Service Employees Local 144 (Brooklyn Methodist Church Home)

SEIU, LOCAL 144 Local 144, Hotel, Hospital, Nursing Home and Allied Service Employees Union, SEIU, AFL-CIO and Brooklyn Methodist Church Home Cases 29-CG- 12 and 29-CP-318 September 16, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY On April 13, 1977, Administrative Law Judge Arthur Leff issued the attached Decision in this proceeding. Thereafter, the Respondent Union filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the Administrative Law Judge's Decision, Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Local 144, Hotel, Hospital, Nursing Home and Allied Service Employ- ees Union, SEIU, AFL-CIO, New York, New York, its officers, agents, and representatives, shall take the action set forth in the said recommended Order. DECISION STATEMENT OF THE CASE ARTHUR LEFF, Administrative Law Judge: Upon charges filed by Brooklyn Methodist Church Home (BMCH) on December 2, 1976, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 29, issued a complaint in Case 29-CG-12, dated December 17, 1976, and a complaint in Case 29-CP-318, dated December 23, 1976, against the above-named Union, herein called Respondent or Local 144. The two cases were consolidated by order of the Regional Director dated December 27, 1976. The complaint in Case 29-CG-12 alleges in substance that Respondent, commencing on December 2, 1976, engaged in unfair labor practices within the meaning of Section 8(g) of the National Labor Relations Act, by directing its members to engage in strike action against BMCH without having first given BMCH and the Federal Mediation and Conciliation Service the 232 NLRB No. 5 requisite 10-day notice of its intention to do so. The complaint in Case 29-CP-318 alleges in substance that commencing on December 2, 1976, Respondent engaged in unfair labor practices within the meaning of Section 8(bX7)(A) of the Act, by picketing BMCH with an object of forcing BMCH to recognize and bargain with it as the collective-bargaining representative of BMCH's mainte- nance and service employees, notwithstanding that another labor organization, District 1199, National Union of Hospital and Health Employees (District 1199) was at the time the lawfully recognized representative of BMCH's service and maintenance employees and a question concerning the representation of such employees could not then appropriately be raised under Section 9(c) of the Act. Respondent filed answers to both complaints denying the commission of the alleged unfair labor practices. A hearing was held before me at Brooklyn, New York, on January 17 and 18, 1977. Briefs were filed by the General Counsel and by Respondent on February 25, 1977. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. JURISDICTION Brooklyn Methodist Church Home (BMCH), a New York not-for-profit corporation, operates a nursing home facility in Brooklyn, New York. During the past year, a representative period, it derived gross revenues in excess of $100,000 from its nursing home operations. It purchased and had delivered to it at its Brooklyn, New York, facility from sources outside the State of New York supplies, goods, and materials valued in excess of $50,000. Respon- dent admits, and it is found, that BMCH is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED Local 144, Hotel, Hospital, Nursing Home and Allied Service Employees Union, SEIU, AFL-CIO, Respondent herein, and District 1199, National Union of Hospital and Health Employees, RWDSU, AFL-CIO, is each a labor organization within the meaning of Section 2(5) of the Act. 1. THE UNFAIR LABOR PRACTICES On December 2, 1976, and for some 3 weeks thereafter until enjoined by court order, Respondent Local 144 picketed BMCH at 1485 Dumont Avenue, Brooklyn, New York, the location to which BMCH had moved its place of business on the date stated. Local 144 is charged in this consolidated proceeding with having violated both Section 8(b)(X7XA) and Section 8(g) of the Act by engaging in such picketing. BMCH, which is licensed by the New York State Department of Health as a skilled nursing home facility (SNF) and as a health-related facility (HRF), has been in existence for some 100 years. Until December 2, 1976, it was located at 920 Park Place, Brooklyn, New York. At that location it employed immediately prior to December 2, 1976, approximately 80 employees, of whom about 60 25 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were grouped in an appropriate bargaining unit of service and maintenance employees for which District 1199 was the duly recognized bargaining representative. The latest collective-bargaining contract covering that employee unit was entered into between BMCH and District 1199 in January 1976 for a 2-year term expiring on December 31, 1977. The contract expressly provides that it is to apply to any location to which BMCH