Greater New Orleans Artificial Kidney CenterDownload PDFNational Labor Relations Board - Board DecisionsJan 30, 1979240 N.L.R.B. 432 (N.L.R.B. 1979) Copy Citation 432 DECISIONS OF NATIONAL LABOR REL.ATIONS BOARD) Bio-Medical Applications of New Orleans, Inc., d/b/a Greater New Orleans Artificial Kidney Center and General Truck Drivers, Chauffeurs, Warehousemen and Helpers ocal No. 270, a/w International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, Ind. Case 15 C'A 6176 January 30, 1979 I)ECISION AND[) ORDER REMANDING PRO('CEEDING TO ADMINISTRATIVE I.AW J U] I)G E BY ('IIAIRN1AN FANNING AN[) MI- MIRS PINH I () MURPHY, ANI) IRtISI)AI On September 21, 1977. Administrative law Judge Leonard M. Wagman issued the attached Decision in this proceeding. Thereafter. the General Counsel filed exceptions and a supporting brief, and Respon- dent filed a brief in support of the Administrative Law Judge's Decision. Subsequently, the General Counsel filed a motion to strike a portion of Respon- dent's brief.' The National abor Relations Board has consid- ered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Adminis- trative Law Judge only to the extent consistent here- with. Respondent operates an out-patient facility in New Orleans, Louisiana, which provides henmodialv- sis for persons suffering from the loss of kidney func- tions and is, thus, a health care institution as defined in Section 2(14) of the Act. On December 31, 1975. the General TIruckdrivers. Chauffeurs, Warehouse- men and Helpers Local No. 270, affiliated with Inter- national Brotherhood of Teamsters, ('hauffeurs, Warehousemen and Helpers of America, Ind. (here- after called the Union), was certified as the collec- tive-bargaining representative for a unit composed of Respondent's hemodialysis technicians. O()n March 8, 1976,2 after the parties had been unsuccessful in reaching a collective-bargaining agreement, the Union, pursuant to Section 8(d)(B) of the Act, sent by certified mail a notice of initial dispute to Respon- dent and to the Federal Mediation and Conciliation Service (FMCS). 'Therein the Union indicated that unless agreement was reached by April 6, the Union would consider other steps, including i strike, to pro- tect the interests of its members. I[he G eneral ('oun, cl's llOt>l is herebh deied ! All dates hereaftcr refer t 1970,. unless olheie, stac1.ed 240 NLRB No. 39 On July 20, the Union, located in New Orleans, sent by certified mail to the l:MC'S office in Atlanta, Georgia, and to Respondent, a notice of its intent to strike Respondent beginning at 7 a.m. on August 2. The FMCS received the Ulnion's strike notice on July 23, but Respondent did not receive the notice until September 2. The envelope sent to Respondent was stamped "Certified Mail Return Receipt Requested," contained a certified mail label bearing the number 339660, and had 73 cents postage affixed. That enve- lope was first postmarked at New Orleans on July 21, and was again postmarked at New Orleans on Sep- tember 2, at which time another label indicating that there was 25 cents postage due was also affixed. The envelope also bears the inscription "rec'd 9/2/76 9:15 a.m." On July 23, the FM('S informed Respondent's ad- ministrator, Maraist. by telephone, that it had re- ceived the Ulnion's 10-dav notice of intent to strike. On July 26, Maraist and the union representatives received a telegram from the FMCS stating that pur- suant to Section 203(B) of the Labor Management Relations Act 1947, as amended, it was requesting that the parties attempt further collective-bargaining negoti tions on Thursday morning, July 29. The par- ties did meet that day at the MC'S office in New Orleans, but no progress was made. During the course of the meeting no mention was made of the impending strike. During the last week of July, Respondent made preparations for the impending strike. In this regard, Respondent contracted with a security service to pro- vide security during the strike; met with both the pa- tients and employees to advise them of the strike and of Respondent's intent to continue operations and to provide adequate securitN during the strike: distrib- uted a notice to patients of similar effect, indicating that the strike was to commence on August 2; con- tracted for, and on Jul? 30 received, an early ship- ment of dialysis concentrate; and had security guards on its premises on August 2. During the afternoon of August 2, Respondent re- ceived a telegram from the Union informing it that the hemodialvsis technicians would strike on August 3 at 7 a.m. This was the first written notice that Re- spondent received from the Union concerning the impending strike. he next morning, August 3, the Union set up a picket line at