Devon Gables Health Care Center, Inc.

National Labor Relations Board - Board Decisions

Aug 23, 1979

244 N.L.R.B. 586 (N.L.R.B. 1979)

1)1 (CISIO)NS ()Il' NA I()ONAI. I.ABOR RL.A'IONS BARI)
Retail ('lerks Unijon lI.wtal 727. chartered by and altili-
atd ilil inited F'mnl and C(onmercial Workers
International Illion, AFIl.-('IO, (',('' ()evon
(;ahles Ileallth ('are ('enter, Inc.) and Donald P.
Connelli. ('ClsC 28 ('(; 4
August 23. 1979
I)ECISION AND ORDER
BY CIIAIRMAN FANNING ANI) MIEMBIERS PENEI.I.()
AN) TRUESDAI.I
On April 24. 1979, Administrative Law Judge
Richard J. Boyce issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a brief and the General Counsel filed an answer-
ing brief and an opposition to Respondent's requests. 2
which has been joined in by the Employer.
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 record and the at-
tached Decision in light of the exceptions, briefs, and
opposition and has decided to affirm the rulings, find-
ings, 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 Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, Retail Clerks Union Local
727, chartered by and affiliated with United Food
' The name of Respondent, formerly Retail Clerks Union Local 727. char-
tered by and affiliated with the Retail Clerks International Union. AFL-
CIO. CLC. is amended to reflect the change resulting from the merger of
Retail Clerks International Union and Amalgamated Meatcutters and
Butcher Workmen of North America on June 7, 1979.
2 In its exceptions Respondent renewed requests initially made in its brief
to the Administrative Law Judge and now made to the Board that official
notice be taken of Case 28 CA-5107, a subsequent proceeding involving
Respondent and the Employer herein alleging that the Employer unlawfully
discharged three employees because of the picketing activity which occurred
in connection with the instant proceeding or. alternatively, that this proceed-
ing be remanded for the purpose of adducing evidence on said discharge
issue. In his opposition the General Counsel has renewed his motion to strike
the documents pertaining to Case 28-CA 5107 which Respondent attached
to its brief to the Administrative Law Judge. Inasmuch as the issuance of a
complaint in Case 28-CA 5107 does not establish that a violation has oc-
curred, or that a violation, if found, is germane to or would establish the
violations alleged in this proceeding. we shall deny Respondent's requests. In
view thereof we find it unnecessary to pass upon the General Counsel's
motion to strike.
In adopting the Administrative Law Judge's Decision we do not adopt his
statement (at fn. 5). concerning the possible application of Sec. 8(d) since
that issue is not presently before us.
and ('ommercial Workers International Union.
AFL ('10, CLC. Tucson, Arizona, its officers, agents,
and representatives, shall take the action set forth in
the said recommended Order.
DECISION
SIAIEMENI' OF IHE CASE
RI( IARD J. BOYC(E, Administrative Law Judge: This
matter was heard before me in Tucson, Arizona, on Febru-
ary 13. 1979. The charge was filed by Donald P. Connelly.
an individual. on November 6, 1978. The complaint issued
on January 17. 1979, and alleges that Retail Clerks Union
Local 727. chartered by and affiliated with the Retail Clerks
International Union, AFL-CIO, hereinafter Respondent.
had violated Section 8(g) of the National Labor Relations
Act, as amended, hereinafter the Act.
I. JURISDICTION
The affected Employer is Devon Gables Health Care
Center. Inc.. hereinafter the Employer, an Arizona corpora-
tion engaged in the operation of a nursing home in Tucson.
Its annual gross revenues exceed $100.000, and it annually
causes goods and supplies of a value exceeding $10,000 to
be shipped to it in Tucson directly from outside Arizona.
The complaint alleges, the answer admits, and it is found
that the Employer is an employer engaged in and affecting
commerce within the meaning of Section 2(2), (6), and (7)
of the Act and a health care institution within the meaning
of Section 2(14).
II. LABOR ORGANIZAION
Respondent is a labor organization within the meaning of
Section 2(5) of the Act.
Ill. ISSUE
The complaint alleges that Respondent picketed the Em-
ployer on November 6. 1978. without giving the Employer
and the Federal Mediation and Conciliation Service, here-
inafter FMCS. the advance notice specified by Section 8(g).
The answer denies any wrongdoing.
