Hospital & Health Care Employees District 1199 (United Hospital of Newark)

DISTRICT 1199, NATIONAL UNION OF HOSPITAL AND HEALTH CARE EMPLOYEES District 1199, National Union of Hospital and Health Care Employees, RWDSU, AFL-CIO and United Hospitals of Newark. Case 22-CG-3 September 28, 1977 DECISION AND ORDER On December 22, 1976, Administrative Law Judge Ralph Winkler issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the Charging Party filed a brief in opposition to Respondent's exceptions. 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, as modified herein. The Administrative Law Judge found that Respon- dent violated Section 8(g) of the Act by picketing the premises of United Hospitals of Newark without first giving 10 days' written notice.1 We agree, for the reasons set forth below, that a violation has been committed.2 The essential facts are not in dispute. After Respondent Union's certification as representative for Newark Hospital's technical 3 and professional4 employees, the Union and United Hospitals entered into contract negotiations. By letter dated March 25, 1976, with a copy to United Hospitals, the Union advised FMCS that a dispute existed which was subject to mediation. During the week or so before April 20, the Union distributed a leaflet announcing a "demonstration" to be held on April 20 from 2 to 5 p.m. Union Vice President Evanoff testified that the purpose of the "demonstration" was to allow union members to show their support for the negotiating committee. No notice of the "demonstration" was given to United Hospitals or FMCS. On April 20, between 2 and 4:30 p.m., approxi- mately 25 Newark Hospital employees walked in a circle in front of its main entrance, which is used by ] Sec. 8(g) provides: (g) A labor organization before engaging in any strike, picketing, or other concerted refusal to work at any health care institution shall, not less than 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 certification 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 by the written agreement of both parties. 2 Arguably. under the provisions of Sec. 8(g), even were a notice given, it would have been untimely, since the picketing in question took place less than 40 days after the 8(d) notice to Federal Mediation and Conciliation 232 NLRB No. 67 employees, visitors, patients, and doctors. They carried about 20 placards with such legends as: "We demand a union contract, District 1199 . .. "; "We need decent wages, District 1199 . . ."; and "P. Haviland [management official] don't push us into a hospital strike." The employees participated in this activity only during their off-shift hours, pursuant to the Union's instructions. Access to the main entrance was not physically blocked and no one was requested not to enter Newark Hospital or use its facilities. The Respondent and our dissenting colleague argue that the activity had the purpose only of informing the public and is more akin to handbilling than to picketing.5 Thus, they argue, it is not covered by Section 8(g). Regardless of the purpose or intent of the activity, all picketing differs substantially from handbilling since it involves the physical patrolling of an area. Picketing is treated by many as a signal which may induce them to take action, including ceasing work. As the Supreme Court stated: Picketing by an organized group is more than free speech, since it involves patrol of a particular locality and since the very presence of a picket line may induce action of one kind or another, quite irrespective of the nature of the ideas which are being disseminated. Hence those aspects of picketing make it the subject of restrictive regulation.6 Thus while the Union may attempt to regulate picketing so as to prevent a work stoppage or disruption of services, it cannot control the actions or reactions that the mere presence of a picket line may induce in others. The potential disruption inherent in any act of picketing, including that engaged in by the Union herein, irrespective of the picketers' intent or self-regulation, is such that no act of picketing can be treated as the functional equivalent of handbilling. We further find that the picketing here involved is proscribed by Section 8(g) even though it did not result in a work stoppage or other disruption of the delivery of health services. 7 Section 8(g) prohibits, in Service, hereafter called FMCS. Although the complaint arguably encom- passes this issue, we need not reach it, since our remedy is unaffected thereby and no notice was ever given. 3 On December 31, 1975. 4On January 12, 1976. 