might move. In January 1975, BMCH was notified by the New York Department of Health that its physical plant at 920 Park Place no longer met certain requirements of the New York Health Code and that its facility would have to be closed if the code violations were not corrected. BMCH decided that, rather than to undertake the correction of the physical violations, it would be more feasible for it to purchase an existent facility that already satisfied code requirements and to transfer its operations to that facility. In September 1975, BMCH entered into an agreement with Bernard Feuer, the owner of Lindenboro Nursing Home, a proprietary nursing home located at 1485 Dumont Avenue, Brooklyn, New York, to purchase from Feuer the physical assets of the Lindenboro Home. BMCH agreed to purchase the Lindenboro land, building, equip- ment, furniture, and personal property at that location, but not any of Lindenboro's other assets; it did not assume any of Lindenboro's liabilities. The Lindenboro Nursing Home had been in operation since 1974 or earlier. Its employees were represented by Local 144 which had a collective- bargaining contract or contracts with Lindenboro, for a term expiring November 30, 1976, covering three separate bargaining units - a service and maintenance employees' unit, a registered nurses' unit, and a licensed practical nurses' unit. Local 144's contract provided that it was to become binding upon any entity that assumed ownership or operation of the Lindenboro facility. The purchase agreement entered into between BMCH and Feuer expressly stated, however, that BMCH was not to assume Lindenboro's collective-bargaining agreement with Local 144 covering the Lindenboro employees. BMCH's purchase agreement for the lindenboro proper- ty was made conditional upon BMCH obtaining the New York Department of Health's approval of the purchase i The Lindenboro Nursing Home had been licensed only as a skilled nursing facility. 2 Individuals in BMCH's health-related facility are known as residents. Those receiving skilled nursing care are known as patients. 3 As an exclusively SNF facility the Lindenboro Home had a certified 120-bed capacity, but that capacity was reduced to 113 beds when BMCH took over the Lindenboro property and converted it to a combined SNF and HRF facility. At its Park Place facility BMCH had a certified 100-bed capacity. However, it had only about 49 patients and residents housed at that location when it entered into its purchase agreement with Feuer in September 1975. It was BMCH's intention at that time to maintain that number of patients and residents at Park Place until it moved to its new facility and to transfer all of its patients and residents to Dumont Avenue when it began its operations there. That intention is reflected in the purchase agreement which provides in one of its sections that the transfer of all of BMCH's patients willing to relocate at the Dumont Avenue facility was "of the essence of this agreement." The agreement also provided, however, in another section that Lindenboro was to have 70 patients in residence at its Home when BMCH took over the Lindenboro facility. That provision was included in the purchase agreement because it was anticipated when the agreement was made that, with Lindenboro's then certified bed capacity of 120, BMCH would be able to accept 70 patients from Lindenboro after moving its entire Park Place population to Dumont Avenue. Because of the agreement and a license from that agency to operate a combined health care facility and skilled nursing facility at the Dumont location.' The closing date for the purchase, initially set for March 31, 1976, was postponed until December I, 1976, because of an unanticipated delay in obtaining the requisite Department of Health approval and license. BMCH formally acquired possession of the Lindenboro property at 12:01 a.m. on December 2, 1976. At that time, Lindenboro ceased its operations at Dumont Avenue, and, as required by the New York Health Code, surrendered its license to operate a skilled nursing home facility at that location. BMCH began its operations at the Dumont Avenue facility on the morning of December 2, 1976. Either on that day or the next, BMCH moved to its new Dumont Avenue location all 33 of its Park Place HRF residents.2 At about the same time, BMCH also moved to the Dumont Avenue location 15 of its 46 Park Place SNF patients. BMCH took over from Lindenboro 65 of its SNF patients. These patients were recertified by the Department of Health as patients of BMCH. BMCH had intended when it entered into its purchase agreement with Feuer to transfer to its new location all of its patients and residents housed at its Park Place location. For reasons explained in the marginal note, BMCH was compelled, however, to exclude 31 of its Park Place SNF patients from the move to Dumont Avenue in December 1976.3 BMCH transferred these 31 excluded SNF patients to other nursing home facilities with the understanding that they would be taken back by BMCH at its Dumont Avenue facility when room for them became available.4 With the transfer of its operations to Dumont Avenue, BMCH discontinued completely its operations at Park Place. At Dumont Avenue, BMCH required a larger work force than at Park Place. BMCH began its operations at Dumont Avenue on December 2, 1976, with 72 service and maintenance employees. Of these, 52 were BMCH employ- ees transferred from Park Place, s 11 were newly hired employees obtained through the District 1199 hiring hall, and 9 were newly hired employees obtained from other sources. 