health Services, Inc., 247 N.L.R.B. 752 (1980), and Bon Secours Hospital, Inc., 248 N.L.R.B. 115 (1980), rejected the Home's objections. The Board had expressed doubt about its authority to adjudicate constitutional issues in these earlier cases, and instead relied upon specific authorization in the health care institution amendments to the Act. As the Board saw it, the Home's operations were essentially secular in nature, and were similar to those institutions that had no religious affiliations.
The Home's complaints about the pre-election activities included objections to a letter allegedly containing unspecified misrepresentations sent by the union two days before the balloting. Other literature the union circulated included questionnaires addressed to the employees on subjects to be contained in a collective bargaining agreement. Leaflets and letters discussed matters in controversy such as union dues, and accused the employer of having "continually lied and misrepresented the truth."
The Board rejected some challenges as being unsupported. Others were rejected as being matters that could be expected in normal campaigning. In addition, the employer had the opportunity to answer the material before the election, and did so in most instances.
Affidavits by various employees to the effect that they had been verbally abused by pro-union employees were also filed. Some stated that employees were told that if they did not vote for the union, its supporters would make life miserable for them. In another incident, racist remarks were made. The Board, however, found that there was no evidence that the speakers were members of the organizing committee or that the union had authorized the statements.
Initially, the Board authorized a bargaining unit consisting of service and maintenance employees, nursing and physiotherapy assistants, clerks, orderlies, and dietary, housekeeping and laundry employees. In later proceedings, licensed practical nurses were included in the unit, despite the employer's contention that they were supervisors. The Home petitioned for review and the Board filed a cross-application for enforcement.
Tressler's principal argument on appeal is that the Board's assumption of jurisdiction violates both the establishment and free exercise clauses of the First Amendment. According to Tressler, collective bargaining would impede its religious mission because the process of inquiry into aspects of collective bargaining and resolution of unfair labor practice charges itself would create an improper entanglement between church and state. The Board, however, asserts that Tressler's services-providing health care to those ...