Respondent's facility and the strike, involving 10 of Respondent's hemo- dialysis technicians, began. On August 4, Respondent sent letters to the strik- ers "inviting" them to report to work within 48 hours or face the possibility of being permanently replaced. On August 9, at a meeting with the striking employ- ees. the lUnion's secretary-treasurer, I.edet, advised (iREATER NEW ORI.EANS ARTII ICIAL KIDNEY (CENI IER 433 the strikers that the strike notice sent to Respondent had been mishandled. ) Upon hearing this, the 10 em- ployees decided to seek reinstatemen t. On August 10. the Union sent a telegram to Respondent stating that the striking technicians were unconditionall\ offering to return to work and would report to work on the appropriate shift. On that same day the 10 emploxees unsuccessfully sought reinstatement at Respondelnt's facilitN. At the hearing, the parties introduced into evi- dence a copy of a return receipt card which iwas at- tached to the I nion's notice sent to Respondent on July 20. The undated card hore the purported signa- ture of ). Anacona, one of Respondent's employees. However, it was stipulated that. "if Ms. Anacona were called to testify, she will deny that that is her signature." The parties also introduced into evidence a return receipt showing that Respondent received the envelope bearing certification 339660 on Septem- her 2. At the hearing the parties stipulated that it is Respondent's policy to pay postage due on certified letters when delivery is attempted. The complaint alleges that Respondent violated Section 8(a)(3) and I) of the Act b discharging or refusing to reinstate 10 employees who engaged in a strike against Respondent. Ihe Administrative I.aw Judge recommended that the complaint be dismissed in its entirety, finding that pursuant to Section X(d) of the Act the erploNees lost their protected status as employees under the Act because the Union failed to satisfy the requirements of Section (g). As an ini- tial matter, the Administrative Law Judge, relying on cases dealing with the notice requirements under Sec- tion 8(d , stated that Board law provides that where a statute "requires notice to be given or served without prescribing the manner in hich it should be 1do)ne. Ihe A\mmlnitralttive I i. JIEg fund thit I e de l ads Id the i.irenlhldj emploee, thl he Il ni hd 1mhlliid l thc strike ltie enlt tio Respon tieni I he recold. hocer, cleari shou thl t Ledet aclually tlt 1 the Ci ployees that it t wa Respoidetll ' s. p siltn that the I il, h I.ld 111rllh.llidilei the li tliC 4 he pertinent prtion of Set 8(di of he AI1 realds ai f, -lliu An; emploee whio engges iii a ; trike ilthitll a lln. otIce pe i I per Ifled in his shusectin., or ho) englegs ltn in, siwke ulthil tihe lppri pri.itce period specified ill lhectlion (g f this sectiiu. hil lose hs sta111 as an employee if the empliiyer engaeed i Ihe pirrtllt tlhh dispule, for the purposes f set ion ', and I()tf ihlis tt. a aiNt ctied hut such oss f status of Sith etiplec hall terillit te if aId wh' hc is reemplo ed hb such erploiecr Sec 8(tg if the 1cl reads (g A iabtlr uor allw tlion htefore er g.gillg itn all' strike. pltrikeli. g, r other concerted refusal t wurk il nll' hSeilth care nstitutliOll hall, Iet less than ten dias prir It such aeition. nolfy the illstlitUtiln ll rttilg and he I rill ederl aln tl dl ( intcilalln Scr ilc if thalt litetlionll, except that Ii th e ,i f hlrgaining for .ii nitial agre lerlnt fJ lloi l[ti certifcatllln ir rec g iL n lll the til te requilted ib thlis I ibsectiol hill not he gtlen until Ihe epiralloin l f the period specified it clause It Bi , the last enlte e secllti-n Rtd) of this Act. he illICe Iaill stite tht da.le aId ittile hat such actltn iii ct llltlellt e I he t.rtice [itee gli\ei. ma.is be extenuded h the ritten ,grelnltlet of h.th partlies actual notice is required and the notice is ineffective until received by the person to be served." citing The O(li (omtpan , 91 NLRB 759, 761 (1950). He further found that the Board has, in exceptional circum- stances. relaxed this requirement where the party re- quired to give notice has failed despite a conscien- tious effort to comply. citing (,General tMaintenancc Service ( or1an11.. Inc., 182 NLRB 819 (1 970(), and L:nllploverrs' .4ssocjiion f Bui/ihnr Iftal ahbricalors. t al., 149 NLRB 382 (1964). In cncluding that the lUnion was less than conscientious about comipliance ith Section 8(g) the Administrative aw Judge re- lied on his following findings: (I) the Union mailed the strike notice with insufficient postage; (2) hasving elected to mail its strike notice to Respondent hb cer- tified mail, return receipt requested. the nion should have sought information from the Postal