District 1199, National Union of Hospital Employees

212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD District 1199, National Union of Hospital & Health- care Employees, RWDSU, AFL-CIO and First Healthcare Corporation, d/b/a Parkway Pavilion Healthcare. Case 1-CG-1 January 14, 1976 DECISION AND ORDER On September 9, 1975, Administrative Law Judge Arther Leff issued the attached Decision in this pro- ceeding. Thereafter, both the General Counsel and the Charging Party filed exceptions and supporting briefs and the Respondent filed a reply brief. The Board has considered the record as stipulated by the parties and the attached Decision in light of the exceptions and briefs, and has decided to affirm the rulings, findings, and conclusions of the Adminis- trative Law Judge, to the extent consistent herewith. The Administrative Law Judge found that Re- spondent did not violate Section 8(g)' by engaging in sympathy picketing without first giving 10 days' no- tice of its intention to do so. In our judgment, Respondent's failure to comply with the notice re- quirements of Section 8(g) violated the Act. Local 531, Service Employees International Union, AFL-CIO, represents the service and mainte- nance employees at First Healthcare's Enfield, Con- necticut, facility. Upon the expiration of its collec- tive-bargaining agreement with First Healthcare, Local 531 gave notice on December 9, 1974, of its intention to strike at 12:01 a.m. on December 20, 1974. The strike actually began on December 22, 1974, and continued throughout the period material herein. On January 4, 1975, four of Respondent's officers joined the picket line of Local 531 in sympathy and picketed for 1-1/2 hours. All four pickets displayed Respondent District 1199 hats and badges. Respon- dent never gave any notice of its intention to join the Local 531 picket line. So far as the stipulated record shows, Respondent never has and does not now rep- resent any employees at the Enfield, Connecticut, in- stitution. Sec 8(g) 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 institution in writing and the Federal Mediation and Conciliation Service of that intention, except that in the case of bargaining for an initial agreement following the certification or recognition the notice required by this section 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 by the written agreement of both parties Accordingly, we must decide whether a labor orga- nization violates Section 8(g) of the Act when it en- gages in sympathy picketing at a health care institu- tion without first giving 10 days' notice of its inten- tion to do so in writing to both the institution and the Federal Mediation and Conciliation Service. The Administrative Law Judge concluded that Re- spondent was not required to provide the 8(g) notice. He believed that the presence of the four Respondent pickets did not basically change the character of Lo- cal 531's picketing nor broaden its objectives. In ad- dition, he observed that there was nothing in the rec- ord to suggest that the sympathy picketing was calculated or might be anticipated to generate any new or different economic pressures on the health care institution of a kind not previously present in Local 531's picketing. He concluded that it would be a distortion of the Congressional intent underlying Section 8(g) to hold in this case that Respondent was required under that section to supplement the 10-day notice previously given by Local 531 by a further notice of its own before engaging in the sympathy picketing. We are inclined to read Section 8(g) more literally than the Administrative Law Judge. In our opinion, the 8(g) notice requirement is clear and absolute. First, it is mandatory rather than discretionary-the statute provides that "a labor organization . . . shall " give written notice. Second, it applies regardless of the nature of the picketing involved-notice must be provided in advance of "any strike, picketing or other concerted refusal to work at any health care institu- tion. . . ." Finally, Section 8(g) is devoid of any modifying language respecting the character of the picketing, its objectives, or the type of economic pressures generated. In the face of this language, Re- spondent cannot rely upon the earlier notice given by another labor organization as a basis for fulfilling its own statutory obligations. This interpretation of Section 8(g) is mandated by both its legislative history and the policy consider- ations which prompted its enactment. As stated by Senator Taft during Senate debate: This subsection applies not only to bargaining strikes or pickets, but also, as stated in the stat- ute, to `any picket or strike.' As examples, this subsection would apply to recognition strikes, area standard strikes, secondary strikes, jurisdic- tional strikes, and the like. Any doubt that the phrase "and the like" was intend- ed to encompass sympathy picketing is removed by Senator Javits' observation that "[Ten] days notice of 222 NLRB No. 15 DISTRICT 1199, NATIONAL UNION OF HOSPITAL EMPLOYEES 213 any strike or picketing, including stranger picketing,2 must be given to a health care institution." The purpose behind the 10-day notice provision is to provide health care institutions with sufficient