Bricklayers & Allied Craftsmen, Local 40

National Labor Relations Board - Board Decisions

Sep 19, 1980

252 N.L.R.B. 252 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bricklayers & Allied Craftsmen, Local 40 and Lake
Shore Hospital and Health Related Facility.
Case 3-CG-18
September 19, 1980
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 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 Janu-
ary 16, 1980, against Bricklayers & Allied Crafts-
men, Local 40, herein called Respondent. Copies of
the charge and the complaint and notice of hearing
before an administrative law judge were duly
served on Respondent and the Charging Party. In
substance, the complaint alleges that Respondent
violated Section 8(g) of the National Labor Rela-
tions Act, as amended, by picketing the premises of
Hospital without giving timely notice of its intent
to do so to Hospital and to the Federal Mediation
and Conciliation Service.
The answer duly filed by Respondent admitted
certain allegations of the complaint, but denied that
Respondent had engaged in any unfair labor prac-
tices.
Thereafter, on February 15, 1980, 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, com-
plaint, answer, and the stipulation of facts with ex-
hibit attached, should constitute the entire record
in the 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 for findings of fact, conclusions of law,
and order directly to the Board.
By order dated March 24, 1980, the Board ap-
proved the stipulation, transferred the proceedings
to itself, and set a date for the filing of briefs.
Thereafter, the General Counsel and Respondent
filed briefs in support of their positions.
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
252 NLRB No. 30
briefs filed by Respondent and the General Coun-
sel, and hereby makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Lake Shore Hospital and Health Related Facility
is, and has been at all times material herein, a New
York not-for-profit corporation engaged in the op-
eration of a proprietary hospital and health related
facility at its principal office and place of business
at Routes 5 and 20, Irving, New York. Annually,
Hospital, in the course and conduct of its business
operations, receives gross revenues in excess of
$250,000 and purchases goods and materials in
excess of $5,000 directly from points located out-
side the State of New York.
The parties stipulated, and we find that Hospital
is now, and has been at all times material herein, an
employer engaged in commerce within the mean-
ing of Section 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. We further find that it
will effectuate the purposes of the Act to assert ju-
risdiction in this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
The parties stipulated and we find that Bricklay-
ers & Allied Craftsmen, Local 40, is now, and has
been at all times material herein, a labor organiza-
tion 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 Hos-
pital, commencing on a date 10 days later than the
date it had designated for the start of picketing in
notices it had given Hospital and the Federal Medi-
ation and Conciliation Service, herein FMCS.
B. The Stipulated Facts
At all times material herein, some employers in
the construction industry have been engaged in
constructing additional facilities on Hospital's
premises, pursuant to contracts with Hospital.
Respondent does not represent any employees
employed by Hospital and has not filed a represen-
tation petition with the Board under Section 9(c) of
the Act seeking to represent employees employed
by Hospital. However, on or about November 30,
1979, Respondent mailed a written notice to Hospi-
tal and FMCS of its intention to engage in picket-
ing on December 10, 1979. The notice was re-
ceived by Hospital and FMCS on December 3,
252
BRICKLAYERS & ALLIED CRAFTSMEN
1979. Respondent did not commence picketing of
the Charging Party on December 10, 1979, as des-
ignated in its November letter.
Respondent, by its agents, commenced picketing
the premises of Hospital on December 20, 1979, or
10 days after the time designated in the November
notice to commence picketing. Respondent's signs
read as follows:
NOTICE TO. THE PUBLIC: Lake Shore
Hospital and Health Related 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 quali-
fied building trades craftsmen. By doing so
Lake Shore Hospital and Health Related Fa-
cility undermines the prevailing rates of pay
and conditions which exist for qualified build-
ing trades craftsmen. Lake Shore Hospital and
Health Related Facility is undermining job op-
portunities and Union standards.
This notice is addressed to the public only and
not to any employee employed by Lake Shore
Hospital and Health Related Facility nor to
any employer or employee on jobsite. Signed
Bricklayers and Allied Craftsmen Local No.
40.
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.
No unusual circumstances surround Respondent's
delay in the start of the picketing of Hospital's
premises and Respondent did not notify Hospital or
FMCS of any change in plans with respect to the
commencement of picketing.
C. Contentions of the Parties
The General Counsel contends that (1) the legis-
lative history of Section 8(g) establishes that pick-
eting of a health care institution should commence
within 72 hours of the time stated in the notice,
absent further notice; (2) the purpose of this stand-
ard is to permit health care institutions to make
necessary plans for the continued delivery of health
care services in the event of a work stoppage; (3)
there is no evidence of any unusual circumstances
which justified Respondent's delay in the start of
picketing; (4) the type of informational picketing
conducted by Respondent is not exempt from the
provisions of Section 8(g); and that, under the cir-