5 While the main thrust of its argument is as stated above, Respondent suggests that the activity here may not in fact be "picketing." In agreement with the Administrative Law Judge we find that the activity constitutes picketing. a Justice Douglas' concurrence in Bakery & Pastry Drivers & Helpers Local 802 of the International Brotherhood of Teamsters v. Wohl, 315 U.S. 769, 776(1942)., cited with approval in Gibonev v. Empire Storage & ICC Co., 336 U.S. 490, 501 (1949). ? In making this finding, the Administrative Law Judge relied extensively on United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United Stares and Canada, Local 630, AFL-CIO (Continued) 443 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the absence of timely notice, "any strike, picketing, or other concerted refusal to work ... " (Emphasis supplied.) As Respondent and our dissenting col- league argue, the word "other" may be construed to modify "picketing" implying that the statute refers only to that picketing which constitutes a refusal to work. Alternatively, the word "any" indisputably modifies "picketing" and implies that the section covers all forms of picketing regardless of purpose or impact.8 While on the surface either reading of the phrase is tenable, the overall policy expressed in the health care amendments and the specific legislative history of the section lead us to conclude that Section 8(g) was intended to apply to all forms of picketing and not just to that which involves a work stoppage. One of the major purposes of the amendments was to provide a mechanism to insure the minimization of disruptions in patient care caused by labor disputes. 9 Congress chose to treat the health industry uniquely because of its importance to human life. As Senator Taft, an author of the amendments, pointed out: It is important to remember that hospitals are not factories or retail establishments, and patients are not raw material or merchandise. Hospitals are for human beings and actions pursuant to this legislation must take this fact into account.10 Consequently, a determination of the lawfulness of any picketing without notice of a health care institution must take into account the high public interest in uninterrupted health services."1 Our dissenting colleague argues that the extensive legisla- tive debate concerning the dangers of strikes is evidence that the impact of picketing was the evil sought to be regulated by Section 8(g) and not picketing per se. If this construction were accepted, the term "picketing" need not have been included in (Lein-Steenberg), 219 NLRB 837 (1975), and related cases. There the respondents' activity clearly constituted picketing at the premises of a health care institution. The issue presented by the cases was whether Sec. 8(g) was intended to encompass picketing by nonhealth care industry employees, not directed against the health care institution. The parties in the instant case, however, are involved in the health care industry. and Respondent's activity is directed against the health care institution. The issue here, in contrast to that in Lein-Steenberg, is whether Respondent's activity constitutes picketing within the meaning of Sec. 8(g). In this connection, we note that because the word "any" immediately proceeds the words "strike, picketing," it unambiguously modifies those words. In contrast, the word "other" is separated from the words "strike, picketing" by the disjunctive, "or," giving rise to the possibility that it solely modifies "concerted refusal to work," or that the entire phrase "other concerted refusal to work" modifies the words, "strike, picketing." We have looked to the legislative history and overall policy of the health care amendments to resolve this ambiguity. We fail to see how the doctrine of noscitur a sociis, which holds that the meaning of doubtful words may be determined by reference to their association with other associated words, sheds any light on this problem. I S. Rept. 93-766, 93d Cong., 2d sess. 3 (1974); H. Rept. 93-1051, 93d Cong., 2d sess. 4 (1974). ," Cong, Rec. S9641, May 2, 1974. the statute at all. We do not think that Congress intended this result. As we noted earlier, the very act of picketing may induce actions by others regardless of the picketers' purpose. Any form of picketing therefore creates the risk that the delivery of health services will be disrupted. That Congress was concerned with the inherent risk created by any act of picketing is further supported by the committee report on the amendments, which in certain respects takes a per se approach to picketing: In recognition picketing cases under Section 8(b)(7XC), the National Labor Relations Board has ruled that a reasonable period of time is thirty days absent unusual circumstances such as violence or intimidation. It is the sense of the Committee that picketing of a health care institu- tion would in itself constitute an unusual circum- stance justifying the application of a period of time less than thirty days. [Emphasis supplied.]' 2 In cases involving other kinds of institutions, only such extreme conditions as violence or intimidation constitute unusual circumstances. Yet, with respect to health care institutions, the act of recognition picketing in itself, regardless of its impact or conditions of occurrence, is considered by the committee to be an unusual circumstance. Had Congress not been concerned with the risk created by the mere act of picketing, it would have had no reason to find picketing in itself to be an unusual circumstance in the context of health care. Thus, while the comment refers to recognition picketing with respect to Section 8(b)(7)(C), its rationale equally applies to Section 8(g). If the risk inherent in the act of picketing makes it an unusual circum- stance under Section 8(b)(7)(C), it also makes it a subject for regulation under Section 8(g).' 