St. Mary's Hospital of Roswell, Inc.

244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Laborers' International Union of North America, Local 1253, AFL-CIO (St. Mary's Hospital of Roswell, Inc.) and Page & Wirtz Construction Company. Case 28-CG-5 March 10, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE Upon a charge filed on April 11, 1979,1 by Page & Wirtz Construction Company, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 28, issued a com- plaint and notice of hearing on April 27, alleging that Respondent Laborers' International Union of North America, Local 1253, AFL-CIO, had en- gaged in and was engaging in unfair labor practices affecting commerce within the meaning of Sections 8(g) and 2(6) and (7) of the National Labor Rela- tions Act, as amended. Respondent timely filed an answer to the complaint, denying the commission of unfair labor practices. Between July 5 and July 16, Respondent, the Charging Party, and the General Counsel entered into a stipulation in which they agreed that the formal papers filed in this proceeding and the facts contained in the stipulation, together with the ex- hibits attached thereto, constitute the entire record in this case. The parties further stipulated that they waived their right to a hearing before an adminis- trative law judge and the issuance of an administra- tive law judge's decision and recommended order. On July 19, based on the foregoing stipulation, the parties requested that the proceeding be transferred to the Board for decision. On September 5, the Board issued an order ap- proving the stipulation and transferring the pro- ceeding to the Board. Subsequently, Respondent, the Charging Party, and the General Counsel filed briefs with the Board. 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. Having accepted transfer of this proceeding to it, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPI.OYERS Page & Wirtz Construction Company (herein called Page & Wirtz or the Employer) is a New Mexico corporation having its principal office and place of business in Lubbock, Texas. At all times I All dates herein are in 1979, unless otherwise indicated 248 NLRB No. 30 material herein, it has been engaged in business as a general contractor in the building and construction industry in several States of the United States, in- cluding the State of New Mexico. Pursuant to a contract valued at approximately $1,800,000 with St. Mary's Hospital of Roswell, Inc. (herein called St. Mary's), the Employer has, at all times material herein, been engaged in the construction of a nurs- ing home facility adjacent to the building currently occupied by St. Mary's at Roswell, New Mexico (herein called the St. Mary's construction site). Further, at all times material herein, under a con- tract with St. Mary's valued at approximately $2,250,000, Page & Wirtz has been engaged in the construction of additions to, and the remodeling of, the existing St. Mary's hospital building at the St. Mary's construction site. In connection with its work on these projects, the Employer, during the 12-month period preced- ing issuance of the complaint, purchased and caused to be delivered to the St. Mary's construc- tion site goods and materials valued in excess of $50,000 directly from suppliers located outside the State of New Mexico. Accordingly, we find that Page & Wirtz is, and has been at all times material herein, an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. St. Mary's is a New Mexico nonprofit corpora- tion which, at all times material herein, has been engaged in providing acute health care, nursing care, and related services from its principal office and place of business in Roswell, New Mexico. During the 12-month period immediately preceding issuance of the complaint, St. Mary's had a gross volume of business in excess of $6 million, and, during the same period, it purchased and caused to be delivered to its Roswell facility medical sup- plies, appliances, and related materials valued in ex- cesss of $50,000 directly from suppliers located out- side the State of New Mexico. Therefore, we find that St. Mary's is, and has been at all times material herein, an employer and a health care institution engaged in commerce and in operations affecting commerce within the meaning of Section 2(6), (7), and (14) of the Act. 11. THE LABOR ORGANIZATION INVOLVED The Respondent, Laborers' International Union of North America, Local 1253, AFL-CIO, is, and has been at all times material herein, a labor orga- nization within the meaning of Section 2(5) of the Act. LABORERS' LOCAL 1253 245 III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Facts In July 1978, Page & Wirtz, as general contrac- tor, began construction of the nursing home facili- ty, referred to in section I, above, on the premises of St. Mary's. The nursing home facility is located approximately 500 feet south of the existing St. Mary's hospital building, and is connected to the building by a covered sidewalk, which was also under construction during all times material herein. In January 1979, the Employer, also as general contractor, initiated construction of a new emer- gency room and a new intensive care unit, and commenced remodeling and enlargement of the kitchen and dining room facilities, at the existing St. Mary's hospital building. St. Mary's premises are bounded on the north side by Chisum Street, on the east side by South- east