District 1199 E. Hospital and Health Care Employees

National Labor Relations Board - Board Decisions

Jun 25, 1979

243 N.L.R.B. 23 (N.L.R.B. 1979)

DISTRICT 1199 E, HOSPITAL AND HEALTH CARE EMPLOYEES
District 1199-E, National Union of Hospital and
Health Care Employees, RWDSU, AFL-CIO and
Federal Hill Nursing Center, Inc. and Daniel Mit-
nick d/b/a/ The Management Company t/a TMC.
Cases 5-CG-19 and 5-CG 20
June 25, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEIMBI RS PSE II.
AND MURPIHY
Upon charges duly filed, the General Counsel of
the National Labor Relations Board. by the Regional
Director for Region 5. issued an order consolidating
cases, complaint, and notice of hearing, dated August
30, 1978, against District 1199 E, National Union of
Hospital and Health Care Employees, RWDSL.
AFL-CIO, hereinafter referred to as Respondent.
The complaint alleges that Respondent has engaged
in certain unfair labor practices affecting commerce
within the meaning of Section 8(g) and 2(6) and (7) of
the National Labor Relations Act, as amended. Cop-
ies of the charges and order consolidating cases, com-
plaint, and notice of hearing were duly served on the
parties.
Thereafter, the parties entered into a stipulation of
facts and jointly moved the Board to transfer this pro-
ceeding directly to itself for findings of fact, conclu-
sions of law, and Order. The parties stipulated that
they waived a hearing before, and the making of find-
ings of fact and conclusions of law by. an administra-
tive law judge, and the issuance of an administrative
law judge's decision, and that no oral testimony was
necessary or desired by any of the parties. The parties
also agreed that the charges, the complaint, and no-
tice of hearing, and the stipulation of facts, including
the exhibits attached thereto, constitute the entire rec-
ord in this case.
On January 17, 1979, the Board issued its order
approving the stipulation and transferring the pro-
ceeding to the Board. Thereafter, the General Coun-
sel 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 stipulation, includ-
ing the exhibits, the briefs, and the entire record in
this proceeding, and hereby makes the following:
FINDINGS OF FACT(
I. THE BUSINESS OF THE EMPI.OYFRS
Federal Hill Nursing Center, Inc.. herein called
Federal Hill, is, and has been at all times material
herein, a Maryland corporation engaged in the opera-
tion of a proprietary nursing home at 1213 Light
Street, Baltimore. Maryland. During the preceding 12
months, a representative period, Federal Hill received
gross revenues in excess of $100,000 and purchased
and received in interstate commerce products valued
in excess of $3.t00 from points located outside the
State of Maryland.
Daniel Mitnick d/b/a The Management Company
t/a TMC, herein called TMC, is a sole proprietorship
owned by Daniel Mitnick which is engaged in the
business of providing housekeeping and dietary ser-
vices at various nursing homes including Federal Hill,
located in the State of Maryland. During the preced-
ing 12 months, a representative period, TMC received
gross revenues for its services in excess of $100,000
and purchased and received in interstate commerce
products valued in excess of $3,000 from points lo-
cated outside the State of Maryland.
The parties have stipulated, and we find, that Fed-
eral Hill and TMC are, and have been at all times
material herein. employers engaged in commerce and
in businesses affecting commerce with the meaning of
Section 2(6) and (7) of the Act, and that Federal Hill
is a "health care institution" as defined in Section
2(14) of the Act.
i. 111 I.ABO()R ()R(GANi/.A I I)N INVOI.VIl)
The Ulnion. District 1199 E. National Union of
Hospital and Health C('are Employees, RWDSU,
AFL, ('10. is, and has been at all times material
herein, a labor organization within the meaning of
Section 2(5) of' the Act.
1l. 1111: NI AIR IAH(BOR PRA(Cr('ES
A. Facts
On or about February 1, 1978, Federal Hill pur-
chased the assets of the Light Street nursing home
and, on that same date, subcontracted the housekeep-
ing and dietary services to TMC. At the same time,
both Federal Hill and TMC recognized Respondent
as the collective-bargaining representative for the em-
ployees in their respective bargaining units, and both
have, since February , bargained collectively with
Respondent for the employees in the respective units.
Federal Hill's unit is described as "all full-time and
regular part-time nursing service employees." TMC's
unit is described as "all full-time and regular part-
time housekeeping and dietary employees who work
regularly 24 or more hours in the week." On June 20,
1978, Respondent, by its national president, notified
Federal Hill in writing that the "service and mainte-
nance unit" would begin informational picketing at
243 NLRB No. 6
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DECISIONS OF NAIIONAL L.ABOR REI.ATIONS BOARD
the home on Wednesday, July 5, 1978, at 6 a.m. On
July 8, 1978, at 2:30 p.m., Respondent started picket-
ing Federal Hill. Federal Hill was not given a notice
of delay in the start of' picketing, nor was there any
agreement between the parties regarding the delay.