3 " In this connection, the Respondent's and the dissent's reliance on cases such as N.LR.B. v. Fruit & Vegetable Packers & Warehousemen, Local 760 et al. [Tree Fruits], 377 U.S. 58 (1964), which involve picketing under Sec. 8(bX4) and Sec. 8(bX7) is inappropriate. Those cases did not deal with the unique circumstances presented by health care institutions and did not therefore require the same balancing of interests mandated by the health care amendments. Contrary to our dissenting colleague's opinion, we do not hold that the congressional policy to protect first amendment rights, expressed in Tree Fruits, is less valid with regard to Sec. 8(g) than to Sec. 8(bX4), but, rather, that its application with respect to these sections involves different considerations and leads to different results. 12 S. Rept. 93-766, 93d Cong., 2d sess. 6 (1974); H. Rept. 93-1051. 93d Cong., 2d sess. 7 (1974). 13 Contrary to our dissenting colleague's assertion, we do not refer to the considerations involved in the regulation of picketing under Sec. 8(bX7XC). but rather to the considerations which led the committee to find that the picketing per se of a health care institution is an unusual circumstance under Sec. 8(bX7XC) justifying the application of a period of time less than 30 days. We of course agree that Sec. 8(bX7XC) exempts informational picketing from regulation, but simply because informational picketing, or for that matter any other kind of picketing, is exempted in a particular provision does not mean such picketing is exempted, by implication, in all other provisions. 444 DISTRICT 1199, NATIONAL UNION OF HOSPITAL AND HEALTH CARE EMPLOYEES Finally, contrary to the contentions of Respondent and our dissenting colleague, our reading of Section 8(g) does not require a per se ban on all forms of peaceful picketing in violation of the first amend- ment guarantee of freedom of speech. Our holding does not constitute a ban on picketing per se, but rather a ban on all picketing which unjustifiably occurs in the absence of a 10-day written notice.'4 Nor do we find this requirement of notice to be an impermissible restraint on the constitutionally pro- tected right of speech. First amendment guarantees are not absolute and must often be balanced against other public interests. Thus the use of the streets for public assembly may be regulated, under certain circumstances, as to time, place, duration, and manner of use.15 And speech alone may be punished if it has the effect of force.16 Here, the public interest in continuous health care is balanced against the right to picket as an exercise of free speech. The result of the balancing is simply the requirement that 10 days' written notice be given prior to engaging in any form of picketing so that the health care institution may have the time to prepare for possible disruptions of patient care. Such a restraint is reasonable and does not result in a construction of Section 8(g) which is inconsistent with the first amendment. Accordingly, we adopt, with the modification below, the Administrative Law Judge's finding that Respondent engaged in picketing without giving the required notice in violation of Section 8(g) of the Act. 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 as modified below and hereby orders that the Respon- dent, District 1199, National Union of Hospital and Health Care Employees, RWDSU, AFL-CIO, Ne- wark, New Jersey, its officers, agents, and representa- tives, shall take the action set forth in the said recommended Order, as so modified: I. Substitute the following for paragraph 1: "I. Cease and desist from engaging in any strike, picketing, or other concerted refusal to work at the premises of United Hospitals of Newark, or any other health care institution, without timely notify- ing, in writing, any such health care institution and the Federal Mediation and Conciliation Service, not 14 But see fn. 2, supra. 'I Cox v. Louisiana, 379 U.S. 536(1965). 16 Chaplhnskv v. New Hampshire, 315 U.S. 568 (1942). 7 Public Law 93-360, 93d Cong., S. 3203, 88 Stat. 395, effective August 25, 1974. 1s District 1199, Narional Union of Hospital Employees & Healthcare less than 10 days prior to such action, of that intention." 