Lake Shore Hospital

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sheet Metal Workers Local Union 324, AFL-CIO and Lake Shore Hospital and Health Related Facility. Case 3-CG-19 January 14, 1981 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO Upon a charge filed by Lake Shore Hospital and Health Related Facility, herein called the Hospital or the Charging Party, the General Counsel for the National Labor Relations Board, by the Regional Director for Region 3, issued a complaint on March 28, 1980, against Sheet Metal Workers Local Union 324, AFL-CIO, herein called Respon- dent. Copies of the charge and complaint and notice of hearing before an administrative law judge were duly served on Respondent and the Charging Party. The complaint alleges that Re- spondent violated Section 8(g) of the National Labor Relations Act, as amended, by picketing the premises of the Hospital without first giving 10 days' written notice of its intent to do so to the Hospital and to the Federal Mediation and Conci- liation Service. The answer duly filed by Respondent admits cer- tain allegations of the complaint but denies that Re- spondent has engaged in any unfair labor practices. Thereafter, on July 25, 1980, the Hospital, Re- spondent, and the General Counsel filed a stipula- tion of facts and a motion to transfer proceedings to the Board. They agreed that the charge, the complaint and notice of hearing, the answer, and the stipulation of facts constitute the entire record in this case, and that no oral testimony is necessary or desired by any of the parties. The parties ex- pressly waived a hearing before an administrative law judge, the making of findings of fact and con- clusions of law by an administrative law judge, and the issuance of an administrative law judge's deci- sion. They stipulated that they desired to submit the case directly to the Board for findings of fact, conclusions of law, and order. By order dated September 5, 1980, the Board ap- proved the stipulation, transferred the proceeding to itself, and set a date for the filing of briefs. Thereafter, the General Counsel filed a brief which has been duly considered by the Board. 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 entire record herein as stipulated by the parties, as well as the 254 NLRB No. 64 brief filed by the General Counsel, and hereby makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER Lake Shore Hospital and Health Related Facility is a not-for-profit corporation duly organized under, and existing by virtue of, the laws of the State of New York, with its principal office, a health care facility and place of business, at Routes 5 and 20, Irving, New York, where it is engaged in the business of operating a proprietary hospital and health related facility. In the operation of its busi- ness, the Hospital annually receives gross revenues in excess of $250,000, and purchases goods and ma- terials valued in excess of $5,000 which goods and materials are delivered to its Irving, New York, fa- cility directly from States of the United States other than the State of New York. The parties stipulated, and we find, that the Hos- pital is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and a health care institution within the meaning of Sec- tions 2(14) and 8(g) of the Act. We further find that it will effectuate the purposes of the Act to assert jurisdiction in this proceeding. II1. THE L.ABOR ORGANIZATION INVOLVED The parties stipulated and we find that Sheet Metal Workers Local Union 324, AFL-CIO, is now, 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 A. The Issue The question presented is whether Respondent violated Section 8(g) of the Act by picketing Lake Shore Hospital without first giving 10 days' written notice of its intent to do so to the Hospital and to the Federal Mediation and Conciliation Service. B. The Stipulated Facts Lake Shore Hospital is currently constructing an addition to the Hospital and its related health care facilities at Routes 5 and 20, Irving, New York. At all times material herein, other employers in the construction industry have, at various times, been engaged in the construction of the addition on the Charging Party's premises, pursuant to contracts with the Hospital. Respondent does not represent any employees employed by the Hospital nor has Respondent filed 536 SHEI METAL WORKERS LOCAL UNION 324 a representation petition with the Board under Sec- tion 9(c) of the Act seeking to represent any em- ployees