Ser- vice as to the "fate" of the notice immediately after receipt of the FM(S telegram of July 26, but there was no evidence that the . nion so) inquired at any tilne: (3) the UInim did not raise the matter of the impending strike at the uls 29 meeting with Respon- dent: alnd (4) there was no showing that the Ulnion made any effort to comply with the 8(g) requirement that "the written agreement of both parties" is re- quirted before the strike's starting date lawfully could have been changed. The Administrative I.au Judge thus concluded that there was no ground for excus- ing the Ulnion's failure to comply with the "plain meianing"'' of Section 8(g). lie. therefore. further con- cluded that under Section 8(d). the 10 strikers were not protected under the Act either during the strike or when they sought reinstatement on August 10. I'he (;eneral ('ounsel filed exceptions to these find- ings and conclusions. We find merit in these excep- tions for the reasons set forth below. It cannot he disputed that the Ulnion did not coni- ply with the literal terms of Section 8(g) of the Act in that Respondent did not recei.e written notice of the U;tion's intent to strike Respondent's facilits until September 2, a month after the commencement of the strike. Contrarx to the Administrative Law Judge. however. we conclude that the Union. in fact. took reasonable steps to insure compliance with the 8(g) requirements. Thus, it gave the required notice to the M(CS and unsuccessfully attempted through a reasonable means, certified mail. to give Resp0on- dent the required written notice.' While it is not en- I le t o.urd ha colislstenil cons deredl the nl t the ll ipptptri riealni fir delihers of . nltice, ;Ai d w elcn thte nolile h h-eln posteld wilth aInple t Ille for dehIelv , le sel l tie r has been held t ha e the ri ht LIlsti me thalt it :ould he receied il t eltl n the due ciurse if tIhe nltlls t;l,,,r/ tfiurnticnl S riwe ( oPtPH /.i -lprI 1t 81 I 822: /l.i ir 4 i 4 itianth ,!1 mh hntgn %thl, filtrir r,,r~ Ri 1,,hL I /,md I), rtn 1 i, t 1 1 it[ t 5 Further. th f Ihl Ithe litctieC U. is elil ht tirtfliti F 1:til. reltirtI receipt requested. hi tn1il been fUnd l to reqlle liffereltll result collcerr tllr Ill, .i'impttlplll ( nllln d 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tirely clear from the record, it appears that the delay in delivery of the Union's notice to Respondent was occasioned somewhere within the Postal Service be- cause, if adequate postage was on the letter, it should have been timely delivered: and, if there was insuffi- cient postage, the Postal Service should have fol- lowed its policy to deliver the certified letter to the recipient and to collect the postage due, if possible. or to return it to the sender, neither of which was timely done here. Furthermore, as indicated above, the parties stipulated that it is Respondent's policy to pay postage due on certified letters when they arrive. Thus, we find that it would be inequitable to hold the Union responsible for the untimely service of the no- tice when no reason for the delay can be attributed to it. This is particularly true since the Union struck without knowledge that Respondent had not re- ceived its initial written 10-day notice and since Re- spondent made no mention of its not having received such notice at the July 29 negotiation meeting which it knew was held because of the Union's notice of intent to strike. 6 In any event, it is clear from the record that Re- spondent had 10 days' actual notice of the Union's intent to strike on August 2, inasmuch as it was so informed by the FMCS by telephone on July 23. 7 Having been informed of the Union's intent to strike, Respondent made contingency preparations, i.e., contracted with a security service to provide security during the strike, met with both the employees and patients to advise them of its intent to continue oper- ations and to provide adequate security during the strike, contracted for and received an early shipment of dialysis concentrate, circulated a notice to patients indicating that the strike was to begin on August 2, and had security guards on its premises on August 2. Thus, with these preparations having been completed when the strike began on August 3, Respondent was of timely delivery. Emplover' S As.voiatin of Building Metal cihricalorv, Rhode lIsland Districtr. supra. Thus, we do not agree with the Administrative Law Judge's statement that having opted to utilize certified mail, return receipt requested, as means of delivery, the Union should have inquired of the Postal Service as to the fate of the notice immediately upon receipt of FMCS telegram of July 26. Nor do we view ha{uffeurs, Salcsnien and Helpers local 572, Internaotional