District 1199 E. Hospital and Health Care Employees

DISTRICT 1199 E, HOSPITAL AND HEALTH CARE EMPLOYEES District 1199-E, National Union of Hospital and Health Care Employees, RWDSU, AFL-CIO and Federal Hill Nursing Center, Inc. and Daniel Mit- nick d/b/a/ The Management Company t/a TMC. Cases 5-CG-19 and 5-CG 20 June 25, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEIMBI RS PSE II. AND MURPIHY Upon charges duly filed, the General Counsel of the National Labor Relations Board. by the Regional Director for Region 5. issued an order consolidating cases, complaint, and notice of hearing, dated August 30, 1978, against District 1199 E, National Union of Hospital and Health Care Employees, RWDSL. AFL-CIO, hereinafter referred to as Respondent. The complaint alleges that Respondent has engaged in certain unfair labor practices affecting commerce within the meaning of Section 8(g) and 2(6) and (7) of the National Labor Relations Act, as amended. Cop- ies of the charges and order consolidating cases, com- plaint, and notice of hearing were duly served on the parties. Thereafter, the parties entered into a stipulation of facts and jointly moved the Board to transfer this pro- ceeding directly to itself for findings of fact, conclu- sions of law, and Order. The parties stipulated that they waived a hearing before, and the making of find- ings of fact and conclusions of law by. an administra- tive law judge, and the issuance of an administrative law judge's decision, and that no oral testimony was necessary or desired by any of the parties. The parties also agreed that the charges, the complaint, and no- tice of hearing, and the stipulation of facts, including the exhibits attached thereto, constitute the entire rec- ord in this case. On January 17, 1979, the Board issued its order approving the stipulation and transferring the pro- ceeding to the Board. Thereafter, the General Coun- sel and Respondent filed briefs in support of their positions. 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 stipulation, includ- ing the exhibits, the briefs, and the entire record in this proceeding, and hereby makes the following: FINDINGS OF FACT( I. THE BUSINESS OF THE EMPI.OYFRS Federal Hill Nursing Center, Inc.. herein called Federal Hill, is, and has been at all times material herein, a Maryland corporation engaged in the opera- tion of a proprietary nursing home at 1213 Light Street, Baltimore. Maryland. During the preceding 12 months, a representative period, Federal Hill received gross revenues in excess of $100,000 and purchased and received in interstate commerce products valued in excess of $3.t00 from points located outside the State of Maryland. Daniel Mitnick d/b/a The Management Company t/a TMC, herein called TMC, is a sole proprietorship owned by Daniel Mitnick which is engaged in the business of providing housekeeping and dietary ser- vices at various nursing homes including Federal Hill, located in the State of Maryland. During the preced- ing 12 months, a representative period, TMC received gross revenues for its services in excess of $100,000 and purchased and received in interstate commerce products valued in excess of $3,000 from points lo- cated outside the State of Maryland. The parties have stipulated, and we find, that Fed- eral Hill and TMC are, and have been at all times material herein. employers engaged in commerce and in businesses affecting commerce with the meaning of Section 2(6) and (7) of the Act, and that Federal Hill is a "health care institution" as defined in Section 2(14) of the Act. i. 111 I.ABO()R ()R(GANi/.A I I)N INVOI.VIl) The Ulnion. District 1199 E. National Union of Hospital and Health C('are Employees, RWDSU, AFL, ('10. is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of' the Act. 1l. 1111: NI AIR IAH(BOR PRA(Cr('ES A. Facts On or about February 1, 1978, Federal Hill pur- chased the assets of the Light Street nursing home and, on that same date, subcontracted the housekeep- ing and dietary services to TMC. At the same time, both Federal Hill and TMC recognized Respondent as the collective-bargaining representative for the em- ployees in their respective bargaining units, and both have, since February , bargained collectively with Respondent for the employees in the respective units. Federal Hill's unit is described as "all full-time and regular part-time nursing service employees." TMC's unit is described as "all full-time and regular part- time housekeeping and dietary employees who work regularly 24 or more hours in the week." On June 20, 1978, Respondent, by its national president, notified Federal Hill in writing that the "service and mainte- nance unit" would begin informational picketing at 243 NLRB No. 6 23 DECISIONS OF NAIIONAL L.ABOR REI.ATIONS BOARD the home on Wednesday, July 5, 1978, at 6 a.m. On July 8, 1978, at 2:30 p.m., Respondent started picket- ing Federal Hill. Federal Hill was not given a notice of delay in the start of' picketing, nor was there any agreement between the parties regarding the delay. The picketing actually started 80-1/2 hours after the time stated in Respondent's