employed by the Hospital. Commencing on or about February 27, 1980, and continuing to the date of the stipulation, Respon- dent, by its agents, has picketed at the jobsite with signs, herein referred to as signs A, B, and C, that read as follows: SIGN A-From February 27 to March 31, 1980: U N F A It NOTICL LAKE SHORE HOSPITAI ANI) HEAI.IH RI.ATED FCII.IT Notice to the Public Lake Shore Hospital and Health Related R Facility Unfair The Purpose of Patrolling This Site Is to Alert The Public That Lake Shore Hospital and Health Related Facility is Financing Work And/Or Building A Complex At Routes 5 and 20, Irving, New York Which is Not Being Done By Nor Scheduled To Be Completely Done By Qualified Building Trades Craftsmen. By Doing So, Lake Shore Hospital And Health Related Facility Undermines The Pre- vailing Rates Of Pay And Conditions Which Exist For Qualified Building Trades Crafts- men. Lake Shore Hospital Arid Health Related Facility Is Undermining Job Opportunities and Union Standards. This Notice Is Addressed To The Public Only And Not To Any Employee Employed by Lake Shore Hospital And Health Related Fa- cility. Nor To Any Employer OR Employee On The Jobsite. SHEET METAl. WORKERS UNION LOCAI. 324, AFL-CIO SIGN B-From March 31 to April 9, 1980: U Notice N Lake Shore Hospital and Health Related Fa- F cility A Mel Heating & Cooling, Inc. does not have a I contract with or employ members of Sheet R Metal Workers Union 324, AFL-CIO SIGN C On March 31, 1980 and from April 10, 1980 onward: Notice To The Public Information Only Mel Heating and Cooling, Inc. Does Not Have A Contract With Or Employ Members of Sheet Metal Workers Union, Local 324, AFL- CIO Respondent's pickets have not stopped any deliv- eries intended for the Hospital, nor have any hospi- tal employees engaged in a strike in support of Re- spondent. Respondent did not at any time mail a written notice to the Charging Party and the Federal Me- diation and Conciliation Service of its intention to engage in picketing on February 27, 1980. C. Contentions of the Parties The General Counsel contends that Respondent violated Section 8(g) of the Act by picketing the Hospital without giving written notice to the Hos- pital and to the Federal Mediation and Conciliation Service of its intent to picket at least 10 days prior to the commencement of its picketing. The General Counsel also contends that the nature of the picket- ing does not exempt the picketing from the provi- sions of Section 8(g) of the Act. Respondent, in its answer to the complaint, con- tends that the picketing had a lawful objective, that it was informational picketing in purpose and ob- jective. D. Discussion We agree with the General Counsel that Respon- dent, by picketing at the jobsite from February 27 to March 31, 1980, and for March 31 to April 9, 1980, with picket signs heretofore referred to as Signs A and B, violated Section 8(g) of the Act. It is settled that the notice requirements of Section 8(g) are applicable even though a labor organiza- tion does not represent, or seek to represent, health care employees or even if health care employees did not engage in picketing or other concerted re- fusals to work. Indeed, in a prior case at the same jobsite, we found that similar picketing directed at the Hospital, although disavowing any appeal to hospital employees, had a potential to disrupt health care services at the Hospital and was subject to the notice requirements of Section 8(g). 1 i Bricktlaers & Allied Cra/fimen. Local 40 (Lake Shore Hospital and Health Related acriltili, 252 NLRB No 30 (1980). See also Orange Belt Distrit' Council of Painteri .', 48, Inernational Brotherhood of Painters and 4lied 7rade. Al- CIO (Sain Joseph ospital), 243 N.RB 60 (1979) 537 DECISIONS OF NATIONAL LABOR RELATIONS OARD We further reject Respondent's contention that its picketing was protected informational picketing and thus exempt from the notice requirements of Section 8(g).2 We therefore findd that, in the fact situation herein, Respondent's picketing described as Signs A and B violated Section 8(g) of the Act. With respect to the picketing heretofore de- scribed as Sign C, Chairman Fanning finds that such picketing is not subject to the notice require- ments of Section 8(g). Picket Sign C clearly dis- closes that Respondent's dispute was limited to Mel Heating and Cooling, Inc., a contractor at the job- site, and did not either directly or indirectly in- volve the Hospital or its employees.3 Member Pen- ello, for