Main Street, on the south side by Hobbs Street, and on the west side by South Main Street. On Chisum Street, there are two entrances to St. Mary's premises, one towards the west leading into the emergency facility, and another towards the east leading to the parking lot area. On Southeast Main Street, there are two entrances approximately 150 feet apart. The northern entrance on Southeast Main Street is directly east of the existing hospital building and leads into the parking lot area. At all times material herein, this entrance was used by the general public, St. Mary's employees and suppliers, and by employees of the Employer and its subcon- tractors engaged in the construction at St. Mary's. The southern entrance on Southeast Main Street is located directly east of the nursing home facility, and, during the relevant period, was used primarily by employees of the Employer and its subcontrac- tors at the site and, occasionally, by St. Mary's em- ployees. There is a single entrance on Hobbs Street that is rarely used by anyone. On South Main Street, there are two entrances to St. Mary's. The southern most entrance on South Main Street is lo- cated directly west of the nursing home facility, and the northern most entrance on the street is lo- cated directly west of the existing hospital facility. The latter entrance leads into the emergency facili- ty and a general parking area. At all times material herein, the South Main Street entrances were used primarily by employees of the Employer and its subcontractors involved in construction at the St. Mary's site, and only occasionally by St. Mary's employees and the general public. On March 31, St. Mary's received the following telegram, dated March 30, from Respondent: This is to advise you that Local Union 1253 has been in the process of negotiating a union contract and have [sic] been unable to reach an agreement. We would like to advise you that we will be taking action and placing pick- ets on your job site in the immediate future. Respondent did not at any time serve written or other notice upon the Federal Mediation and Con- ciliation Service (FMCS) of its intention to engage in picketing at the St. Mary's construction site. Beginning on April 9, and continuing through April 11, Respondent picketed the Employer, or caused the Employer to be picketed, at the St. Mary's construction site between the hours of 7 a.m. and 12 noon. One picket patrolled at and be- tween the two entrances on Southeast Main Street. From time to time, one and sometimes two pickets patrolled at and between the two entrances on South Main Street. There was no picketing at either Chisum Street entrance. The pickets carried signs reading: PAGE & WIRTZ CONST. CO. DOES NOT HAVE AN AGREEMENT WITH LABORERS LOCAL, 1253 AFL-CIO The picketing at St. Mary's was in furtherance of an economic strike called by Respondent against the Employer when the parties' 1977-79 labor con- tract for Lubbock, Texas, and surrounding west Texas counties, expired. Respondent does not rep- resent St. Mary's employees, nor has it ever sought to represent such employees. At no time material herein has Respondent had a dispute with St. Mary's. From time to time during the 3 days of picketing at the St. Mary's construction site, employees of the Employer and its various subcontractors, in- cluding employees classified as laborers, plumbers, electricians, and sheet metal workers, honored the picket line erected by Respondent and refused to work. However, the picketing did not cause any employees of St. Mary's not to work during the April 9-11 period. Respondent's picketing did not result in any disruption to the immediate delivery of patient care services at St. Mary's and it did not interfere with deliveries of goods, supplies, and ma- terials related to patient care at the hospital. How- ever, the picketing by Respondent did cause an ap- proximate 3-day delay in the Employer's work schedule at the St. Mary's construction site. LABORERS' LOCAL 1253 245 246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Contentions of the Parties It is the General Counsel's position that Respon- dent violated Section 8(g) of the Act2 by picketing at the St. Mary's construction site without furnish- ing St. Mary's with adequate notice of its intention to picket, and without providing FMCS any notice of such an intention. The General Counsel cites two alleged defects in the notice given to the hos- pital. First, Respondent's telegram failed to "state the date and time" that picketing was to com- mence, and, instead, referred only to the "immedi- ate future." Second, St. Mary's received the tele- gram on March 31, and picketing began on April 9, 1 day short of the 10-day period specified in the statute. The General Counsel seeks to distinguish two appellate court decisions, 3 which rejected Board findings of 8(g) violations where, in the absence of notice, non-health care unions picketed gates re- served for employees of contractors engaged in construction on the premises of a hospital. Unlike those situations, the General Counsel points out that there were no reserved entrances at the St. Mary's construction site, and that Respondent pick- eted a major entrance on Southeast Main Street used by hospital employees and suppliers, and three other entrances, one on Southeast Main Street and two on South Main Street, occasionally used by St. Mary's employees. Accordingly, the General Counsel urges that "the picketing had the reason- ably foreseeable consequence of tending to cause work stoppages of the Hospital's employees or dis- rupt the deliveries of health care supplies, both of which would have had an impact on patient care," and that lack of actual interference with hospital operations is irrelevant. 