Mercy Hospital of Buffalo

National Labor Relations Board - Board Decisions

Jun 3, 1983

266 N.L.R.B. 944 (N.L.R.B. 1983)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mercy Hospital of Buffalo and Buffalo and Western
New York Hospital and Nursing Home Council,
AFL-CIO. Case 3-CA-9974
3 June 1983
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS JENKINS, ZIMMERMAN, AND
HUNTER
On 11 January 1983 Administrative Law Judge
George Norman issued the attached Decision in
this proceeding.' Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed a reply brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, 2 and conclusions of the Administrative Law
Judge.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby reaffirms its Order of 19
March 1981 (at 255 NLRB 72), 3 and hereby orders
that the Respondent, Mercy Hospital of Buffalo,
Buffalo, New York, its officers, agents, successors,
and assigns, shall take the action set forth in said
Order.
l The Board's Decision and Order is reported at 255 NLRB 72 (1981).
2 In his Decision the Administrative Law Judge states that Sister Mary
Blanche received her first raise after 7 months of work. As noted earlier
in the Decision, however, Sister Mary Blanche began work in September
1975 and received her first raise the following July, approximately 11
months after she began work. We hereby correct the Decision to state II
months, rather than 7
a Member Hunter was not a member of the Board when the earlier
Decision issued The Second Circuit thereafter remanded the case to the
Board solely to decide whether "the Order controls the Hospital" and
whether Sister Mary Blanche's terms and conditions of employment
differ significantly from those of the other employees in the unit. Mercy
Hospital of Buffalo v. NLRB, 668 F. 2d 661. 664, 666 (2d Cir. 1982). The
foregoing issues are therefore the only ones before the Board in this pro-
ceeding. Accordingly, Member Hunter finds it unnecessary to pass on
any other issues contained in the original Board Decision.
DECISION
STATEMENT OF THE CASE
GEORGE NORMAN, Administrative Law Judge: A
formal hearing in this matter was conducted before me
on August 2-6, 30, and 31 and September I and 2, 1982,
in Buffalo, New York. The hearing was held pursuant to
an "Order Remanding Proceeding to Regional Director
266 NLRB No. 168
for Hearing," dated May 27, 1982, from the National
Labor Relations Board after the United States Court of
Appeals for the Second Circuit denied enforcement of
the Board's prior Order in the case and remanded the
matter to the Board (668 F.2d 661), holding, in effect,
that Respondent was entitled to a hearing to determine
whether the religious Order in the instant case controls
the Hospital and whether Sister Mary Blanche, whose
determinative ballot was challenged during the Decem-
ber 1979 election, shares a sufficient community of inter-
est with the employees in the bargaining unit so as to
warrant her inclusion in the unit.'
FINDINGS OF FACT
Background
The Order of the Sisters of Mercy
The Congregation of the Sisters of Mercy was found-
ed in Ireland and received church approval in 1941. The
Sisters of Mercy of the Buffalo Diocese, as to which
there is no affiliation with the founding group, was
formed and approved as a membership corporation under
the laws of New York on February 18, 1901, for the pur-
pose of "the care of orphans, hospital work, teaching
poor children, and instruction in industrial work."
The spiritual vows of the Order are set forth in the
constitution:
5. Our spirit is mercy, and our part in the plan of
salvation is to bring the mercy of God to His
people. The followers of the merciful Jesus and
daughters of Katherine McCauley, we ponder all
that mercy implies: fidelity, compassion, forgive-
ness, loving kindness. Mercy regards simply the
need of the other; it lifts up and supports; it gives
without measure; it is always gracious and tender.
6. We strive to live this spirit in a congregation
which is pontifical and apostolic; the vows we take
are the simple perpetual vows of consecrated chasti-
ty, proverty, obedience, and the service of.the poor,
the sick and the uneducated.
The Sisters of Mercy take a vow of poverty by which
they "renounce the independent use of material things"
and "hold in common whatever we gain by labor or gift
and commit ourselves to dependence on the community
for all our necessities."
The superior general and treasurer general, with the
approval of the elected governing body which is called
the Council, are empowered in the name of the Congre-
' The Second Circuit directed the hearing with respect to two issues:
(1) "On remand. the Board should reexamine its findings that the Order
controls the Hospital by considering further the nature of the powers and
responsibilities of the board of trustees [should be board of directorsl and
the scope of authority wielded by Sister Sheila Marie and her assistants."
(668 F.2d at 665 ) (2) "Since we conclude that the record at this point
does not justify the finding of control, the ruling regarding Sister Mary
Blanche [that she was 'in a sense part of the employer'] must obviously
be reconsidered However. even if the Board on sufficient evidence again
concludes that the Order controls the Hospital. it does not necessarily
follow that Sister Mar) Blanche must be excluded from the unit." (668
F.2d at 666.)
944
MERCY HOSPITAL OF BUFFALO
gation to acquire property, except that, without permis-
sion from Rome, no contract can be entered into for the
purpose of acquiring or selling permanent property or in-
curring debts where the value exceeds the sum set by the
National Conference of Bishops and approved by Rome.