2. Substitute the attached notice for that of the Administrative Law Judge. MEMBER JENKINS, dissenting: My colleagues in the majority have found that peaceful informational picketing conducted by off- duty employees at a health care facility is necessarily illegal unless a 10-day notice is filed with the employer and the Federal Mediation and Concilia- tion Service pursuant to Section 8(g) of the Act. In the circumstances presented here, I would find that no such notice was required and, accordingly, I am in disagreement with my colleagues. I cannot believe that the historically recognized form of legitimate primary activity evidenced by the facts of this case was intended to be absolutely proscribed by the passage of the health care amendments of 1974.17 In the context of this case the conclusion of the majority conflicts with the plain meaning of the language of Section 8(g) and its intended meaning as evidenced by the underlying legislative history. The majority's conclusion also undermines established policies under the Act and imposes an impermissible restraint on constitutional- ly protected free speech.18 The majority finds a violation of the Act even in view of the unique factual situation presented by this case. In every real sense the Union's careful self- regulation rendered the activity here involved more akin to handbilling than picketing in its traditional sense. Thus, the "picketing" involved herein was conducted by off-duty employees in an area open to the public. It was at all times peaceful and, pursuant to specific instructions by the Union, at no time did the picketing result in any interference with pickups or deliveries, any refusal to work, or other disruption of the Employer's normal operations. The sole object of the off-duty employees' activity was purely informational; i.e., to publicize solidarity for the Union's negotiating position. As this activity actually constituted the functional equivalent of handbilling it clearly seems to fall outside the scope of the 8(g) prohibitions. In addition, even assuming this form of publicity constituted picketing in the traditional sense, the plain meaning of Section 8(g) indicates that this is not the type of picketing intended to be regulated by this section. Section 8(g) refers to "any strike, picketing, or other concerted refusal to work ... ." Employees (Parkway Pavilion Healthcare), 222 NLRB 212 (1976), is factually distinguishable from the present case. Although certain dicta in that Decision might be interpreted as bearing upon the issue presented here, the fact of the matter remains that such comments are nevertheless merely dicta and in retrospect reflect perhaps an overly broad statement of position. 445 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (Emphasis supplied.) The inclusion of the phrase "or other concerted refusal to work" makes it abundant- ly clear that Section 8(g) seeks to regulate that type of picketing which is intended to serve as a signal to induce employees to engage in work stoppages or otherwise to disrupt an employer's normal opera- tions. Obviously, purely informational picketing is outside the scope of Section 8(g).' 9 Furthermore, the legislative history of Section 8(g) does not support the majority's construction of this provision.2 The major purposes of health care amendments of 1974, of which Section 8(g) is a part, were (I) to extend coverage of the Act to employees of nonprofit health care facilities and (2) to provide a mechanism to insure the minimization of disruptions in patient care caused by labor disputes.21 It cannot be seriously maintained that the majority's broad injunction against all forms of peaceful picketing including informational picketing is mandated by any reading of the underlying purposes of Section 8(g). I regret that my colleagues in the majority did not complete their analysis of the comment in the committee report cited at footnote I of their opinion regarding recognitional picketing under Section 8(b)(7)(C) of the Act. My colleagues state that the risk inherent in picketing which renders it subject to regulation under Section 8(b)(7)(C) of the Act also renders such picketing subject to regulation under Section 8(g) of the Act. I agree, but at the same time must point out to my colleagues that purely informa- tional picketing is expressly exempted from regula- tion under Section 8(b)(7)(C) of the Act, and thus by the force of their own logic purely informational picketing must also fall outside the scope of activity to be regulated under Section 8(g) of the Act. In sum, the gravamen of the conduct sought to be regulated is the disruptive impact of such activity on the continuity of patient care and the well-being of patients. This conclusion is amply supported by concerns voiced in extensive congressional debate. "We have had virtually innumerable hearings . . . which point out that the major disruptions in the medical industry over a period of years have been strikes for recognition. It is our sincere conviction that by putting the employees of nonprofit hospitals under the National Labor Relations Act . .. would reduce to a tremendous extent the strikes in the hospitals or in the medical industry." (Emphasis supplied.) 