The picketing actually started 80-1/2 hours after the
time stated in Respondent's notice to Federal Hill.
B. Contentions of the Parties
The General Counsel contends that (I) the legisla-
tive history of Section 8(g) establishes that picketing
of a health care institution should commence within
72 hours of the time stated. in the notice, absent fur-
ther notice; (2) the purpose of this standard is to per-
mit health care institutions to make necessary plans
for the continued delivery of health care services in
the event of a work stoppage: and (3) there is no
evidence in this case of any unusual circumstances
justifying Respondent's delay in the start of picketing
nor is there any evidence of any effort by Respondent
to notify Federal Hill of' the change in plans, and
that, in the circumstances, Respondent's commence-
ment of picketing of Federal Hill more than 72 hours
after the time set forth in the notice to Federal Hill
violated Section 8(g) of the Act.
Respondent contends that a 72-hour limit on the
notice requirement is an arbitrary cutoff period: that
such an arbitrary time limit is itself unreasonable:
that the picketing was informational picketing that
did not cause any work stoppage or interference with
deliveries; that the delay of 80-1/2 hours beyond the
time stated in the notice was not, in the circumstances
of this case, unreasonable; and that, accordingly, Re-
spondent did not violate Section 8(g) of the Act.
We agree with the General Counsel that Respon-
dent's picketing of Federal Hill on July 8, 1978, vio-
lated Section 8(g) of the Act. Section 8(g) and its leg-
islative history make it clear that Congress was
concerned with the necessity that health care institu-
tions be apprised of any planned picketing or work
stoppages sufficiently in advance 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 health care services it renders to its patients. In
order to achieve this goal. Congress devised a proce-
dure whereby labor organizations are required to give
various notices to health care institutions, including,
specifically, a notice stating the "date and time that
such action [strike, picketing, or other concerted re-
fusal to work] will commence." Congress recognized
that a labor organization might not always be able or
willing to commence its action at the time stated in
the notice and accordingly provided that the notice
"once given, may be extended by the written agree-
ment of both parties." Congress also recognized that
not all delays beyond the time in the initial notice
require a written agreement of the parties. Both the
Senate and the House of Respresentatives committees
specifically addressed the question of delays in the
timing of the strike, etc., after the time stated in the
10-day notice had passed. In their respective reports.
the following appears:
It is not the intention of the Committee that a
labor organization shall be required to com-
mence a strike or picketing at the precise time
specified in the notice: on the other hand, it
would be inconsistent with the Committee's in-
tent if a labor organization failed to act within a
reasonable time after the time specified in the
notice. Thu,ll it would he unreasonable, in the
Comtilttee's judgment, if a strike or picketing
commenced more lhan 72 hours after the tinle
.speciJied in he notice. In addition, since the pur-
pose of the notice is to give a health care institu-
tion advance notice of the actual commencement
of a strike or picketing, if a labor organization
does not strike at the time specified in the notice,
at least 12 hours notice should be given of the
actual time for commencement of the action.
[Emphasis supplied.]'
Thus, Congress specifically approved a union's unilat-
eral extension of the time set forth in the initial 10-
day notice. Congress also made it clear that it did not
intend such unilateral extensions to be open-ended,
but, rather. indicated that in its opinion any unilat-
eral extension beyond a period of 72 hours would be
unreasonable, with the further cavreat that, even
within the 72-hour period, a union should give the
health care facility at least 12 hours' notice of the
actual time that the strike or picketing will com-
mence.
Respondent's basic contention is that the 72-hour
period is an arbitrary cutoff period. We do not agree.
The test as to the unlawfulness of a strike or picketing
commencing after the date and time set forth in the
10-day notice will be one of "reasonableness", that is,
the delay in the commencement of a strike or picket-
ing beyond the stated time will be viewed in light of'
(I) the circumstances causing the union to delay its
actions and (2) why the union could not give the
health care facility notice of the new scheduled date
and time that the strike or picketing would com-
mence. Here, there is nothing in the stipulation to
indicate that Respondent gave Federal Hill any no-
tice that the picketing would commence on July 8,
1978. at 2:30 p.m., nor is there any explanation as to
why Respondent delayed the commencement of' pick-
eting 80-1/2 hours beyond the time stated in the ini-
'99 C(ong. Rec S. Rept 93 766, 93d (ong., 2d Sess 4 (April 2. 1'974). H.
Rept. 93 1051. 93d Cong. 2d Sess. S (May 20. 1974).