time to make arrangements for continuing patient care during the labor dispute. Patient needs, staffing requirements, and supplies must all be examined. It is crucial, therefore, to analyze such factors as the ability to receive supplies during the strike, the abili- ty of strike replacements to cross the picket line, and the willingness of nonstriking personnel to work be- hind the picket line. In some instances, it may even be necessary to remove the patients to another facili- ty in order to insure proper care. In order to assess the extent to which normal oper- ations are likely to be disrupted, the health care insti- tution is entitled under Section 8(g) to receive at least 10 days' notice from any labor organization which plans to begin picketing, engage in a strike, or work stoppage at a specific future time. It may very well be that suppliers, nonstriking employees, and strike re- placements, who may be willing to cross one union's picket line, will refuse to do so if another labor orga- nization begins picketing. If one union decides to join another union's picket line in sympathy and does not give the 10-day notice required by Section 8(g), health care -institutions may suddenly find themselves with an unexpected disruption in services because of the picketing by two different unions in- stead of one. Furthermore, the Act specifically requires that written notice also be given to the Federal Mediation and Conciliation Service where a labor organization plans to picket a health care facility. We do not deem that a 10-day notice by one labor organization to the Federal Mediation and Conciliation Service is suffi- cient to meet the statutory requirement for other la- bor organizations which may later join in the dispute. It is our conclusion, therefore, that Congress in- tended that the 10-day notice provision of Section 8(g) be interpreted according to its literal meaning and, therefore, any strike, work stoppage, or picket- ing including sympathy picketing at the premises of a health care institution is violative of Section 8(g) un- less proper notice of it has been served on the health care facility and the Federal Mediation and Concilia- tion Service by the labor organization involved. Accordingly, for all of the reasons discussed above, we find that Respondent, by joining the pick- et line of Local 531 and picketing at the Parkway Pavilion Healthcare facility without first giving the required notice, violated Section 8(g) of the Act. 2 As noted earlier, Respondent does not represent any employees at the Enfield, Connecticut, facility 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, traffic, and commerce among the several States, and tend to lead to industrial strife burdening and obstructing commerce. THE REMEDY Having found that Respondent has engaged, and is engaging, in unfair labor practices 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: CONCLUSIONS OF LAW 1. First Healthcare Corporation, d/b/a Parkway Pavilion Healthcare, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. First Healthcare Corporation, d/b/a Parkway Pavilion Healthcare, is a healthcare institution within the meaning of Section 2(14) of the Act. 3. Respondent is a labor organization within the meaning of Section 2(5) of the Act. 4. By picketing at the Parkway Pavilion Health- care institution at Enfield, Connecticut, without first giving 10 days' written notice to Parkway Pavilion Healthcare and to the Federal Mediation and Con- ciliation Service, Respondent has violated Section 8(g) of the Act. 5. The foregoing unfair labor practice is an unfair labor practice affecting commerce within the mean- ing 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 Re- lations Board hereby orders that the Respondent, District 1199, National Union of Hospital & Health- care Employees, RWDSU, AFL-CIO, its officers, agents, and representatives, shall: 1. Cease and desist from engaging in any strike, picketing, or other concerted refusal to work at the premises of Parkway Pavilion Healthcare, or any other health care institution , without notifying in writing Parkway Pavilion Healthcare or such other health care institution, and the Federal Mediation 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 "Appendix." 3 Copies of said notice, on forms pro- vided by the Regional Director for Region 1, after being duly signed by Respondent's authorized repre- sentative, shall be posted by the Respondent immedi- ately 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 the Respondent to insure that said notices are not altered, defaced, or-covered by any other ma- terial. - (b) Furnish to the Regional Director for Region I enough signed copies of the aforesaid notice for post- ing by First Healthcare Corporation, d/b/a Parkway Pavilion Healthcare, if it is willing, in places where notices to its employees are customarily posted. (c) Notify the Regional Director for Region 1, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. CHAIRMAN MURPHY and MEMBER FANNING, dissent- ing: We agree with the Administrative Law Judge, for the reasons stated by him, that given the unusual fact situation presented herein, District 1199's decision to engage in sympathy picketing without first providing 10 days' notice