6 None of the 72 was a former Lindenboro employee. As of the time of the hearing, BMCH's unexpected delay in obtaining Department of Health approval of the purchase agreement, BMCH found it necessary for financial reasons to add to the complement of its patients and residents at Park Place while awaiting such approval. As a result, BMCH's population at its Park Place facility was enlarged to 79 by the time of the closing. BMCH attempted to persuade Feuer, prior to the closing, to reduce the number of Lindenboro patients to an extent sufficient to make room for the transfer of all of BMCH's Park Place patients to Dumont Avenue. But Feuer, although agreeable, was unable to reduce the number below 65, and BMCH could not compel him to reduce the number further, not only because of the stipulation in the agreement, but also because of Department of Health restrictions on the transfer of skilled nursing care patients. As a result, there was no room at the Dumont Avenue facility for the 31 Park Place SNF patients who were excluded from the move to Dumont Avenue. 4 As of the date of the hearing. two of these patients, for whom beds at Dumont Avenue had become available, had been taken back by BMCH. No other new patients or residents had been accepted by BMCH at its Dumont Avenue location. 5 BMCH had employed 60 service and maintenance employees at Park Place, but 8 of the 60, although offered places at Dumont Avenue, declined to accept them for reasons of personal convenience. 6 BMCH's collective-bargaining contract with District 1199 requires BMCH to notify District 1199's employment service of all bargaining unit 26 SEIU, LOCAL 144 complement of service and maintenance employees had been enlarged to 78. The additional six were obtained through the District 1199 hiring hall. BMCH has continued at all times since the date of the transfer of its operations from Park Place to Dumont Avenue, to recognize District 1199 as the exclusive bargaining representative of its service and maintenance employees and to give effect to the 2-year contract with that labor organization that was entered into in January 1976. As stated above, on the morning of December 2, 1976, the first day of BMCH's operations at the Dumont Avenue location, Local 144 established a picket line at BMCH's Dumont Avenue premises, and continued to maintain that picket line until it was enjoined from further picketing some 3 weeks later by order of the District Court for the Eastern District of New York. The pickets carried signs declaring, without more, that BMCH was "unfair to Local 144." After the picketing began, Local 144 did not communicate to BMCH the objectives of its picketing. Its reasons for picketing and the objectives it sought to attain thereby are, however, discernible from the events antedat- ing the picketing to be reported below. When BMCH entered into its purchase agreement with Feuer for the Lindenboro property, it intended to transfer to its new location the employees who had worked for it at its Park Place location, but anticipated that it might need as many as 40 or so additional employees to service its larger facility at Dumont Avenue. BMCH feared that the staffing of its new facility at Dumont Avenue might give rise to a conflict between District 1199, the bargaining representative of its service and maintenance employees, and Local 144, the bargaining agent of the Lindenboro employees. In January 1976, with that consideration in mind, George A. Cau, BMCH's labor consultant, asked Doris Turner, District 1199's vice president, to attempt to work out an arrangement with Local 144 to forestall any such potential conflict. Turner at that time made it clear to Cau that District 1199 expected BMCH at its relocated facility to continue to honor its contract with District 1199 and to comply with the referral procedures of that contract in recruiting employees for the additional positions that would become available. In September, Cau had a further conversation with Turner about this matter, in the course of which Turner modified somewhat her earlier expressed position, agreeing in effect to waive the contract's