District 1199, Hospital and Health Care Employees

74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD District 1199, National Union of Hospital and Health Care Employees, Retail, Wholesale and Department Store Union, AFL-CIO and South Nassau Communities Hospital. Case 29-CG-27 May 19, 1981 DECISION AND ORDER On January 26, 1981, Administrative Law Judge Arthur A. Herman issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting memorandum, the Charging Party filed a memorandum in opposition to Respondent's exceptions and memorandum, and the General Counsel filed limited cross-exceptions in answer to Respondent's exceptions. The Board has considered the record and the at- tached Decision in light of the exceptions, memo- randums, and cross-exceptions and has decided to affirm the rulings, findings, l and conclusions of the Administrative Law Judge and to adopt his recom- mended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, District 1199, National Union of Hospital and Health Care Em- ployees, Retail, Wholesale and Department Store Union, AFL-CIO, its officers, agents, and repre- sentatives, shall take the actions set forth in said recommended Order, except that the attached notice is substituted for that of the Administrative Law Judge. I Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products. Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. In agreeing with the Administrative Law Judge's findings, Chairman Fanning finds it unnecessary to rely on District 1199 National Union of Hospital d Healthcare Employees, R WDSU, AFL-CIO (First Healthcare Corporation, d/b/a Parkway Pavilion Healthcare), 222 NLRB 212 (1976), in which he dissented. Member Zimmerman finds it unnecessary to pass on Parkway Pavilion Healthcare, supra, since he was not a Board Member when the case was decided, and since this case involves primary activity. Although Member Jenkins agrees that Respondent violated Sec. 8(g) of the Act, he does not rely on District 1199, National Union of Hospital and Health Care Employees, R WDSU, AFL-CIO (United Hospitals of Newark), 232 NLRB 443 (1977), which the Administrative Law Judge cited in sup- port of finding a violation here. Member Jenkins adheres to his dissent in that case but finds that decision factually distinguishable from the instant case. 256 NLRB No. 17 APPENDIX NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT engage in any strike, picket- ing, or other concerted refusal to work at the premises of South Nassau Communities Hospi- tal, or any other health care institution, with- out notifying, in writing, South Nassau Com- munities Hospital, or such other health care in- stitution, and the Federal Mediation and Con- ciliation Service, not less than 10 days prior to such action, of that intention. DISTRICT 1199, NATIONAL UNION OF HOSPITAL AND HEALTH CARE EM- PLOYEES, RETAIL, WHOLESALE AND DEPARTMENT STORE UNION, AFL- CIO DECISION STATEMENT OF THE CASE ARTHUR A. HERMAN, Administrative Law Judge: This case was heard by me in Brooklyn, New York, on April 28, 1980. The charge was filed by South Nassau Communities Hospital, herein called the Employer or the Hospital, on January 24, 1980, and the complaint issued on February 8, 1980. The sole issue raised in the com- plaint is whether District 1199, National Union of Hospi- tal and Health Care Employees Retail, Wholesale and Department Store Union, AFL-CIO, herein called Re- spondent or the Union, engaged in picketing at the Hos- pital's entrances, thereby necessitating the service of a 10-day notice on the Hospital prior to the alleged picket- ing pursuant to Section 8(g) of the National Labor Rela- tions Act. Upon the entire record, including my observation of the demeanor of the witnesses, and after due considera- tion of the brief filed by the Hospital, I make the follow- ing: FINDINGS OF FACT I. JURISDICTION The uncontroverted testimony of John Sikoryak, the Hospital's personnel director, established that the Hospi- tal, a New York corporation, is engaged in operating a nonprofit hospital and providing medical and other health related services. During the past year, which period is representative of its annual operations general- ly, the Hospital's gross revenues exceeded $35,000, and purchases of medical supplies and other materials direct- ly from sources located outside of New York State ex- Respondent conceded, by stipulation, that no such notice was given to the Hospital. _ . DISTRICT 1199, HOSPITAL AND HEALTH CARE EMPLOYEES 75 ceeded $500,000. Based on the above facts, I find that the Hospital is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(2),(6), and (7) of the Act, and a health care institution within the meaning of Sections 2(14) and 8(g) of the Act. 11. THE LABOR ORGANIZATION INVOLVED The complaint alleges, Respondent admits, and I find that the Union is, and has been at all times material herein, a labor organization within the meaning of Sec- tion 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICE The salient facts in this case are not in dispute. On January 24, 1980, four organizers2 employed by Re- spondent appeared at the Hospital's