Brotherhood of Teamsters. Chauffeurv, Ware- housemen and Helpers of America (Dar San (omnmisarr), 223 NLRB 1003, 1007. fn. 7 (1976). relied on by the Administrative Law Judge, as imposing such an affirmative obligation on the Union. In that case the Board adopt- ed, without comment, the Administrative I.aw Judge's discussion concern- ing the arguable obligation of a party electing to use certified mail. particu- larly as affected by a California statutory provision relating thereto. We view the U'nion's receipt of the FM(CS' July 26 telegram as a reasson- ahle indication to the Union that both 10-daN notices, which had been mailed on the same day. had been timely received. Likewise, we do not iew the fact that the Ulnion did not inquire as to Respondent's receipt of the notice at the July 29 negotiation session as evidence of a lack of concern for the requirements of Sec. 8(g). as found by the Administrative Law Judge. In computing time under notice provisions of the Act, the Board in- cludes the date of receipt of a notice as the initial day in the computation of the applicable time period. he Ohio Oil ( onipan, upra, l.ion Oil (onmpaln, 109 NLRB 680 (1954): 7li(xo. In,.. 179 NI.RB 989, 992 (1969). able to continue patient care without interruption and without jeopardy to the patients' health. In pass- ing the health care amendments to the Act Congress was greatly concerned with the need for "sufficient notice of any strike or picketing to allow for appro- priate arrangements to be made for the continuance of patient care in the event of a work stoppage. 8 Here, it is clear that such congressional concern was satisfied in that Respondent received 10 days' notice, albeit oral rather than written, and was able to pro- vide for the continuity of patient care deemed essen- tial by Congress. Further, we do not agree with the Administrative Law Judge's conclusion that the Union, in extending the date for the commencement of the strike, evi- denced a lack of concern for Section 8 (g) by failing to comply with the last sentence of that section which reads, "The notice, once given, may be extended by the written agreement of both parties." The Adminis- trative Law Judge construed such language as requir- ing a written agreement before an initial strike date may be extended. We cannot agree with such a re- strictive interpretation of that portion of Section 8 (g). Thus, the cited language does not expressly provide that a written agreement of the parties is the exclu- sive manner of extending an initial strike date. Fur- thermore, such a restrictive interpretation is clearly contrary to the expressed intent of Congress as re- vealed in the legislative history of Section 8(g). 9 In this regard, Congress, through the committee reports of its two bodies, specifically addressed the manner of extending the time of the strike set forth in the 10-day notice as follows: The 10-day notice is intended to give health care institutions sufficient advance notice of a strike or picketing to permit them to make ar- rangements for the continuity of patient care. It is not the intention of the Committee that a la- bor organization shall be required to commence a strike or picketing at the precise time specified in the notice; on the other hand, it would be inconsistent with the Committee's intent if a la- bor organization failed to act within a reason- able time after the time specified in the notice. Thus, it would be unreasonable, in the Committee's judgment, if a strike or picketing commenced more than 72 hours after the time S. Rept. 93-766. 93d Cong., 2d sess. 4 (hereafter cited as S. Rept.);: H. Rept. 93 1051, 93d Cong.. 2d sess 3 (hereafter cited as H Rept.): see also Id at 4: I.egislatrie Hisior, of the Nonprofit ospitls nder the National labhor Relations Act, 1974 at 92 (remarks of Senator ('ranston): Id at 97 (remarks of Senator Williams), (hereafter cited Leg. ist.) Id at 327 (re- marks of Representative Young): Id 374 (remarks of Senator Tafft. 9 We note that. as the Supreme Curt stated in V.IR.B. v. Fruit and Iteretahle Packers & W'arehouremen, Iocal 760, et al. [Tree Fruits Lahor Relations Committee. Inc /, 377 U.S. 58, 72 (1964), "lilt is a familiar rule that a thing mna be within the letter of the statute and yet not within the statute. because not within its spirit, nor within the intention of its makers. GREATER NEW ORL EANS ARTIFICIAL KIDNEY CENTER 435 specified in the notice. In addition, since the purpose of the notice is to give a health care institution advance notice of the actual com- mencement of a strike or picketing, if a lhor or ganization .ot's not strike at the time spe filed in the notice, at lea.st 12 hours notite sul.vl he gil'ten o/ the actual tnie