120 Cong. Rec. H 4587 (1974) (remarks of t While admitting the phrase "any strike, picketing, or other concerted refusal to work . .." is ambiguous, my colleagues in the majority still conclude that the word" 'any' indisputably modifies 'picketing' " and in the same breath summanly dispose of the significance of the words "or other concerted refusal to work." Such a construction counters the traditional rule of construction noscitur a sociis. Moreover, since this provision of the Act regulates activity involving elements of first amendment freedoms, it is Rep. Thompson); see also 120 Cong. Rec. S6940 (1974) (remarks of Sen. Taft); S. Rept. 93-766, 93d Cong., 2d sess. 3 (1974); H. Rept. 93-1051, 93d Cong., 2d sess. 4 (1974). Clearly such disruptions are not precipitated by purely informational picketing. The proliferation of legislative debate concerning the danger of work stoppages and the resulting disrup- tion of patient care further supports the conclusion that the disruptive impact of picketing was the specific evil sought to be regulated by Section 8(g), not picketingper se. 22 The fact that Congress did not intend to invoke a per se ban on all peaceful picketing is evidenced in the committee reports. "The 10-day notice is intend- ed 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." (Emphasis supplied.) S. Rept. 93-766, 93d Cong. 2d sess. 4 (1974). This report clearly indicates that the 8(g) notice provision is directed at strikes and that type of picketing which threatens disruption of health care institutions' patient care function. Purely informational picketing without more poses no such threat. It is also instructive to note that this provision is constantly referred to in congressional debate as the "10-day strike notice" provision. 120 Cong. Rec. S 6932 (1974) (remarks of Sen. Cranston); 120 Cong. Rec. H 4589 (1974) (remarks of Rep. Ashbrook). In addition, the fact that Congress did not intend to invoke a per se ban on all peaceful picketing is demonstrated by the inapplicability of the notice provision "when the employer has committed unfair labor practices as in Mastro Plastics Corp. v. N.LR.B., 350 U.S. 270 (1956) . . . ." S. Rept. 93- 766, 93d Cong., 2d sess. 4 (1974). Certainly, if such disruptive conduct as an unfair labor practice strike is permissible without requiring recourse to the 10- day notice provision, it cannot be maintained that recourse to this provision is mandated in the case of nondisruptive informational picketing. Moreover, the majority's overly expansive reading of Section 8(g) conflicts with the long-established policy under the Act to construe narrowly the imposition of restrictions on traditionally recognized methods of legitimate primary activity such as peaceful informational picketing. This doctrine of construction is mandated by the spirit if not the letter of Section 13 of the Act. This doctrine of construction has been recognized as consistent with national labor policy by the anomalous that ambiguities should be resolved in favor of more rather than less extensive encroachment on these freedoms. 20 See S. Rept. 93-766, 93d Cong., 2d sess. (1974): H. Rept. 93-1051, 93d Cong., 2d sess. (1974). 2i Ibid. 22 Ibid. 446 DISTRICT 1199, NATIONAL UNION OF HOSPITAL AND HEALTH CARE EMPLOYEES Supreme Court which has also cautioned that a deviation from this precept in the area of peaceful picketing raises substantial constitutional questions. Thus, in N.L.R.B. v. Fruit & Vegetable Packers & Warehousemen, Local 760, et al. [Tree Fruits], 377 U.S. 58, 62-63 (1964), the Court stated: 23 Throughout the history of federal regulation of labor relations, Congress has consistently refused to prohibit peaceful picketing except where it is used as a means to achieve specific ends which experience has shown are undesirable. .... Both the congressional policy and our adherence to this principle of interpretation reflect concern that a broad ban against peaceful picketing might collide with the guarantees of the First Amend- ment. The construction attributed to Section 8(g) of the Act by my colleagues in the majority is inconsistent with a literal reading of this provision and is not supported by the underlying legislative history, except by a rather strained interpretation. In addi- tion, the construction embraced by the majority contravenes established policies under the Act reflected in the historic recognition of traditional methods of labor protest. Moreover, the majority's conclusion that Section 8(g) requires a per se ban on all forms of peaceful picketing at health care facilities results in a constitutionally impermissible restraint on free speech. For the above reasons, I would find that on the facts of this case Section 8(g) has not been violated and would dismiss the complaint in its entirety. 23 In fn. II of the majority opinion, my colleagues infer that the constitutional concerns flowing from broad bans against peaceful picketing articulated in Tree Fruits are less valid with regard to Sec. 8(g) of the Act than they are with reference to Sec. 8(bX4) of the Act. This is indeed a disturbing pronouncement. Tree Fruits evidences recognition of congressio- nal policy to legislate against isolated evils in the area of peaceful picketing which is indicative of Congress' and the Supreme Court's concern to preserve and protect the guarantees of the first amendment. Inasmuch as this doctrine of statutory construction is constitutionally mandated, it can hardly be maintained that its applicability is in any way conditioned by the particular statute or part thereof which is under consideration. 