Service Employees Local 144 (Brooklyn Methodist Church Home)

National Labor Relations Board - Board Decisions

Sep 16, 1977

232 N.L.R.B. 25 (N.L.R.B. 1977)

SEIU, LOCAL 144
Local 144, Hotel, Hospital, Nursing Home and Allied
Service Employees Union, SEIU, AFL-CIO and
Brooklyn Methodist Church Home Cases 29-CG-
12 and 29-CP-318
September 16, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On April 13, 1977, Administrative Law Judge
Arthur Leff issued the attached Decision in this
proceeding. Thereafter, the Respondent Union filed
exceptions and a supporting brief, and the General
Counsel filed a brief in support of the Administrative
Law Judge's Decision,
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered 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 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
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Local 144, Hotel,
Hospital, Nursing Home and Allied Service Employ-
ees Union, SEIU, AFL-CIO, New York, New York,
its officers, agents, and representatives, shall take the
action set forth in the said recommended Order.
DECISION
STATEMENT OF THE CASE
ARTHUR LEFF, Administrative Law Judge: Upon charges
filed by Brooklyn Methodist Church Home (BMCH) on
December 2, 1976, the General Counsel of the National
Labor Relations Board, by the Regional Director for
Region 29, issued a complaint in Case 29-CG-12, dated
December 17, 1976, and a complaint in Case 29-CP-318,
dated December 23, 1976, against the above-named Union,
herein called Respondent or Local 144. The two cases were
consolidated by order of the Regional Director dated
December 27, 1976. The complaint in Case 29-CG-12
alleges in substance that Respondent, commencing on
December 2, 1976, engaged in unfair labor practices within
the meaning of Section 8(g) of the National Labor
Relations Act, by directing its members to engage in strike
action against BMCH without having first given BMCH
and the Federal Mediation and Conciliation Service the
232 NLRB No. 5
requisite 10-day notice of its intention to do so. The
complaint in Case 29-CP-318 alleges in substance that
commencing on December 2, 1976, Respondent engaged in
unfair labor practices within the meaning of Section
8(bX7)(A) of the Act, by picketing BMCH with an object
of forcing BMCH to recognize and bargain with it as the
collective-bargaining representative of BMCH's mainte-
nance and service employees, notwithstanding that another
labor organization, District 1199, National Union of
Hospital and Health Employees (District 1199) was at the
time the lawfully recognized representative of BMCH's
service and maintenance employees and a question
concerning the representation of such employees could not
then appropriately be raised under Section 9(c) of the Act.
Respondent filed answers to both complaints denying the
commission of the alleged unfair labor practices. A hearing
was held before me at Brooklyn, New York, on January 17
and 18, 1977. Briefs were filed by the General Counsel and
by Respondent on February 25, 1977.
Upon the entire record in the case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Brooklyn Methodist Church Home (BMCH), a New
York not-for-profit corporation, operates a nursing home
facility in Brooklyn, New York. During the past year, a
representative period, it derived gross revenues in excess of
$100,000 from its nursing home operations. It purchased
and had delivered to it at its Brooklyn, New York, facility
from sources outside the State of New York supplies,
goods, and materials valued in excess of $50,000. Respon-
dent admits, and it is found, that BMCH is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Local 144, Hotel, Hospital, Nursing Home and Allied
Service Employees Union, SEIU, AFL-CIO, Respondent
herein, and District 1199, National Union of Hospital and
Health Employees, RWDSU, AFL-CIO, is each a labor
organization within the meaning of Section 2(5) of the Act.
1. THE UNFAIR LABOR PRACTICES
On December 2, 1976, and for some 3 weeks thereafter
until enjoined by court order, Respondent Local 144
picketed BMCH at 1485 Dumont Avenue, Brooklyn, New
York, the location to which BMCH had moved its place of
business on the date stated. Local 144 is charged in this
consolidated proceeding with having violated both Section
8(b)(X7XA) and Section 8(g) of the Act by engaging in such
picketing.