to First Healthcare and the Federal Mediation and Conciliation Service violated neither the letter nor the spirit of Section 8(g). All that we are faced with here is four agents of District 1199 joining a lawfully established picket line in sympathy for a period of 1-1/2 hours. - As the Administrative Law Judge observed, the brief presence of the four District 1199 pickets did not basically change the character of the picketing, did not broaden its objectives, and did not generate any new or different economic pressures on First Healthcare. It is thus a distortion of the Congression- al intent underlying Section 8(g) to require District 1199 to supplement the 10-day notice previously giv- en by Local 531 with a further notice of its own be- fore briefly joining Local 531 in sympathy. APPENDIX NOTICE TO MEMBERS POSTED BY ORDER OF-THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT engage in any strike, picketing, or other concerted refusal to work at the prem- ises of Parkway Pavilion Healthcare, or any other health care institution, without notifying, in writing, Parkway Pavilion Healthcare or such other healthcare institution, and the Federal Mediation and Conciliation Service, not -less than 10 days prior to such action, of that inten- tion. DISTRICT 1199, NATIONAL UNION OF HOSPITAL & HEALTHCARE EMPLOYEES, RWDSU, AFL-CIO DECISION STATEMENT OF THE CASE ARTHUR LEFF, Administrative Law Judge: Upon a charge filed on January 20, 1975, by First Healthcare Corporation d/b/a Parkway Pavilion Healthcare, herein called First Healthcare, the General Counsel of the National Labor Relations Board, by the Regional Director of Region 1, issued a complaint dated March 6, 1975, against District 1199, National Union of Hospital & Healthcare Employ- ees, RWDSU, AFL-CIO, herein called Respondent or Dis- trict 1199, alleging that Respondent had engaged in unfair labor practices within the meaning of Section 8(g) and Sec- tion 2(6) and (7) of the National Labor Relations Act, as amended, by conduct hereinafter, specified. On March 26, 1975, Respondent filed an answer in which it denied that it engaged in the alleged unfair labor practices. Subsequent- ly, the General Counsel and Respondent waived a hearing before an Administrative Law Judge; entered into a stipu- lation of facts; and agreed that the stipulation, along with the pleadings in this case, should constitute the entire rec- ord to be submitted for determination of the issues in this case. Thereafter, I was duly designated as the Administra- tive Law Judge to make and issue an initial decision and recommended Order in this proceeding. On August 15, 1975, the General Counsel and Respondent filed briefs with me. Upon the stipulated record in this case, I make the fol- lowing: FINDINGS OF FACT 3In 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 Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board" I. THE BUSINESS OF COMPANY First Healthcare Corporation, a Delaware corporation, with its principal office and place of business in Chicago, Illinois, operates a healthcare institution at Enfield, Con- DISTRICT 1199, NATIONAL UNION OF HOSPITAL EMPLOYEES 215 necticut, which conducts business under the name of Park- way Pavilion Healthcare. At its Enfield facility, First Healthcare, annually has a gross volume of business ex- ceeding $100,000 and receives medical supplies, appliances, and related products valued in excess of $50,000 from points outside the State of Connecticut. Respondent ad- mits that First Healthcare is engaged in commerce within the meaning of the Act. It is so found. H. THE LABOR ORGANIZATION INVOLVED Local 531, Service Employees International Union, AFL-CIO, herein called Local 531, and District 1199 are labor organizations within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The issue presented in this case is whether District 1199 violated Section 8(g) in the circumstances stated below, by joining the lawfully established picket line of Local 531 at First Healthcare's Parkway Pavilion facility on January 4, 1975, and picketing for 1-1/2 hours, without having itself first served a 10-day 8(g) notice) Local 531 represents service and maintenance employees at First Healthcare's Parkway Pavilion, a health care insti- tution. Nothing in the stipulated record suggests that Dis- trict 1199 has ever represented any employees at that insti- tution, and the briefs of the parties appear to agree that it has not. The collective-bargaining agreement between Local 531 and First Healthcare covering the latter's Parkway Pavilion facility expired on December 1, 1974. On December 9, 1974, Local 531 gave notice by letter to First Healthcare of its intention to strike at 12:01 a.m. on December 20, 1974. The strike actually began on December 22, 1974, and con- tinued throughout the period material herein. On January 4, 1975, four individuals officially connected with District 1199, all of whom it is agreed were acting as agents of District 1199 at the time, joined Local 531's picket line and participated in the picketing for 1-1/2 hour, displaying Dis- trict 1199 hats and badges. District 1199 had theretofore given no written notification to First Healthcare or to the Mediation and Conciliation Service of its intention to join in