Laborers' Intl. Union, Local 1057

National Labor Relations Board - Board Decisions

Jul 30, 1975

219 N.L.R.B. 846 (N.L.R.B. 1975)

846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Laborers' International Union of North America,
AFL-CIO, Local Union No. 1057 and Mercy Hos-
pital of Laredo and Casey & Glass, Inc. Cases 23-
CG-1 and 23-CG-2
July 30, 1975
DECISION AND ORDER
Upon charges filed on January 13, 1975, by Mercy
Hospital of Laredo (herein called Mercy Hospital or
the Hospital) and Casey & Glass, Inc. (herein re-
ferred to as Casey & Glass), and duly served on La-
borers' International Union of North America,
AFL-CIO, Local Union No. 1057 (hereinafter called
Respondent), the General Counsel of the National
Labor Relations Board, by the Regional Director for
Region 23, issued an order consolidating cases, con-
solidated complaint, and notice of hearing on Janu-
ary 24, 1975. The consolidated complaint alleges that
Respondent has engaged in, and is engaging in, un-
fair labor practices affecting commerce within the
meaning of Section 8(g) and Section 2(6) and (7) of
the National Labor Relations Act, as amended. Cop-
ies of the charges, order consolidating cases, consoli-
dated complaint, and notice of hearing were duly
served on all parties to this proceeding.
With respect to the unfair labor practices, the com-
plaint alleges in substance that Respondent violated
Section 8(g) by picketing Casey & Glass at the hospi-
tal premises, without first giving 10 days' written no-
tice of its intent to do so to the Hospital and to the
Federal Mediation and Conciliation Service as re-
quired by that section. Thereafter, on January 29,
1975, Respondent filed an answer to the consolidated
complaint which it amended by telegram dated Feb-
ruary 29, 1975. As amended, Respondent's answer
admits the factual allegations of the consolidated
complaint but denies the commission of any unfair
labor practices.
On March 4, 1975, counsel for the General Coun-
sel filed with the Board a motion to transfer and con-
tinue cases before the Board and Motion for Summa-
ry Judgment, attaching thereto copies of the charges
and notices thereof, the consolidated complaint and
notice of hearing, appropriate affidavits of service,
and Respondent's answer and amended answer. In
his motion, the General Counsel contends that there
are no factual issues requiring a hearing, and that the
sole issue for determination is whether Respondent
was required to give the notices specified in Section
8(g). The General Counsel further contends that, ac-
cording to the unambiguous language of that section,
Respondent was required to serve written notice on
Mercy Hospital and the Federal Mediation and Con-
ciliation Service of its intention to picket at the hos-
pital premises 10 days in advance of engaging in such
picketing, and that by failing to serve the foregoing
notices Respondent violated Section 8(g) of the Act.
On March 14, 1975, the Board issued an order trans-
ferring the proceedings to itself and a Notice To
Show Cause why the General Counsel's motion
should not be granted.
On March 27, 1975, Respondent filed an opposi-
tion to General Counsel's Motion for Summary
Judgment, contending that the motion should be de-
nied and the consolidated complaint dismissed, or
that the proceeding be remanded for a hearing.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
In its opposition to the General Counsel's Motion
for Summary Judgment Respondent contends that a
summary judgment proceeding is inappropriate be-
cause the novel issue and factual complexity present-
ed by this case require a full evidentiary hearing. In
this connection, Respondent argues that a hearing is
necessary to determine whether Respondent's prima-
ry picketing of Casey & Glass at a reserved gate at
the Hospital had any actual or potential impact on
the Hospital's ability to provide health care services.
Respondent further argues that, in the absence of a
finding of such impact, no violation of Section 8(g)
can be found. In the alternative, Respondent con-
tends that Section 8(g) was intended by Congress to
apply only in cases where a strike or picketing is di-
rected against a health care institution and that the
consolidated complaint therefore fails to allege a pri-
ma facie case and should, accordingly, be dismissed.