cumstances herein, Respondent's commencement of
picketing of Hospital 10 days after the time set
forth in the notice to Hospital and FMCS violates
Section 8(g) of the Act.
Respondent contends that Section 8(g) does not
apply to the picketing involved, and hence no
notice was required. It argues that 8(g) applies only
to labor organizations that represent health care in-
stitution employees, and that the picketing of Hos-
pital was protected informational picketing.
D. Discussion
We agree with the General Counsel that by pick-
eting Hospital on December 20, 1979, Respondent
violated Section 8(g) of the Act. That section re-
quires a labor organization, before picketing a
health care institution, to give certain notices stat-
ing the date and time the picketing will commence.
The time may be extended by written agreement of
the parties. In the absence of an extension, if action
is delayed and does not commence within a reason-
able time after the time specified in the notice, fur-
ther advance notice must be given, specifying the
new time action will commence.1 Here Respond-
ent's picketing, 10 days after the time it had speci-
fied in the notice it had given Hospital and FMCS,
clearly did not occur within a reasonable time
period after the scheduled date. Respondent gave
no further notice of contemplated picketing, and no
explanation is presented for the delay in commenc-
ing picketing or for the failure to give another,
timely notice. On these facts we find Respondent's
picketing did not conform to the notice require-
ments of Section 8(g).
We do not accept Respondent's contention that
the notice requirements of Section 8(g) are inappli-
cable because it does not represent, or seek to rep-
resent, health care employees or because health
care employees did not engage in picketing or
other concerted refusal to work. In this case Re-
spondent directed its picketing at Hospital and not
some other employer.2 Its picketing was protesting
Hospital's method of expanding facilities, and the
picket signs expressly stated that the purpose of the
picketing was to alert the public that Hospital was
financing work that was not scheduled to be done
completely by building trades craftsmen, and was
thereby undermining prevailing pay rates, job op-
portunities, and union standards. In this fact situa-
tion we conclude that the picketing, directed at
Hospital although disavowing any appeal to Hospi-
tal employees, had a potential to disrupt health
i See District 1199-E. National Union of Hospital and Health Care Em-
ployees RWDSU, AFL-CIO (Federal Hill Nursing Center. Inc.), 243
NLRB 23 (1979).
2 Cf. Painters Local No. 452 (Henry C Beck Company), 246 NLRB No.
148 (1979); Laborers' International Union of North America. Local 1253.
AFL-CIO (Str. Mary's Hospital of Roswell. Inc.), 248 NLRB 244 (1980)
253
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
care services at Hospital, and is subject to the
notice requirements of Section 8(g). s
We also reject Respondent's argument that the
picketing was protected informational picketing.4
IV. THE EFFECT 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 af-
firmative 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 within the meaning of Section
2(6) and (7) of the Act, and a health care institution
within the meaning of Section 2(14) of the Act and
Section 8(g) of the Act.
2. Bricklayers & Allied Craftsmen, Local 40, is
now, and at all times material herein has been, a
labor organization within the meaning of Section
2(5) of the Act.
3. By picketing Lake Shore Hospital and Health
Related Facility on December 20, 1979, about 10
days after the time stated in the notice it gave Lake
Shore Hospital and Health Related Facility and
Federal Mediation and Conciliation Service, Re-
spondent has violated Section 8(g) of the Act.
4. The above 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,
Bricklayers & Allied Craftsmen, Local 40, James-
town, New York, its officers, agents, and repre-
sentatives, shall:
s See Orange Belt District Council of Painters Na 48, International
Brotherhood of Painters and Allied Trades, AFL-CIO (Saint Joseph Hospi-
tal, 243 NLRB 609 (1979).
4 See Orange Belt District Council of Painters N 48, Brotherhood of
Painten and Allied Trades, AFL-CIO (Saint Joseph Hospital), supra.
1. Cease and desist from picketing Lake Shore
Hospital and Health Related Facility, or any other
employer in the health care industry, at a time
when the commencement of such picketing is not
in conformity with the notice requirements of Sec-
tion 8(g) of the Act.
2. Take the following affirmative action:
(a) Post at its offices and meeting halls copies of
the attached notice marked "Appendix."" 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 Respondent 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. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Sign and deliver to the Regional Director for
Region 3 sufficient copies of said notice, to be fur-
nished by the Regional Director, for posting by
Lake Shore Hospital and Health Related Facility,
if it is willing, in places where notices to its em-
ployees are customarily posted.
(c) Notify the Regional Director for Region 3, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
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, "furthier" 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 that on the facts of this
case Section 8(g) has not been violated and would
dismiss the complaint in its entirety.
a 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 Relation 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."
254
BRICKLAYERS & ALLIED CRAFTSMEN
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 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.
BRICKLAYERS & ALLIED CRAFTSMEN
LOCAL 40
255