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 premises of United Hospitals of Newark, or any other health care instution, without timely notifying, in writ- ing, any such health care institution and the Federal Mediation and Conciliation Service, not less than 10 days prior to such action, of that intention. DISTRICT 1199, NATIONAL UNION OF HOSPITAL AND HEALTH CARE EMPLOYEES, RWDSU, AFL-CIO DECISION STATEMENT OF THE CASE RALPH WINKLER, Administrative Law Judge: Upon a charge filed on April 21, 1976, a complaint issued by the General Counsel on May 4, 1976, and an answer filed by Respondent Union, a hearing was held in Newark, New Jersey, on October 27, 1976. Upon the entire record in the case, including my observation of the demeanor of witnesses and upon consideration of briefs, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE HOSPITAL United Hospitals of Newark is a New Jersey corporation operating hospitals in New Jersey, including a facility in Newark. The parties agree that the Newark hospital is a health care institution within Section 2(14) of the Act and that United Hospitals is engaged in commerce within Section 2(6) and (7) of the National Labor Relations Act, as amended. 1l. RESPONDENT LABOR ORGANIZATION Respondent, District 1199, National Union of Hospital & Health Care Employees, RWDSU, AFL-CIO, herein called the Union, is a labor organization within Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES This case arises under the "health care institution" provisions of the Act. Section 8(g) reads as follows: 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 certification 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. [Clause (B) states that "Where the bargaining is for an initial agreement following certification or recognition, at least thirty days, notice of the existence of a dispute shall be given by the labor organization to the agencies set forth in section 8(dX3)."] The notice shall state the date and time that such action will commence. The 447 DECISIONS OF NATIONAL LABOR RELATIONS BOARD notice, once given, may be extended by the written agreement of both parties. The General Counsel alleges that Respondent Union violated Section 8(g) by picketing the Newark hospital on April 20, 1976, without having appropriately notified United Hospitals and the Federal Mediation and Concilia- tion Service (FMCS) of its intention to engage in such activity. Respondent concedes that it conducted a "demon- stration" on April 20 and that it had not given appropriate notices to satisfy the requirements of Section 8(g) for lawful picketing on that date. Respondent asserts, however, that its "demonstration" was not picketing within Section 8(g) and that the notice requirements of that provision were therefore inapplicable. A. The "Demonstration" On December 31, 1975, and January 12, 1976, the Union was certified as statutory bargaining representative for the Newark hospital's technical and professional employees. The Union and United Hospitals then entered into contract negotiations and held several bargaining sessions. By letter on March 25, 1976, and with a copy to United Hospitals, the Union advised FMCS that the parties were engaged in negotiations for an initial collective-bargaining agreement, that "a dispute exists which is subject to mediation," and that the letter was a 30-day notice submitted pursuant to Section 8(d)(3) respecting health care institutions. During the week or so before April 20, the Union distributed a leaflet to the hospital's employees announcing that a "demonstration" would be held "in front of the Hospital" on April 20, from 2 p.m. until 5 p.m. The leaflet, referring to the current negotiations, stated that the "main issue" concerned a "37-1/2 cents payoff," and encouraged "everyone to get involved in the demonstration." This leaflet was not served on nor given to FMCS or the hospital management, and, in any event, Respondent concedes that the leaflet would not satisfy the 8(g) notice requirements for lawful picketing on April 20. Respondent Vice President Alexander Evanoff testified that the purpose of the "demonstration" was "to permit the membership in United Hospitals to show their support for the [Union] negotiating committee." On April 20, at all times between 2 and 4:30 p.m., approximately 25 hospital employees walked in a circle on the sidewalk in front of the hospital's main entrance. (This entrance is used by employees, visitors, patients, and doctors.) They carried approximately 20 placards, and among the legends on these signs were: We demand a union contract District 1199, National Union of Hospital and Health Care Employees, AFL- CIO. We need decent wages, District 1199 .... I United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 630, AFL-CIO (Lein-Steenberg), 219 NLRB 837, 839-840 (1975). 