20-CG-000065 (N.L.R.B. Dec. 29, 2006)

SEIU United Healthcare Workers-West

National Labor Relations Board - Administrative Judge OpinionsDec 29, 2006

20-CG-000065 (N.L.R.B. Dec. 29, 2006)

JD(SF)-67-06 San Francisco, CA UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD DIVISION OF JUDGES SAN FRANCISCO BRANCH OFFICE SEIU UNITED HEALTHCARE WORKERS - WEST and Case 20-CG-65 CALIFORNIA PACIFIC MEDICAL CENTER David B. Reeves, Esq., of San Francisco, California, for the General Counsel. Bruce A. Harland, Esq., (Weinberg, Roger & Rosenfeld), of Alameda, California, for the Respondent. Jason M. Mayo, Esq., (O’Melveny & Myers) of San Francisco, California, for the Employer. DECISION Statement of the Case JAY R. POLLACK, Administrative Law Judge. I heard this case in trial at San Francisco, California, on October 3 and 25, 2006. On June 13, 2006, California Pacific Medical Center (herein called the Hospital or the Employer) filed the charge in the instant case alleging that SEIU United Healthcare Workers West (Respondent) committed certain violations of Section 8(g) of the National Labor Relations Act (the Act). On July 10, 2006, the Regional Director for Region 20 of the National Labor Relations Board issued a complaint and notice of hearing against Respondent, alleging that Respondent violated Section 8(g) of the Act. Respondent filed a timely answer to the complaint, denying all wrongdoing. All parties have been afforded full opportunity to appear, to introduce relevant evidence, to examine and cross-examine witnesses and to file briefs. On the entire record, including observation of the demeanor of the witnesses, and having considered the post-hearing briefs of the parties, I make the following. 1 1 The credibility resolutions herein have been derived from a review of the entire testimonial record and exhibits, with due regard for the logic of probability, the demeanor of the witnesses, and the teachings of NLRB v. Walton Manufacturing Company, 369 U.S. 404, 408 (1962). As to those witnesses testifying in contradiction to the findings herein, their testimony has been discredited, either as having been in conflict with credited documentary or testimonial evidence, or because it was in and of itself incredible and unworthy of belief. JD(SF)-67-06 5 10 15 20 25 30 35 40 45 2 Findings of Fact I. Jurisdiction California Pacific Medical Center is a California corporation with offices and principal places of business located in San Francisco, California, where it is engaged in business as a health care institution in the operation of acute-care hospitals and related facilities. The Employer, during the 12 months prior to the issuance of the complaint, derived gross revenues in excess of $250,000. During the same time period, the Hospital purchased and received goods and materials valued in excess of $5,000 which originated from points outside the State of California. Accordingly, I find that the Hospital is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Respondent admits and I find that it is a labor organization within the meaning of Section 2(5) of the Act. II. The Alleged Unfair Labor Practices A. Issues The Employer operates acute-care hospitals and related facilities in San Francisco, California. Respondent represents a bargaining unit of employees including, inter alia, housekeepers and linen aides in the Employer’s Medical Center’s Environmental Services (EVS) department at the Employer’s Davies and Pacific campuses. The Respondent and the Employer have been party to a series of collective-bargaining agreements, the most recent of which is effective by its terms from November 2005 to June 2008. The collective-bargaining agreement contains a provision prohibiting mandatory overtime. The Hospital relies on volunteers to fill in for EVS employees on leave or otherwise absent – either by volunteering for overtime or by volunteering for extra shifts. Under the collective-bargaining agreement, the Hospital may not assign mandatory overtime except for a state of emergency. The record reveals that the Hospital has never required mandatory overtime under the contract. Prior to the instant dispute, the Hospital has been able to meet its overtime requirements because a sufficient number of employees have volunteered for overtime. In May 2006 the Hospital proposed changing the way it distributed linen at its medical centers. The Union objected to the proposed changed and contended that the proposed change was a violation of the subcontracting clause of the collective bargaining agreement. Carolina Nader, operations manager, who oversees the EVS department at the Davies Campus, testified that on June 1, 2006, Nate Gunderson, Union field representative,2 presented her with a petition signed by over 100 EVS employees entitled “No-Subcontracting.” The petition stated: We the undersigned SEIU-UHW members in Environmental Services hereby protest the proposal of CPMC management to sub-contract our work in the linen room out to the West Bay Distribution center. This is a direct violation of the no sub-contracting clause of our contract. By signing this petition we hereby authorize our shop stewards to call for one week, no overtime no extra shift policy amongst SEIU-UHW members in the Environmental Service department 2 At the conclusion of the hearing there was no issue that Gunderson was an agent of Respondent. However, during the hearing, Respondent refused to stipulate that Gunderson was its agent and refused to make Gunderson available as a witness. JD(SF)-67-06 5 10 15 20 25 30 35 40 45 3 on an as needed basis. We commit to one-another that we will honor this commitment to action and stand strong in our fight with CMPC to force them to respect and honor our contract. Gunderson informed Nader that he was giving the Hospital official notice that the EVS employees intended not to work overtime. Ernesto Rivera, director of housekeeping at the Pacific Campus testified that on June 2, 2006, Catalino Colonsag, shop steward, presented him with a copy of the same petition that had been given