Further, purchase and disposition of permanent property
and the incurrence of debts by the Order would require
the written permission of the superior general and the
approval of the Council.
The Sisters of Mercy also take a vow of obedience
which involves dedicating the Sisters' will to the will of
God: ". . . submitting our will to Him in faith through
the properly constituted authority of the Congregation
and according to its Constitution and Directives."
Job assignments are not issued as commands to the Sis-
ters. If a Sister employed by the Hospital is not satisfied,
she is free to quit as is any other lay employee. The ad-
ministrator of the Hospital knew of no situation in which
a Sister had been commanded to work at the Hospital by
someone in the Order. Sister Mary Blanche testified, in
response to a hypothetical question, that if the superior
general had stated a preference for there to be no union
at the Hospital she "would not have to obey a request
like that" and "would not feel at all obligated to do
that." There is in fact at least one Sister who is a
member of a union.2
The Order is governed by a superior general and a
four-member Council ele ted every 4 years by delegates,
who, in turn, are elected by the members of the Order.
One of the purposes for which the Order was formed is
to engage in hospital work. At weekly meetings, the su-
perior general and members of the Council take up the
affairs of the members and the business of the Order.
The constitution of the Order regulates the conduct of
the members.
Many of the Sisters of Mercy live in local houses, gov-
erned by a locally elected superior, whose rule is primar-
ily service and spiritual leadership. The entire communi-
ty of the local house ordinarily constitutes the house
council and the local superior arrives at final decisions
by working together with those councils. There is a con-
vent on the eighth floor of the Hospital with an elected
superior, Sister Rosemarie. The eighth floor consists of
small bedrooms, a common shower, a common lavatory,
a workroom for arts and crafts, a quiet room, and a com-
munity room. The eighth floor is not suitable for use as a
hospital facility because of the narrow corridors and the
doors. The Order pays a maintenance fee to the Hospital
for the room and board of the Sisters who live on the
eighth floor. The administrator of the Hospital and Sister
Mary Blanche have different religious superiors inas-
much as the administrator lives in the eighth floor con-
vent while Sister Mary Blanche does not.
Of the Order members, 223 Sisters work for some type
of compensation; 24 are employed at the Hospital. The
total percentage of the Order's income provided by Sis-
ters who worked at the Hospital between 1977 and 1981
ranged from 9 to 14 percent. The Order makes no finan-
cial donations to the Hospital.
2 That Sister is not an employee of the hospital in this case
The Hospital Corporation
The Hospital Corporation was formed as a member-
ship corporation under the laws of New York in Febru-
ary 1957. By deed and bill of sale dated March 23, 1957,
the Order transferred all real and personal property of
the Hospital held by the Order to the membership corpo-
ration subject to the assumption by that corporation of
the existing $818,500 mortage debt. The first meeting of
the incorporators was held on April 17, 1957, at which
the first officers and directors were elected. There is
nothing in the incorporating documents which provides
for the disposition of corporate assets in the event of a
termination of hospital business.
The hospital bylaws provide that the membership of
the Corporation shall consist of specific Sisters, those
who are members of the Hospital's board of directors
and those who are members of the Council of the Order.
The bylaws provide that the governance of the Hospital
is divided between the members of the Corporation and
the board of directors.
The members of the Corporation meet only on an
annual basis. They are as follows: Members of the Order
who also are members of the board of directors of the
Hospital and members of the General Council of the
Order. The president and vice president of the Corpora-
tion are the superior general and the vicar general of the
Order. The vicar general is one of the four members of
the Council who has been elected to assist the superior
general. The secretary is appointed by the president of
the Corporation who is also the superior general of the
Order.
The members of the Corporation are required by the
bylaws to exercise the following powers with respect to
the operation of the Hospital: (1) authorize the borrow-
ing of money or creation of any indebtedness on the part
of the Hospital, except that which may be incidental to
its day-to-day operations; (2) authorize any transaction
affecting the title of real property owned by or purchsed
or leased by the Hospital; (3) authorize major capital ex-
penditures; (4) authorize any discontinuance of existing
services, merger, or consolidation of the Hospital; and
(5) authorize any activity by or on behalf of the Hospital
which is not permitted to be taken or carried on by cer-
tain sections of the Internal Revenue Code.
The bylaws of the Corporation also set forth the com-
position of the Hospital's board of directors. The bylaws
provide that a majority of the board of directors are
members of the Order. 3 The bylaws specify that the fol-
lowing members of the Order must also be members of
the board of directors: superior general, two councilors,
a Sister administrator from each of the other two hospi-
tals operated by the Order,4 and the hospital coordina-
tor. s In addition, the bylaws specify that the officers of
the board shall be the following: president-superior
general; vice president-hospital coordinator; and treas-
urer-administrator of the Hospital. The secretary is ap-
3 During 1979, 17 individuals served on the board; 9 of them, a majori-
ty, as required by the bylaws, were members of the Order
4 Kenmore Mercy and St. Jerome.
I The hospital coordinator must be a member of the Order pursuant to
art. 6, sec 3(B), of the bylaws
945
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pointed by the president. All officers have been members
of the board, three of whom hold their positions by
virtue of their membership in the Order.
