Massachusetts Nurses Association

678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Massachusetts Nurses Association and Lawrence Gen- eral Hospital. Case 1-CB-2908 July 15, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS of furnishing health care to patients in Lawrence, Massachusetts. Over a representative period, the hos- pital had annual gross revenues in excess of $250,000 and received medical and surgical supplies valued in excess of $50,000 from firms located outside the Commonwealth of Massachusetts. The complaint al- leges, Respondent admits, and we find that Lawrence General Hospital is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the purposes of the Act to assert jurisdiction herein. Upon charges duly filed, the General Counsel of the National Labor Relations Board, by the Acting Regional Director for Region 1, issued a complaint and notice of hearing on September 15, 1975, against Massachusetts Nurses Association. The complaint alleged that Respondent had engaged in, and was engaging in, certain unfair labor practices affecting commerce within the meaning of Section 8(b)(3) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing were duly served on the parties. On September 22, 1975, Respondent filed its answer to the complaint denying the commission of unfair labor practices and requesting that the complaint be dismissed. Thereafter, the parties entered into a stipulation of facts and jointly requested that the proceeding be transferred directly to the Board for findings of fact, conclusions of law, and Order. The parties waived a hearing before, and the making of findings of fact and conclusions of law by, an Administrative Law Judge. The parties agreed that the stipulation, togeth- er with the exhibits attached thereto, constitutes the entire record in this case. On February 3, 1976, the Board issued its Order approving the stipulation, transferring the proceed- ing to the Board, and setting February 19, 1976, as the time for filing briefs. Briefs have been filed on behalf of Respondent, General Counsel, and the Charging Party. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the stipulation, includ- ing exhibits, the briefs, and the entire record in this proceeding, and hereby makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER Lawrence General Hospital is a private nonprofit Massachusetts corporation engaged in the operation If. THE LABOR ORGANIZATION INVOLVED The complaint alleges, Respondent admits, and we find that Respondent is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES By statute enacted in 1965, the Commonwealth of Massachusetts provides for mandatory interest, or termination, arbitration of grievances or disputes be- tween health care facilities and the exclusive repre- sentatives of their employees, that have "not been settled by collective bargaining." ' In view of the foregoing statute, the Charging Par- ty and the Respondent in March 1973 entered into a 2-year contract, expiring on March 1, 1975, which contained the following provision: In the event the parties are unable to reach a settlement on the terms of a new Agreement, all issues in dispute will be submitted to arbitration in accordance with the rules of the American Arbitration Association. Negotiations began on or about January 28, 1975,2 for a new collective-bargaining agreement. Through- out the negotiations the Employer sought to remove the termination arbitration clause from inclusion in any future agreement on the ground that such a clause was not a mandatory subject of bargaining. However, the Respondent refused to enter into a new and complete agreement without the inclusion of the provision in question. On May 6, 1975, the parties executed a new collective-bargaining agreement which embodied their agreement on all terms and conditions of employment but contained a new con- ditional interest arbitration clause, as set forth be- low: 1 Massachusetts General Laws, ch 150A, sec 9A 2 Public Law 93-360 became effective August 25, 1974 This legislation repeals the exemption for nonprofit hospitals as formerly found in Sec 2(2) of the National Labor Relations Act, so that nonprofit hospitals are now within the Act's definition of "employer" 225 NLRB No. 91 MASSACHUSETTS NURSES ASSN. 679 This Agreement is subject to disposition of the issue concerning impasse resolution. If it is de- termined that the Association may not under the National Labor Relations Act insist to impasse upon the continuance of the termination arbitra- tion procedure previously contained in the col- lective bargaining agreements between the par- ties, no such procedure will be provided for herein for purposes of resolving any dispute either in negotiating any changes in Article II, Section 1, or a new Agreement. In the event it is determined that the Association may insist to impasse on such a procedure, then if the parties are unable to reach a settlement on the terms of any changes in Article II, Section 1, or a new Agreement, all issues in dispute will be submit- ted to arbitration in accordance with the rules of the American Arbitration Association and the instant Agreement will remain in effect pending the outcome of such arbitration. The Respondent contends that section 9A, supra, has not been preempted by the Act, and, in the alter- native, even if preemption does apply the Respon- dent may insist to the point of impasse on the inclu- sion of the interest arbitration clause because of the special nature of the health care industry. We find no merit in either of Respondent's conten- tions.' As noted, chapter 150A of the General Laws of Massachusetts, which also prohibits lockouts 4 and strikes,' provides for arbitration as the final and binding means of resolving all hospital labor dis- putes, including those "not settled by collective bar- gaining." In In Re: State of Minnesota, by Warren Spannaus, et al.,6 the Board, in denying a petition to cede its jurisdiction over nonprofit hospitals in the State of Minnesota, found that the Minnesota stat- utes-which contained provisions relating to hospital labor disputes similar to those found in chapter 150A-represented "a substantial departure from the Federal statutory scheme contained in the National Labor Relations Act . . . . Just as the National La- bor Relations Act itself has been consistently viewed as preempting existing state laws, so, too, would state labor relations laws concerning health care institu- tions now covered by the Act be preempted." Ac- cordingly, we find that section 9A, supra, has been 3 We find no merit in the Respondent's contention that sec 9A requires that the parties include an interest arbitration provision in their agreement Rather, sec 9A provides that either party may invoke mandatory interest arbitration even "if there is no collective bargaining agreement in force or such an agreement is in force but it contains no [such ] provision In any event, even if we adopted the