Orange Belt District Council of Painter No. 48

ORANGE BELT DISTRICT COUNCIL OF PAINTERS NO. 48 Orange Belt District Council of Painters No. 48, In- ternational Brotherhood of Painters and Allied Trades, AFL-CIO and Saint Joseph Hospital. Case 21 CG 6 July 20, 1979 DECISION AND ORDER Upon charges filed by Saint Joseph Hospital. the General Counsel of the National Labor Relations Board, by the Regional Director for Region 21, issued a complaint on March 6, 1978.' amended April 7, against Respondent Orange Belt District Council of Painters No. 48. International Brotherhood of Paint- ers and Allied Trades, AFL CIO, herein called Re- spondent or the Union. Copies of the charge and the complaint and notice of hearing bet'ore an adminis- trative law judge were duly served on Respondent and the Charging Party. In substance, the amended complaint alleges that Respondent violated Section 8(g) of the National Labor Relations Act, as amended, by picketing Saint Joseph Hospital, herein also called the Hospital, at its hospital facility without first giving 10 days' written notice of its intent to do so to the Hospital and to the Federal Mediation and Conciliation Service. The answer and the amended answer duly filed by Respondent deny the allegations in the complaint and the commission of any unfair labor practices. On May 3. the Charging Party, the General Coun- sel, and Respondent entered into a stipulation in which they agreed that certain documents shall con- stitute the entire record herein,' and that no oral tes- timony is necessary or desired by any of the parties. Thus, the parties expressly waived all intermediate proceedings before an administrative law judge and oral argument in this matter, and petitioned that this case be transferred to the Board for the purpose of making findings of fact and conclusions of law and issuing an appropriate Order, reserving to themselves only the right to object to the materiality, relevancy, or competency of any of the stipulated facts. By order dated January 19, 1979, the Board ap- proved the stipulation, transferred the proceeding to itself, and set a date for the filing of briefs. Thereafter, the General Counsel and Respondent filed briefs, which have been duly considered by the Board. The Board has considered the entire record herein as stipulated by the parties, as well as the briefs filed I All dates herein are in 1978 unless otherwise indicated. I The stipulated record consists of the charge, complaint, amended com- plaint. answer. answer to amended complaint. a diagram of the Hospital's premises, letters from Respondent's attorne) to the Hospilal and to Kiely Construction Co., both dated Februar 3 the stipulation. and the motion to transfer proceedings to the Board. by Respondent and the General Counsel. and makes the following findings and conclusions: FA(CTS I. tIEl BUSINIESS OF THE MPI.OYFR Saint Joseph Hospital is a nonprofit California cor- poration located in Orange, California, where it is en- gaged in the operation of an acute care general hospi- tal. In the course and conduct of its operations, the Hospital annually derives gross revenues in excess of $250,000 and annually purchases and receives goods and products valued in excess of $50,000 directlb from suppliers located outside the State of California. The parties stipulated, and we find. that Saint Joseph Hospital is now, and at all times material herein has been, an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act and that it is now, and at all times material herein has been. a health care institution within the meaning of Section 2(14) of the Act. We further find it will effectuate the purposes of the Act to assert jurisdiction in this pro- ceeding. II1. THI I ABOR ORGANIZATION INV()OINVI) The parties stipulated, and we find, that Respon- dent is now, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. 111. Till UNFAIR ABOR PRAr( I(fES A. The Issue The question presented is whether Respondent vio- lated Section 8(g) of the Act by picketing Saint Joseph Hospital at its location without first giving 10 days' written notice of its intent to do so to the hospi- tal and to the Federal Mediation and Conciliation Service. B. The Stipultled Facts In 1964 Saint Joseph Hospital constructed a new acute care hospital adjacent to an earlier structure, the northeast building. on its premises located in Or- ange, California. Since 1966, the northeast building has not been used for direct patient care, with the exception of the utilization of part of the building for psychiatric patient recreation facilities. After this date, and aside from these recreation facilities, the northeast building has been used exclusively for the housing and performance of administrative services 243 NLRB No. 113 DECISIONS OF NAIIONAI. LABOR RELATIONS BOARD for the Hospital. The Hospital, in conjunction with its plans to renovate and convert the northeast building to an office