SEIU United Healthcare Workers-West

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 350 NLRB No. 34 284 SEIU United Healthcare Workers-West and Califor- nia Pacific Medical Center. Case 20–CG–65 July 23, 2007 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND KIRSANOW On December 29, 2006, Administrative Law Judge Jay R. Pollack issued the attached decision. The Respondent and the General Counsel filed exceptions and supporting briefs, and the Charging Party filed cross-exceptions and a supporting brief. The General Counsel and the Charg- ing Party also filed answering briefs to the Respondent’s exceptions, and the Respondent filed an answering brief to the Charging Party’s cross-exceptions. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions1 and briefs and has decided to affirm the judge’s rulings, findings, and conclusions2 and to adopt the recommended Order as modified and set forth in full below.3 ORDER The National Labor Relations Board orders that the Respondent, SEIU United Healthcare Workers-West, its officers, agents, and representatives, shall 1. Cease and desist from engaging in any strike, pick- eting, or other concerted refusal to work, including a 1 The Respondent excepts to the judge’s failure to defer the 8(g) al- legation to the parties’ arbitration mechanism. Deferral is an affirma- tive defense that can be waived if not raised timely. New Associates, 314 NLRB 893, 894 (1994). This deferral argument was not raised by the Respondent in its answer to the complaint or during the hearing. It thus was waived. In addition, the issue of whether the Respondent provided sufficient 8(g) notice of the employees’ planned concerted refusal to work is one of statutory interpretation, not contract interpreta- tion. Therefore, deferral of this issue is not appropriate. Accordingly, we find no merit in this exception. 2 In response to our dissenting colleague, we note that the Union, on June 1, told the Employer that employees would refuse to work volun- tary overtime for 7 days starting on June 5. At the very least, the Union was required to delay the start of the period for 10 days after June 1. In addition, the Union sent no notice at all to FMCS. Thus, the Union made no attempt to comply with 8(g)’s notice requirements. We need not, therefore, address the hypothetical concern raised by our dissenting colleague. In adopting the judge’s finding of a violation, we agree with the judge that the employees’ concerted refusal to volunteer for overtime falls within 8(g)’s notice requirement for “other concerted refusals to work.” Accordingly, we do not reach the issue of whether the employ- ees’ conduct in this case constitutes a strike. 3 In the order section of his decision, the judge inadvertently mis- stated the name of the hospital as “Mount Sinai Hospital.” We correct this error. We shall also substitute a new notice in accordance with our decision in Ishikawa Gasket America, Inc., 337 NLRB 175 (2001), enfd. 354 F.3d 534 (6th Cir. 2004). concerted refusal to volunteer for overtime work, at the premises of California Pacific Medical Center, 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 necessary to effectuate the policies of the Act. (a) Within 14 days after service by the Region, post at its business office and meeting halls in San Francisco, California, copies of the attached notice marked “Appen- dix.”4 Copies of the notice, on forms provided by the Regional Director for Region 20, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees and members are customar- ily posted. Reasonable steps shall be taken by the Re- spondent to ensure that the notices are not altered, de- faced, or covered by any other material. (b) Furnish to the Regional Director signed copies of the notice for posting by California Pacific Medical Cen- ter, if it is willing, in places where notices to employees are customarily posted. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. MEMBER LIEBMAN, dissenting in part. I dissent from the majority’s conclusion that the Re- spondent Union violated Section 8(g) of the Act. I ad- here to the views expressed in my dissent in New York State Nurses Assn. (Mt. Sinai Hospital), 334 NLRB 798 (2001). There, under similar circumstances, I concluded that employees’ refusal to volunteer for overtime did not constitute a “concerted refusal to work” within the mean- ing of Section 8(g) and therefore that the Union did not violate that provision by failing to provide the required notices. Moreover, a decision issued after Mt. Sinai Hospital il- lustrates why it is unreasonable to treat a refusal to per- form voluntary overtime as a concerted refusal to work for purposes of Section 8(g): as a practical matter, there is no way for a union to comply with the notice require- ments of the statutory provision in such cases. 