Local 531's picketing. It does not appear from the stipulated record that Dis- trict 1199 had any labor dispute of its own with First Healthcare at the time of the picketing. Nor does it appear that District 1199 was then seeking to organize any em- ployees at the institution being picketed. The General Counsel's brief appears to concede that District 1199's only interest in briefly joining the Local 531 picket line on the single occasion mentioned was to express its sympathy with Local 531's lawful strike and picketing objectives. i Section 8(g) provides in relevant part. A labor organization before engaging in any strike, picketing, or other concerted refusal to work at any healthcare institution shall, not less than ten days prior to such action, notify the institution in writing and the Feder- al Mediation and Conciliation Service of that intention . The notice shall state the date and time that such action will commence The notice, once given , may be extended by the written agreement of both parties The critical question in this case is not whether the no- tice requirements of Section 8(g) are applicable to sympa- thy picketing at a health care institution. The Board has already ruled that all picketing at a health care institution is subject to the requirements of that section, regardless of whether the labor organization conducting the picketing is involved in a direct labor dispute with the health care insti- tution being picketed.2 Rather, the precise issue to be de- termined here is this: Considering the legislative purpose of Section 8(g) and the fact that Local 531 had complied with the notice requirements of that section, was District 1199 obliged in the particular circumstances of this case to give First Healthcare and FMCS a further and separate 10(g) notice of intention to picket before its agents joined the Local 531 picket line and participated in Local 531's pick- eting? For the reasons stated below, I hold that it was not. The purposes of Section 8(g) are clearly set forth in S. Rep. 93-766, dated April 2, 1974, p. 4: It is in the public interest to insure the continuity of healthcare to the community and the care and well being of patients by providing for a statutory advance notice of any anticipated strike or picketing. For this reason, the Committee approved an amendment add- ing a new Section 8(g) which generally prohibits a la- bor organization from striking or 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 arrangements for the continuity of patient care... 3 As found above, District 1199 did not inaugurate any new picketing at Parkway Pavilion Healthcare on January 4, 1975, but simply engaged, through its agents, in sympa- thy picketing for an hour and a half on Local 531's already existing picket line which had been established by Local 531 some 2 weeks earlier. With respect to that picket line, Local 531 had satisfied the purposes of Section 8(g), by giving First Healthcare the requisite 10 days' advance no- tice to enable First Healthcare to make such arrangements as it might consider appropriate for the continuity of pa- tient care during the strike and picketing. The brief pres- ence of the four District 1199 pickets, along with Local 531 pickets, on the Local 531 picket line did not basically change the character of the picketing, nor broaden its ob- jectives. Nothing in this record suggests that District 1199's one and a half hours joinder in Local 531's picketing was calculated or might be anticipated to generate any new or different economic pressures on First Healthcare of a kind not previously present in Local 53 I's picketing. Taking into account all of the foregoing circumstances, I believe it would be a distortion of the congressional intent underly- ing Section 8(g) to hold in this case that District 1199 was 2 United Association of Journeymen and Apprentices of the Plumbing and Pipefittmg Industry of the United States and Canada, Local 630 AFL-CIO (Lein-Steenberg), 219 NLRB No 153 (1975) 3 Exactly the same language is found in H.R. 93-1051, p. 5 (May 20, 1974) To the same effect, see also the remarks of Senator Taft in Cong. Rec., July 10, 1974, at S12108; of Senator Cranston in Cong. Rec., May 2, 1974, at S6932, of Senator Williams in Cong Rec, May 2, 1974, at S6934, and of Representative Ashbrook in Cong Rec., May 30, 1974, at H. 4589. 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD required under that section to supplement the 10-day no- tice previously given by Local 531 by a further notice of its own before engaging in the picketing that is the subject of the complaint. In sum, I conclude and find that District 1199, the Respondent herein, did not violate 531 Section 8(g) of the act by the conduct of its agents in joining the Local 531 picket line on January 4, 1975, and briefly parti- cipating in Local 531's picketing. Accordingly, I shall rec- ommend the dismissal of the complaint in its entirety. CONCLUSIONS OF LAW 1. First Healthcare Corporation d/b/a Parkway Pavil- ion Healthcare is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent has not , as alleged in the complaint, en- gaged in unfair labor practices within the meaning of Sec- tion 8(g) of the Act. [Recommended Order for dismissal omitted from publi- cation]