premises about 2:30 p.m. and took up positions at three of the Hospital en- tranceways. Cohen and Nordenberg walked back and forth in front of the entrance on Washington Avenue; Mishkin patrolled the entrance on Oswald Court; and, Shore stood in front of the emergency room entrance on Nassau Parkway. Cohen testified that in mid-December 1979 he went to the Hospital and spoke to employees in the Hospital's coffee shop. His purpose was to begin an organizing campaign on behalf of the Union.3 Thereaf- ter, and until January 24, 1980, he and the other organiz- ers visited the Hospital on at least six different occasions and handed out leaflets4 extolling the virtues of the Union, together with membership applications, to em- ployees entering or leaving the premises at the three lo- cations stated above. On the fateful day, January 24, Cohen prepared two placards to be worn by the organiz- ers as they patrolled the entranceways. 5 The placards read: SNCH employees are Lowest paid on L. I. Inferior benefits No representation No job security Time for 1199 Cohen's testimony is that Mishkin's placard was ripped by the wind after she had worn it for only about 10 min- utes. When he walked by Oswald Court about 2:45 p.m., Mishkin was holding the torn placard, and when she asked him what she should do with it, Cohen told her to put it in her car and to continue to hand out the leaflets. Nordenberg wore his placard from 2:30 p.m. until 4 p.m. when patrolling ceased. Cohen further testified that the organizers continued to visit the Hospital after January 24 on several occasions, at which time they leafleted the employees as before, but no placards were displayed. 2 Jeff Cohen, Jerry Nordenberg, Phyllis Mishkin, and Sy Shore. a At all times material herein, none of the Hospital's employees were represented by a union. 4 The parties stipulated to the content of the leaflets, and I received them in evidence as Jt. Exh. I. I Nordenberg wore one on Washington Avenue and Mishkin wore the other on Oswald Court. Sikoryak's testimony pretty much corroborates Cohen's. He observed Cohen handing out leaflets prior to January 24, and on that day he saw Cohen and an- other male walking back and forth, handing out leaflets at the entrance on Washington Avenue between 2:30 p.m. and 4 p.m.; and, he saw the other male wearing the placard described above. He also saw a man walking back and forth, handing out the leaflets, on Nassau Park- way in front of the emergency room entrance and, he saw a woman patrolling on Oswald Court, handing out leaflets to motorists as they entered and exited the park- ing lot. Sikoryak stated that he observed the organizers on a few occasions that day between 2:30 p.m. and 4 p.m. Wallace Woodard the Hospital's security supervisor testified that on two occasions between 2:30 p.m. and 4 p.m. on January 24, he saw a woman on Oswald Court wearing the placard described above, and that he also saw a man wearing a placard on Washington Avenue during the same time frame. He further testified that al- though the man on Nassau Parkway did not wear a plac- ard he was stopping cars while handing out leaflets and Woodard advised him not to stop the cars. Discussion and Conclusions As stated above, the sole issue to be resolved in this case is whether the activity engaged in by Respondent at the Hospital's premises on January 24, 1980, constituted picketing within the meaning of the Act. Respondent contends that said activity was not picketing within Sec- tion 8(g) of the Act and that, therefore, the notice re- quirements of that provision were inapplicable. 6 It as- serts that it was never the intention of Respondent to keep employees from work or to, in any way, cause a disruption of the Employer's operation. However, in de- fining what activity constitutes picketing, Justice Doug- las, in a concurring opinion in Bakery & Pastry Drivers & Helpers Local 802 of the International Brotherhood of Teamsters v. Wohl, 315 U.S. 769, 776 (1942), stated: Picketing by an organized group is more than free speech, since it involves patrol of a particular local- ity and since the very presence of a picket line may induce action of one kind or another, quite irrespec- tive of the nature of the ideas which are being dis- seminated. Hence those aspects of picketing make it the subject of restrictive regulation. 7 8 Sec. 8(g) of the Act 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 agree- ment 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 com- mence. The notice, once given, may be extended by the written agreement of both parties 7 See District 1199. National Union of Hospital and Health Care Employ- ees. R 'DSU A.4FL-CIO (United Hospitals of Newark), 232 NLRB 443 (1977). _. 