BMCH, which is licensed by the New York State
Department of Health as a skilled nursing home facility
(SNF) and as a health-related facility (HRF), has been in
existence for some 100 years. Until December 2, 1976, it
was located at 920 Park Place, Brooklyn, New York. At
that location it employed immediately prior to December
2, 1976, approximately 80 employees, of whom about 60
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were grouped in an appropriate bargaining unit of service
and maintenance employees for which District 1199 was
the duly recognized bargaining representative. The latest
collective-bargaining contract covering that employee unit
was entered into between BMCH and District 1199 in
January 1976 for a 2-year term expiring on December 31,
1977. The contract expressly provides that it is to apply to
any location to which BMCH might move.
In January 1975, BMCH was notified by the New York
Department of Health that its physical plant at 920 Park
Place no longer met certain requirements of the New York
Health Code and that its facility would have to be closed if
the code violations were not corrected. BMCH decided
that, rather than to undertake the correction of the physical
violations, it would be more feasible for it to purchase an
existent facility that already satisfied code requirements
and to transfer its operations to that facility.
In September 1975, BMCH entered into an agreement
with Bernard Feuer, the owner of Lindenboro Nursing
Home, a proprietary nursing home located at 1485
Dumont Avenue, Brooklyn, New York, to purchase from
Feuer the physical assets of the Lindenboro Home. BMCH
agreed to purchase the Lindenboro land, building, equip-
ment, furniture, and personal property at that location, but
not any of Lindenboro's other assets; it did not assume any
of Lindenboro's liabilities. The Lindenboro Nursing Home
had been in operation since 1974 or earlier. Its employees
were represented by Local 144 which had a collective-
bargaining contract or contracts with Lindenboro, for a
term expiring November 30, 1976, covering three separate
bargaining units - a service and maintenance employees'
unit, a registered nurses' unit, and a licensed practical
nurses' unit. Local 144's contract provided that it was to
become binding upon any entity that assumed ownership
or operation of the Lindenboro facility. The purchase
agreement entered into between BMCH and Feuer
expressly stated, however, that BMCH was not to assume
Lindenboro's collective-bargaining agreement with Local
144 covering the Lindenboro employees.
BMCH's purchase agreement for the lindenboro proper-
ty was made conditional upon BMCH obtaining the New
York Department of Health's approval of the purchase
i The Lindenboro Nursing Home had been licensed only as a skilled
nursing facility.
2 Individuals in BMCH's health-related facility are known as residents.
Those receiving skilled nursing care are known as patients.
3 As an exclusively SNF facility the Lindenboro Home had a certified
120-bed capacity, but that capacity was reduced to 113 beds when BMCH
took over the Lindenboro property and converted it to a combined SNF and
HRF facility. At its Park Place facility BMCH had a certified 100-bed
capacity. However, it had only about 49 patients and residents housed
at
that location when it entered into its purchase agreement with
Feuer in
September 1975. It was BMCH's intention at that time to maintain
that
number of patients and residents at Park Place until it moved to its new
facility and to transfer all of its patients and residents to Dumont Avenue
when it began its operations there. That intention is reflected in the purchase
agreement which provides in one of its sections that the transfer of
all of
BMCH's patients willing to relocate at the Dumont Avenue facility
was "of
the essence of this agreement." The agreement also provided, however,
in
another section that Lindenboro was to have 70 patients in residence
at its
Home when BMCH took over the Lindenboro facility. That provision
was
included in the purchase agreement because it was anticipated
when the
agreement was made that, with Lindenboro's then certified bed capacity
of
120, BMCH would be able to accept 70 patients from Lindenboro
after
moving its entire Park Place population to Dumont Avenue. Because
of the
agreement and a license from that agency to operate a
combined health care facility and skilled nursing facility at
the Dumont location.' The closing date for the purchase,
initially set for March 31, 1976, was postponed until
December I, 1976, because of an unanticipated delay in
obtaining the requisite Department of Health approval and
license. BMCH formally acquired possession of the
Lindenboro property at 12:01 a.m. on December 2, 1976.