4 Finally, again relying upon Saint Joseph Hospital, General Counsel argues that Section 8(g) applies even though the picketing was aimed at employees who did not perform "pa- tient related" functions. 2 Sec. 8(g) provides, in pertinent part: (g) A labor organization before engaging in any strike, picketing, or other concerted refusal to work at any health care institution shall, not less than ten days prior to such action, notify the institu- tion in writing and the Federal Mediation and Conciliation Service of that intention .... The notice shall state the date and time that such action will commence.... 3 N.L.R.B. v. International Brotherhood of Electrical Workers Local Union No. 388 [St. Joseph's Hospital of Marshfield, Inc. , 548 F.2d 704 (7th Cir. 1977), denying enforcement to 220 NLRB 665 (1975); Laborers' In- ternational Union of North America, AFL-CIO, Local Union No. 1075 [Mercy Hospital of Laredo] v. N.L.R.B., 567 F.2d 1006 (D.C. Cir. 1977), denying enforcement to 219 NLRB 846 (1975), and United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 630, AFL-CIO (Lein-Steenberg), 219 NLRB 837 (1975)(herein called Lein-Steengerg). 4 Citing Orange Belt District Council of Painters No. 48, International Brotherhood of Painters and Allied Trades AFL-CIO (Saint Joseph Hospi- tal), 243 NLRB No. 113 (1979) The Employer asserts that Respondent's notice to the hospital was inadequate in the same respects noted by the General Counsel, and that Respon- dent failed to provide any notice to FMCS. The Employer contends that the plain language of the statute requires 10-day written notice by any labor organization prior to picketing on the premises of a health care institution, and urges the Board to adhere to its decision so interpreting Section 8(g) in Lein-Steenberg. Respondent denies that it violated Section 8(g), and straightforwardly requests that the Board over- rule Lein-Steenberg, and adopt the view of the Sev- enth and District of Columbia Circuits that, as in- terpreted by Respondent, "Section 8(g) does not apply to non-healthcare employees engaged in an economic struggle against their non-healthcare employer." Respondent contends, among other things, that the literal language of the statute does not require the result reached by the Board in Lein-Steenberg, and that the legislative history of the 1974 amendments to the Act indicates that they were intended to apply exclusively to health care employees. C. Discussion and Conclusions Recently, in Painters Local No. 452 (Henry C. Beck Company),5 we reversed Lein-Steenberg, and decided that "Section 8(g) does not require a labor union . . . to give notice of its intention to engage in concerted activity against an employer which is not a health care institution, simply because the ac- tivity is to take place at the premises of a neutral health care institution . . . ." Instead, "Section 8(g) becomes operational only when the concerted activity is directed against the health care institu- tion."" The application of the principles announced by us in Beck to the instant facts clearly calls for dis- missal of the complaint. The parties stipulated that the picketing was directed against Page & Wirtz, and not against St. Mary's, with whom Respondent had no dispute. It is uncontested that Respondent's picketing was undertaken in furtherance of its eco- nomic conflict with Page & Wirtz, and that the picket signs so stated. Accordingly, Respondent had no statutory obligation to notify either St. Mary's or FMCS of its intention to engage in pick- eting at the hospital premises. We are not persuaded that a different rule should govern this case because Respondent picketed at entrances to the site used by hospital employees and suppliers as well as by employees of Respon- dent and its subcontractors. For one thing, an im- s 246 NLRB No. 148, sl. op., p. 11 (1979). Id., sl. op., p. 12. LABORERS' LOCAL 1253 247 portant part of the rationale for Beck was that anal- ysis of the 1974 health care amendments and their legislative history revealed that "Congress did not intend to alter the status quo with respect to non- health care employes who had never been required to notify employers of their intent to engage in concerted activity against non-health care employ- ers."7 Second, at no time before or during the 3 days of picketing did St. Mary's or the Employer establish a reserved gate for the exclusive use of Page & Wirtz employees and suppliers. Each en- trance to the hospital site picketed by Respondent was in fact used by Page & Wirtz employees. Thus, under the circumstances, Respondent carefully limited its action "to places reasonably close to the location of the situs," of the primary dispute, in conformity with this, standard, as well as the other traditional standards, for common situs picketing.8 Nor is there any proof that Respondent sought un- lawfully to enmesh St. Mary's in its dispute with the Employer. Consequently, any possibility of dis- ruption of health care services could quickly have been eliminated with the erection of reserved gates which would have placed