administration building for the Hospital, on or about May 6, 1976, awarded a contract to Kiely Construction Co. for the performance of certain phases of such construction, renovation, and conver- sion work. Some phases of such work, including exte- rior and interior painting and the installation of a clock system, television system, and communication systems, were excluded from this contract. The inte- rior and exterior painting was assigned to four of the Hospital's regularly employed maintenance employ- ees who in the past have performed painting work as part of their duties. These employees are not covered by any collective-bargaining agreement. During the course of the conversion of the northeast building, as described above, the Hospital remained in operation and provided health care services to patients in the acute care facility constructed in 1964. The main building of' Saint Joseph Hospital, de- scribed above, faces west onto Stewart Drive. Adja- cent to and behind this structure is the northeast building, which name apparently derives from its lo- cation to the northeast of the main hospital building. The two entrances to the Hospital's premises are lo- cated in front of the Hospital on Stewart Drive and to the south of the Hospital on La Veta Avenue. The La Veta Avenue entrance provides access to the rear of the main hospital building and its loading dock, and is also the entrance closest in proximity to the north- east building. The general public uses primarily the Stewart Drive entrance in front of the Hospital, while the La Veta Avenue entrance is used ftir the delivery of all supplies, both medical and construction. In ad- dition, the painting employees and others use the l.a Veta Avenue entrance. Respondent represents paint and drywall finisher employees in their dealings with paint and drywall contractors located throughout the counties of River- side, Orange, San Bernardino, and San Diego and certain eastern portions of Los Angeles. During all times material, Respondent was signatory to collec- tive-bargaining agreements relating to paint and dry- wall finishing work with approximately 1,000 con- tractors in the building and construction industry. On or about January 23 Respondent engaged in picketing at the La Veta Avenue entrance by causing pickets to patrol this entrance with signs reading: Saint Joseph unfair to Painters Drywall Finish- ers in Painters District Council #48. On or about February 3 through 17. and on or about March 29 and continuing thereafter, Respondent en- gaged in further picketing at the La Veta Avenue en- trance by causing pickets of patrol this entrance with signs reading: Saint Joseph Hospital performing painting work non union Drywall Finishers in Painters District Council 48 sanctioned by Building Trades Council. Respondent picketed at the La Veta Avenue en- trance of the hospital as described above without giv- ing 10 days' written notice of its intent to do so to the Hospital or to the Federal Mediation and Concili- ation Service. On or about February 3, Respondent's attorney sent letters to the hospital and to Kiely Construction Co. The bodies of these letters were identical and stated the following: This office represents Orange Belt District Council of Painters No. 48, its affiliated Local Unions, and the members thereof As you know. my client has recently commenced peaceful pick- eting at the above located job site. The sole and limited purpose and objective of such picketing is to advertise to the employees of St. Joseph Hospital assigned to perform paint work that the Hospital is not signatory to a collective bargain- ing agreement covering such work. Such picketing is not intended, nor is it desired to persuade individuals employed by other con- tractors to refrain from normal work activities in any manner. Neither is such activity intended to persuade St. Joseph Hospital to change its proce- dure relative to the perfiormance of paint work. In addition. such picketing is not intended to induce employees of St. Joseph Hospital as- signed to perform paint work to take up mem- bership in the Union. or to persuade St. Joseph Hospital to recognize the Union as bargaining representative. In this connection, my client does not claim to represent the employees of St. Joseph Hospital assigned to perform paint work. Please be assured that the picketing activities are, and will continue to be, conducted in such manner as consistent to achieve the limited ob- jectives as described above. In the event that any person, other than employees of St. Joseph Hos- pital assigned to perform paint work, ceases to perform regular and normal work activities be- cause of the existence of such picketing activities, I suggest that you immediately contact this office directly. Please be assured in that regard that all efforts will be undertaken to insure that any such disturbance is immediately corrected. Finally, I would invite you to use this letter in any manner that you feel appropriate to insure that normal and customary work activities by all persons on said job site, other than employees of' St. Joseph Hospital assigned to perf'orm paint work, remain unaffected. 