notice to Federal Hill. B. Contentions of the Parties The General Counsel contends that (I) the legisla- tive history of Section 8(g) establishes that picketing of a health care institution should commence within 72 hours of the time stated. in the notice, absent fur- ther notice; (2) the purpose of this standard is to per- mit health care institutions to make necessary plans for the continued delivery of health care services in the event of a work stoppage: and (3) there is no evidence in this case of any unusual circumstances justifying Respondent's delay in the start of picketing nor is there any evidence of any effort by Respondent to notify Federal Hill of' the change in plans, and that, in the circumstances, Respondent's commence- ment of picketing of Federal Hill more than 72 hours after the time set forth in the notice to Federal Hill violated Section 8(g) of the Act. Respondent contends that a 72-hour limit on the notice requirement is an arbitrary cutoff period: that such an arbitrary time limit is itself unreasonable: that the picketing was informational picketing that did not cause any work stoppage or interference with deliveries; that the delay of 80-1/2 hours beyond the time stated in the notice was not, in the circumstances of this case, unreasonable; and that, accordingly, Re- spondent did not violate Section 8(g) of the Act. We agree with the General Counsel that Respon- dent's picketing of Federal Hill on July 8, 1978, vio- lated Section 8(g) of the Act. Section 8(g) and its leg- islative history make it clear that Congress was concerned with the necessity that health care institu- tions be apprised of any planned picketing or work stoppages sufficiently in advance of any such actions in order to allow the health care institution to take steps it may deem necessary to protect the continuity of the health care services it renders to its patients. In order to achieve this goal. Congress devised a proce- dure whereby labor organizations are required to give various notices to health care institutions, including, specifically, a notice stating the "date and time that such action [strike, picketing, or other concerted re- fusal to work] will commence." Congress recognized that a labor organization might not always be able or willing to commence its action at the time stated in the notice and accordingly provided that the notice "once given, may be extended by the written agree- ment of both parties." Congress also recognized that not all delays beyond the time in the initial notice require a written agreement of the parties. Both the Senate and the House of Respresentatives committees specifically addressed the question of delays in the timing of the strike, etc., after the time stated in the 10-day notice had passed. In their respective reports. the following appears: It is not the intention of the Committee that a labor organization shall be required to com- mence a strike or picketing at the precise time specified in the notice: on the other hand, it would be inconsistent with the Committee's in- tent if a labor organization failed to act within a reasonable time after the time specified in the notice. Thu,ll it would he unreasonable, in the Comtilttee's judgment, if a strike or picketing commenced more lhan 72 hours after the tinle .speciJied in he notice. In addition, since the pur- pose of the notice is to give a health care institu- tion advance notice of the actual commencement of a strike or picketing, if a labor organization does not strike at the time specified in the notice, at least 12 hours notice should be given of the actual time for commencement of the action. [Emphasis supplied.]' Thus, Congress specifically approved a union's unilat- eral extension of the time set forth in the initial 10- day notice. Congress also made it clear that it did not intend such unilateral extensions to be open-ended, but, rather. indicated that in its opinion any unilat- eral extension beyond a period of 72 hours would be unreasonable, with the further cavreat that, even within the 72-hour period, a union should give the health care facility at least 12 hours' notice of the actual time that the strike or picketing will com- mence. Respondent's basic contention is that the 72-hour period is an arbitrary cutoff period. We do not agree. The test as to the unlawfulness of a strike or picketing commencing after the date and time set forth in the 10-day notice will be one of "reasonableness", that is, the delay in the commencement of a strike or picket- ing beyond the stated time will be viewed in light of' (I) the circumstances causing the union to delay its actions and (2) why the union could not give the health care facility notice of the new scheduled date and time that the strike or picketing would com- mence. Here, there is nothing in the stipulation to indicate that Respondent gave Federal Hill any no- tice that the picketing would commence on July 8, 1978. at 2:30 p.m., nor is there any explanation as to why Respondent delayed the commencement of' pick- eting 80-1/2 hours beyond the time stated in the ini- '99 C(ong. Rec S. Rept 93 766, 93d (ong., 2d Sess 4 (April 2. 