At the time of the hearing the membership of the
board consisted of nine members who are Sisters and
eight lay members. Lay members6 are nominated by a
committee appointed by the president and said lay mem-
bers are elected by a majority of the board;7 lay direc-
tors serve for a period of 2 years and may not serve for
more than 3 successive terms.
The religious directors serve by virtue of their Order's
appointment and lay administrators by virtue of their po-
sition with the Hospital. The nominating committee con-
siders only the selection of lay directors; a review of the
minutes of the nominating committee of 1974 through
1979 reveals that the committee did not discuss religious
directors during that time, although at least two Sisters
were appointed to the board in that period (Sisters Ann
Marie Fitzsimmons and Mary Liguori Butler, both mem-
bers of the General Council, were recommended to the
board directly by the president) Although Sister Sheila
testified that the religious directors were referred
through the nominating committee to the board, the min-
utes do not reflect that and Sister Sheila admitted that
her nomination to the board did not proceed through the
committee. Sister Sheila stated that the nominating com-
mittee did not interview the Sisters as they did the lay
members and that the recommendations for religious di-
rector came from the superior general. The prospective
lay board members meet with the nominating committee
and are provided with materials relating to the operation
of the Hospital, including the bylaws, a list of the duties
and responsibilities of board members, the philosophy of
the Hospital, and the religious directives of the Catholic
Hospital Association.8 Prospective lay board members
are asked whether they can act in concert with those
tenets without violating their personal beliefs. Courtland
LaVallee, one of the lay members of the board, testified
that he was asked in an interview prior to his election to
the board whether he could live with the Hospital's phi-
losophy (including that on contraception and abortion)
and not act against it if an issue involving that philoso-
phy were raised before the board. He testified that it was
his understanding that he is expected not to act against
the Hospital's philosophy. The record establishes that the
board assures itself of the lay member's willingness to
conform to the Hospital's philosophy and ethics prior to
voting on his nomination to the board." Furthermore,
the record reveals that in 1971 board members (the
board, then comprised entirely of Sisters, had determined
to accept lay members) noted that the board had every
intention of maintaining control over those who had
6 Lay members have only served on the board since 1971.
The nominating committee, at least between 1974 through 1979,
always included a Sister as one of its members.
8 The Catholic Church is concerned with a number of areas of medical
practice including contraception, sterilization, abortion, and brain death.
The Catholic Hospital Association has published directives with respect
to those areas.
9 With respect to the election of lay board member Masters, the min-
utes for April 20, 1979, p. 2, state, in part. "Mr. Masters . . . has ex-
pressed his intention to regulate his activities as a board member by the
religious and ethical directives binding upon Catholic hospitals"
served on the board, as follows: "The Board of Directors
feel [sic] that it wishes to retain its prerogative of ap-
pointing all of its members, at least for the present. Other
lay members are to be added to the Board."
Unlike the lay members, the Sisters are recommended
to the board by the president. Sister Annunciata testified
that the selection of religious board members rests with
herself and the General Council. In that connection Sis-
ters recommended to the board by Sister Annunciata
have always been elected. The record does not indicate
that any Sister nominee has ever been rejected. The min-
utes of the general council meetings reflect the Order's
concern with the Sister membership on the board and its
concern that its majority be maintained.
The record also establishes that the governing body of
the Order (the superior general and her four-member
Council) decide certain hospital matters at their meet-
ings. Not all of the matters taken up at these meetings
are contained in the minutes of the meetings as testified
to by the superior general, Sister Annunciata. An exam-
ple of a decision taken by the superior general and her
Council is a decision to appoint Sister Vincentia (hospital
coordinator) to work with the hospital administration to
develop a job description for a public relations job at the
Hospital. Another example of a decision made by the su-
perior general and the Council as reflected in the min-
utes of August 4, 1974, is that Sister Richard, then supe-
rior general, became involved in the administration of
the Hospital by discussing the assignment of a Sister in a
supervisory position at the Hospital. Superior General
Richard also became involved in the appointment of a
Sister to a supervisor on a number of occasions.
The superior general and her Council determine who
the administrator of the Hospital will be. According to
Sister Annunciata it is important to keep the chief admin-
istrator position of the Hospital in the hands of the Sis-
ters (in order to further the goals and aims of the Order).