610 ORANGE BA' I)ISIRI{(" ('OtN(AI1. 01 PAINIERS N) 48 C. Contuntions f tlhe Parties The General Counsel contends that the Union vio- lated Section 8(g) of the Act by failing to noti the Hospital and the Federal Mediation and Conciliation Service of its intent to picket the Hospital at least 10 days before such picketing began, arguing that the object of the picketing is not relevant and that such picketing, in the absence of the required notice whose purpose is to prevent the sudden disruption of vital health care services, constitutes a clear violation of Section 8(g) under a literal reading of the section. The General Counsel also contends that Respondent's re- liance on certain courts of appeals decisions, in which the Board's Orders involving the finding of 8(g) viola- tions were denied enforcement,' is misplaced since, even under these appellate decisions, a violation of Section 8(g) lies where. as here, the picketing without appropriate notice takes place against, rather than merely at the premises of a health care institution. The General Counsel also noted the presence of re- served gates in those other cases, which served to in- sulate the health care functions from the labor dis- putes there. Here, on the contrary, the picketed entrance was used by hospital employees and for the delivery of hospital supplies. In light of this, the Gen- eral Counsel argues that "the picketing was carried out in a location and manner which had, and has, the reasonably foreseeable consequence of tending to in- duce work stoppages among Hospital employees and the interruption of deliveries of health care supplies which would have an impact on patient care." Respondent on the other hand, contends that Con- gress did not intend to restrict the type of picketing engaged in here. The painters were doing work not traditionally performed by health care employees and not related to patient care, especially in view of the fact that the building being renovated was used for administrative services. Therefore, the proximity of the picketing to the hospital premises is irrelevant. Referring to the letters of February 3, Respondent additionally asserts that it intended only to advertise to the painters through informational picketing that the hospital was not a signatory to a bargaining agreement, that Respondent did not intend or desire any work stoppage, and that it did not have an or- ganizational or recognitional objective in so picket- ing. Furthermore, according to Respondent's analy- sis, it is necessary to read Section 8(g) and (d) I Laborers' International Union of North America, AFL ('10, Local Union No. 1057 Mercy Hospital of Laredo). 219 NLRB 846 (1975). enforcement denied 567 F.2d 1006 (D.C. Cir. 1977); International Brotherhood of Electri- cal Workers. Local Union No. 388 (St. Joseph's Hospital of Marshfield. nc.). 220 NLRB 665 (1975), enforcement denied sub nom. LR.B. v. IBEW Local 388 /Hoffman Co]. 548 F.2d 704 (7th Cir. 1977). cert. denied 434 U S. 837 together, and Congress intended Section 8(g) only to control work stoppages which derive from contrac- tual disputes. In any case, as there has been no show- ing of a disruption of health care ser' ices. or of sup- plies to the Hospital or the construction site. Respondent contends that such peaceful picketing should not be rendered unlawful under Section 8(g). [). Di.tcu.v.io1n On January 23, pickets appeared at the rear en- trance to the ospital -on La Veta Avenue --which entrance is regularly used by the Hospital's employ- ees and suppliers. The language on the picket sign clearly stated that the reason for the picketing was an unspecified dispute between Respondent and the Hospital. In these circumstances. and as fully ex- plained below. we find that such picketing by the Union on January 23 and thereafter, in the absence of the required 10 days' notice, was precisely the type of activity which poses a serious threat to the continued provision of health care services at the picketed hospi- tal, and was intended to be proscribed both by the literal language of Section 8(g) and the underlying congressional intent. Section 8(g) of the Act provides: 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 in- stitution in writing and the Federal Mediation and Conciliation Service of that intention, except that in the case of bargaining for an initial agree- ment following certiication or recognition the notice required by this subsection shall not be given until the expiration of the period specified in clause (B) of the last sentence of section 8(d) of this Act. The notice shall state the date and time that such action will commence. The notice, once given. may be extended b the written agreement of both parties. We reject Respondent's argument that this section was intended to control only work stoppages which derive from contractual disputes, as the legislative history expressly indicates that such activity is to be regulated by Section 8(g) whether or not it is related to bargaining.4 and, moreover, even in instances where it would constitute "stranger picketing." Fur- thermore, we reject Respondent's argument that an actual showing of disruption of health care services is necessary before a violation of this section can be IS. Repl 93 766. 