the reasons set forth in his dissenting opin- ion in Henry C. Beck Company, supra, would find that the picketing described as Sign C falls within the notice requirements of Section 8(g) and in the absence of proper notice violated that section of the Act. IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES 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 burden- ing and obstructing commerce. v. THE REMEDY Having found that Respondent has engaged in, and is engaging in, an unfair labor practice in viola- tion of Section 8(g) of the Act, we shall order that it cease and desist therefrom, and take certain affir- mative action 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 fol- lowing: CONCLUSIONS OF LAW 1. Lake Shore Hospital and Health Related Fa- cility is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and is a health care institution within the meaning of Section 2(14) of the Act. 2. Respondent, Sheet Metal Workers Local Union 324, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By picketing Lake Shore Hospital and Health Related Facility without first giving 10 days' writ- 2 See Bricklayers & Allied Craftsmen, Local 40 (Lake Shore Hospital and Health Related Facility), supra: District 1199, National Union of Hospital and Health Care Employees. R WDSU, AFL-CIO (United Hospitals of Newark), 232 NLRB 443 (1977). a Painters Local No. 452 (Henry C. Beck Company), 246 NLRB 970 (1979). ten notice to Lake Shore Hospital and to the Fed- eral Mediation and Conciliation Service, Respon- dent has violated Section 8(g) of the Act. 4. The foregoing unfair labor practice is an unfair labor practice affecting commerce within the meaning 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, Sheet Metal Workers Local Union 324, AFL-CIO, Jamestown, New York, its officers, agents, and rep- resentatives, shall: 1. Cease and desist from engaging in any strike, picketing, or other concerted refusal to work against Lake Shore Hospital and Health Related Facility, or any other health care institution, with- out giving notice of that intention in writing to Lake Shore Hospital and Health Related Facility, or such other health care institution, and the Fed- eral Mediation and Conciliation Service, not less than 10 days prior to such action. 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." 4 Copies of said notice, on forms provided by the Regional Director for Region 3, after being duly signed by Respondent's authorized representative, shall be posted by Re- spondent 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 customarily posted. Rea- sonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Furnish to the Regional Director for Region 3 sufficient signed copies of the aforesaid notice for posting by Lake Shore Hospital and Health Relat- ed Facility if it is willing, in places where notices to its employees are customarily posted. (c) Notify the Regional Director for Region 3, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 4 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." 538 SHEET METAL WORKERS LOCAL UNION 324 MEMBER JENKINS, dissenting: This case involves peaceful informational picket- ing of a construction site on the premises of a hos- pital. For the reasons set forth in my dissent in Dis- trict 1199, National Union of Hospital and Health Care Employees, R WDSU. AFL-CIO (United Hospi- tals of Newark), 232 NLRB 443, 445-446 (1977), and, for the additional reasons set forth in my sepa- rate, "further" dissent in United Association of Jour- neymen and Apprentices of the Plumbing and Pipefit- ting Industry of the United States and Canada, Local 630, AFL-CIO (Lein-Steenberg), 219 NLRB 837, 845 (1975), I would find, based on the facts of this case, that Section 8(g) has not been violated. See also my dissent in Bricklayers & Allied Craftsmen, Local 40 (Lake Shore Hospital and Health Related Facility), 252 NLRB No. 30 (1980). Finally, I join Chairman Fanning in finding that the picketing de- scribed as Sign C did not violate Section 8(g) of the Act. Accordingly, I would dismiss the com- plaint in its entirety. APPENDIX NOTICE TO EMPI.OYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT picket Lake Shore Hospital and Health Related Facility or any other em- ployer in the health care industry, at a time when the commencement of such picketing is not in conformity with the notice requirements of Section 8(g) of the National Labor Rela- tions Act, as amended. SHEET METAL WORKERS LOCAL UNION 324, AFL-CIO 539