job referral requirements to allow BMCH to offer to Linden- boro's current employees the 40 or so additional positions which BMCH anticipated it would have to fill at Dumont Avenue. In late September or early October Cau met with Austin Cedeno, Local 144's recording secretary and executive assistant to its president. The meeting was arranged at Cau's request. At this meeting, Cau furnished Cedeno with pertinent details of BMCH's purchase agreement with Feur, as well as the details of BMCH's collective-bargain- ing contract with District 1199. Cau also informed Cedeno that BMCH had been advised by its attorney that it was legally obligated to continue to honor its contract with job openings, and to afford the service 48 hours within which to refer applicants for vacancies before BMCH hires from any other source. The contract also provides that neither the service, in referring, nor BMCH, in District 1199 after its move to Dumont Avenue. Explaining that BMCH was anxious to avoid any potential conflict between District 1199 and Local 144 that might lead to a disruption of patient care, Cau told Cedeno that BMCH would be willing to go along with any arrangement that District 1199 and Local 144 might work out between themselves with regard to employee representation and the staffing of its new facility. Cau further informed Cedeno that BMCH would have a need for 40 to 45 additional employees at Dumont Avenue; that it was prepared to offer these additional positions to qualified Lindenboro personnel; and that District 1199 had "reluctantly" agreed to allow BMCH to do so. Cedeno, in response, directed Cau's attention to the successor clause in Lindenboro's contract with Local 144, and demanded that BMCH conform to that clause by retaining all 80 of Lindenboro's employees and recognizing Local 144 as the exclusive employee bargaining representa- tive when it took possession of the Lindenboro facility. Cau told Cedeno that BMCH could not comply with that demand because it had a moral obligation to retain its current employees and a legal obligation to continue to honor its contract with District 1199. He indicated, however, that there might be room for compromise and reiterated BMCH's willingness to go along with any alternative arrangement that the two unions might mutual- ly agree upon. Cedeno told Cau to put his thoughts into writing. Cau followed up that meeting with two letters to Cedeno. In the first, dated October 18, 1976, Cau restated in substance what he had orally told Cedeno at their meeting, emphasizing that, while BMCH regarded itself as legally bound by its contract with District 1199, it nevertheless thought it only equitable that it consider Lindenboro employees for placement in the additional positions. Cau added that although this "would out of necessity cause questions to arise between [Local 144] and District 1199" he felt that "these questions can be worked out between the two unions." In his second letter, sent about a week later, Cau listed 40 additional positions that BMCH would need at its new location. Of these, 35.5 were service and maintenance positions; the others were outside the bar- gaining unit that was covered by BMCH's contract with District 1199. Cau asked that Local 144 inform BMCH "as to what basis (seniority, etc.) you would like us to consider the current employees of [Lindenboro] for new employ- ment at [BMCH ]." Local 144 did not immediately respond to these letters. About the middle of October 1976, BMCH learned from the New York State Department of Health that approval of its purchase of the Lindenboro facility was imminent. Cau called Cedeno and told him that BMCH wanted to begin interviewing current Lindenboro employees for placement with BMCH. Cedeno told Cau to "go ahead." In early November, BMCH sent its director of nursing, Audrey Flax, to the Lindenboro premises to interview Lindenboro employees who might desire jobs with BMCH at that location. Flax conducted such interviews on I day only. hiring, shall discriminate against an applicant because of membership or nonmembership in District 1199. 27 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Flax told the Lindenboro employees while interviewing them that, if hired by BMCH, they would be required to join District 1199 after 30 days of employments When Cedeno learned of this that same day, he became angered, demanded of Feuer that he see to it that the interviews were discontinued on his premises, and threatened strike action if this was not done. Upon being advised by Feuer of Local 144's objection and threat, BMCH discontinued interviewing the Lindenboro employees. Cau thereupon arranged a further meeting with Cedeno, and Cedeno, in turn, arranged to have Cau meet with Local 144's president, Peter Ottley. At these meetings, Cau repeated BMCH's offer of about 40 jobs to Lindenboro employees, again