2 Laborers' International Union of North America, AFL CIO, Local Union No. 1057 (Mercy Hospital of Laredo), 219 NLRB 846 (1975); International P. Haviland [Management official] don't push us into a hospital strike .... Union officials or agents were in charge of the "demonstra- tion." The employees participating in this activity did so, as far as the record shows, only during their off-shift hours, and there is no allegation that Respondent engaged in a "strike." (Union officials had directed that employees were not to engage in the "demonstration" during their own working hours.) Nor is it alleged that the "demonstration" was conducted in a manner as to physically debar access to the main entrance. There was also no showing, apart from the fact that the "demonstration" occurred in the manner described above, that participants in the "demonstration" requested anyone not to enter the hospital or not to use its facilities. B. Resolution of Issues The "demonstration" in this case, as the "picketing" in N.L.R.B. v. United Furniture Workers of America, AFL- CIO [Jamestown Sterling Corp.], 337 F.2d 936, 937 (C.A. 2, 1964), "followed the traditional form of ambulatory patrolling by union members carrying placards in front of the plant." I find that the "demonstration" was picketing, and Respondent's vice president also described it in those terms. Respondent contends, however, that even if a picketing label be given to the activity, the picketing was, in any event, not of the "character" and "quality" interdicted by Section 8(g) of the Act. Respondent urges in this regard that employees who engaged in this activity did so only during their off-duty hours and that there was no intention to create a work stoppage. The Board has already considered and in effect rejected Respondent's contentions. Thus, in Lein-Steenbergl the Board held that "Congress intended us to interpret Section 8(g) according to its plain language and that, therefore, any strike or picketing at the premises of a health care institution is proscribed in the absence of proper notices . . [even though] such picketing did not in fact disrupt the services offered by the Hospital .... " In Mercy Hospital and Hoffman Co.,2 unions picketed at hospital premises without serving notices required by Section 8(g). Noting the absence of allegations "that any hospital employees ceased work or that Respondent's picketing had any adverse impact on the Hospital's ability to provide its customary medical care" (219 NLRB at 847; 220 NLRB 665), the Board found a violation in each case upon the basis of its Lein-Steenberg ruling. And in Parkway Pavilion, 3 the Board once more emphasized that "the 8(g) notice requirement is clear and absolute," that "it applies regardless of the nature of the picketing involved," and that Section 8(g) "is devoid of any modifying language respecting the character of the picketing, its objectives, or the type of economic pressures generated." Brotherhood of Electrical Workers, Local Union No. 388 (The Hoffman Company, Inc.), 220 NLRB 665 (1975). 3 District 1199, National Union of Hospital & Healthcare Employees, RWDSU, AFL-CIO (First Health Care Corporation, d/b/a Parkway Pavilion Healthcare), 222 NLRB 212 (1976). 448 DISTRICT 1199, NATIONAL UNION OF HOSPITAL AND HEALTH CARE EMPLOYEES Respondent challenges the Board's construction of Section 8(g). But those decisions are binding here,4 and nothing further need be discussed, therefore, as their holdings are dispositive of the issues in this case. CONCLUSIONS OF LAW 1. Respondent is a labor organization within Section 2(5) of the Act. 2. United Hospitals of Newark is an employer within Section 2(6) and (7) of the Act and is a health care institution within Section 2(14) of the Act. 3. By picketing at the premises of United Hospitals of Newark without first giving 10 days' written notice to United Hospitals and to the Federal Mediation and Conciliation Service, Respondent has violated Section 8(g) of the Act. This conduct affects commerce within Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices violative of Section 8(g) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. Upon the foregoing findings, conclusions, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 5 The Respondent, District 1199, National Union of Hospital and Health Care Employees, RWDSU, AFL- 4Insurance Agents' International Union, AFL-CIO (The Prudential Insurance Company ofAmerica), 119 NLRB 768. 773 (1957). 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. CIO, Newark, New Jersey, 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 United Hospitals of Newark, or any other health care institution, without notifying in writing any such 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 customarily posted copies of the attached notice marked "Appendix." 6 Copies of said notice, on forms provided by the Regional Director for Region 22, after being duly signed by Respondent'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 custom- arily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (b) Furnish to the Regional Director for Region 22 sufficient signed copies of the aforesaid notice for posting by United Hospitals of Newark, if it is willing, in places where notices to its employees are customarily posted. (c) Notify the Regional Director for Region 22, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 6 In the event that the Board's 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." 449