the burden on Respon- dent to picket at entrances not utilized by hospital employees. For this reason, we find our colleague's comparison of the instant case to Saint Joseph Hos- pital, to be unpersuasive. In that case the picketing was directed against the hospital as the primary employer, while in this case the picketing was di- rected against a non-health care employer, and, ac- cordingly, Respondent exercised its statutory privi- lege to carry its dispute to the primary employees where they were to be found. We do not disregard the stated purpose of the 10-day notice requirement of Section 8(g), but rather we remain fully cogni- zant that Section 8(g) is an exception to the broad- er provisions of the statute which sanction Respon- dent's conduct here. As would be true of any other common situs situation, the secondary employer, here a health care institution, may insulate itself from such a labor dispute by immediately establish- ing appropriate reserved gates. For the reasons stated, we find that Respondent was not required to notify St. Mary's or FMCS of its intent to picket. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. 7Ibid Sailors' Union of the Pacific. AFL (Moore Dry Dock Company), 92 NLRB 547, 549 (1950). MEMBER PENELLO, dissenting: As alleged by the General Counsel, I would find that Respondent violated Section 8(g) of the Act,9 by giving inadequate notice of its intention to picket at a hospital, and by failing to provide the Federal Mediation and Conciliation Service (FMCS) with any notice of its intention to do so. It is clear, as set forth below, that Respondent did not comply with Section 8(g) before commencing its picketing; the only question is whether that provi- sion is applicable to the instant situation. The stipulated facts disclose that Page & Wirtz, a general contractor, was engaged in building a nurs- ing home facility on the premises of St. Mary's Hospital in Roswell, New Mexico, as well as a new emergency room and intensive care unit at the ex- isting hospital building. 10 In furtherance of an eco- nomic strike initiated by Respondent when its 1977-79 contract with Page & Wirtz for a neigh- boring geographic area expired, Respondent picket- ed the Employer for several hours a day from April 9 through April 11, 1979.11 Picketing was conducted at one major entrance used by hospital employees and suppliers, and at three other en- trances occasionally used by St. Mary's employees. The picket signs read: PAGE & WIRTZ CONST. CO. DOES NOT HAVE AN AGREEMENT WITH LABORERS LOCAL 1253 AFL-CIO During the period of the picketing, no hospital em- ployees refused to cross the line, although employ- ees of the Employer and its various subcontractors honored the line from time to time. The picketing did not cause any interruption in the delivery of patient care services at St. Mary's, nor did it inter- fere with the delivery of goods, supplies, and mate- rials needed for patient care. Nine days prior to beginning its picketing, Re- spondent sent this telegram to St. Mary's: This is to advise you that Local 1253 has been in the process of negotiating a union contract and have [sic] been unable to reach an agree- In relevant part, Sec. 8(g) provides: (g) A labor organization before engaging in any strike, picketing. or other concerted refusal to work at any health care institution shall, not less than the days prior to such action, notify the institu- tion in writing and the Federal Mediation and Conciliation Service of that intention .... The notice shall state the date and time that such action will commence.... '0 Page & Wirtz was also engaged in the remodeling and enlargement of the kitchen and dining room facilities in the existing hospital building " Respondent had no dispute with St Mary's. nor did it seek to repre- sent any of the hospital's employees LABORERS' LOCAL 1253 247 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment. We would like to advise you that we will be taking action and placing pickets on your job site in the immediate future. Respondent did not communicate at all with FMCS regarding its intention to picket at the hos- pital site. At the outset, it is observed that the notice to St. Mary's was defective in two respects: it did not state the "date and time" picketing was to start, re- ferring only to the "immediate future," and picket- ing in fact began 9, not 10, days after the notice was served. Of course, FMCS received no notice at all. In dismissing the complaint, my colleagues rely upon their decision in Painters Local No. 452 (Henry C. Beck Company),'2 in which I dissented from the Board's overturning of Lein-Steenberg.'3 Broadly speaking, the Board in Beck concluded that Lein-Steenberg was wrong in holding that any picketing at the premises of a health care institution was subject to Section 8(g). There is, however, no need to debate the relative merits of Lein-Steenberg and Beck here, because a very important fact serves to distinguish the present circumstances from those in Beck. That fact is that Respondent carried on its picketing in front of entrances used by hospital employees and suppliers, whereas pick- eting in Beck and Lein-Steenberg was confined to entrances used only by construction workers. This draws me to the conclusion that the instant case more logically falls within the ambit of Saint Joseph Hospital 4 than Beck. Briefly, in Saint Joseph, a union which did not represent