expressed his belief that Local 144 and District 1199 could work out some accomodation that would be mutually agreeable to both unions, and reiterated BMCH's willingness to go along with any reasonable accommodation of their respective interests that the two unions might agree upon. The Local 144 officials insisted, however, that BMCH hire all 80 Lindenboro employees and recognize Local 144 as the employee bargaining representative when it acquired possession of the Dumont Avenue premises. When Cau stated that BMCH could not do so because of its moral and legal obligations to its employees and to District 1199, Ottley suggested as the only way out that BMCH hire all 80 of Lindenboro's employees plus all 60 of its Park Place employees. Cau rejected that suggestion as not economically possible. The meeting broke up with Cau again offering the 40 jobs and suggesting that the two labor unions work matters out, and with Ottley making it clear that Local 144 would accept no compromise that did not provide as a minimum for the recognition by BMCH of Local 144 and for the hiring by BMCH of all 80 Lindenboro employees. On November 16, Local 144, in a letter signed by its house counsel, responded to Cau's letter of October 8. Local 144 asserted that the successor provision in its contract with Lindenboro required BMCH to retain the Lindenboro employees and to recognize Local 144. The letter demanded of BMCH that it meet at once with Local 144 to negotiate a successor collective-bargaining agree- ment to be effective December 1, 1976. Following Local 144's rejection of BMCH's suggested compromise solution, Disrict 1199, through Turner, with- drew the permission it had theretofore granted BMCH to offer jobs to Lindenboro employees without following the hiring hall requirements of the BMCH-Local 1199 con- tract. Thereafter, BMCH called upon District 1199 to refer applicants for employment to it pursuant to the hiring hall provisions of the contract. As found above, BMCH obtained II new employees from the District 1199 hiring hall and 9 from outside sources prior to the time that it began its operations at its relocated facility. On December 1, 1976, Lindenboro's last day of opera- tions at Dumont Avenue, Local 144 filed an unfair labor practice charge with the Board's Regional Office, docketed as Case 29-CA-5348, alleging that BMCH had violated I BMCH's collective-bargaining contract with District 1199 contains a union-security clause requiring new employees to become members of District 1 199 after 30 days. I At the time of the hearing, an appeal by Local 144 from the Regional Section 8(a)(1), (2), and (5) of the Act by recognizing District 1199 as the collective-bargaining agent of its employees "at a time when it knew said employees were represented by [Local 1441." Following investigation, the charge was dismissed by the Regional Director as being without merit.8 Also on December 1, 1976, Local 144, through its attorneys, directed a telegram to BMCH, notifying BMCH that Local 144 would "strike and picket" BMCH's facility at Dumont Avenue on December 11, 1976. This was the only notice of picketing ever given BMCH by Local 144. On the evening of December 1, 1976, there was a demonstration, arranged by Local 144, of the Lindenboro employees at the Dumont Avenue premises. The Linden- boro employees, about 50 in number, congregated in the lobby and blocked the entry of BMCH employees who were scheduled to report for work at Dumont Avenue at 12:01 a.m. on December 2. They did not disperse until after BMCH summoned the police. While the demonstra- tion was in progress, officials of BMCH met with officials of Local 144. The Local 144 officials again demanded that BMCH recognize Local 144 as the employee representative under the successor clause of Local 144's contract with Lindenboro and that BMCH take over all of Lindenboro's employees. The BMCH officials again refused, declaring that to do so would violate its moral and legal obligation to its employees and to District 1199. At 7 a.m. on December 2, Local 144 instituted its picketing of BMCH's Dumont Avenue premises that is alleged in this proceeding to have been violative of Section 8(b)(7)(A) and Section 8(g) of the Act. Analysis and concluding findings The 8(b)(7)(A) violation Under this section it is an unfair labor practice for a union to picket an employer with an object of forcing or requiring the employer to recognize the union as the representative of its employees, where the employer has lawfully recognized another union and a question concerning representation may not appropriately be raised at the time of the picketing. The record in this case amply demonstrates the presence of all elements required to establish a violation of this Section by Local 144. Thus, it is undisputed that District 1199 occupied the status of a lawfully recognized representative