District 1199-E, Hospital & Health Care Employees

132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD District 1199-E, National Union of Hospital & Health Care Employees, Retail, Wholesale and Depart- ment Store Union, AFL-CIO and Greater Penn- sylvania Avenue Nursing Center, Inc.- Case 5-CG-4 December 8, 1976 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER Respondent duly filed its answer denying the- commission of unfair labor practices. Pursuant to notice, a hearing was held before me in Baltimore, Maryland, on June 15, 1976. All parties ap- peared and were afforded full opportunity to participate, to introduce and to meet material evidence, and to engage in oral argument. Briefs were filed by the General Counsel and sRespondent on July 20, 1976, and have been consid- ered. On the entire record in the case, the briefs, and from my observation of the witnesses, I make the following:, FINDINGS OF FACT On July _29, 1976, Administrative Law Judge Charles W. Schneider issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief. _ 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 brief 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 complaint be, and it hereby is, dismissed in its entirety. DECISION STATEMENT OF THE CASE CHARLES W. SCHNEIDER, Administrative Law Judge: On March 26, 1976, Greater Pennsylvania Avenue Nursing Center, Inc., Baltimore, Maryland, the Charging Party, filed an unfair labor practice charge alleging that District 1199-E, National Union of Hospital & Health Care Employees, AFL-CIO, had committed unfair labor practic- es within the meaning of the National Labor Relations Act (29 U.S.C. § 158). On May 12, 1976, the Regional Director of Region 5 of the Board issued a complaint and notice of hearing alleging that District 1199-E, National Union of Hospital & Health Care Employees, Retail, Wholesale and Department Store Union, AFL-CIO, Respondent, had engaged in unfair labor practices in violation of Section 8(g) of the Act. 1 The appropriate bargaining unit is All full-tune and regular part-time service and maintenance employees who work regularly 24 or more hours in a workweek including food service employees, housekeeping employees, and nursing service em- 227 NLRB No. 26 1. JURISDICTION Greater Pennsylvania Avenue Nursing Center, Inc., herein called the Center is a Maryland corporation engaged in the operation of a proprietary nursing home 'in Balti- more, Maryland. During the past 8 months, a representative period, the Center received gross annual revenues in excess of $100,000 and purchased and received products in interstate com- merce valued in excess of $3,000 from ,points located outside of Maryland. At all times material herein, the Center is, and has been, an employer as defined in Section 2(2) of the Act, engaged in commerce and in operations affecting commerce as defined in Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION District 1199-E, National Union of Hospital & Health Care Employees, Retail, Wholesale and Department Store Union, AFL-CIO, is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES Greater Pennsylvania Avenue Nursing Center, Inc., is a health care institution within the meaning of the National Labor Relations Act. The issue is whether a threat by Respondent to strike the Center constituted a violation of Section 8(g) of the Act. At all times material Respondent Union has been the exclusive bargaining representative of an appropriate unit of employees of the Center, pursuant to a collective- bargaining contract. The current contract is effective from September 22, 1975, through June 30, 1978.1 The collective-bargaining contract provides that Respon- dent Union shall have reasonable opportunity, upon notice to the Center, to visit the premises and confer with employees. In February 1976, during an influenza epidemic, the Center decided that, because a number of deaths from influenza had occurred at other nursing homes, visitors should be barred from the Center during the epidemic. This ployees, excluding office clerical employees, all other clerks, physicians, dentists, registered nurses, licensed practical nurses, technical and professional employees, temporary employees, guards, confidential employees, supervisors, administrative and executive employees. DISTRICT 1199-E, HOSPITAL & HEALTH CARE EMPLOYEES decision was approved by the Maryland Department of Health and the ban became effective February 20, 1976. Ultimately, it was lifted March 15, 1976, after the epidemic was deemed to be under control. The ban included deliverymen and employees of the Center with suspicious symptoms. Notices were posted-at the entrance. On` March 12, 1976, Richard Ehrmann, an authorized representative of Respondent Union, visited the Center about 6:30 a.m. There is no evidence that Ehrmann gave the Center prior notice of his intention to visit. The General Counsel's credited evidence is that checks by the Center's officials disclosed no record or recollection of such notice having been received-by the Center.2 Ehrmann was intercepted by Beatrice Burns, the Center's director of nursing, as he was' leaving the building. Burns told Ehrmann that because of the influenza ban on visitors he had no right to be there without permission. Ehrmann stated that he was leaving but that he would return. Burns advised Ehrmann that if he left he would not be permitted to reenter, to which Ehrmann replied that in that case he would not leave. Ehrmann remained. At his request, Isaiah Spriggs, executive vice president of Respondent, was called to the Center, and a meeting was held between various of the Center's officials, including Sonya Gershowitz, admin- istrator and owner of the Center, and Ehrmann and Spriggs. A discussion about the ban on visitors ensued, in the course