93d Cong.. 2d ess (1974) H Rept 93 1051, 93d Cong.. 2d sess. (1974); 120 Cong. Rec S6930. S6932, S6934. S6941 dally ed, MaN 2. 1974) 5 120 Cong Rec S6935 (dail, ed., Mav 2. 1974) 61 I1 DECISIONS OF NATIONAL. LABOR RELATIONS BOARI) 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.6 In view of Congress' general pro- scription of picketing of health care institutions with- out the 10 days' notice, we find that Respondent's February 3 letters, which do not conform to the re- quirements of Section 8(g), do not render Respon- dent's conduct lawful. We also find Respondent's remaining arguments with respect to the lawfulness of its picketing to be similarly without merit. As the picketing was aimed directly against the hospital, and was conducted at one of the hospital's two main entrances, no argu- ment can be made that the Hospital was a neutral employer not directly affected by the labor dispute, or that the picketing was in a location, such as at a re- served gate, which would have isolated if from the Hospital's patient care activities. While Respondent noted that the underlying dispute concerned work being done on the Hospital's administrative services building and such work was performed by employees- painters not traditionally engaged in providing health care services, the picketing in no way limited the dis- pute to such circumstances.7 In any event, the legisla- tive history shows no support for Respondents' argu- ment that Section 8(g) was intended to be applicable only to disputes involving employees performing di- rect 'patient related" functions. Finally, we reject Re- spondent's argument that the picketing involved herein was protected informational picketing since, even assuming that the picketing was informational, Section 8(g) specifies an independent unfair labor practice,' and does not contain a proviso protecting informational picketing.9 Accordingly, for all of the reasons discussed above, we find that Respondent, by picketing Saint Joseph Hospital without first giving the required notices, vio- lated Section 8(g) of the Act. IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The activities of Respondent set forth above have a close, intimate, and substantial relationship to trade, 'S. Rept. 93-766, supra; H. Rept. 93 1051, supra 'Cf. 120 Cong. Rec. S7310 (daily ed., May 7. 1974), where Senator Taft stated: An Administrative facility or operation within a hospital, however. would be within the scope of the amendments as there would be a connection directly and indirectly with ongoing patient care. The cru- cial connection is the welfare of the patients and such connection would in certain cases be mere geographical proximity to ongoing patient care. 120 Cong. Rec. S7310 (daily ed., May 7. 1974). See District 1199, National Union of Hospital and Health Care Employees RWDSU, AFL-CIO (United Hospitals of Newark), 232 NLRB 443 (1977). traffic, and commerce among the several States and tend to lead to industrial striie burdening and obh- structing commerce. V. liie REMtI)Y Having found that Respondent has engaged in, and is engaging in, an unfair labor practice in violation of Section 8(g) of the Act, we shall order that it cease and desist therefrom, and take certain affirmative ac- tion designed to effectuate the policies of the Act. On the basis of the foregoing findings of fact and on the entire record in this case, we make the follow- ing: CONCLI.USI()NS ()1 IAW I. Saint Joseph Hospital is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and is a health care institution within the meaning of Section 2(14) of the Act. 2. Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By picketing Saint Joseph Hospital without first giving 10 days' written notice to Saint Joseph Hospi- tal and to the Federal Mediation and Conciliation Service, Respondent has violated Section 8(g) of the Act. 4. The foregoing unfair labor practice is an unfair labor practice affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National labor Rela- tions Board hereby orders that the Respondent. Or- ange Belt District Council of Painters No. 48, Inter- national Brotherhood of Painters and Allied Trades, AFL-CIO, Santa Ana, California, its officers, agents, and representatives, shall: I. Cease and desist from engaging in any strike, picketing, or other concerted refusal to work at Saint Joseph Hospital, or any other health care institution, without notifying in writing Saint Joseph Hospital, or such other health care institution, and the Federal Mediation and Conciliation Service, not less than 10 days prior to such action, of that intention. 