At that time, Lindenboro ceased its operations at Dumont
Avenue, and, as required by the New York Health Code,
surrendered its license to operate a skilled nursing home
facility at that location.
BMCH began its operations at the Dumont Avenue
facility on the morning of December 2, 1976. Either on that
day or the next, BMCH moved to its new Dumont Avenue
location all 33 of its Park Place HRF residents.
2 At about
the same time, BMCH also moved to the Dumont Avenue
location 15 of its 46 Park Place SNF patients. BMCH took
over from Lindenboro 65 of its SNF patients. These
patients were recertified by the Department of Health as
patients of BMCH. BMCH had intended when it entered
into its purchase agreement with Feuer to transfer to its
new location all of its patients and residents housed at its
Park Place location. For reasons explained in the marginal
note, BMCH was compelled, however, to exclude 31 of its
Park Place SNF patients from the move to Dumont
Avenue in December 1976.3 BMCH transferred these 31
excluded SNF patients to other nursing home facilities with
the understanding that they would be taken back by
BMCH at its Dumont Avenue facility when room for them
became available.4 With the transfer of its operations to
Dumont Avenue, BMCH discontinued completely its
operations at Park Place.
At Dumont Avenue, BMCH required a larger work force
than at Park Place. BMCH began its operations at Dumont
Avenue on December 2, 1976, with 72 service and
maintenance employees. Of these, 52 were BMCH employ-
ees transferred from Park Place,
s 11 were newly hired
employees obtained through the District 1199 hiring hall,
and 9 were newly hired employees obtained from other
sources. 6 None of the 72 was a former Lindenboro
employee. As of the time of the hearing, BMCH's
unexpected delay in obtaining Department of Health approval
of the
purchase agreement, BMCH found it necessary for financial reasons
to add
to the complement of its patients and residents at Park Place while
awaiting
such approval. As a result, BMCH's population at its Park Place facility
was
enlarged to 79 by the time of the closing. BMCH attempted to persuade
Feuer, prior to the closing, to reduce the number of Lindenboro
patients to
an extent sufficient to make room for the transfer of all of BMCH's Park
Place patients to Dumont Avenue. But Feuer, although agreeable,
was
unable to reduce the number below 65, and BMCH could not compel
him to
reduce the number further, not only because of the stipulation in the
agreement, but also because of Department of Health restrictions on the
transfer of skilled nursing care patients. As a result, there was no room
at the
Dumont Avenue facility for the 31 Park Place SNF patients who
were
excluded from the move to Dumont Avenue.
4 As of the date of the hearing. two of these patients, for whom beds at
Dumont Avenue had become available, had been taken back by BMCH.
No other new patients or residents had been accepted by BMCH
at its
Dumont Avenue location.
5 BMCH had employed 60 service and maintenance employees at
Park
Place, but 8 of the 60, although offered places at Dumont Avenue,
declined
to accept them for reasons of personal convenience.
6 BMCH's collective-bargaining contract with District 1199
requires
BMCH to notify District 1199's employment service of all bargaining
unit
26
SEIU, LOCAL 144
complement of service and maintenance employees had
been enlarged to 78. The additional six were obtained
through the District 1199 hiring hall. BMCH has continued
at all times since the date of the transfer of its operations
from Park Place to Dumont Avenue, to recognize District
1199 as the exclusive bargaining representative of its
service and maintenance employees and to give effect to
the 2-year contract with that labor organization that was
entered into in January 1976.
As stated above, on the morning of December 2, 1976,
the first day of BMCH's operations at the Dumont Avenue
location, Local 144 established a picket line at BMCH's
Dumont Avenue premises, and continued to maintain that
picket line until it was enjoined from further picketing
some 3 weeks later by order of the District Court for the
Eastern District of New York. The pickets carried signs
declaring, without more, that BMCH was "unfair to Local
144." After the picketing began, Local 144 did not
communicate to BMCH the objectives of its picketing. Its
reasons for picketing and the objectives it sought to attain
thereby are, however, discernible from the events antedat-
ing the picketing to be reported below.