IV. THE ALLEGED UNFAIR LABOR PRACTICE
A. Facts
On November 6, 1978. for just the I day. Respondent
caused the Employer to be picketed and handbilled to pub-
licize the Employer's refusal to comply with a recently is-
sued Board Order that it recognize and bargain with Re-
spondent as the representative of its service and
maintenance employees.' The picketing and handbilling
lasted from about 8 a.m. to 5 p.m. It was done by 15 or so
I Devon Gables Nursing Home, 237 NLRB 775 (1978). The Board's Order
is now under review by a Federal circuit court.
244 NL.RB No. 90
' Se0
RETAIL CIERKS LUNION OCAI 727
off-duty employees. on an allernating basis. augmented bh
union otticials. here was no work stoppage. nor is there
any evidence that patient care, deliveries, or other aspects
of the Employer's operation were affected in any way.
By certified letter received on the morning of October 28
an official of Respondent. Paul Rubin. had informed the
Employer of Respondent's intentions. The letter stated:
"This letter is to serve as 10 day notice of inforniational
picketing at your nursing home commencing on November
6. 1978. at approximately 8 A.M." The letter was dated
October 26. and its envelope was postmarked October 27. A
copy, sent by regular mail, was stamped as received by the
Phoenix office of FMCS on the morning of October 30.2
On October 12 and 26. according to Rubin, he spoke with
Guy Parent of FMCS about the 10-day notice requirement
of Section 8(g). In the first conversation. Rubin testified.
Parent said that placement in the mails 10 days before the
onset of picketing would suffice: in the second conversation.
Parent reputedly stated that mailing on October 26 would
be timely flr picketing that was to begin November 6. The
record is silent whether Rubin told Parent that the Em-
ployer was the contemplated picketing target.'
B. Conclsion
Section 8(g) states in relevant part:
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.
The Board. in District 199. National Union of Hospital &
Healthcare Employees, RWDSU. AFL-CIO. (First Health-
care Corporation. dbla Parkway Pavilion Healhcare), 222
NRLB 212. 212-213 (1976). set forth certain guidelines for
construing Section 8(g):
[TJhe 8(g) notice requirement is clear and absolute.
First, it is mandatory rather than discretionary- the
statute provides that "a labor organization . . . shall"
give written notice. Second. it applies regardless of the
nature of the picketing involved-notice must be pro-
vided in advance of"anv strike, picketing or other con-
certed refusal to work at a'n health care institution
.... " Finally. Section 8(g) is devoid of any modifying
language respecting the character of the picketing. its
objectives. or the type of economic pressures gener-
ated.
2 Octoher 30 was a Monday. The Phoenix FMCS office was closed on
October 28 and 29. It would seem altogether possible that delivery to FMCS
was in fact made on October 28. A postal official testified that over 98
percent of the Tucson-to-Phoenix letters are delivered the da) after their
Tucson pickup.
I Respondent's hrielfis in error, at least so far as the record sholws. in its
assertion that Rubin told Parent on October 26 "that the Union was going to
picket Devon (;ahles on November 6."
The purpose behind the 10-day notice provision is to
provide health care institutions with sufficient time to
make arrangements for continuing patient care during
the labor dispute .... T]o assess the extent to which
normal operations are likely to be disrupted, the health
care institution is entitled under Section 8(g) to receive
at least 10 days' notice from any labor organization
which plans to begin picketing. engage in a strike. or
work stoppage at a specific future time .... Further-
more, the Act specifically requires that written notice
also be given to the Federal Mediation and Concili-
ation Service where a labor organization plans to
picket a health care facility.
It is our conclusion ... that Congress intended that the
10-day notice provision of Section 8(g) he interpreted
according to its literal meaning.
See also District 1199. National Union ol' Hospital and
Health Care Employees. RWDSU. AFL CIO (Uniled Hos-
pitals of Newark). 232 NLRB 443 (1977): Walker Methodist
Residence. 227 NL.RB 1630, 1631 (1977):; nited Association
of Journe,'tmen and Apprentice's of the Plumbing and Pipefit-
ting Industry of the United States and Canada. Local 630,
AFL CIO (Lein-Steenberg), 219 NI.RB 837, 839-840
(1975).
In computing time under the notice provisions of the Act
the Board counts the date of receipt as the first day and the
day before the onset of the activity in question as the last.
Bio-Medical Applications of New Orleans, 240 NLRB 432
(1979): Lion Oil Compalty. 109 NLRB 680. 685 (1954); The
Ohio Oil Comnpany , 91 NLRB 759. 762 (1950). By this mea-
sure the Employer had 9 days' written notice of Respon-
dent's picketing rather than the 10 to which it was entitled.
and FMCS had 7 days'. It follows, in light of the literal
construction of Section 8(g) decreed by the Board. that Re-
spondent's picketing violated the Act as alleged.