Sister Annunciata testified that lay assistants and associ-
ate administrators know that the chief administrator's po-
sition will go to a qualified Sister. Sister Joel and Sister
Marie Andre are being groomed by the Order to become
qualified administrators. Sister Joel was approached by
the Council to take over the position of administrator at
Kenmore Mercy Hospital. At the time Sister Joel was
the assistant administrator (third-level administrator) at
the Hospital when she was chosen to take over as the
chief administrator at Kenmore Mercy Hospital. The
second in command at that Hospital, the lay associate ad-
ministrator, was passed over. And even though the Hos-
pital's current associate and assistance administrators are
lay persons, Sister Marie Andre is being groomed by the
Order to become chief administrator. The Order recom-
mended the appointment of Sister Joel to the board of
Kenmore Mercy Hospital. Sister Annunciata testified
that she assumed that Sister Joel had obtained her posi-
tion as administrator at Kenmore Mercy Hospital by rec-
ommendation of the Council to the board.
Section 12, article 6, of the bylaws of the Hospital
Corporation requires the authorization of the members of
the Corporation before the board can act on the items
therein enumerated. That limitation of the powers of the
946
MERCY HOSPITAL OF BUFFALO
board expressly applies to (a) any borrowing of money,
except that which is incidental to the day-to-day oper-
ations; (b) a disposition, mortgage, or lease of real prop-
erty; (c) a major capital expenditure; (d) a discontinuance
of services, merger, or consolidation of the Hospital; and
(e) certain prohibited activities under the Internal Reve-
nue Code and Regulations. As previously noted, the
membership of the Corporation is exclusively comprised
of members of the Order. No lay persons are members of
the Hospital Corporation.
The superior general and her Council discuss the re-
quests of the Hospital to borrow money and vote to au-
thorize such requests to be made to the Vatican through
the bishop. The minutes of the council meetings reflect
that the group satisfied itself as to the Hospital's financial
position before voting to authorize the request to be pre-
sented to the Vatican.
In addition to the superior general and two members
of the Council, the treasurer of the Order, Sister
Edward, was a member of the board of directors of the
Hospital for the period 1970 through 1978. Sister
Edward also handled the financial affairs of the Hospital.
The Order directly appoints the hospital coordinator, a
salaried position of the Hospital. Sister Vincentia, the co-
ordinator, meets with the Order's General Council to
discuss hospital assignments, including the assignment of
the administrator, and works both alone and with the ad-
ministrators to coordinate certain programs at all three
of the Order's hospitals and to implement the Catholic
health philosophy at the hospitals. Only two members of
the Corporation (the remaining two councilors) are not
also members of the board of directors of the Hospital.
As previously indicated the Corporation members
meet once a year and since 1976 have engaged in the fol-
lowing activities at these annual meetings: (1) reviewed
the architectural plans for construction at the Hospital
and authorized the administration to explore avenues of
funding said construction project; (2) voted to authorize
the funding of a possible construction project; (3) voted
to authorize the purchase of real estate; (4) approved the
administration's research into the building of a parking
ramp; (5) voted to limit the board of directors' decision-
making powers up to $1 million; (6) established a com-
mittee comprised of the administrator from each of the
Order's hospitals and hospital coordinator; (7) reviewed
hospital personnel policies as they related to the Sisters
(no such committee was set up for lay employees); (8)
recommended that the hospital coordinator chair a meet-
ing of administrators and Sister board members in the
Order's three hospitals to "work on" timecards for the
Sisters; (9) encouraged the administrators to support the
actions of a committee which is working on ways to im-
plement the Sisters of Mercy's "philosophy of health
care facilities."
The board of directors meets I1 times a year. Half of
each meeting, which lasts for about 3 hours, is devoted
to reports from hospital administrators. Sister Sheila, the
administrator, prepares the agenda for board meetings.
Two board members, Sister Annunciata and Courtland
LaVallee, testified that ordinarily and, more often than
not, board votes are unanimous. The board minutes for
1978 reveal that, of approximately 25 votes taken, only
one member registered opposition in each of 2 votes, and
in 1979, of approximately 30 votes taken, only one
member registered opposition in each of 2 separate votes.
The day-to-day operations of the Hospital rests with the
administrator. Sister Annunciata, president of the board
of directors, testified that the board has delegated day-to-
day operations to the administrator. The job description
of the administrator and the minutes of the board meet-
ings establish that it is the hospital administration which
advised the board as to the Hospital's operations and ac-
tivities. The hospital administrator hires her assistant and
associate administrators.
Most of the Sisters of the Order employed by the Hos-
pital serve in supervisory or managerial capacities. The
three hospitals operated by the Order have directorates
which overlap. The superior general is the president of
both the membership corporation and board of directors
of all three hospitals. All of the hospitals have essentially
the same bylaws and on at least one occasion only one
annual meeting was held for the membership corpora-
tions of all three hospitals. The Order appoints a hospital
coordinator (who serves as the vice president of the
board of all and appoints the Sisters from one hospital to
serve on the board of the three hospitals in order to co-
ordinate the activities among the hospitals). The Sisters
employed at the Order's hospitals attend the Order's
meetings concerning their health apostolates,1 0 although
the record does not reflect that lay employees below the
supervisory level at these hospitals attend similar meet-
ings.
The record also reveals that about half of the Sisters
employed at Mercy Hospital have also been employed at
one of the other two hospitals operated by the Order.