to Nader at the Davies Campus. Colonsag informed Rivera that, as of Monday, June 5, 2006, none of the employees in the EVS department would work overtime or extra shifts. Beginning on June 5, 2006, Nader attempted to secure volunteers for overtime. Nader experienced an increase in employees calling in sick. She followed her usual routine of asking for volunteers for overtime by seniority but was turned down by employees. Nader could not cover shifts on June 5, 9, 10 and 11. Similarly, on June 5, Rivera attempted to secure volunteers for overtime at the Pacific Campus but was turned down by employees. Rivera testified that he needed to fill six 8-hour shifts but was unable to do so. After June 6, Rivera gave up trying to find volunteers for overtime. Beginning on June 12, 2006, EVS employees again began accepting offers of overtime and extra shifts. On June 8, the Union published a newsletter in which it stated in pertinent part: EVS workers at all three CMPC campuses are standing up to management’s attempt to subcontract jobs of our coworkers in the Linen Room. Last week a super majority of SEIU-UHW members in the EVS department signed a petition demanding CMPC respect our contract and halt its plans to subcontract the Linen Room. . . In addition, the petition called for one week of no overtime, no extra shifts for UHW members in the EVS department. Starting on June 5th, the no overtime, no extra shift policy has exposed the short staffing that management created in the EVS department. It is now crystal clear that CMPC needs to hire more EVS staff, not eliminate jobs. In response, management has attempted to force UHW members to do extra work to cover the shifts management has failed to fill. . . . Respondent did not provide the Employer or the Federal mediation and Conciliation Service with written notice of the concerted refusal to work overtime. B. Analysis and Conclusions Sec. 8(g) of the Act provides, in pertinent part, that 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. JD(SF)-67-06 5 10 15 20 25 30 35 40 45 4 Section 8(g) was added because, in extending the protections of the Act to hospital employees, Congress meant to protect the public against undue disruptions in health care services resulting from labor disputes. New York State Nurses Association. (Mt. Sinai Hospital), 334 NLRB 798, 800 (2001), The Union contends that the employees had a collectively-bargained contract that prohibited mandatory overtime and that therefore, there was no strike or refusal to work. The General Counsel and the Hospital relying on New York State Nurses Association contend that the EVS employees refused to volunteer for overtime and to work overtime, and that they thereby engaged in a strike or concerted refusal to work. They contend that both of those actions fall within the definition of “strike” contained in Section 501(2) of the Act, which includes “any strike or other concerted stoppage of work by employees . . . and any concerted slowdown or other concerted interruption of operations by employees.” In New York State Nurses Association, id., nurses working at Mt. Sinai Hospital had a past practice of volunteering to work overtime. The nurses’ bargaining agreement with that hospital provided that nurses were not required to work involuntary overtime except in a disaster/emergency. However, under the past practice of nurses volunteering for overtime, the hospital was able to meet its overtime needs. The nurses decided to refuse to volunteer for overtime work in order to put pressure on the hospital to change its staffing practices. The Board, in overruling the administrative law judge, found that the nurses’ concerted refusal to volunteer for overtime and to work through their lunch periods, contrary to their established practice, was clearly meant to cause, and did cause, an interruption of the hospital’s functions within the meaning of Section 8(g). The Board found that the concerted refusal to volunteer for overtime was a concerted work stoppage and was intended to pressure the hospital-employer to change its staffing practices. I find the instant case, controlled by New York State Nurses Association. Here the petitions and the Union newsletter show that there was a concerted refusal to volunteer for overtime and that concerted work stoppage was intended to pressure the Hospital not to engage in what the Union viewed as subcontracting. Respondent did not give the required written 10 days notice to either the Hospital or the FMCS. The Union contends that St. Barnabas Hospital, 334 NLRB 1000, 1011 (2001) requires a different result. In St. Barnabus Hospital, four physicians who threatened not to perform on-call work were discharged The Board found that the physicians performed on-call work on a voluntary basis. It therefore found that the refusal to perform voluntary work would not be an unprotected partial strike. Because the on-call work was voluntary, the Board found that the discriminatees’ concerted threat to stop performing on-call work was protected activity. See also, Dow Chemical Co., 152 NLRB 1150, 1151–1152 (1965); Jasta Mfg. Co., 246 NLRB 48, 49 (1979), enfd. mem. 634 F.2d 623 (4th Cir. 1980). See also Riverside Cement Co., 296 NLRB 840, 841 (1989). The Board concluded that the discharge of the four physicians violated Section 8(a)(1) of the Act. I find that the St. Barnabas Hospital is inapposite. In New York State Nurses Association. (Mt. Sinai Hospital), 334 NLRB 798, 801, n 16 (2001) the Board noted “our finding that the concerted refusal to perform voluntary overtime at the Union’s request is a concerted refusal to work for purposes of Sec. 8(g) neither deprives employees of their contractual rights nor permits the Hospital to modify the contract unilaterally by making voluntary overtime mandatory.” The Board further noted “the partial strike cases are not on point here. This is not a partial strike case. The question here is whether the nurses’ refusal to perform that work at the Union’s request was a strike or at least a concerted refusal to work, and