Respondent's reliance on Bio-Medical Applications of
New Orleans. supra, for a contrary result is misplaced. In
that case, unlike the present, the institution received 10
days' notice. albeit by telephone from FMCS. and the fail-
ure of the written notice to arrive in time was because of
mishandling by the postal service rather than any derelic-
tion by the union.4 Given those "particular circumstances"
the Board concluded that the union was in "substantial
compliance" with Section 8(g). and that a "technical" ap-
plication of the provision "to deprive the strikers of their
status as employees['] would constitute an unwarrantedly
harsh result not intended by Congress." 6 The Board added
that in so deciding it was not "condoning a union's disre-
gard for the provisions of Section 8(g)." 7
Respondent's further contentions-that Rubin's conver-
sation with Parent of FMCS on October 26 satisfied Section
'he Board noted in this regard that it considers the mail "to be an
appropriate means for delisery of a notice. and when the notice has been
posted with ample time for deliser'., the sender has been held to have the
right to assume that it would be receised timely in the due course of the
nails." 240 NLRB opinion 432, In 5
'Section 8(d o1f the Act provides that any employee engaging in a strike
within the notice period of 8(g) "shall lose his status as an employee ..
This seemingly would not appl In the present case. since onl) picketing by
off-duty employees was in;olsed.
240 NLRB 435. 436
'Id at 435
587
DECISIONS OF NATIONAL I ABOR RELATIONS BOARD
8(g) as concerns IFMCS, leaving only minimal tardiness re-
garding the institution: and that Respondent should be ex-
cused because of Parent's representations to Rubin like-
wise are rejected. Whatever oral disclosure Rubin may have
made to Parent it is clear, as revealed by the above extract
from District 199, Ho.spitl Emploees (Parkiway Pavilion
Healthcare) that "the Act specifically requires that written
notice also be given to" FMCS. As for the assertions attrib-
uted to Parent, there is no basis in the statute for treating
them as exculpatory. Beyond that, it is fair to assume that
had the notices been picked up by the postal service on
October 26, which Parent reputedly had indicated would
make them timely, they would have been delivered in time
on October 27. Detrimental reliance thus is doubtful in any
event.
C(N(CI.tSION OF LAW
By picketing the premises of Devon Gables Health Care
Center, Inc., on November 6, 1978, without timely notify-
ing that health care institution and the Federal Mediation
and Conciliation Service, in writing, 10 days in advance of
that act, as found herein, Respondent violated Section 8(g)
of the Act.
Upon the foregoing findings of fact, conclusion of law.
and the entire record, and pursuant to Section 10(c) of the
Act, I issue the following recommended:
ORDER'
The Respondent. Retail Clerks Union Local 727. char-
tered by and affiliated with the Retail Clerks International
Union. AFL-CIO, CLC, Tucson, Arizona, its officers.
agents, and representatives, shall:
I. Cease and desist from engaging in any strike, picket-
ing, or other concerted refusal to work at the premises of
Devon Gables Health Care Center, Inc., or any other
health care institution without timely notifying, in writing,
any such health care institution and the Federal Mediation
I 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.
and Conciliation Service not less than IO days prior to such
action of that intention.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Post at its business offices, meeting halls, and other
places where notices to its members customarily are posted
copies of the attached notice marked "Appendix." C'opies
of said notice, on forms provided by the Regional Director
for Region 28, after being duly signed by Respondent's au-
thorized representative, shall be posted by it for 60 consecu-
tive days thereafter, in conspicuous places, including all
places where notices to members are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered. defaced. or covered by an'
other material.
(b) Furnish to the Regional Director for Region 28 suffi-
cient signed copies of the aforesaid notice for posting by
Devon Gables Health Care Center, Inc., if it is willing, in
places where notices to its employees are customarily
posted.
(c) Notify the Regional Director for Region 28, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
9 In the event that this Order is enforced b) a Judgment of a Utnited States
court of appeals, the words in the notice reading "Posted b Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NorlE To MEMBERS
POSTEl) BY ORDER OF IHE
NATIONAL LABOR REI.A I()ONS BOARD
An Agency of the United States Government
WF WI.I. NO1 engage in any strike, picketing. or
other concerted refusal to work at the premises of Dev-
on Gables Health Care C('enter. Inc., or any other
health care institution, without timely notifying, in
writing, any such health care institution, and the Fed-
eral Mediation and Conciliation Service, not less than
10 days prior to such action, of that intention.
RETAIL CLERKS UNION L)AI. 727. (HARI'EREDI> BY
AND AFFILIATED WITH THE REIAII. CLI.IRKS, INII R-
NATIONAL UNION, AFL CIO, CLC
588