Petition by Mercy Hospital of Buffalo to set aside a Supplemental Decision and Order of the National Labor Relations Board, dated June 3, 1983. The Board cross-petitions for enforcement of its orders in full.
Feinberg, Chief Judge, Oakes and Pierce, Circuit Judges.
Mercy Hospital of Buffalo ("Hospital") brings this petition to review and set aside a Supplemental Order issued on June 3, 1983, by the National Labor Relations Board ("NLRB" or "Board"). The Board has cross-petitioned for enforcement of its March 19, 1981 and June 3, 1983 orders, finding the Hospital in violation of §§ 8(a)(1) and (5) of the National Labor Relations Act ("Act"), 29 U.S.C. §§ 158(a)(1) and (5). Previously, the Hospital petitioned this court to review and set aside the March 19, 1981 order, which petition resulted in a reversal and remand for further proceedings. Mercy Hospital of Buffalo v. NLRB, 668 F.2d 661 (2d Cir. 1982)(" Mercy I "). For the reasons set forth below, the petition is denied and the Board's cross-petition for enforcement in full is granted.
Additional details relevant to this case are set forth in our opinion in Mercy I, and familiarity therewith is assumed. We summarize here only those facts necessary for the disposition of the issues in the present action.
In November, 1979, Buffalo and Western New York Hospital and Nursing Home Council, AFL-CIO ("Union") filed a representation petition with the Board seeking certification as the exclusive bargaining representative of the Hospital's business office clerical employees. An election was held on December 27 and 28, 1979, resulting in a vote of 33 to 32 in favor of the Union, and a single challenged ballot. The challenged ballot was cast by Sister Mary Blanche, a member of the Sisters of Mercy of the Buffalo Diocese (the "Order"). The Union challenged the ballot because Sister Blanche was a member of the Order and the Order, it contended, controlled the Hospital.
The Board's Regional Director conducted an investigation and, on February 1, 1980, issued a report recommending that the Board sustain the challenge to the ballot and that the Union be certified. According to the Regional Director, the challenged voter belonged to the religious order that controlled the Hospital and was ineligible to vote because of her special relationship with the employer. Over the exception of the Hospital, the Board adopted the Director's findings and recommendations, and certified the Union.
Thereafter, when the Hospital refused to bargain with the Union, the Union filed a charge, and the Regional Director issued a complaint alleging that the Hospital's refusal to recognize the Union violated sections 8(a)(1) and (5) of the Act. The Hospital defended this charge by asserting that the certification was invalid because the challenge to Sister Mary Blanche's ballot was improperly upheld.
On March 19, 1981, the Board issued its decision and order upon the General Counsel's motion for summary judgment. The Board concluded that the Hospital had violated sections 8(a)(1) and (5) of the Act by refusing to bargain with the Union, and required the Hospital to, inter alia, cease and desist from this unfair labor practice.
The Hospital petitioned this court to review and set aside the order, and the NLRB filed a cross-application for enforcement. In an opinion filed on January 7, 1982, we concluded that summary judgment was inappropriate on the record presented, and that the Hospital was entitled to a hearing to determine whether the Order controls the Hospital and whether Sister Blanche, as a member of the Order, shares a sufficient community of interest with the employees in the bargaining unit so as to warrant her inclusion in the unit. Accordingly, the matter was remanded to the Board for further proceedings.
As a result of our decision in Mercy I, a formal hearing was conducted before an Administrative Law Judge ("ALJ") for nine days in August and September, 1982. The ALJ, on January 11, 1983, issued a decision finding that the Order did control the Hospital and that Sister Blanche did not share a community of interest with the other business office clerical workers. On June 3, 1983, the Board, in its supplemental decision and order, affirmed the ALJ's decision with minor corrections. This petition for review and cross-petition for enforcement followed.
The question presented for our determination is whether the Board's unit determination, which excludes Sister Mary Blanche, is appropriate. If so, the Hospital's refusal to bargain with the Union is violative of sections 8(a)(5) and (1) of the Act. See Polymers, Inc. v. NLRB, 414 F.2d 999, 1001 (2d Cir. 1969), cert. denied, 396 U.S. 1010, 24 L. Ed. 2d 502, 90 S. Ct. 570 (1970). In support of its position that the unit determination is not appropriate, the Hospital contends that there is not substantial evidence to support the conclusions that the Order controls the Hospital and that Sister Blanche does not share a community of ...