4 If 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” SEIU UNITED HEALTHCARE WORKERS-WEST 285 In Alexandria Clinic, P.A., 339 NLRB 1262 (2003), enfd. 406 F.3d 1020 (8th Cir. 2005), the Board upheld the discharge of striking nurses because their union did not satisfy Section 8(g)’s 10-day notice requirement, where it delayed the start of a strike for 4 hours after the time specified in its notice. The Board held that where a union wishes to strike after the original notice period has expired, it must either give a new notice and wait a new 10 days, or obtain the written consent of the employer to strike at an earlier point. How is a union to comply with this requirement when the refusal to work is not a strike called for a set time, but rather the refusal of individual employees to work over- time, if and when the opportunity is offered to them by the employer? The employer exercises complete control over when employees will be asked to work overtime, and the union has no way of knowing when the employer might make that request. Even where the union sets a prospective date and time for employees’ concerted re- fusal to volunteer, as it did here, there is no guarantee that the overtime will be offered precisely then. And once the specified date and time have passed, the union’s 8(g) notice, at least under Alexandria Clinic, is no longer valid. Employees, then, may concertedly refuse volun- tary overtime only at the risk of losing their jobs. That situation is untenable, but it follows directly from the holdings in Mount Sinai Hospital and Alexandria Clinic. Both decisions, in my view, were mistaken on their own terms. Taken together, they predictably will chill healthcare workers’ exercise of their rights under the Act. APPENDIX NOTICE TO EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain on your behalf with your employer Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT induce our members to engage in any strike, picketing, or other concerted refusal to work, in- cluding a concerted refusal to volunteer for overtime work, at the premises of California Pacific Medical Cen- ter, 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. SEIU UNITED HEALTHCARE WORKERS-WEST David B. Reeves, Esq., for the General Counsel. Bruce A. Harland, Esq. (Weinberg, Roger & Rosenfeld), of Alameda, California, for the Respondent. Jason M. Mayo, Esq. (O’Melveny & Myers), of San Francisco, California, for the Employer. DECISION STATEMENT OF THE CASE JAY R. POLLACK, Administrative Law Judge. I heard this case in trial at San Francisco, California, on October 3 and 25, 2006. On June 13, 2006, California Pacific Medical Center (the Hospital or the Employer) filed the charge in the instant case alleging that SEIU United Healthcare Workers-West (Respon- dent) committed certain violations of Section 8(g) of the Na- tional Labor Relations Act (the Act). On July 10, 2006, the Regional Director for Region 20 of the National Labor Rela- tions Board issued a complaint and notice of hearing against Respondent, alleging that Respondent violated Section 8(g) of the Act. Respondent filed a timely answer to the complaint, denying all wrongdoing. All parties have been afforded full opportunity to appear, to introduce relevant evidence, to examine and cross-examine witnesses and to file briefs. On the entire record, including observation of the demeanor of the witnesses, and having con- sidered the posthearing briefs of the parties, I make the follow- ing1 FINDINGS OF FACT I. JURISDICTION California Pacific Medical Center is a California corporation with offices and principal places of business located in San Francisco, California, where it is engaged in business as a health care institution in the operation of acute-care hospitals and related facilities. The Employer, during the 12 months prior to the issuance of the complaint, derived gross revenues in excess of $250,000. During the same time period, the Hospital purchased and received goods and materials valued in excess of $5000 which originated from points outside the State of Cali- fornia. Accordingly, I find that the Hospital is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Respondent admits and I find that it is a 1 The credibility resolutions herein have been derived from a review of the entire testimonial record and exhibits, with due regard for the logic of probability, the demeanor of the witnesses, and the teachings of NLRB v. Walton Mfg. Co., 369 U.S. 404, 408 (1962). As to those wit- nesses testifying in contradiction to the findings herein, their testimony has been discredited, either as having been in conflict with credited documentary or testimonial evidence, or because it was in and of itself incredible and unworthy of belief. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 286 labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Issues The Employer operates acute-care hospitals and related fa- cilities in San Francisco, California. Respondent represents a bargaining unit of employees including, inter alia, housekeepers and linen aides in the Employer’s Medical Center’s Environ- mental Services (EVS) department at the Employer’s Davies and Pacific campuses. The Respondent and the Employer have been party to a series of collective-bargaining agreements, the most recent of which is effective by its terms from November 2005 to June 2008. The collective-bargaining agreement con- tains a provision prohibiting mandatory overtime. The Hospital relies on volunteers to fill in for EVS employees on leave or otherwise absent—either by volunteering for overtime or by volunteering for extra shifts. Under the collective-bargaining agreement, the Hospital may not assign mandatory overtime except for a state of emergency. The record reveals that the Hospital has never required mandatory overtime under the con- tract. Prior to the instant dispute, the Hospital has been able to meet its overtime requirements because a sufficient number of employees have volunteered for overtime. In May 2006, the Hospital proposed changing the way it dis- tributed linen at its medical centers. The Union objected to the proposed changed and contended that the proposed change was a violation of the subcontracting clause of the collective- bargaining agreement. Carolina Nader, operations manager, who oversees the EVS department at the Davies Campus, testified that