therefore violated Sec. 8(g) because the Union failed to give the required notices.” JD(SF)-67-06 5 10 15 20 25 30 35 40 45 5 Simarly, the issue herein, is not whether the Union had a contractual or statutory right to refuse to work overtime but rather whether the Union was required to give the notice required by Section 8(g). New York State Nurses Association clearly holds that the Union was required to send the proper notices. Conclusions of Law 1. The Employer is an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent violated Section 8(g) of the Act, by inducing and directing the EVS employees of California Pacific Medical Center to refuse to volunteer to work overtime or extra shifts without providing the Hospital and the Federal Mediation and Conciliation Service 10 days’ notice of the job action as required by Section 8(g). The Remedy Having found that Respondent engaged in unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom to take certain affirmative action designed to effectuate the policies of the Act. General Counsel seeks litigation expenses for himself and the Employer. The Board has held that it has authority to award litigation expenses where a respondent engages in “frivolous rather than debatable litigation” before the Board. See Tidee Products, Inc., 194 NLRB 1234, 1235-37 (1972). In Heck's Inc., 215 NLRB 765 (1974), the Board held that the award of litigation expenses, except in extraordinary circumstances involving frivolous defenses, would discourage respondents from gaining access to the appropriate forum in order to fully litigate debatable defenses. Thus, the Board has been very hesitant in awarding attorney's fees to the General Counsel and charging party. It is only appropriate where Respondent has raised patently frivolous defenses. Super Save, 273 NLRB 20, fn. 1 (1984); Park Inn Home for Adults, 293 NLRB 1082, fn. 3 (1989); Heck's Inc., id, 765-768. A frivolous defense is not merely found to be without merit, but refers to contentions “which are clearly meritless on their face.” Heck's, Inc., 191 NLRB 886, 889 (1971); See also, Heck’s Inc. 215 NLRB 765, 767-768 (1974). While I found that the instant case was clearly controlled by the Board’s decision in New York State Nurses Association, supra, I also note that there was a dissent in that case. More importantly, the Board’s rationale that a concerted refusal to volunteer for overtime constitutes a strike within the meaning of Section 8(g) has not been reviewed by a Court of Appeals. The only way for the Union to obtain review of the Board’s rationale by a United States Court of Appeals is to have a Section 8(g) unfair labor practice finding by the Board. It seems clear to me that the Union’s legal position in this case cannot be characterized as frivolous. General Counsel argues that Respondent should have stipulated to the undisputed facts and still preserved its legal position. I do not believe Tidee Products or Heck’s Inc. require a respondent to waive its day in court. Finally, while Respondent did cause unnecessary delay regarding the issue of Gunderson’s status as an agent of Respondent, I do not find that such delay was so egregious as to trigger the imposition of litigation expenses. JD(SF)-67-06 5 10 15 20 25 30 35 40 45 6 Accordingly, I will recommend a remedy in this case in accordance with the remedy in New York State Nurses Association (Mt. Sinai Hospital), 334 NLRB 798, (2001). On these findings of fact and conclusions of law and on the entire record, I issue the following recommended:3 ORDER Respondent SEIU United Healthcare Workers-West, its officers, agents, and representatives, shall 1. Cease and desist from engaging in any strike, picketing, or other concerted refusal to work; including a concerted refusal to volunteer for overtime work, at the premises of Mount Sinai Hospital, or any other health care institution, without timely notifying, in writing, any such health care institution and the Federal Mediation and Conciliation Service, not less than 10 days prior to such action, of that intention. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Within 14 days after service by the Region, post at its business office and meeting halls in San Francisco, California, copies of the attached notice marked “Appendix.”4 Copies of the notice, on forms provided by the Regional Director for Region 20, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees and members are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since June 13, 2006. (b) Furnish to the Regional Director signed copies of the notice for posting by California Pacific Medical Center, if it is willing, in places where notice to employees are customarily posted. 3 All motions inconsistent with this recommended order are hereby denied. In the event no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. 4 If 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.” JD(SF)-67-06 5 10 15 20 25 30 35 40 45 7 (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. Dated, Washington, D.C., December 29, 2006. ____________________ Jay R. Pollack Administrative Law Judge APPENDIX NOTICE TO EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT induce our members to engage in any strike, picketing, or other concerted refusal to work, including a concerted refusal to volunteer for overtime work, at the premises of California Pacific Medical Center, or any other health care institution, without timely notifying, in writing, any such health care institution and the Federal Mediation and Conciliation Service, not less than 10 days prior to such action, of that intention. SEIU UNITED HEALTHCARE WORKERS WEST (Labor Organization) Dated By (Representative) (Title) The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov. 901 Market Street, Suite 400 San Francisco, California 94103-1735 Hours: 8:30 a.m. to 5 p.m. 415-356-5130. THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUSTNOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THISNOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE OFFICER, 415-356-5139.