Relatively few Sisters (about 30 out of 223) work for em-
ployers who have no connection with the Order. Most
of the Order of Sisters who work at Mercy Hospital of
Buffalo live on the premises in the eighth floor convent
and eat in the Sisters' dining room and use the adjoining
lounge which is reserved for Sisters and their guests.
Sister Annunciata said that she knew of no Sister who,
having sought a job at the Hospital, was not ultimately
hired in some capacity. Sister Sheila testified that it was
to the Hospital's advantage to hire a Sister rather than a
lay person for the following reasons: The income from
the position would go to the religious community; the
presence of a Sister in the Hospital promotes the reli-
gious philosophy and values; the Sisters set an example
for the other employees; and the Hospital benefits from
the dedication the Sisters bring to their jobs. Once a Sis-
ter's on a job, the Hospital expects a higher degree of be-
havior from her than it does from lay employees, as she
is publicly identified with the Hospital.
Sister Annunciata testified that the Sisters serve on the
board of directors at the Hospital more to bring the phi-
losophy of the Order to bear on the Hospital's operation.
The goals and aims of the Order are to keep the institu-
tion Catholic and ensure its moral and ethical beliefs
with respect to the provision of health care. At the
behest of the president of the board the job description
1' "Arpostolate" refers to the job or mission to which the Sister is to
devote her time and energy.
947
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the chief of the medical staff of the Hospital was
amended to include a provision that the chief be commit-
ted to the philosophy of the Hospital.
Conclusion With Respect to the Control Issue
The Court of Appeals for the Second Circuit stated,
"[R]eliance on any single factor to the exclusion of
others to show control is unacceptable," and directed:
On remand, the Board should reexamine its findings
that the Order controls the Hospital by considering
further the nature of the powers and responsibilities
of the board of trustees and the scope of authority
wielded by Sister Sheila Marie and her assistants.
For example, it would be relevant whether the
trustees meet to consider business affairs of the Hos-
pital; how often they meet; whether the members of
the Order on the board of trustees have consistently
voted as a majority block to promote the Order's
interests, especially when important policymaking
and administrative decisions were being made; and
whether they received instructions from the Order
on how to vote. Any other evidence of significant
financial control would also be quite important, of
course. [668 F.2d at 665.]
The Hospital Corporation was created by the Order
and the land and buildings of Mercy Hospital were given
to the Corporation, subject to the mortgage, by the
Order. The constitution and bylaws of the Corporation
ensure that the control thereof is and will be by the
Order. The superior general of the Order is the president
of the board of directors of the Hospital Corporation.
The vicar general of the Order is the vice president of
the Hospital Corporation, and the administrator of the
Hospital is a member of the board and a Sister of the
Order. The constitution of the Hospital Corporation en-
sures that the majority of the board, including the presi-
dent and vice president, will remain members of the
Order. Although the lay people on the board are not re-
quired to be Catholics and two are not, in fact, Catho-
lics, they are required to adhere to the philosophy of the
Order which is the philosophy of the Hospital Corpora-
tion. The membership of the Hospital Corporation con-
sists exclusively of members of the Order. All important
matters must be approved by the membership of the
Hospital Corporation which includes no lay persons.
The General Counsel has proved by a preponderance
of the evidence that the Order of Sisters of Mercy con-
trols Mercy Hospital of Buffalo and I shall so recom-
mend.
The Facts Concerning the Question of Community
of Interest
Sister Blanche has worked as a regular part-time bill-
ing clerk in the business office of the Hospital since Sep-
tember 1975. Her terms and conditions of employment
and benefits will be compared with those of the other
business office clerical employees.
Sister Mary Blanche joined the Order in 1934 and
became a teacher. After 41 years of teaching, she decid-
ed to leave the teaching profession. She started working
in the business office of Mercy Hospital of Buffalo by ex-
pressing a desire to do so to her superiors in the Order.
She was given responsibility for Medicaid inpatient bill-
ing.
The unit employees in the business office punch a
timeclock. The only two exceptions are Sister Blanche
and employee Mary Moesch. Moesch has a physical im-
pairment authenticated by a doctor's excuse thus permit-
ting her to write in her timecard rather than punch the
timeclock. II Sister Blanche fills in her own timecard, as
do the supervisors and managers, but she did not begin
filling out a timecard until late 1978.12 Before that, her
time was not recorded.
Health Insurance
Full-time lay employees are entitled to Blue Cross-
Blue Shield health insurance. The Hospital pays 80 per-
cent of the premium and the employee pays 20 percent.
Regular part-time and part-time lay employees are not
entitled to any employer paid premiums, although they
may obtain coverage under the Hospital's group policy if
they pay the full premium. Unlike the lay employees, all
Sisters belonging to the Order are provided with health
insurance through the Hospital's group policy at the
Hospital's expense. The Sisters pay no part of the premi-
ums.