of which Spriggs became angry. The discussion terminated.with Spriggs stating that he was going to call a meeting of the Center's union employees and would strike the facility at 6 a.m. the following morning. As he and Spriggs left, Ehrmann added that the Center had "asked for it, and now you are going to get it." The Center immediately undertook measures to assure continued operations the next day. These included calling meetings of employees and advising them of the situation, placing nonunion personnel on 24-hour alert, notifying relatives of patients and volunteer and religious groups, recruiting individual help, establishing sleeping quarters for employees, and taking other necessary steps respecting staffing and supply needs in order to continue to provide essential care for the patients when the strike occurred. The efforts required intensive preparation, which contin- ued into the night. At or about 4 p.m., in the midst of the preparations, Union Representative Spriggs telephoned Administrator Sonya Gershowitz and asked her whether he had said there would be a strike. Informed by Gershowitz that he had, Spriggs said, "well, maybe we will strike and maybe we won't... . Around midnight the Center was advised by an employee that there would be no strike, and the day shift reported for work on the following morning.. However, the - Center 2 Respondent offered no evidence, resting at the conclusion of the General Counsel's case 3 During the course of the hearing the General Counsel offered evidence to prove that Respondent engaged in other conduct at other health care facilities in Maryland. The purpose of the offer was to establish the propensity of Respondent to make threats of the kind made to the Center and to carry them out, for their effect on patient care This offer was rejected The incidents were described as follows (1) A 30-minute work stoppage in violation of contract in 1973 at the George Washington Carver Nursing Home, predecessor of the Greater Pennsylvania Nursing Center. 133 received no notification from any official of Respondent to that effect. Thus no strike occurred. The Respondent Union's threat resulted in a substantial diversion- of staff attention to the problems of meeting the strike, with consequent adverse effect on patient care and morale. The Respondent did not give prior written notification to the Center or to the Federal Mediation and Conciliation Service of an intention to engage in a strike at the Center .3 Contentions The General Counsel contends that the threat of Respon- dent Union to strike the Center constituted a violation of Section 8(g) of the Act. Section 8(g), to the extent material herein, reads as follows: (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 ..... 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. Respondent contends that its conduct does not constitute a violation of Section 8(g). Conclusions The legislative history of the so-called hospital amend- ments to the National Labor Relations Act, which resulted, among other changes, in the enactment of Section 8(g) (Public Law 93-360, 93d Cong., S. 3203, 88 Stat. 395, effective July 26, 1974), makes clear that one purpose of Congress was to insure that health care institutions have sufficient advance notice of a strike so as to permit adequate arrangements to be made for patient care. As was said in the Senate Report (S. Rept. 93-766, 93d Corig., 2d sess. 3): In the Committee's deliberation on this measure, it was recognized that the needs of patients in health care institutions required special consideration in the Act including a provision requiring hospitals to have suffi- cient notice of any strike or picketing to allow for appropriate arrangements to be made for the contin- uance of patient care in the event of a work stoppage.4 (2) A 4-hour stake in 1974 at the Pikesville Nursing and Convalescent -Center (3) A 20-minute work stoppage in June 1975 at Belair Nursing Home and Annapolis Nursing Home , on which unfair labor practice charges were filed, but later withdrawn upon settlement (4) A 15-minute work stoppage at Pikesville Nursing and Convalescent Center, upon which a complaint was issued by the General Counsel in Case 5-CG-3, and a hearing held before Administrative Law Judge William F. Jacobs on May 17, 1976 4 See also 120 Cong Rec. S694I, 6964 , 6968 (daily ed. May 2, 1974; S. Rept p. 4, H. Rept. p 5). 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD However, I do not find the General Counsel's construc- tion of Section 8(g) supported, either by the language of the section or by its legislative history. The section forbids "engaging" in a strike, unless- the institution and the Mediation and Conciliation Service have been previously notified not less than 10 days prior to such action. The section does not purport to forbid threats to strike without 10 days' notice. Section 8(g) was enacted on July 26, 1974. At that time the National Labor Relations Act contained provisions (as it does today) in Section 8(d), 8(b)(4), and 8(b)(7) relating to strikes, picketing, or threats thereof. Thus, Section 8(d) and 8(b)(4) forbid strikes under certain circumstances. Section 8(b)(4)(ii) additionally forbids labor organizations "to threaten, coerce, or restrain" persons for certain objectives (emphasis supplied). Section 8(b)(7) forbids labor organiza- tions to "picket . . . or threaten to picket" for recognition under certain circumstances (emphasis supplied) .5 Section 8(d) has been a part of the statute since 1949, Section 8(b)(4)(ii) and 8(b)(7) since 1959. Unlike Section 8(b)(4)(ii) and 8(bX7), Section 8(d) contains no reference to threats. I am aware of no decisions by the Board or a court, nor am I cited to any, holding that Section 8(d) of the statute forbids threats to strike. In