2. Take the following affirmative action which is necessary to effectuate the purposes of the Act: (a) Post at its business offices, meeting halls, and all other places where notices to its members are cus- tomarily posted copies of the attached notice marked 612 ORANGE; BELT I)ISIRICI COUNCIL OF PAINTERS NO. 48 "Appendix."' ° Copies of said notice. on tforms pro- vided by the Regional Director for Region 21, after being duly signed by Respondent's authorized repre- sentative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to members are cus- tomarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered., defaced, or covered by any other material. (b) Furnish to the Regional Director for Region 21 sufficient signed copies of the aforesaid notice for posting by Saint Joseph Hospital, if it is willing, in places where notices to its employees are customarily posted. (c) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. MEMBER JENKINS, concurring: I agree with my colleagues that, as Respondent's picketing was directed against Saint Joseph ospital and occurred at one of the Hospital's main entrances, Respondent's activities were clearly within the scope of Section 8(g). Unlike my colleagues, however, I do not consider irrelevant Respondent's argument that its picketing of Saint Joseph's Hospital was outside the scope of Sec- tion 8(g) in that it contends that the picketing was lawful informational picketing which did not interfere with the Hospital's operations." However, the cir- cumstances of the picketing in this case clearly reveal that the conduct engaged in was not purely informa- tional picketing which would not threaten a disrup- tion of the Hospital's patient care function. The pro- tections normally accorded informational picketing are designed to maximize the ability of a labor or- ganization to inform the general public of the exis- tence of a labor dispute with a specified employer. However, this protection is available only where the picketing is truly designed to serve a public informa- tional function. Respondent's February 3 letters di- rectly state, however, that this was not the intention of the picketing. In these letters, it is definitely stated that the sole purpose of the picketing was to convey a message to the Hospital's painting employees that 10 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the Na- tional Labor Relations Board" " See my dissent in United Hospitals of Newark, supra they were not covered by a collective-bargaining agreement. Nowhere is mention made of a public purpose with respect to the picketing and, indeed, no- where was it specified on either of the two types of picket signs used that the public was being addressed. In an earlier case regarding an alleged 8(b)(7)(') vio- lation. the Board rejected the applicability of infor- mational picketing protections to picketing aimed di- rectly at the employer's employees. In Phirldlph/ia 1Window Cleaners and aintenance Worklers' Union, Local 125 (A4/tantic Mainlenance Co.), 136 N IRB 1104, 1105 (1962), the Board stated: However, where picketing, though ostensibl\ di- rected at the public is transparently not fr that purpose, circumvention of the statutory prohibi- tion of Section 8(b)(7)(C) will not be tolerated. In the instant case the evidence, taken in its total context, plainly discloses that Respondent's pick- eting was not for the informational purpose au- thorized by the second proviso [of Sec. 8(b)(7)(C)] but, rather, was focused upon the em- ployees qua employees. This rationale is all the more compelling where the Respondent does not even argue that the ostensible reason for the picketing was to inform the public. but admits that it was merely addressing the hospital's employees.'2 Accordingly, for this additional reason, I concur with my colleagues' conclusion that Respon- dent violated Section 8(g) of the Act. 12 C( Hmosling and P,,rohle Enigo, err e I. al L/ n:on IlI. lhlitt'd each the Internmtional Inton o/ Operirnng Enginers .4.FL (C1 (ShterS,hd (onrru - tion ('or, anls, Inc). 140 N RB 1175. 1 179 (1963) APPEND)IX No II(t' To EMI'I O(YEES AND MEMBERS POS IED BY ORDER OF THE NAII()NAI. LABOR RE.ATIONS BOARD An Agency of the United States Government WE WVII. NOT engage in any' strike, picketing. or other concerted refusal to work at Saint Joseph Hospital, or any other health care institu- tion. without notifying, in writing, any such health care institution, and the Federal Media- tion and Conciliation Service, not less than 10 days prior to such action, of that intention. ORANGE BELT DIS1RI(CT COUNCIL. OF PAINT- ERS No. 48, INTERNAIONAL BROTIIERHO()I)D OF PAINTERS AND ALLI.IED TRADES. AFL CIO (13