for commncemnent /of the action. [.Emphasis supplied.] ' And, the joint remarks of Congressmen Ashbrook and Thompson with respect to the House committee report further reveals the intent of Congress concern- ing the manner in which the initial strike may be extended: [T]he Committee Report states that at least 12 hours notice must be given if an 8(g) notice has been filed and the strike has not occurred imme- diately after the 10 days. However, the Commit- tee was aware of the practical application of this new legislation, and realized the need for appli- cation of the rule of reason. Thus, e.g., where the notice was mailed in a timely fashion, and the union was not responsi- ble for the delay, or where under such circum- stancev, the employer has heenl provided with morte than twelve hours actual noice, tlhen the flilure to strictly complil wit/h tll tee' hour nolic ,Aeets u-clxcUeahle [sic]. [Emphasis supplied.] It is thus clear that Congress. as revealed through its committee reports and the remarks of two of the leading proponents of the health care amendments. not only contemplated, but specifically approved a labor organization's extension of the time set forth in the initial 10-day notice for the commencement of a strike by unilateral notification to the employer, at least in circumstances in which the postponement of the strike is between 12 and 72 hours of the time set forth in that initial notice and where there is at least 12 hours advance notice given to the employer of the postponement. The record establishes that in this case the Union sent Respondent a telegram which was received sometime during the afternoon of Au- gust 2 and which informed the latter that the strike would commence at 7 a.m. on August 3. The Union here extended the time set forth in its initial 10-day notice for the commencement of its strike within the 12- to 72- hour period. and, in fact, gave Respondent at least 12 hours' advance notice before the strike actually began. Accordingly, we find that the manner in which the Union postponed the commencement of its strike was in accord with Section 8(g). Finally, in concluding that the conduct of the IS Repl at 4: ii RepL. 5 II [ H I't. ,1 41)q 41(O Union here, both with respect to the initial 10-day notice and to the postponement of the commence- ment of the strike, was not in derogation of Section 8(g). we are mindful of the congressional admonish- ment to the Board to apply "the rule of reason." as cited above in the remarks of Congressmen Ash- brook and Thompson. While made in the context of a union's notice of postponement of the initial time set for a strike. in our view the following remarks of these two proponents of the admendments appl to the provisions of Section 8 (g generally: The Board, i considelring e.xtenuating circum- stanlllet.v, is c./lcted to act il a rt'ealsotnable maelh ll lr Cotl.Sitent il t (tlCommittlle's itt' ntent a. . tated in its Report. Furthermore, the status of strikers as "employees" would also be determined by the decision of the Board. Section 8(d) of the Act, which has been amended b this bill, clearls states "employees" will lose their status as such if they participate in a strike outside of the no- tice periods. Should the labor organization be in violation of Section 8 (g), the employees would then, according to statute, lose their status as "employees". Con.sequenilR', the rcasvona/lencs.s (of the Board in alplI/7in the intcnl of' thet (omnilctte to tle, J(acts is of major imporlance. [Emphasis supplied.] 2: Therefore. the legislative history of the health care amendments demonstrates not only Congress' con- cern for the continuity of patient care, but also its concern that Section 8(g) not be rigidly applied in light of serious consequences flowing from noncom- pliance with its provisions, i.e., the strikers' loss of employee status under the Act. We believe that our decision herein satisfies both of these expressed con- cerns of Congress. In reaching the result herein. however, we wish to make it clear that we by no means are condoning a union's disregard for the provisions of Section 8 (g). Thus, we stress that in the instant case the Union made reasonable efforts to give the Employer a 10- day written notice of its intent to strike, the Em- ployer had actual 10 days' notice of such intent. the Employer had the opportunity to and did make ar- rangements to insure continuity of patient care dur- ing the strike. and the Union extended the time for the commencement of the strike set forth in the 10- day notice within the 12- to 72-hour period and gave the Employer at least 12 hours' advance notice of the extension. In these particular circumstances, we con- clude that the Union was in substantial