St. Elizabeth Community Hospital v. National Labor Relations Board, and Hospital and Institutional Workers' Local 250, Seiu, Afl-Cio, Intervenor

(dissenting):

I respectfully dissent.

The Hospital raised its First Amendment challenge in timely fashion during the representation proceedings and chose to stand on the record it had made. The Hospital’s request for review of the Regional Director’s supplemental decision described the religious character of the Hospital and contended that the Board’s assertion of jurisdiction violated the Free Exercise and Establishment Clauses. Significantly, the Hospital did not request an opportunity to develop further facts with respect to the issue. Although the Board’s two-sentence order denying review did not specifically discuss any of the arguments advanced by the Hospital, it is evident that in denying review the Board rejected the First Amendment challenge. The jurisdictional issue was raised again in the unfair labor practice proceedings but, as the Board pointed out, the Hospital did not offer any newly discovered or previously unavailable evidence and did not allege any specific circumstances designed to strengthen its challenge. Under these circumstances we have a duty to decide the case on the record made by the Hospital.

Moreover, I seriously doubt that the Hospital can…

This case arose on a petition for review and cross-application for enforcement of an order of the NLRB requiring the St. Elizabeth Community Hospital, a charitable institution owned and operated by a religious order, the Sisters of Mercy, to enter into collective bargaining with the Hospital and Institutional Workers, Local 250, SEIU, AFL-CIO (Union). The Board found that the hospital had violated §§ 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. §§ 158 (a)(1) and (5), by refusing to bargain with the Union or to provide information relevant to collective bargaining.

We find that the Hospital’s First Amendment challenge to the Board’s jurisdiction was timely raised, and we remand to the Board for further consideration in light of NLRB v. Catholic Bishop, 440 U.S. 490 , 99 S.Ct. 1313 , 59 L.Ed.2d 533 (1979).

FACTS

In March 1977, the Union filed petitions with the Board seeking to represent four groups of employees of the Hospital. A representation hearing was held on March 28, 1977, at which the focus was on the status of different hospital employees. The Hospital did not question the Board’s jurisdiction at that hearing. The Board’s Regional Director, on May 20,…

626 F.2d 123 105 L.R.R.M. (BNA) 2570 , 89 Lab.Cas. P 12,223 ST. ELIZABETH COMMUNITY HOSPITAL, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Hospital and Institutional Workers' Local 250, SEIU, AFL-CIO, Intervenor. No. 78-2959. United States Court of Appeals, Ninth Circuit. Argued and Submitted Jan. 15, 1980. Decided Aug. 21, 1980. J. Mark Montobbio, San Francisco, Cal., for petitioner. Lynne Deitch, Washington, D. C., argued, for respondent. David Rosenfeld, Van Bourg, Allen, Weinberg & Roger, San Francisco, Cal., for intervenor. On Petition to Review a Decision of the National Labor Relations Board. Before SNEED, PREGERSON, and ALARCON, Circuit Judges. PER CURIAM: 1 This case arose on a petition for review and cross-application for enforcement of an order of the NLRB requiring the St. Elizabeth Community Hospital, a charitable institution owned and operated by a religious order, the Sisters of Mercy, to enter into collective bargaining with the Hospital and Institutional Workers, Local 250, SEIU, AFL-CIO (Union). The Board found that the hospital had violated §§ 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. §§ 158 (a)(1)…