The Board has recently discussed and decided
both issues raised by Respondent in United Associa-
tion of Journeymen and Apprentices of the Plumbing
and Pipefitting Industry of the United States and Cana-
da, Local 630, AFL-CIO (Lein-Steenberg).' For the
reasons set forth in that decision we find, with re-
spect to Respondent's first contention, that there is
no dispute concerning the facts pertinent to our de-
termination and that, therefore, a hearing is not war-
ranted. As to Respondent's second argument, we
find that Respondent, by picketing Casey & Glass at
the premises of Mercy Hospital without first giving
10 days' written notice of its intent to do so to the
Hospital and to the Federal Mediation and Concilia-
tion Service, violated Section 8(g) of the Act. Accord-
ingly, we shall grant the General Counsel's Motion
for a Summary Judgment.
' 219 NLRB 837 (1975)
219 NLRB No. 154
LABORERS ' INTL. UNION, LOCAL 1057 847
Upon the entire record in this proceeding, the
Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYERS
Casey & Glass, Inc., is a Texas corporation en-
gaged in the building and construction industry, with
its principal place of business at Corpus Christi, Tex-
as. During the past 12 months , a representative peri-
od, Casey & Glass , in the course and conduct of its
business operations, purchased from customers lo-
cated outside the State of Texas and transported di-
rectly from other States to its facilities inside the
State of Texas goods , materials , and supplies valued
in excess of $50,000.
Mercy Hospital of Laredo is a nonprofit medical
organization licensed by the State of Texas and pro-
vides emergency and full and comprehensive hospital
treatment and care . During the fiscal year ending
June 30, 1974, a representative period , Mercy Hospi-
tal had gross revenues in excess of $7 million.
We find , on the basis of the foregoing , that Casey
& Glass , Inc., and Mercy Hospital of Laredo are,
and at all times material hereto have been , employers
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
We further find that Mercy Hospital is a health
care institution within the meaning of Section 2(14)
of the Act, and that it will effectuate the purposes of
the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Laborers ' International Union of North America,
AFL-CIO, Local Union No . 1057, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
ber 3 , 1974, Casey & Glass has been engaged as gen-
eral contractor in a construction project at Mercy
Hospital . The project involves expansion of the Hos-
pital and renovation of its existing laundry facilities.
The construction is federally funded in an amount in
excess of $4 million.
From December 2, 1974, until December 16, 1974,
and from January 6 , 1975, and continuing until the
date of the consolidated complaint herein , Respon-
dent has picketed Casey & Glass at the Hospital
premises with signs reading:
LABORERS INTERNATIONAL UNION OF NORTH AMERICA
LOCAL 1057 AFL-CIO "ON STRIKE" AGAINST CASEY AND
GLASS, INC.
At no time has Respondent served written notice
on either Mercy Hospital or the Federal Mediation
and Conciliation Service of its intent to engage in
such picketing.
There is no allegation that any hospital employees
ceased work or that Respondent's picketing had any
adverse impact on the Hospital 's ability to provide its
customary medical care.
On January 13, 1975, Casey & Glass and Mercy
Hospital filed the instant charges alleging that Re-
spondent, by engaging in the picketing as described
above , violated Section 8(g) of the Act.
C. Concluding Findings
The issue posed by this case was recently consid-
ered and determined by the Board in Lein -Steenberg,
supra. Accordingly , for the reasons set forth in that
decision , we find that , by picketing Casey & Glass on
the premises of Mercy Hospital without first giving
10 days' notice of its intent to do so to the Hospital
and to the Federal Mediation and Conciliation Ser-
vice , Respondent violated Section 8 (g) of the Act.
III. THE UNFAIR LABOR PRACTICE
A. The Issue
The issue presented by this case is whether Re-
spondent, by picketing Casey & Glass at a reserved
gate at a construction project at the premises of Mer-
cy Hospital without first giving 10 days' written no-
tice of its intent to do so to the Hospital and to the
Federal Mediation and Conciliation Service , violated
Section 8(g) of the Act.
B. Background
The consolidated complaint and amended answer
established , inter alia, that since on or about Septem-
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth above have
a close , intimate , and substantial relation to trade,
traffic , and commerce among the several States and
tend to lead to industrial strife burdening and ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in,
and is engaging in, unfair labor practices we shall
order that it cease and desist- therefrom and take cer-
tain affirmative action designed to effectuate the pol-
icies of the Act.