When BMCH entered into its purchase agreement with
Feuer for the Lindenboro property, it intended to transfer
to its new location the employees who had worked for it at
its Park Place location, but anticipated that it might need
as many as 40 or so additional employees to service its
larger facility at Dumont Avenue. BMCH feared that the
staffing of its new facility at Dumont Avenue might give
rise to a conflict between District 1199, the bargaining
representative of its service and maintenance employees,
and Local 144, the bargaining agent of the Lindenboro
employees. In January 1976, with that consideration in
mind, George A. Cau, BMCH's labor consultant, asked
Doris Turner, District 1199's vice president, to attempt to
work out an arrangement with Local 144 to forestall any
such potential conflict. Turner at that time made it clear to
Cau that District 1199 expected BMCH at its relocated
facility to continue to honor its contract with District 1199
and to comply with the referral procedures of that contract
in recruiting employees for the additional positions that
would become available. In September, Cau had a further
conversation with Turner about this matter, in the course
of which Turner modified somewhat her earlier expressed
position, agreeing in effect to waive the contract's job
referral requirements to allow BMCH to offer to Linden-
boro's current employees the 40 or so additional positions
which BMCH anticipated it would have to fill at Dumont
Avenue.
In late September or early October Cau met with Austin
Cedeno, Local 144's recording secretary and executive
assistant to its president. The meeting was arranged at
Cau's request. At this meeting, Cau furnished Cedeno with
pertinent details of BMCH's purchase agreement with
Feur, as well as the details of BMCH's collective-bargain-
ing contract with District 1199. Cau also informed Cedeno
that BMCH had been advised by its attorney that it was
legally obligated to continue to honor its contract with
job openings, and to afford the service 48 hours within which to refer
applicants for vacancies before BMCH hires from any other source. The
contract also provides that neither the service, in referring, nor BMCH, in
District 1199 after its move to Dumont Avenue. Explaining
that BMCH was anxious to avoid any potential conflict
between District 1199 and Local 144 that might lead to a
disruption of patient care, Cau told Cedeno that BMCH
would be willing to go along with any arrangement that
District 1199 and Local 144 might work out between
themselves with regard to employee representation and the
staffing of its new facility. Cau further informed Cedeno
that BMCH would have a need for 40 to 45 additional
employees at Dumont Avenue; that it was prepared to
offer these additional positions to qualified Lindenboro
personnel; and that District 1199 had "reluctantly" agreed
to allow BMCH to do so.
Cedeno, in response, directed Cau's attention to the
successor clause in Lindenboro's contract with Local 144,
and demanded that BMCH conform to that clause by
retaining all 80 of Lindenboro's employees and recognizing
Local 144 as the exclusive employee bargaining representa-
tive when it took possession of the Lindenboro facility. Cau
told Cedeno that BMCH could not comply with that
demand because it had a moral obligation to retain its
current employees and a legal obligation to continue to
honor its contract with District 1199. He indicated,
however, that there might be room for compromise and
reiterated BMCH's willingness to go along with any
alternative arrangement that the two unions might mutual-
ly agree upon. Cedeno told Cau to put his thoughts into
writing.
Cau followed up that meeting with two letters to Cedeno.
In the first, dated October 18, 1976, Cau restated in
substance what he had orally told Cedeno at their meeting,
emphasizing that, while BMCH regarded itself as legally
bound by its contract with District 1199, it nevertheless
thought it only equitable that it consider Lindenboro
employees for placement in the additional positions. Cau
added that although this "would out of necessity cause
questions to arise between [Local 144] and District 1199"
he felt that "these questions can be worked out between the
two unions." In his second letter, sent about a week later,
Cau listed 40 additional positions that BMCH would need
at its new location. Of these, 35.5 were service and
maintenance positions; the others were outside the bar-
gaining unit that was covered by BMCH's contract with
District 1199. Cau asked that Local 144 inform BMCH "as
to what basis (seniority, etc.) you would like us to consider
the current employees of [Lindenboro] for new employ-
ment at [BMCH ]." Local 144 did not immediately respond
to these letters.