Sisters who leave the employment of the Hospital may
continue to remain a part of the Hospital's group policy
if the Order pays the premiums. Thomas Webber, assist-
ant administrator for finance at the Hospital, testified
that he knew of no instance when a Sister had been re-
fused coverage. However, some lay employees have
been refused permission to retain their group coverage
upon leaving the Hospital.
Wages and Other Benefits
The business office unit employees are hourly rated
and paid biweekly. Sister Blanche is salaried and receives
no paycheck." Accordingly to the Order's constitution,
Sister Blanche's salary belongs to the Order and not to
Sister Blanche. She is required to share her earnings and
the superior general is authorized to administer these
funds. Sister Blanche's salary is included with the salaries
of the other Sisters and is supposed to be sent to the
Order once a month. However, the Hospital does not
always send the money to the Order on time. The pay-
ments have been several months late on occasion.
Paid vacation time for full-time lay employees depends
upon time of service, with 10 days for those employees
who have been employed for less than 5 years; 15 days
for 5 to 10 years; and 20 days for those with 10 years or
more.14 The record contains no evidence for any lay
II The timeclock is located on another floor in an isolated area of the
hospital.
12 The contract between the Hospital and the Order, dated September
1, 1978, provides that timecards of the Sisters' services will be maintained
as for other employees holding similar positions.
13 Sister Annunciata testified that she did not know of any Sisters em-
ployed by the Hospital who have ever received a paycheck directly.
14 This schedule was in effect at the time of the election but changed
in. 1981 to provide 25 days' paid vacation for those employees with 20 or
Continued
948
MERCY HOSPITAL OF BUFFALO
employees being paid for time not worked (other than
vacation, holidays, sick, or personal leave). Sister
Blanche testified that she thought she was entitled to
paid holidays and she took off her birthday as a holiday
while other employees worked on holidays during their
probationary period even though the office was closed
for most of the employees (certain parts of the business
office are open at all times).
The employees handbook provides that only full-time
employees are entitled to paid sick days and paid person-
al leave days and regular part-time and part-time em-
ployees are not entitled to personal leave days or paid
sick time.
Sisters, however, regardless of years of employment,
are paid while out of work because of illness and some-
times for months at a time. The record shows the Sisters
are not removed from the payroll when they become ill
unless it appears that they will be out for extended peri-
ods. The record shows that Sister Blanche was paid al-
though she was out sick for 5 days. Sister Lois was paid
her regular salary although her timecard showed that she
worked only 17 hours between early March and mid-
September 1981 when she was terminated. Sister John
Aloisius received a regular pay between April and Sep-
tember 1981 (when she was terminated) although she
only worked I week during that time.
Three lay employees were provided with extended
sick benefits by the Hospital. Two returned to work and
one needed the extended benefits to qualify for retire-
ment. Two of the employees received sick pay at a re-
duced rate. One was a supervisor and the other two
were professionals. Thus, it appears that different stand-
ards were used to determine whether a Sister is entitled
to similar benefits. The personnel director testified that
one of the factors they have in determining whether an
employee is entitled to additional sick pay is the employ-
ee's length of service. Sister Lois and Sister John had
only been employed at the Hospital for 3 years prior to
the extension of benefits to them. Of the three lay em-
ployees who received extended benefits, two were em-
ployed 15 to 18 years and a third was a supervisor who
returned to work.
Lay employees must punch out, including lunch, if
they leave the hospital premises. As previously indicated,
Sister Blanche does not punch the timeclock and was
paid when she left the Hospital for funerals or outside
medical care. Lay employees must use their personal
days for doctor's appointments or they will not be paid.
more years of employment. Full-time employees are entitled to 10 paid
holidays. Regular part-time employees receive 10 days off each year,
which includes vacation and holidays or any combination thereof, inas-
much as there is no separate vacation and holiday pay for regular part-
time employees. At the time of the election. Sisters were entitled to a flat
3 weeks off with pay, regardless of length of service, that was increased
to 4 weeks in 1981 In addition to receiving an extra week of vacation in
1981, the Sisters were granted a raise in February shortly after lay em-
ployees were granted a raise. Sister Blanche, who was employed on a
part-time basis, received paid holidays as well. Respondent contends that
Sister Blanche was paid for holidays not worked for 7 years by mistake.
However, inasmuch as Sister Blanche's timecard was checked by her su-
pervisor every pay period, and she marked on it that she was alloting the
unworked hours to holidays, it is difficult to accept that explanation espe-
cially because the same "mistake" was made with other part-time Sisters
(Sister Maureen and Sister Marie Ellen) who were paid for holidays not
worked.
No business office unit employees are paid for time they
do not work.
From July 5 to Labor Day, Sister Blanche arrived for
work 5 to 10 minutes late three or four times a week be-
cause mass was celebrated late during the summer at the
convent where she lives and her attendance at mass
made her late for work. However, her timecards do not
reflect the fact that she is late even though her supervi-
sors are aware and she is paid for the entire workday. In
contrast, lay employees who are late for work receive
three warnings and then docked if they are late. Lay em-
ployee Mary Ann Byrne testified that she was docked in
1978 and 1979 for being "quite late a few times, about 2
or 3 minutes each day" because she was getting married
and because she had car trouble. She said she was
docked 7 minutes for being I minute late on one occa-
sion. Supervisor Jakubik testified that lay employees
would be given permission to attend mass every morning
on worktime.