Respondent 's interpretation it would not change the result we have reached 4Sec 4C(1) 5 Sec 4C(2) 6219 NLRB 1095 (1975) preempted by the Act, and that it would be improper for the Board to cede its jurisdiction in the instant proceeding, for the foregoing reasons. The remaining question raised by the stipulation is whether the Respondent violated Section 8(b)(3) of the Act by insisting to the point of impasse upon the termination arbitration provision. The Board held in The Columbus Printing Pressmen & Assistants' Union No. 252, Subordinate to IP&GCU (The R. W. Page Corporation), 219 NLRB 268 (1975), that an interest arbitration clause is not a mandatory subject of bar- gaining and that by bargaining to impasse concern- ing such clause the respondent union violated Sec- tion 8(b)(3) of the Act. Although that case arose in an industrial setting, we find nothing in Public Law 93-360, or its legislative history, which would war- rant carving out an exception for the health care in- dustry on this particular issue . We have carefully considered the Respondent's arguments for creating such an exception, and its general contentions that state legislation should not be required to yield to a paramount uniform Federal policy which fosters free and unfettered collective bargaining. But, in lan- guage equally applicable here, we noted in State of Minnesota, supra, that: When it amended [the Act], Public Law 93-360, Congress was not only cognizant of the policy questions that have been raised herein, but it was also well aware of the problems in balanc- ing state-Federal relationships . . . . and con- sciously chose to embody national standards with respect to federally protected labor rights. Accordingly, we find that the Respondent by in- sisting to impasse upon a nonmandatory subject of bargaining engaged in an unfair labor practice within the meaning of Section 8(b)(3) of the Act.' IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the hospital's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of com- merce. 7 While Chairman Murphy comments that Congress has encouraged the use of interest arbitration in the health care field, this does not mean that Congress has thereby approved a party's insisting to impasse on such a subject Our decision leaves the parties free to voluntarily agree on such a provision , but bargaining to impasse on this nonmandatory subject is clear- ly a violation of the Act 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE REMEDY Having found that the Respondent violated Sec- tion 8(b)(3) of the Act by insisting on a nonmandato- ry contract provision to which the Employer object- ed, we shall order Respondent to cease and desist from such conduct and take certain affirmative ac- tion to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. The Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3. By insisting to the point of impasse that a new collective-bargaining agreement include a provision for termination arbitration , the Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(3) of the Act. 4. The aforesaid 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, Massachusetts Nurses Association, Boston, Massa- chusetts, its officers, agents, and representatives, shall: 1. Cease and desist from insisting that the Em- ployer agree to include in any collective-bargaining contract the termination arbitration procedure previ- ously contained in the collective-bargaining agree- ments between the parties. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Notify the Lawrence General Hospital, in writ- ing, that the Respondent will not insist that the Em- ployer agree to include in any collective-bargaining agreement a provision requiring it to arbitrate new contract terms. (b) Post at Respondent's offices and meeting halls copies of the attached notice marked "Appendix." 8 Copies of said notice, on forms provided by the Re- 8In 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 " gional Director for Region 1, after being duly signed by Respondent's representatives, shall be posted by it immediately upon receipt thereof, and be maintained by Respondent for 60 consecutive days thereafter, in conspicuous places, including all places where no- tices to members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Sign and mail sufficient copies of said notice to the aforesaid Regional Director for forwarding to Lawrence General Hospital for information, and, if they are willing, for posting by them in all locations where notices to employees are customarily posted. (d) 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, dissenting: I disagree with my colleagues' finding that Re- spondent violated Section 8(b)(3) by insisting to im- passe on an interest arbitration provision in a collec- tive-bargaining agreement. I would find this a mandatory subject of bargaining and dismiss the allegations for the reasons set forth in my dissenting opinions in The Columbus Printing Pressmen & Assis- tants' Union No. 252, Subordinate to IP & GCU (The R. W. Page Corporation), 219 NLRB 268 (1975), and Greensboro Printing Pressmen and Assistants' Union No. 319 (The Greensboro News Company), 222 NLRB 893 (1976). See also Chattanooga Mailers Union, Lo- cal No. 92 v. The Chattanooga News-Free Press Com- pany, 524 F.2d 1305 (C.A. 6, 1975). Moreover, my colleagues are finding a violation here despite the clear statements in the legislative his- tory of the health care amendments that Congress favors interest arbitration in the health care industry. Thus, in explaining the desirability of the special pro- visions for conciliation of disputes in this industry included in Section 213 of the Act , the conference committee in its report stated: The committee, in adding special mediation and conciliation procedures, including the Board of Inquiry, for the health care industry, recognized the need for continuity of health services during labor-management disputes and that the labor organizations representing health care workers have publicly pledged their best ef- forts to persuade their affiliates voluntarily to avoid work stoppages through acceptance of ar- bitration in the event of an impasse in negotia- tions. Under these new procedures, it is antici- pated that, in the event of such an impasse, the findings of fact and recommendations of the MASSACHUSETTS NURSES ASSN. Board of Inquiry would provide the framework of the arbitrator's decision. [S. Rep. No. 93-988, 93d Cong. 2d Sess. 5 (1974).] In light of congressional encouragement of the use of interest arbitration in the health care industry, I fail to understand how my colleagues are able to con- clude that by insisting on such provisions Respon- dent violated Section 8(b)(3). APPENDIX 681 NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively by insisting that any collective -bargaining agree- ment contain a provision providing for a termi- nation arbitration procedure. MASSACHUSETTS NURSES ASSOCIATION