24
D)ISTRI('T 1199 . tOSPI'AI. AND) tIFAL Ft ('ARE MPIOYtI ES
tial 10-day notice or why. during the period of the
delay, it could not have given Federal Hill sufficient
advance notice of the scheduled new date and time
fi)r the commencement of the picketing.
C. ('Conclusion
Based on the above facts, we conclude that by
commencing picketing at Federal Hill on July 8,
1978, at 2:30 p.m.. 80-1/2 hours after the time stated
in the initial 10-day notice served on Federal Hill by
Respondent, and without having given Federal Hill
any advance notice of the scheduled new date and
time for the commencement of the picketing. Respon-
dent's picketing of Federal Hill was not in conformity
with the notice requirements of' Section 8(g) of the
Act and, accordingly, by engaging in such picketing,
Respondent violated Section 8(g) of the Act.2
CON(l.USIONS ()OF LAW
I. Federal Hill Nursing Center, Inc., and Daniel
Mitnick d/b/a The Management Company t/a TMC
are employers within the meaning of Section 22), (6),
and (7) of the Act, and Federal Hill Nursing Center,
Inc., is a health care institution as defined in Section
2(14) of the Act.
2. District 1199 E, National Union of Hospital
and Health Care Employees, RWDSU, AFL-CIO. is,
and at all times material herein has been, a labor or-
ganization within the meaning of Section 2(5) of the
Act.
3. By picketing Federal Hill Nursing Center, Inc.,
on July 8, 1978, at 2:30 p.m., 80-1/2 hours after the
time stated in the initial 10-day notice given by Re-
spondent to Federal Hill Nursing Center, Inc., Re-
spondent has violated Section 8(g) of the Act.
4. The above unfair labor practice is an unfair la-
bor practice affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
TIlE REMEF)Y
Having found that Respondent engaged in, and is
engaging in, certain unfair labor practices, we shall
order that it cease and desist therefrom and take cer-
tain affirmative action designed to effectuate the poli-
cies of the Act.
I In finding a violation herein. we do not pass upon Respondent's conien-
lion that the legality of the picketing should he measured bh the impact or
lack of impact on the health care institution rhis ssue was not addressed In
the stipulation. but, rather, was belatedlN raised hv Respondent as a. tl clual
assertion in its brief to the Hoard
ORDER
Pursuant to Section I0(c) of the National Labor
Relations Act, as amended, that National Labor Re-
lations Board hereby orders that the Respondent.
District 1199-E. National Union of Hospital and
Health Care Employees, RWDSU., AFL -CIO, Balti-
more. Maryland, its officers. agents. and representa-
tives. shall:
. ('ease and desist from:
(a) Picketing Federal Hill Nursing Center, Inc., 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
Section 8(g) of the Act.
(h) In any like or related manner restraining or co-
ercing Federal Hill Nursing Center. Inc.. and Daniel
Mitnick d/b/a The Management Company t/a TM('
in the operation of the Federal Hill Nursing Center.
Inc., nursing home.
2. Take the following affirmative action:
(a) Post at its offices and meeting halls copies of
the attached notice marked "Appendix."3 Copies of
said notice, on forms provided by the Regional Direc-
tor for Region 5. after being duly signed by Respon-
dent'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 Respondent to insure that said no-
tices are not altered, defaced. or covered by any other
material.
(b) Sign and deliver to the Regional Director for
Region 5 sufficient copies of said notice, to be fur-
nished by the Regional Director, fr posting by the
Employers herein, if willing.
(c) Notify the Regional Director for Region 5, in
writing, within 20 days from the date of this Order.
what steps Respondent has taken to comply herewith.
In the event that this Order is enlorced bh a Judgment ofa L nited States
Court oft Appeals, the words n the notice reading "Posted h Order of the
National L.abor Relations Board" shall read "Posied Pursuant to a Judgment
of the tinited States Court of Appeals !nlforcing an Order of the National
Labor Relatlons Board"
APPENDIX
Notit( To ENPI.o()Yrs
PO)sl l) BY ORDR o) i e
NAII )NAI AB)R RlAI I()NS BOARDI
An Agency of the United States (iovernment
WE Wi l. Not picket Federal Hill Nursing
Center, Inc., or any other employer in the health
2s
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 Na-
tional Labor Relations Act, as amended.
WE WILL NOI in any like or related manner
restrain or coerce Federal Hill Nursing Center.
Inc., and Daniel Mitnick d/b/a The Manage-
ment Company t/a TMC in the operation of the
Federal Hill Nursing Center, Inc., nursing home.
DISTrRI(l I 199 E, NATIONAI. UNION OF
H()SPIIIAI. ANI) IIEAI I CAR FMPI.()YItES,
RWDSU, AFL CIO
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