848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing findings of fact
and upon the entire record in this case, we make the
following:
CONCLUSIONS OF LAW
1. Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
2. Casey & Glass, Inc., and Mercy Hospital of
Laredo are employers engaged in commerce or an
industry affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
3. Mercy Hospital of Laredo is a health care insti-
tution within the meaning of Section 2(14) of the Act.
4. By picketing Casey & Glass at•the premises of
Mercy Hospital without first giving 10 days' written
notice of its intent to engage in such picketing to
Mercy Hospital and to the Federal Mediation and
Conciliation Service, Respondent has engaged in an
unfair labor practice within the meaning of Section
8(g) of the Act.
5. The aforesaid 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 the provisions of Section 10(c) of the
National Labor Relations Act, as amended, the Na-
tion Labor Relations Board hereby orders that the
Respondent, Laborers' International Union of North
America, AFL-CIO, Local Union No. 1057, its offi-
cers , agents, and representatives , shall:
1. Cease and desist from engaging in any strike,
picketing, or other concerted refusal to work at the
premises of Mercy Hospital of Laredo, or any other
health care institution, without first giving 10 days'
written notice of that intention to the health care in-
stitution and to the Federal Mediation and Concilia-
tion Service.
2. Take the following affirmative action which is
necessary to effectuate the purposes of the Act:
(a) Post at its business office and meeting halls
copies of the attached notice marked "Appendix." I
Copies of said notice, on forms provided by the Re-
gional Director for Region 23, after being duly
signed by an authorized representative of Respon-
dent, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
2 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 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."
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 notices are not
altered, defaced, or covered by any other material.
(b) Furnish to the Regional Director for Region
23 sufficient signed copies of the said notice for post-
ing by Casey & Glass, Inc., and Mercy Hospital of
Laredo, if they are willing, in places where notices to
their employees are customarily posted.
(c) Notify the Regional Director for Region 23, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
MEMBERS FANNING AND JENKINS, dissenting:
As stated in our dissenting opinion in Lein-Steen-
berg,3 issued this day, we do not believe the activity
involved in this case falls within Congress' percep-
tion of the ambit of the new Section 8(g). According-
ly, we dissent.
It is noteworthy, we believe, that this case is being
decided on the basis of a motion for summary judg-
ment without any attempt to determine the validity
of Respondent's allegation that the general contrac-
tor with whom the employees involved in this pro-
ceeding had their dispute, Casey & Glass, deliber-
ately entangled Mercy Hospital in the recognitional
dispute by placing a reserved gate "adjacent to the
hospital's emergency room" and designating that
gate for use by its own employees and, at the same
time, placing three reserved gates at points "clearly
far removed from the hospital building" and select-
ing the employees of its subcontractors to use those
gates. Moreover, according to Respondent, Casey &
Glass deliberately refused to discuss the placement of
the gates or, once the gates were placed, to discuss
ways to ameliorate potential effects on the hospital.
As a result, according to Respondent, it voluntarily
assigned only one picket to the gate and that picket
carried a sign which made it crystal clear there was
no dispute with the hospital. Finally, all parties con-
cede there was absolutely no effect on the hospital's
delivery capacity.
We do not, of course, know whether all these alle-
gations can be substantiated. The point is, however,
that neither do our colleagues. If they are, in point of
fact, true, we see further reason to dissent from our
colleagues' determination that Congress, via the
health care amendments and without a word during
legislative debate, intended to give a construction
contractor a backdoor route for thwarting the basic
Federal labor policy favoring employee organization.
J United Association of Journeymen and Apprentices of the Plumbing and
Pipeftrting Industry of the United States and Canada, Local 630, AFL-CIO
(Lein-Steenberg), 219 NLRB 837 (1975).
LABORERS ' INTL. UNION, LOCAL 1057 849
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT engage in any strike, picketing,
or other concerted refusal to work at the prem-
ises of Mercy Hospital of Laredo, or any other
health care institution, without notifying in writ-
ing such health care institution and the Federal
Mediation and Conciliation Service of that in-
tention not less than 10 days prior to such ac-
tion.
LABORERS' INTERNATIONAL UNION OF
NORTH AMERICA, AFL-CIO, LOCAL UNION
No. 1057