of BMCH's service and maintenance employees when BMCH was located at Park Place. District 1199's status in that respect remained unchanged following its move to Dumont Avenue. As found above, when BMCH began its opera- tions at Dumont Avenue, it employed 72 service and maintenance employees. Of these, 52 were District 1199 members who had been employed by BMCH at Park Place; 20 others were newly hired employees who were required to meet BMCH's expanded needs at its new location. The move to Dumont Avenue, I find, in no way impaired District 1199's previously established status as a majority representative entitled to continuing recognition; Director's dismissal was pending before the General Counsel's Office of Appeals. I have since been administratively advised that the Regional Director's dismissal was sustained by the Office of Appeals. 28 SEIU, LOCAL 144 it involved no more than a relocation and expansion of the employee bargaining unit. Nor did the relocation and expansion of the bargaining unit in any way impair the continuing viability of the existing 2-year collective-bar- gaining contract covering BMCH's service and mainte- nance employees that had been entered into by BMCH and District 1199 in January 1976. When Respondent engaged in its picketing the term of that contract still had more than a year to run, and under the Board's contract- bar principle, no question concerning the representation of the bargaining unit employees could then have been appropriately raised under Section 9(c) of the Act. The only question that remains, then, is whether Local 144's picketing had, at least in part, a recognitional objective.9 It is Local 144's primary contention that proof of this required element is wanting in this case. There is more than enough in this record, however, to establish the opposite to be so. Thus Cedeno, Local 144's only witness, although testifying at one point of his examination that the purpose of the picketing was to protest the "locking out" by BMCH of Local 144 members, conceded elsewhere in his testimony that "basically" Local 144's dispute with BMCH was "whether 1199 should be entitled to recogni- tion or 144 had a right to recognition." Other circum- stances in this record also leave little doubt that Local 144's picketing was aimed at least in part at a recognitional objective. Thus, as found above, on several occasions prior to the picketing, the last one on the evening before the picketing began, Respondent's officials at meetings with BMCH representative Cau asserted that the successor clause in Local 144's contract with Lindenboro required BMCH to recognize Local 144 as the employee bargaining representative at the Dumont Avenue location, demanded that its members who were employed by Lindenboro be retained as employees of BMCH when BMCH took possession of the Dumont Avenue facility, and also demanded that BMCH recognize it as the employees' representative at that facility.10 In these circumstances, an inference is reasonably warranted, and I so find, that Local 144's picketing was in furtherance of the position it had asserted and of the demands it had made prior to the picketing, and which BMCH had rejected. Local 144 contends in its brief that its picketing, even if found to have been in furtherance of its earlier demands on BMCH, cannot be deemed to have had the recognitional objective that Section 8(b)(7)(A) proscribes because in its contacts with BMCH prior to the picketing it had never expressed a desire to bargain for the employees who had worked for BMCH at Park Place. What it had demanded, it says, was the BMCH give the jobs at BMCH's Dumont Avenue facility to Local 144 members, rather than to District 1199 members, and that BMCH recognize and bargain with Local 144 as their representative when the 9 The law is, of course, well established that it is not essential for proof of an 8(b)(7XA) violation that recognition be the only object of the picketing or even the predominate one; it is enough - as the section itself states - that recognition be "an object." See, e.g., Local 3, International Brotherhood of Electrical Workers, AFL-CIO (Darby Electric Corporation), 153 NLRB 717. 722 (1965), enfd. 362 F.2d 232 (C.A. 2. 