The timecards of a number of Sisters reveal that they
generally receive the same monthly salary regardless of
what is written on the timecards. For example, Sister
John Aloisius worked a varying number of hours each
pay period in 1980 and 1981 ranging from 27 to 55 and
was off sick for 22 weeks. Her pay did not fluctuate
except when she received a general raise. Sister Maureen
received the same salary every month although her time-
card notes 4 weeks of "unpaid" vacation, 9 days of ill-
ness, and only 20 hours of work in one pay period in-
stead of her usual 40 in June 1980.
Sister Blanche was allowed 32 paid days off in 1979.
Her salary, when broken down into an hourly rate or di-
viding it by the number of hours/week of work, 32.5
hours and 52 weeks in a year, amounts to $4.75 an hour.
That compares to $4.45 an hour for lay billing clerks in
the business office.
At the time of the election, in addition to receiving
one of the highest wages in the business office, Sister
Blanche received 22 more paid days off than other regu-
lar part-time employees. The hospital administrator,
Sister Sheila, admitted that Sister Blanche's salary did
not take into account the fact that she received more
than three times paid time off than regular part-time lay
employees.
Payroll Processing and Maintenance of Records
The Sisters' payroll is processed separately from that
of the lay employees. Sisters' salaries are sent in lump
sum to the Order on a monthly basis. Raises are given to
lay employees at different times from those given to Sis-
ters.
Pursuant to their written authorization, lay employees'
taxes, health insurance, and other items are deducted
from their wages. Written deduction authorizations are
not submitted by the Sisters nor are taxes deducted from
their salaries. Notwithstanding the absence of written au-
thorizations, maintenance fees are deducted from the sal-
aries of the Sisters.15 In addition, the salaries of the Sis-
I, The sum of $350 per month for room and board is deducted for the
Sisters who live in the eighth floor convent and S50 for those who live
elsewhere and eat only one meal a day at the Hospital.
949
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ters are diverted to the payment of bills and purchase of
real estate by the Order at the behest of the hospital ad-
ministrator without authorization from the Sisters em-
ployed at the Hospital. The Hospital does not pay the
bills of lay employees. Sister Blanche's records are kept
separate from the other business office clerical employees
whose records are maintained on the Hospital's comput-
er.
As for other records, the official personnel files of the
Sisters (applications, evaluations, and other official
records) are kept in the hospital administrator's office to-
gether with the personnel files of the supervisors and
managers. Personnel files of lay employees are located in
the personnel department. After a certain number of
years the personnel files of lay employees are recorded
on microfilm. The personnel files of the Sisters are de-
stroyed by the administrator when an employee Sister
dies or permanently leaves the Hospital.
Probationary Period
Sister Blanche did not serve a 6-month probationary
period upon being employed, as is required of lay em-
ployees in the business office. Sister Blanche testified that
she was not sure if she was on probation after she was
hired. She said she received no raise after 6 months of
employment. She did not work on any of the holidays
during her first 6 months but was paid for them. She was
not evaluated after 6 months. In fact, prior to the De-
cember 1979 election, she was never evaluated. Sister
Blanche received her first raise 7 months after she was
hired, at a time when all Sisters received a general in-
crease in salary (July 1976).
The employees' handbook provides that an employee
must complete a probationary period of 6 months. Unit
employees hired both before and after Sister Blanche tes-
tified that they had served a probationary period; were
required to work holidays in order to be paid for them;
were evaluated after 6 months; and, if evaluated favor-
ably, received a raise and entitlement to benefits such as
paid holidays and health insurance.
Living and Dining Facilities
As previously stated, most of the Sisters who work at
the Hospital live on the hospital premises in the eighth
floor convent. All Sister employees eat in the Sisters'
dining room. The lay employees eat in the hospital cafe-
teria which is also open to hospital visitors. The Sisters'
dining room has round tables which are smaller than
those in the cafeteria and padded chairs. On occasion,
the menu in the Sisters' dining room is different from
that in the cafeteria. At the time of the election, Sister
Blanche ate lunch at the Hospital's expense. Lay employ-
ees did not. 6
Free Health Care
Sister employees of the Hospital belong to the Order,
and their parents are entitled to free health care from the
Hospital., The Hospital does not charge them for any bill
18 After the election, in October 1981, Sister Blanche began to be
charged a S50 maintenance fee. She testified. however, that she had been
eating lunch in the Sisters' dining room since the time she was hired.
balance should their health insurance not cover the
entire bill. Full-time unit employees are entitled to only a
25-percent discount on the unpaid balance and the regu-
lar part-time employees receive a 10-percent discount;
parents of lay employees are not entitled to any dis-
count. 7
Attendance of Hospital Ceremonies
Sister Blanche and other Sisters have been invited to
and have attended several dedication ceremonies in the
hospital lobby during working hours. Lay employees of
the business office are not invited to attend these cere-
monies. To the contrary, several were reprimanded
when they left their work stations to view the ceremo-
nies from the cashier's office. Jakubik testified he was
concerned that the business of the office was not being
attended to while the lay employees were viewing cere-
monies. He did not explain his lack of concern, if any,
about Sister Blanche's absence from the office during the
ceremonies.