these circumstances, it seems clear to me that when Congress enacted Section 8(g) of the Act it had before it the example of Section 8(b)(4)(ii) and 8(b)(7) in which it outlawed threats to strike or picket, as well as strikes and picketing themselves. Congress therefore knew how to prohibit threats to strike if it wished to do so. In this context the absence of a prohibition in Section 8(g) against threats to strike must be concluded to have been a deliberate omission by the Congress. If there were any doubt about that interpretation, it seems removed by the legislative history of Section 8(g). While the legislation containing the section was pending before the conference committee of the Congress, General Counsel Peter Nash of the Board delivered an address in which he presented his interpretation of the pending amendments. General Counsel Nash stated that "a threat to strike or picket,a health care institution within the ten- day period would in itself constitute a Section 8(g) violation." (27th Annual Conference on Labor, NYU, AAA, June 13, 1974, p. 15.) General Counsel Nash's conclusion was based on the fact that failure to give statutory notice' is remediable under Section 10(j) of the Act, and that the 10-day period provided the Board with the opportunity to determine the legality of the strike or picketing before it occurred. Specifically, Mr. Nash's interpretation was founded'-on the following statement in the Senate Committee Report (p. 4) and a similar statement in the House Committee Report (p. 5): The failure to give the statutory notice will be remedial [sic] under Section 10(j) of the Act. This notice period will also give the National Labor Relations Board the opportunity, when charges are filed, to make a determi- nation as to the legality of any strike or picketing before it occurs. [Emphasis supplied.] From this Mr. Nash concluded that (p. 15): If there were no violation of Section 8(g) until the contemplated action took place, and since Section 10(j) relief is not appropriate until a complaint alleging a violation of the Act has issued, the Board would not be able to make its determination prior to the economic action and the intent of Congress would be frustrated. When the legislation thereafter cleared the conference committee and was returned to the Senate and the House for final passage, sponsors in both bodies responded negatively during debate to the interpretation given Section 8(g) by General Counsel Nash. Thus, Senator Williams, chairman of the Senate Labor Committee, said: I reject any interpretation that this committee intended to create a new unfair labor practice, whenever mention is made of an intent to withdraw services in violation of Section 8(g). Clearly, the committee meant precisely what it said and no more, for if it had intended to make such a "threat" a violation of Section 8(g) it would have said so, precisely as the Congress amended the Act in 1949 to make a "threat" to violate Section 8(b)(4), itself a violation of the Act. 120 Cong. Rec. S12104 (daily ed. July 10, 1974). On the House side, cosponsor John Ashbrook stated that, "I agree with the assertion that a threat to violate 8(g) is not in itself a violation of 8(g)." 120 Cong. Rec. E4850 (daily ed., July 18, 1974). In the course of-the debate on the conference bill Senator Williams also said (120 Cong. Rec. S12104 (daily ed., July 10, 1974)): This legislation is the product of compromise, and the National Labor Relations Board in administering the act should understand specifically that this committee understood the issues confronting it, and went as far as it decided to go and no further and the Labor Board should use extreme caution not to read into this act by implication-or general logical reasoning-something that is not contained in the bill, its report and the explanation thereof. In the case of United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, Local 630 (Lein-Steenberg), 219 NLRB 837, 839-840 (1975), the Board, after quoting this comment by Senator Williams, said: "From all the above, we conclude that Congress -intended us to interpret Section n-8(g) according to its plain language ...: ' In the light of these various considerations, I hold that Section 8(g) does not prohibit threats to strike. As the instant record demonstrates, such an omission makes it possible for the attention of the staff of a health care institution to be diverted from the care of patients while attempting to prepare to meet a strike, and thus to that extent interferes with patient care-an evil which Congress sought generally to eliminate. Those, however, are 5 See General Service Employees Union Local No 73 affiliated with Service NLRB 434 (1976), where the Board found threats to picket violative of Employees International Union, AFL-CIO (A-1 Security Service Co.), 224 Section 8(b)(7)(C). DISTRICT 1199-E, HOSPITAL & HEALTH CARE EMPLOYEES considerations which must be deemed to have been within the contemplation of Congress at the time it enacted Section 8(g). It will therefore be recommended that the complaint be dismissed. CONCLUSIONS OF LAW Respondent has not engaged in unfair labor practices by the conduct alleged in the complaint and disclosed by the record. 135 Upon the foregoing findings and conclusions and the entire record in the case, I hereby issue the following recommended: ORDER6 The complaint is dismissed in its entirety. 6 In the event no exceptions are filed as provided by Sec. 102.46 of the of the Rules and Regulations, be adopted by the Board and become its Rules and Regulations of the-National Labor Relations Board, the findings, findings, conclusions, and Order, and all objections thereto shall be deemed conclusions, and recommended Order herein shall, as provided in Sec. 102 48 waived for all purposes.