1966). hO Under applicable principles oflaw relating to employer successorships it is clear, of course, that BMCH was not bound by the successor clause in Local 144's contract with Lindenboro; was not required to retain Lindenboro's employees absent an unlawfully discriminatory motive for not jobs it demanded were secured. I find no validity to that contention in the circumstances of this case. Realistically, the two demands - one for the jobs, the other for recognition once such jobs were obtained - can only be viewed as inseparably tied together. It is obvious that Local 144 intended, and BMCH understood, that if BMCH yielded to Local 144's picketing for the jobs, BMCH's recognition of Local 144 was to follow as a matter of course. The Board has held that where, as here, a union engages in picketing to obtain the mass displacement by its own members of employees who are represented by another union that has a lawful contract with the employer, the picketing must be regarded as having an immediate recognitional objective violative of Section 8(b)7)(A). See International Longshoremen's and Warehousemen's Union Local No. 8 (Waterway Terminals Company), 193 NLRB 477 (1971). Although otherwise analagous, the circum- stances in this case are stronger than in the cited case for finding a recognitional objective, for in the cited case the picketing union had never specifically stated anything about recognition; here it had. Accordingly, I conclude and find on all the evidence that Respondent Local 144 violated Section 8(bX7)(A) by its conduct in picketing BMCH. The 8(g) violation This section makes it an unfair labor practice for a union to picket or strike a health care institution without having first given the health care institution and the Federal Mediation Conciliation Service at least 10 days notice in writing of its intention to picket, stating in such notice the date and the time when the picketing is to begin. Here, Local 144 concedes that it did not give BMCH and FMCS the I0-day notice called for by Section 8(g) before it began its picketing of BMCH on December 2, 1976. As a defense to the complaint's 8(g) allegation, Local 144 contends that it was excused from complying with the statutory notice requirement because it engaged in its picketing to protest conduct by BMCH which it characterizes in its brief as "flagrant unfair labor practices." The brief defines the "flagrant unfair labor practices" more specifically as consisting of BMCH's "refusal" to hire Local 144 members for jobs that were available at BMCH's Dumont Avenue facility and BMCH's offer of those jobs instead to members of District 1199, conduct which the brief would have it was unlawfully discriminatory under Section 8(aX3) of the Act. There is legislative history to support the view that serious or flagrant unfair labor practices by a health care institution may in certain circumstances excuse a labor organization from complying with the 8(g) notice require- ments as a precondition to lawful strike or picketing activity." I find it unnecessary in this case, however, to rule definitely on whether the legislative history is sufficient to overcome the language of Section 8(g) which, literally doing so; and was not obliged, unless it substantially took over the Lindenboro work force, to honor Lindenboro's bargaining obligation to Local 144. N.LR.B v. Burns International Security Services, Inc., 406 U.S. 272 (1972); Howard Johnson Co., Inc. v. Detroit Local Joint Executive Board, Hotel & Restaurant Employees & Bartenders International Union, AFL-CIO, 417 U.S. 249 (1974). I1 See, e.g., S. Rept. 93-766, 93d Cong. 2d sess. 4 (1974); H. Rep. 93 1051, 93d Cong.. 2d sess. 6 (1974): Comments of Senator Taft. 120 Cong. Rec. S73 10 (Daily ed., May 7. 1974). 29 DECISIONS OF NATIONAL LABOR RELATIONS BOARD read, allows for no such exception from its notice requirements. The facts of this case, as fully reported above, make it manifestly clear that there is no support in this record for Local 144's claim that BMCH engaged in unlawfully discriminatory conduct or in any other conduct prohibited by the Act, let alone in "flagrant unfair labor practices" as Local 144 asserts. Thus, it is not open to serious dispute that BMCH had a lawful right to transfer all of its bargaining unit employees at Park Place to Dumont Avenue when it relocated its operation at the latter address and to continue to accord District 1199 recognition as the majority representative of the employees in the bargaining unit. BMCH's offer, on a number of occasions, to hire Lindenboro employees, members of Local 144, to fill the additional jobs it had available at Dumont Avenue quite clearly reflects the absence of any motivation on BMCH's part to discriminate against Local 144 members because of their membership in that union. It is true, as Local 144 stresses in its brief, that that offer was not maintained after District 1199 withdrew its earlier waiver of the job referral requirements of its contract with BMCH. But this did not occur until after Local 144 had made it clear that it did not want any of its members to be employed by BMCH subject to the union- security provisions of the BMCH - District 1199 contract, a contract to which BMCH was legally bound to conform. The job referral procedures specified in District 1199's contract with BMCH were nondiscriminatory on their face, and there is nothing in this record to show that they were not applied as written. There is thus no basis in this record for Local 