on June 1, 2006, Nate Gunderson, union field representative,2 presented her with a petition signed by over 100 EVS employees entitled “No-Subcontracting.” The petition stated: We the undersigned SEIU-UHW members in Environmental Services hereby protest the proposal of CPMC management to sub-contract our work in the linen room out to the West Bay Distribution center. This is a direct violation of the no sub-contracting clause of our contract. By signing this peti- tion we hereby authorize our shop stewards to call for one week, no overtime no extra shift policy amongst SEIU-UHW members in the Environmental Service department on an as needed basis. We commit to one-another that we will honor this commitment to action and stand strong in our fight with CMPC to force them to respect and honor our contract. Gunderson informed Nader that he was giving the Hospital official notice that the EVS employees intended not to work overtime. Ernesto Rivera, director of housekeeping at the Pacific Cam- pus testified that on June 2, 2006, Catalino Colonsag, shop steward, presented him with a copy of the same petition that had been given to Nader at the Davies Campus. Colonsag in- 2 At the conclusion of the hearing there was no issue that Gunderson was an agent of Respondent. However, during the hearing, Respondent refused to stipulate that Gunderson was its agent and refused to make Gunderson available as a witness. formed Rivera that, as of Monday, June 5, 2006, none of the employees in the EVS department would work overtime or extra shifts. Beginning on June 5, 2006, Nader attempted to secure volun- teers for overtime. Nader experienced an increase in employ- ees calling in sick. She followed her usual routine of asking for volunteers for overtime by seniority but was turned down by employees. Nader could not cover shifts on June 5, 9, 10, and 11. Similarly, on June 5, Rivera attempted to secure volunteers for overtime at the Pacific Campus but was turned down by employees. Rivera testified that he needed to fill six 8-hour shifts but was unable to do so. After June 6, Rivera gave up trying to find volunteers for overtime. Beginning on June 12, 2006, EVS employees again began accepting offers of overtime and extra shifts. On June 8, the Union published a newsletter in which it stated in pertinent part: EVS workers at all three CMPC campuses are standing up to management’s attempt to subcontract jobs of our coworkers in the Linen Room. Last week a super majority of SEIU-UHW members in the EVS department signed a petition demanding CMPC respect our contract and halt its plans to subcontract the Linen Room. . . . In addition, the petition called for one week of no overtime, no extra shifts for UHW members in the EVS department. Starting on June 5th, the no overtime, no extra shift policy has ex- posed the short staffing that management created in the EVS department. It is now crystal clear that CMPC needs to hire more EVS staff, not eliminate jobs. In response, management has attempted to force UHW members to do extra work to cover the shifts management has failed to fill. . . . Respondent did not provide the Employer or the Federal Mediation and Conciliation Service with written notice of the concerted refusal to work overtime. B. Analysis and Conclusions Sec. 8(g) of the Act provides, in pertinent part, that [a] labor organization before engaging in any strike, picketing, or other concerted refusal to work at any health care institu- tion shall, not less than ten days prior to such action, notify the institution in writing and the Federal Mediation and Concilia- tion 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. Section 8(g) was added because, in extending the protections of the Act to hospital employees, Congress meant to protect the public against undue disruptions in health care services result- ing from labor disputes. New York State Nurses Assn. (Mt. Sinai Hospital), 334 NLRB 798, 800 (2001). The Union con- tends that the employees had a collectively-bargained contract that prohibited mandatory overtime and that therefore, there was no strike or refusal to work. The General Counsel and the Hospital relying on New York State Nurses Assn. contend that the EVS employees refused to volunteer for overtime and to SEIU UNITED HEALTHCARE WORKERS-WEST 287 work overtime, and that they thereby engaged in a strike or concerted refusal to work. They contend that both of those actions fall within the definition of “strike” contained in Sec- tion 501(2) of the Act, which includes “any strike or other con- certed stoppage of work by employees . . . and any concerted slowdown or other concerted interruption of operations by em- ployees.” In New York State Nurses Assn., supra, nurses working at Mt. Sinai Hospital had a past practice of volunteering to work overtime. The nurses’ bargaining agreement with that hospital provided that nurses were not required to work involuntary overtime except in a disaster/emergency. However, under the past practice of nurses volunteering for overtime, the hospital was able to meet its overtime needs. The nurses decided to refuse to volunteer for overtime work in order to put pressure on the hospital to change its staffing practices. The Board, in overruling the administrative law judge, found that the nurses’ concerted refusal to volunteer for overtime and to work through their lunch periods, contrary to their estab- lished practice, was clearly meant to cause, and did cause, an interruption of the hospital’s functions within the meaning of Section 8(g). The Board found that the concerted refusal to volunteer