compliance with Section 8(g) and that to apply Section 8(g) here in such a technical fashion so as to deprive the strik- icg Il,s ati 411) 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ers of their status as employees would constitute an unwarrantedly harsh result not intended by C('on- gress. Accordingly, we reverse the Administrative Law Judge's fin ings to the extent inconsistent here- with and shall remand this proceeding to the Admin- istrative Law Judge for consideration of the merits of the 8(a)(3) and (I) allegations of the complaint and issuance of a Supplemental Decision. ORDER It is hereby ordered that this case be, and it herebh is, remanded to Administrative Law Judge Leonard M. Wagman for the purpose of preparing and issuing a Supplemental Decision setting forth a resolution of the credibility of witnesses and containing findings of fact, conclusions of law, and a recommended Or- der with respect to the unfair labor practices alleged in the complaint. Following service of such Supple- mental Decision on the parties, the provisions of Sec- tion 102.46 of the oard's Rules and Regulations. Series 8, as amended, shall be applicable. I)E('ISION SIAI EMEN I O()f iH CASF LEONARD M WA(;MAN Administrative Law Judge: Upon due notice, this proceeding under Section 10(b) of the Na- tional Labor Relations Act, as amended, 29 U.S.C. § 151, et seq. (hereinafter referred to as the Act), was heard by me at New Orleans, Louisiana. on December 6, 7, and 14. 1976.1 Based on a charge filed August II, a complaint issued on October 13, alleging that Bio-Medical Applications of New Orleans, Inc., hereinafter referred to as Respondent, commit- ted unfair labor practices within the meaning of Section 8(a)(1) and 8(a)(3) and Section 2(6) and 2(7) of the Act by discharging or refusing to reinstate 10 striking employees. Respondent filed an answer denying the commission of the alleged unfair labor practices and asserting as an affirmative defense that the striking employees were not entitled to the protection of the Act because the Charging Party, General Truck Drivers, Chauffeurs, Warehousemen, and Helpers Local No. 270, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind., hereinafter referred to as the Union, had failed to notify Respondent in writing of its intent to strike as required by Section 8(g) of the Act.2 i Unless otherwise stated, all dates refer o 1970. 2 Sec (g) provides: A labor organlaliation efore engaging in any strike, picketing, r lther concerted refusal to work at any health care instlilution shall, not less than ten days prior to such action, n otif the institution in wilting and the Federal Mediation and ('onciliationl Service of thait intention. ex- cept that in the case of bargaining for an initial agreement fo llu iig certification or recognition the n otice required by this suhsection shall not be given until the e xpiration of the period specified in clause IB) of the last sentence of section Xd) of this Act Ihe notice shall sae the date and tinme thai such actiHln will clnin ice. Ihe notice. once gisen. Upon the entire record in this case, including my obser- vations of the witnesses and after due consideration of the briefs filed by the General Counsel ' and the Respondent. I make the following: FINDINGCS OF FA(UI AND CONCI.t:SIONS ()I LAW I Tl- It:SlINESS OF I lt RSPOND)tNI Respondent, a Delaware corporation, with a facility lo- cated in New Orleans, Louisiana, is engaged in providing out-patient facilities for hemodialysis. During the year end- ing December 31, 1975, which period is representative of its operations during all times material herein, Respondent, in the course and conduct of its business operations, re- ceived in excess of $250,000 for providing hemodialysis for kidney patients. During the same period, Respondent pur- chased supplies and materials valued in excess of $50.000 which were shipped directly to it from points located out- side the State of Louisiana. In its answer. Respondent ad- mitted, and I find, that at all times material herein, Re- spondent has been and is an employer as defined in Section 2(2) of the Act and is engaged in commerce and in operations affecting commerce as defined in Section 2(6) and (7) of the Act. I also find from the foregoing and un- disputed record evidence showing that Respondent pro- vides medical care for persons suffering from loss of kid- ney functions, that Respondent is now, and has been at all times material herein, a health care institution as defined in Section 2(14) of the Act.4 11I lHi lABOR OR(iANIZAIION Respondent admits, and I find, that at all times material herein General Truck Drivers Chauffeurs, Warehousemen and Helpers Local No. 270. a/w