About the middle of October 1976, BMCH learned from
the New York State Department of Health that approval of
its purchase of the Lindenboro facility was imminent. Cau
called Cedeno and told him that BMCH wanted to begin
interviewing current Lindenboro employees for placement
with BMCH. Cedeno told Cau to "go ahead." In early
November, BMCH sent its director of nursing, Audrey
Flax, to the Lindenboro premises to interview Lindenboro
employees who might desire jobs with BMCH at that
location. Flax conducted such interviews on I day only.
hiring, shall discriminate against an applicant because of membership or
nonmembership in District 1199.
27
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Flax told the Lindenboro employees while interviewing
them that, if hired by BMCH, they would be required to
join District 1199 after 30 days of employments When
Cedeno learned of this that same day, he became angered,
demanded of Feuer that he see to it that the interviews
were discontinued on his premises, and threatened strike
action if this was not done. Upon being advised by Feuer
of Local 144's objection and threat, BMCH discontinued
interviewing the Lindenboro employees.
Cau thereupon arranged a further meeting with Cedeno,
and Cedeno, in turn, arranged to have Cau meet with Local
144's president, Peter Ottley. At these meetings, Cau
repeated BMCH's offer of about 40 jobs to Lindenboro
employees, again expressed his belief that Local 144 and
District 1199 could work out some accomodation that
would be mutually agreeable to both unions, and reiterated
BMCH's willingness to go along with any reasonable
accommodation of their respective interests that the two
unions might agree upon. The Local 144 officials insisted,
however, that BMCH hire all 80 Lindenboro employees
and recognize Local 144 as the employee bargaining
representative when it acquired possession of the Dumont
Avenue premises. When Cau stated that BMCH could not
do so because of its moral and legal obligations to its
employees and to District 1199, Ottley suggested as the
only way out that BMCH hire all 80 of Lindenboro's
employees plus all 60 of its Park Place employees. Cau
rejected that suggestion as not economically possible. The
meeting broke up with Cau again offering the 40 jobs and
suggesting that the two labor unions work matters out, and
with Ottley making it clear that Local 144 would accept no
compromise that did not provide as a minimum for the
recognition by BMCH of Local 144 and for the hiring by
BMCH of all 80 Lindenboro employees.
On November 16, Local 144, in a letter signed by its
house counsel, responded to Cau's letter of October 8.
Local 144 asserted that the successor provision in its
contract with Lindenboro required BMCH to retain the
Lindenboro employees and to recognize Local 144. The
letter demanded of BMCH that it meet at once with Local
144 to negotiate a successor collective-bargaining agree-
ment to be effective December 1, 1976.
Following Local 144's rejection of BMCH's suggested
compromise solution, Disrict 1199, through Turner, with-
drew the permission it had theretofore granted BMCH to
offer jobs to Lindenboro employees without following the
hiring hall requirements of the BMCH-Local 1199 con-
tract. Thereafter, BMCH called upon District 1199 to refer
applicants for employment to it pursuant to the hiring hall
provisions of the contract. As found above, BMCH
obtained II new employees from the District 1199 hiring
hall and 9 from outside sources prior to the time that it
began its operations at its relocated facility.
On December 1, 1976, Lindenboro's last day of opera-
tions at Dumont Avenue, Local 144 filed an unfair labor
practice charge with the Board's Regional Office, docketed
as Case 29-CA-5348, alleging that BMCH had violated
I BMCH's collective-bargaining contract with District 1199 contains a
union-security clause requiring new employees to become members of
District 1 199 after 30 days.
I At the time of the hearing, an appeal by Local 144 from the Regional
Section 8(a)(1), (2), and (5) of the Act by recognizing
District 1199 as the collective-bargaining agent of its
employees "at a time when it knew said employees were
represented by [Local 1441." Following investigation, the
charge was dismissed by the Regional Director as being
without merit.8
Also on December 1, 1976, Local 144, through its
attorneys, directed a telegram to BMCH, notifying BMCH
that Local 144 would "strike and picket" BMCH's facility
at Dumont Avenue on December 11, 1976. This was the
only notice of picketing ever given BMCH by Local 144.