1'974). H. Rept. 93 1051. 93d Cong. 2d Sess. S (May 20. 1974). 24 D)ISTRI('T 1199 . tOSPI'AI. AND) tIFAL Ft ('ARE MPIOYtI ES tial 10-day notice or why. during the period of the delay, it could not have given Federal Hill sufficient advance notice of the scheduled new date and time fi)r the commencement of the picketing. C. ('Conclusion Based on the above facts, we conclude that by commencing picketing at Federal Hill on July 8, 1978, at 2:30 p.m.. 80-1/2 hours after the time stated in the initial 10-day notice served on Federal Hill by Respondent, and without having given Federal Hill any advance notice of the scheduled new date and time for the commencement of the picketing. Respon- dent's picketing of Federal Hill was not in conformity with the notice requirements of' Section 8(g) of the Act and, accordingly, by engaging in such picketing, Respondent violated Section 8(g) of the Act.2 CON(l.USIONS ()OF LAW I. Federal Hill Nursing Center, Inc., and Daniel Mitnick d/b/a The Management Company t/a TMC are employers within the meaning of Section 22), (6), and (7) of the Act, and Federal Hill Nursing Center, Inc., is a health care institution as defined in Section 2(14) of the Act. 2. District 1199 E, National Union of Hospital and Health Care Employees, RWDSU, AFL-CIO. is, and at all times material herein has been, a labor or- ganization within the meaning of Section 2(5) of the Act. 3. By picketing Federal Hill Nursing Center, Inc., on July 8, 1978, at 2:30 p.m., 80-1/2 hours after the time stated in the initial 10-day notice given by Re- spondent to Federal Hill Nursing Center, Inc., Re- spondent has violated Section 8(g) of the Act. 4. The above unfair labor practice is an unfair la- bor practice affecting commerce within the meaning of Section 2(6) and (7) of the Act. TIlE REMEF)Y Having found that Respondent engaged in, and is engaging in, certain unfair labor practices, we shall order that it cease and desist therefrom and take cer- tain affirmative action designed to effectuate the poli- cies of the Act. I In finding a violation herein. we do not pass upon Respondent's conien- lion that the legality of the picketing should he measured bh the impact or lack of impact on the health care institution rhis ssue was not addressed In the stipulation. but, rather, was belatedlN raised hv Respondent as a. tl clual assertion in its brief to the Hoard ORDER Pursuant to Section I0(c) of the National Labor Relations Act, as amended, that National Labor Re- lations Board hereby orders that the Respondent. District 1199-E. National Union of Hospital and Health Care Employees, RWDSU., AFL -CIO, Balti- more. Maryland, its officers. agents. and representa- tives. shall: . ('ease and desist from: (a) Picketing Federal Hill Nursing Center, Inc., or any other employer in the health care industry, at a time when the commencement of' such picketing is not in conformity with the notice requirements of Section 8(g) of the Act. (h) In any like or related manner restraining or co- ercing Federal Hill Nursing Center. Inc.. and Daniel Mitnick d/b/a The Management Company t/a TM(' in the operation of the Federal Hill Nursing Center. Inc., nursing home. 2. Take the following affirmative action: (a) Post at its offices and meeting halls copies of the attached notice marked "Appendix."3 Copies of said notice, on forms provided by the Regional Direc- tor for Region 5. after being duly signed by Respon- dent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter. in conspicuous places. including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said no- tices are not altered, defaced. or covered by any other material. (b) Sign and deliver to the Regional Director for Region 5 sufficient copies of said notice, to be fur- nished by the Regional Director, fr posting by the Employers herein, if willing. (c) Notify the Regional Director for Region 5, in writing, within 20 days from the date of this Order. what steps Respondent has taken to comply herewith. In the event that this Order is enlorced bh a Judgment ofa L nited States Court oft Appeals, the words n the notice reading "Posted h Order of the National L.abor Relations Board" shall read "Posied Pursuant to a Judgment of the tinited States Court of Appeals !nlforcing an Order of the National Labor Relatlons Board" APPENDIX Notit( To ENPI.o()Yrs PO)sl l) BY ORDR o) i e NAII )NAI AB)R RlAI I()NS BOARDI An Agency of the United States (iovernment WE Wi l. Not picket Federal Hill Nursing Center, Inc., or any other employer in the health 2s DECISIONS OF NATIONAL LABOR RELATIONS BOARD care industry, at a time when the commencement of such picketing is not in conformity with the notice requirements of' Section 8(g) of the Na- tional Labor Relations Act, as amended. WE WILL NOI in any like or related manner restrain or coerce Federal Hill Nursing Center. Inc., and Daniel Mitnick d/b/a The Manage- ment Company t/a TMC in the operation of the Federal Hill Nursing Center, Inc., nursing home. DISTrRI(l I 199 E, NATIONAI. UNION OF H()SPIIIAI. ANI) IIEAI I CAR FMPI.()YItES, RWDSU, AFL CIO 26