144's suggestion that BMCH acted unlawfully in utilizing the hiring hall procedures required by its contract with District 1199 to fill out the employee complement it needed at Dumont Avenue. Accordingly, I conclude and find that Respondent Local 144 violated Section 8(g) of the Act by picketing BMCH without first complying with the notice provisions of that section. CONCLUSIONS OF LAW I. BMCH is 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, Local 144, is a labor organization within the meaning of Section 2(3) of the Act. 3. By picketing Brooklyn Methodist Church Home with an object of forcing or requiring BMCH to recognize and bargain with and/or to accept Respondent as the collective-bargaining representative, inter alia, of BMCH's service and maintenance employees, at a time when District 1199 was the lawfully recognized representative of BMCH's service and maintenance employees and a question concerning the representation of such employees might not have been appropriately raised under Section 9(e) of the Act, Respondent Local 144 has engaged in and 12 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. is engaging in unfair labor practices affecting commerce within the meaning of Section 8(bX)(7XA) of the Act. 4. By picketing BMCH at its Dumont Avenue facility in Brooklyn, New York, without first giving 10 days' written notice of such picketing to BMCH and to the Federal Mediation and Conciliation Service, Respondent has violated Section 8(g) of the Act. 5. The foregoing unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has committed certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom, and from any like or related unfair labor practices, and that it take the affirmative action provided for in the recommended Order below, which I find necessary to effectuate the policies of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 12 .The Respondent, Local 144, Hotel, Hospital, Nursing Home and Allied Services Employees Union, SEIU, AFL- CIO, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Picketing and threatening to picket Brooklyn Meth- odist Church Home with an object of forcing or requiring said employees to bargain with and/or to accept Respon- dent as the collective-bargaining representative of its service and maintenance employees, or of any other of its employees, in circumstances where the BMCH has lawfully recognized another labor organization as the collective- bargaining representative of said employees and a question concerning representation may not appropriately be raised under Section 9(c) of the Act. (b) Engaging in any picketing, strike, or other concerted refusal to work at the premises of Brooklyn Methodist Church Home without notifying in writing Brooklyn Methodist Church Home and the Federal Mediation and Conciliation Service, not less than 10 days prior to any such action, of an intention to engage in such action. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Post in conspicuous places at its business offices and meeting halls, including all places where notices to members are customarily posted, copies of the attached notice marked "Appendix."' 3 Copies of said notice, on forms provided by the Regional Director for Region 29, after being duly signed by an authorized representative of Respondent, shall be posted by Respondent upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reason- "3 In the event the Board's Order is enforced by a Judgment of the 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 Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 30 SEIU, LOCAL 144 able steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Deliver or mail to the said Regional Director a signed copy of said notice for posting by Brooklyn Methodist Church Home, if willing. (c) Notify the Regional Director for Region 29, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT picket or threaten to picket Brooklyn Methodist Church Home with an object of forcing or requiring Brooklyn Methodist Church Home to bargain with and/or to accept us as the collective-bargaining representative of its service and maintenance employ- ees, or of any other employees, in circumstances where Brooklyn Methodist Church Home has lawfully recog- nized another labor organization as the collective- bargaining representative of said employees and a question concerning representation may not appropri- ately be raised under Section 9(c) of the Act. WE WILL NOT engage in any picketing, strike or other concerted refusal to work at the premises of Brooklyn Methodist Church Home, without notifying in writing the Brooklyn Methodist Church Home and the Federal Mediation and Conciliation Service, not less than 10 days prior to any such action, of our intention to engage in such action. LOCAL 144, HOTEL, HOSPITAL, NURSIrN HOME AND ALLIED SERVICE EMPLOYEES UNION, SEIU, AFL-CIO 31