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thus, while it may not have been the intent of Respond- ent to disrupt the Hospital, it is conceivable that that could have been the result.8 Moreover, Section 8(g) of the Act was intended to apply to all forms of picketing and not just to that which involves a work stoppage. Congress was concerned with the necessity that health care institutions be apprised of any such actions in order to allow the health care institution to take steps it may deem necessary to protect the continuity of the services it renders to its patients. Thus, the mere presence of the Union's organizers carrying placards in the entranceways of the Hospital identifying the cause they espouse for all the world to see, for even as short a duration as the record indicates, plus the handbilling of passing cars and other persons, and the organizers stating who they repre- sent, are sufficient indicia to bring the activity within the ambit of picketing as defined by the Board. 9 According- ly, I find that Respondent engaged in picketing on Janu- ary 24, 1980, without giving the required notice in viola- tion of Section 8(g) of the Act. Respondent argues further that if in fact, the conduct engaged in by its organizers rose to the level of picketing within the meaning of Section 8(g) of the Act, the inci- dent was of such a minor nature as to be insignificant and isolated involving de mininus conduct and no reme- dial order should issue. It is interesting to note that Respondent herein was also the Respondent in two prior cases in which the length of the picketing engaged in was 1-1/2 hours' ° and 2-1/2 hours,' respectively. In both cases, the Board found that Respondent had violated Section 8(g) of the Act by failing to give the required 10-day notice, 2 and remedial orders were imposed. I see no reason advanced by Respondent to warrant a different conclusion herein. The legislative history and policy consideration which prompted the enactment of Section 8(g) point up very clearly the necessity for giving health care institutions sufficient time to make arrangements for continuing pa- tient care. It is not enough to say that no stoppage oc- curred because of the picketing or that the picketing was of such short duration. As stated above, the very act of picketing could have induced a stoppage to the detri- ment of ailing patients. This cannot be tolerated for whatever period of time. CONCLUSIONS OF LAW i. South Nassau Communities Hospital is, and at all times material herein has been, engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Respondent, District 1199, National Union of Hospi- tal and Health Care Employees, Retail, Wholesale and Department Store Union, AFL-CIO, is, and at all times I No evidence was elicited to show that the activity engaged in by the Union's organizers interfered with pickups or deliveries, or was anything but peaceful at all times. 9 United Hospitals of Newark, supra. i' District 1199. National Union of Hospital & Health Care Employees, RWDSU. AFL-CIO (First Healthcare Corporation, d/b/a Parkway Pavilion Healthcare), 222 NLRB 212 (1976). l i United Hospitals of Newark, supra. 12 Albeit for action which differed from that engaged herein. material herein has been, a labor organization within the meaning of Section 2(5) of the Act. 3. By picketing at the premises of South Nassau Com- munities Hospital in Oceanside, New York, without first giving 10 days' written notice to South Nassau Commu- nities Hospital and to the Federal Mediation and Conci- liation Service, Respondent has violated Section 8(g) of the Act. 4. The aforesaid unfair labor practice affected com- merce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices in violation of Section 8(g) of the Act by picketing the Employer's premises without giving the required written notice, I shall order Re- spondent to cease and desist therefrom and to take cer- tain affirmative action designed to effectuate the policies of the Act. Upon the foregoing findings of fact, conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended: ORDER' 3 The Respondent, District 1199, National Union of Hospital and Health Care Employees, Retail, Wholesale and Department Store Union, AFL-CIO, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Engaging in any strike, picketing, or other concert- ed refusal to work at the premises of South Nassau Com- munities Hospital, or any other health care institution, without timely 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 nec- essary 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 customar- ily posted, copies of the attached notice marked "Appen- dix."'4 Copies of said notice, on forms provided by the Regional Director for Region 29, after being duly signed by Respondent's authorized represenative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereaf- ter, 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 no- 1' 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. 14 In 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." _ . DISTRICT 1199, HOSPITAL AND HEALTH CARE EMPLOYEES 77 tices are not altered, defaced, or covered by any other places where notices to its employees are customarily material. posted. (b) Furnish to the Regional Director for Region 29 (c) Notify the Regional Director for Region 29, in signed copies of the aforesaid notice for posting by writing, within 20 days from the date of this Order, what South Nassau Communities Hospital, if it is willing, in steps Respondent has taken to comply herewith.