International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind., has been and is a labor organiza- tion within the meaning of Section 2(5) of the Act. III IHE ALLEGEID t NFAIR L.ABOR PRA(IICES A. Issues The General Counsel contends that Respondent violated Section 8(a)(3) and () of the Act by discharging or refus- ing to reinstate striking employees Theresa J. Buggage, Corlis Allen Dever, Ella Mae Veal, Charles Henry, Jr., Lois Dunston, Linda R. Weppner. Louis Arthur Huth, Carol S. Smith, Gussie M. Calhoun, and Ali Gumuser. Respondent contends that the striking employees were not entitled to the protection of the Act because the Union failed to com- ply with the requirements of Section 8(g) of the Act. Re- mal be extended by the written agreement of hboth parties. I he (General (Counsel', miotion to correct the record is granted and the 4fflcial transcript is hereby corrected 4 Sec 2(14 provides: I he te ni "health care institution'' shall include ans hospital. convales- cenl hospital health niaintenance torganllzation. health clinic. nursing home, extended care facilit, r iother institution devoted to the care of sick Infirm, r aged person GREATER NEW ORLEANS ARTIFICIAL KIDNEY CENTER 437 spondent also contends that the 10 striking employees were neither unlawfully discharged nor unlawfully denied rein- statement but were, in effect, replaced by those employees who remained at work during the strike. B. The Strike I. The facts On December 19, 1975, the Union won a Board-con- ducted election among Respondent's 21 hemodialysis tech- nicians. Thereafter, on December 31. 1975. the Board certi- fied the Union as the collective-bargaining representative for that unit. On March 8, after the parties had been unsuc- cessful in reaching a collective-bargaining agreement, the Union, pursuant to Section 8(d)(B) of the Act, sent by cer- tified mail a notice of initial dispute to Respondent and to the Federal Mediation and Conciliation Service. In this notice, the Union announced the parties' failure to reach agreement and stated that unless agreement was reached prior to April 6, "it will be necessary for us to consider other steps, including strike, to protect the interest of our members." On July 20, the Union, located in New Orleans, sent by certified mail a notice of its intent to strike Respondent beginning at 7 a.m. on August 2 to the Atlanta. Georgia, office of the Federal Mediation and Conciliation Service and to Respondent. The envelope sent to Respondent was stamped "Certified Mail Return Receipt Requested" and contained a certified mail label bearing the number 339660. The envelope carrying the notice to Respondent was first postmarked at New Orleans. Louisiana, on July 21 and had 73 cents in postage affixed. The same envelope was post- marked again at New Orleans, Louisiana. on September 2; another label stating that there was 25 cents postage due was also attached to the envelope. Finally, the envelope bears the inscription. "rec'd 9/2,76 9:15 a.m." It is undisputed that the Federal Mediation and Concili- ation Service's Atlanta, Georgia, office received the Union's strike notice on July 23. A return receipt from the Federal Mediation and Conciliation Service bore no post- mark. However, the Union filed an inquiry form with the United States Postal Service on August 11 which was re- turned showing "7 23 76" as the date of delivery to the Federal Mediation and Conciliation Service at its Atlanta office. The parties introduced into evidence a copy of a return receipt card which was attached to the Union's notice sent to Respondent on July 20. This card bore a signature "D. Ancona" and was undated. At the hearing the parties sti- pulated "that if Ms. Ancona were called to testify she will deny that is her signature." No other evidence regarding this return receipt was presented. I find this undated return receipt card to be of no probative value. The parties also introduced into evidence a return receipt showing that Respondent received the envelope bearing certification 339660 on September 2. On July 23, the Federal Mediation and Conciliation Ser- vice (FMCS) informed Respondent's administrator. Leon Maraist, by telephone, that the FMCS had received the Union's notice of intent to strike. On July 26, Maraist and the union representatives received a telegram from the FMCS requesting that Respondent and the Union attempt further collective-bargaining negotiations on the morning of July 29. The proposed collective-bargaining negotiations took place on July 29 at the office of the FMCS in New Orleans. However, no progress was made at this session. I find from Administrator Maraist's uncontradicted testi- mony that in the course of this meeting there was no men- tion of the impending