Hours of Employment
Sister Blanche decided on her own that she would
work from 8 a.m. to 3 p.m., the hours she worked while
teaching school for many years. She testified that Sister
Cor Maris, then the business office manager, expected
her to work a full day (until 4 p.m.), but Sister Blanche
told her that she was going to work only until 3 p.m.,
and indeed prevailed. The record shows that a lay em-
ployee was discharged because she could not work cer-
tain designated hours.
Soliciting During Worktime
A hospital rule prohibits selling and/or soliciting in the
business office on worktime. Sister Blanche testified that
she had never asked nor was expressly given permission
by supervision to sell or solicit at work. None the less,
on occasion she brought in boxes of items (novelty pen-
cils, pens, and decorations) to sell to coworkers in the
business office. On one occasion, Sister Blanche lined up
the decorative shovels that she was selling in the super-
visor's office so that the employees could select which
they wanted to buy. She also handed out fliers announc-
ing a raffle and one such flier was posted in the office
not long after management circulated a memo reiterating
the prohibition of soliciting in the office. Lay business
office employees on occasion sold tickets on hand made
items. Other employees would bring in such an item to
show and later make one upon request. The record
shows that no lay employee had engaged in such con-
duct to the extent that Sister Blanche has. Moreover,
other employees have been reprimanded for selling in the
office while Sister Blanche, who has been more open
about her soliciting activites, has not been so reprimand-
ed.
t7 If they cannot afford to pay, they may, like any other patient, apply
for free care pursuant to the Hill-Burton Act. Parents of Sisters of the
Order, on the other hand, are not sent bills for services even when they
do not qualify for free care under Hill-Burton.
950
MERCY HOSPITAL OF BUFFALO
Other Benefits
Sister Blanche does not receive a pension, social secu-
rity, or disability or unemployment insurance coverage
by virtue of her employment with the Hospital as do lay
employees. The Sisters are covered by the Order's retire-
ment plan and social security.
Conclusions Concerning Community of Interest
The difference in wages, hours, and other terms and
conditions of employment between Sister Blanche and
lay employees in the business office, as stated above, are
numerous and need not be reiterated. The disparity
proves that Sister Blanche maintains as a member of the
Order a close and special relationship with management
of the Hospital by virtue of her membership in the
Order. The lay employees are a "breed apart."
Sister Blanche testified that she has been a member of
the Order for 48 years and her commitment to the Order
is such that she expects to remain a member for the rest
of her life. She lives in a convent with other members of
the Order and wears a habit which identifies her with
the Order and the Hospital's management. Her salary be-
longs to the Order and is administered by the superior
general of the Order. In fact, the Order depends upon
the salaries of its members (almost 12 percent of the
Order's income over the past few years has been derived
from the salaries of the Sisters who work in the Hospi-
tal) in order to remain financially solvent and decides
how the earnings of the Sisters are to be spent without
their express authorization.
The National Labor Relations Board has held that Sis-
ters that belong to an Order that operates an institution
should be excluded from the bargaining unit because
they do not share the same benefits and terms and condi-
tions of employment as the lay employees. Carroll Manor
Nursing Home, 202 NLRB 67 (1973). Sisters have special
interest resulting in a special employment relationship
clearly different from that of other' employees. See also
Saint Anthony Center, 220 NLRB 1009 (1975); Seton Hill
College, 201 NLRB 1026 (1973).
The wages, benefits, and terms and conditions of em-
ployment for the Sisters employed by the Hospital, in-
cluding Sister Blanche, are quite different from those
provided by lay employees. Sister Blanche has enjoyed
certain privileges not afforded other lay employees of
the business office of the Hospital. She and her fellow
Sister employees, including the hospital administrator
and the president of the Hospital Corporation, by virtue
of wearing their habits, are identified in the view of the
public and other employees as management of the Hospi-
tal even though the work of some is not managerial in
nature and, for this reason, are held to different standards
from other employees.
Based on the entire record and having thoroughly
considered the briefs submitted by Mercy Hospital of
Buffalo and the General Counsel, I find that the General
Counsel has proven by a preponderance of the evidence
that Sister Blanche does not share a sufficient community
of interest with the business office clerical employees so
as to warrant her inclusion in the unit.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, I hereby issue the following
recommended:
ORDER
Mercy Hospital of Buffalo is controlled by the Sisters
of Mercy of the Buffalo Diocese or the "Order" herein
and Sister Mary Blanche does not share a sufficient com-
munity of interest with the employees in the bargaining
unit so as to warrant her inclusion in the unit.
951