for overtime was a concerted work stoppage and was intended to pressure the hospital-employer to change its staff- ing practices. I find the instant case, controlled by New York State Nurses Assn. Here the petitions and the union newsletter show that there was a concerted refusal to volunteer for overtime and that concerted work stoppage was intended to pressure the Hospital not to engage in what the Union viewed as subcontracting. Respondent did not give the required written 10 days notice to either the Hospital or the FMCS. The Union contends that St. Barnabas Hospital, 334 NLRB 1000, 1011 (2001), requires a different result. In St. Barnabus Hospital, four physicians who threatened not to perform on-call work were discharged. The Board found that the physicians performed on-call work on a voluntary basis. It therefore found that the refusal to perform voluntary work would not be an unprotected partial strike. Because the on-call work was volun- tary, the Board found that the discriminatees’ concerted threat to stop performing on-call work was protected activity. See also Dow Chemical Co., 152 NLRB 1150, 1151–1152 (1965); Jasta Mfg. Co., 246 NLRB 48, 49 (1979), enfd. mem. 634 F.2d 623 (4th Cir. 1980). See also Riverside Cement Co., 296 NLRB 840, 841 (1989). The Board concluded that the dis- charge of the four physicians violated Section 8(a)(1) of the Act. I find that the St. Barnabas Hospital is inapposite. In New York State Nurses Assn. (Mt. Sinai Hospital), 334 NLRB 798, 801 fn. 16 (2001), the Board noted “our finding that the con- certed refusal to perform voluntary overtime at the Union’s request is a concerted refusal to work for purposes of Sec. 8(g) neither deprives employees of their contractual rights nor per- mits the Hospital to modify the contract unilaterally by making voluntary overtime mandatory.” The Board further noted “the partial strike cases are not on point here. This is not a partial strike case. The question here is whether the nurses’ refusal to perform that work at the Union’s request was a strike or at least a concerted refusal to work, and therefore violated Sec. 8(g) because the Union failed to give the required notices.” Similarly, the issue herein, is not whether the Union had a contractual or statutory right to refuse to work overtime but rather whether the Union was required to give the notice re- quired by Section 8(g). New York State Nurses Assn. clearly holds that the Union was required to send the proper notices. CONCLUSIONS OF LAW 1. The Employer is an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent violated Section 8(g) of the Act, by inducing and directing the EVS employees of California Pacific Medical Center to refuse to volunteer to work overtime or extra shifts without providing the Hospital and the Federal Mediation and Conciliation Service 10 days’ notice of the job action as re- quired by Section 8(g). THE REMEDY Having found that Respondent engaged in unfair labor prac- tices, I shall recommend that it be ordered to cease and desist therefrom to take certain affirmative action designed to effectu- ate the policies of the Act. The General Counsel seeks litigation expenses for himself and the Employer. The Board has held that it has authority to award litigation expenses where a respondent engages in “frivolous rather than debatable litigation” before the Board. See Tiidee Products, 194 NLRB 1234, 1235–1237 (1972). In Heck’s, Inc., 215 NLRB 765 (1974), the Board held that the award of litigation expenses, except in extraordinary circum- stances involving frivolous defenses, would discourage respon- dents from gaining access to the appropriate forum in order to fully litigate debatable defenses. Thus, the Board has been very hesitant in awarding attorney’s fees to the General Counsel and charging party. It is only appropriate where Respondent has raised patently frivolous defenses. Super Save, 273 NLRB 20 fn. 1 (1984); Park Inn Home for Adults, 293 NLRB 1082 fn. 3 (1989); Heck’s, Inc., supra at 765–768. A frivolous defense is not merely found to be without merit, but refers to contentions “which are clearly meritless on their face.” Heck’s, Inc., 191 NLRB 886, 889 (1971); See also Heck’s, Inc., 215 NLRB 765, 767–768 (1974). While I found that the instant case was clearly controlled by the Board’s decision in New York State Nurses Assn., supra, I also note that there was a dissent in that case. More impor- tantly, the Board’s rationale that a concerted refusal to volun- teer for overtime constitutes a strike within the meaning of Section 8(g) has not been reviewed by a court of appeals. The only way for the Union to obtain review of the Board’s ration- ale by a United States Court of Appeals is to have a Section 8(g) unfair labor practice finding by the Board. It seems clear to me that the Union’s legal position in this case cannot be characterized as frivolous. The General Counsel argues that Respondent should have stipulated to the undisputed facts and still preserved its legal DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 288 position. I do not believe Tiidee Products or Heck’s, Inc. re- quire a respondent to waive its day in court. Finally, while Respondent did cause unnecessary delay regarding the issue of Gunderson’s status as an agent of Respondent, I do not find that such delay was so egregious as to trigger the imposition of litigation expenses. Accordingly, I will recommend a remedy in this case in ac- cordance with the remedy in New York State Nurses Assn. (Mt. Sinai Hospital), 334 NLRB 798 (2001). [Recommended Order omitted from publication.]