strike. On the afternoon of August 2. Respondent received its first written notification from the Union regarding the im- pending strike. At that time. Administrator Maraist re- ceived a telegram from the Union announcing that the he- modialysis technicians would strike Respondent on August 3. On the morning of August 3, the Union set up a picket line at Respondent's facility and the strike involving 10 of Respondent's hemodialysis technicians began. On August 4, Respondent sent letters to the strikers in- viting them to report to work within 48 hours or face the possibility of being permanently replaced. Five days later, at a meeting with the striking technicians. Mitchel Ledet, the Union's secretary-treasurer, advised the assembled em- ployees that the Union had mishandled the strike notice sent to Respondent. Upon hearing Ledet's remarks, the 10 employees decided to seek reinstatement. On August 10. the Union sent a telegram to Respondent stating that the 10 striking technicians were unconditionally offering to re- turn to work and would present themselves at the appropri- ate shift. On that same da?. the 10 employees unsuccessful- ly sought reinstatement at Respondent's facility. 2. Analysis and conclusions Under Section 8(d) of the Act, as amended.' employees who engage in a strike in violation of Section 8g) of the Act lose their status as employees. See ('a.sv d (Gla.ss, Inc., 219 NLRB 698 (1975I. Consequently. their employment status insofar as it relates to that strike is unprotected b Section 8 of the Act. In the instant case, I find that the 10 strikers have run afoul of Section 8(d) because of the Union's failure to satisf, Section 8(g) of the Act. The Board has recognized that where, as here, a statute "re- quires notice to be given or served without prescribing the manner in which it should be done. actual notice is re- quired and the notice is ineffective until received bh, the person to be served." Tie Ohio Oil C(ompanv. 91 NLRB 759. 761 (1950). However, the Board has, in exceptional circumstances, relaxed this requirement. where the party required to give notice has failed despite a conscientious effort to comply. General Maintenance Service C(ompan., Inc.. 182 NLRB 819 ( 1970); Employers Associaion f( Build- ing Metal Fabricator.s, et al.. 149 NLRB 382 (1964). In this case, I find that the Union was less than conscientious about compliance with Section 8(gl of the Act. First. I find that the Union mailed its strike notice to Respondent with lhe pcrlnclt p.ri.m o f , c d i. l la lCmendedi. proidc, ,\N' llcJ 1CC .ho cni sl i i111\ l tn rIkc 1'thirl tile ppl'oplailc perll - i.f.lIed ll h c oll of th'll..o . ¢c i w' . t11A I[ c hIe slat1.11l 1 in cplo.\cc f thc c1ip]l.o r .enged .L In he poilllilulr labo dispucl. for thec purpo.c of Set S, 9. d In 1 of this .\t .i alcnded. 438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD insufficient postage. Further, having elected to mail its strike notice to Respondent by certified mail, return receipt requested, the Union should have asked the Postal Service for information regarding the notice's fate immediately af- ter receipt of the FMCS telegram on July 26. Chauffeurs, Salesmen and Helpers Local 572, et al., (Dar San Commis- sary), 223 NLRB 1003, 1007, footnote 7 (1976). Indeed, there is no showing that the Union made any inquiry of the Postal Service regarding the July 21 strike notice addressed to Respondent. Nor did the Union raise the matter when it had an opportunity at the July 29 meeting with Respon- dent. The Union's lack of concern for the requirements of Sec- tion 8(g) was also shown by its telegram of August 2, noti- fying Respondent that the strike's inception was being ex- tended to August 3. Under the last sentence of Section 8(g) "the written agreement of both parties" was required be- fore the strike's starting date could be lawfully changed. Yet there is no evidence that the Union attempted to com- ply with the quoted language. In sum, I find no ground for excusing the Union from its failure to comply with the plain meaning of Section 8 (g) of the Act. From this it follows, under Section 8(d), as amended, that the 10 striking employees were not protect- ed by the Act either during their strike or when they sought reinstatement on August 10. See Casey & Glass Inc., supra; United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 630, AFL-CIO (Lein-Steenherg), 219 NLRB 837, 840 (1975). Accordingly, I shall recommend dismissal of the complaint herein. ORDER 6 It is recommended that the complaint herein be dis- missed in its entirety. In the event no exceptions are filed as provided hb 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. Copy with citationCopy as parenthetical citation