hospital employees picketed an entrance used by hospital employees and suppliers without giving any notice under Section 8(g). The union was picketing be- cause Saint Joseph had assigned interior and exteri- or painting work on one of its buildings to four of its own maintenance employees who were not rep- resented by the union. Although there was no evi- dence that any hospital employee declined to cross the picket line, or that any disruption in health care services resulted from the picketing, the Board found that the union violated Section 8(g) by not providing the notice required therein. In so doing, it made several observations pertinent here. First, the Board said that Section 8(g) was designed to regulate hospital picketing and work stoppages, even if unrelated to bargaining, and even if picket- :2 246 NLRB No, 148 (1979) la United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 630, AFL- CIO (Lein-Steenberg), 219 NLRB 837, enforcement denied 567 F 2d 1006 (D.C. Cir. 1977). 14 Orange Belt District Council of Painters No. 48, International Brother- hood of Painters and Allied Trades, AFL-CIO (Saint Joseph Hospital), 243 NLRB No. 113 (1979). ing was conducted by stranger employees or unions. Second, the Board rejected the contention of the union that "an actual showing of disruption of health care services is necessary before a viola- tion of this section can be found, as the 10-day notice period was designed to prevent disruptions of health care services not only when they actually occur but also when they may possibly occur."1' Finally, the Board commented that "the legislative history shows no support for [the] argument that Section 8(g) was intended to be applicable only to disputes involving employees performing direct 'patient related' functions."' 6 Similarly, in this case, a union which did not rep- resent employees of the institution picketed en- trances to a hospital used by its employees and sup- pliers (although no actual disruption of health care services occurred), and the dispute causing the picketing did not involve employees performing "patient related" functions. I therefore conclude, on the authority of Saint Joseph, that Respondent violated Section 8(g) by picketing St. Mary's with- out proper notice. Indeed, the only real difference between this case and Saint Joseph is that the picketing there was directed at the hospital, in the sense that the dispute concerned employees of the institution rather than a construction contractor. Accordingly, my colleagues justify refusing to require the 10-day notice on the ground that, quoting from Beck, "Congress did not intend to alter the status quo with respect to non-health care employees who had never been required to notify employers of their intent to engage in concerted activity against non-health care employers." 7 The main support for this conclusion in Beck is that the legislative history of the 1974 amendments to the Act contains no reference to labor activity involving non-health care employees. The fault in this is that such a general reading of the legislative history, relying upon the absence of references to non-health care employees, disregards the clearly stated purpose of the 10-day notice, ex- pressed in identical language in the House and Senate Committee Reports: It is in the public interest to insure the con- tinuity of health care to the community and the care and well being of patients by provid- ing for a statutory advance notice of any an- ticipated strike or picketing. For this reason, the Committee approved an amendment adding a new Section 8(g) which generally prohibits a labor organization from striking or ' Id., s. op., p. 9. '6Id., sI. op., p. 10. '? Beck., sl. op., p 10. LABORERS' LOCAL 1253 249 picketing a health care institution without first giving 10 days' notice.... The 10-day notice is intended to give health care institutions sufficient advance notice of a strike or picketing to permit them to make ar- rangements for the continuity of patient care. . . . [Emphasis supplied.]' 8 Unquestionably, the potential for disruption of pa- tient care is equally present whether picketing, car- ried out at entrances used by hospital employees iS S. Rept. 93-766, 93d Cong., 2d sess. 4 (April 2, 1974), "Legislative History of the Coverage of Nonprofit Hospitals Under the National Labor Relations Act, 1974" at II1; H. Rept. 93-1051. 93 Cong., 2d sess. 5 (May 20, 1974), Leg. Hist, supra at 273 and suppliers, results from a dispute involving em- ployees of the institution or of another employer on the site. In my view, congressional intent is most nearly effectuated by requiring unions in either instance to give the 10-day notice, thus al- lowing the hospital to take steps to insure that medical care is not interrupted. 19 g The majority suggests that a reserved gate should have been estab- lished to isolate picketing by Respondent. This overlooks the fact that the hospital had no advance warning of when picketing was to commence, or even against whom the picketing was to be directed, as the telegram from Respondent did not say. In any case, in the interest of maintaining continuity in the delivery of patient care, it would seem more sensible to require a 10-day notice of a strike or picketing, which would then force the hospital to establish a reserved entrance or face picketing at all en- trances used by employees involved in the primary dispute.