On the evening of December 1, 1976, there was a
demonstration, arranged by Local 144, of the Lindenboro
employees at the Dumont Avenue premises. The Linden-
boro employees, about 50 in number, congregated in the
lobby and blocked the entry of BMCH employees who
were scheduled to report for work at Dumont Avenue at
12:01 a.m. on December 2. They did not disperse until
after BMCH summoned the police. While the demonstra-
tion was in progress, officials of BMCH met with officials
of Local 144. The Local 144 officials again demanded that
BMCH recognize Local 144 as the employee representative
under the successor clause of Local 144's contract with
Lindenboro and that BMCH take over all of Lindenboro's
employees. The BMCH officials again refused, declaring
that to do so would violate its moral and legal obligation to
its employees and to District 1199.
At 7 a.m. on December 2, Local 144 instituted its
picketing of BMCH's Dumont Avenue premises that is
alleged in this proceeding to have been violative of Section
8(b)(7)(A) and Section 8(g) of the Act.
Analysis and concluding findings
The 8(b)(7)(A) violation Under this section it is an unfair
labor practice for a union to picket an employer with an
object of forcing or requiring the employer to recognize the
union as the representative of its employees, where the
employer has lawfully recognized another union and a
question concerning representation may not appropriately
be raised at the time of the picketing. The record in this
case amply demonstrates the presence of all elements
required to establish a violation of this Section by Local
144.
Thus, it is undisputed that District 1199 occupied the
status of a lawfully recognized representative of BMCH's
service and maintenance employees when BMCH was
located at Park Place. District 1199's status in that respect
remained unchanged following its move to Dumont
Avenue. As found above, when BMCH began its opera-
tions at Dumont Avenue, it employed 72 service and
maintenance employees. Of these, 52 were District 1199
members who had been employed by BMCH at Park
Place; 20 others were newly hired employees who were
required to meet BMCH's expanded needs at its new
location. The move to Dumont Avenue, I find, in no way
impaired District 1199's previously established status as a
majority representative entitled to continuing recognition;
Director's dismissal was pending before the General Counsel's Office of
Appeals. I have since been administratively advised that the Regional
Director's dismissal was sustained by the Office of Appeals.
28
SEIU, LOCAL 144
it involved no more than a relocation and expansion of the
employee bargaining unit. Nor did the relocation and
expansion of the bargaining unit in any way impair the
continuing viability of the existing 2-year collective-bar-
gaining contract covering BMCH's service and mainte-
nance employees that had been entered into by BMCH
and District 1199 in January 1976. When Respondent
engaged in its picketing the term of that contract still had
more than a year to run, and under the Board's contract-
bar principle, no question concerning the representation of
the bargaining unit employees could then have been
appropriately raised under Section 9(c) of the Act.
The only question that remains, then, is whether Local
144's picketing had, at least in part, a recognitional
objective.9 It is Local 144's primary contention that proof
of this required element is wanting in this case. There is
more than enough in this record, however, to establish the
opposite to be so. Thus Cedeno, Local 144's only witness,
although testifying at one point of his examination that the
purpose of the picketing was to protest the "locking out"
by BMCH of Local 144 members, conceded elsewhere in
his testimony that "basically" Local 144's dispute with
BMCH was "whether 1199 should be entitled to recogni-
tion or 144 had a right to recognition." Other circum-
stances in this record also leave little doubt that Local 144's
picketing was aimed at least in part at a recognitional
objective. Thus, as found above, on several occasions prior
to the picketing, the last one on the evening before the
picketing began, Respondent's officials at meetings with
BMCH representative Cau asserted that the successor
clause in Local 144's contract with Lindenboro required
BMCH to recognize Local 144 as the employee bargaining
representative at the Dumont Avenue location, demanded
that its members who were employed by Lindenboro be
retained as employees of BMCH when BMCH took
possession of the Dumont Avenue facility, and also
demanded that BMCH recognize it as the employees'
representative at that facility.10 In these circumstances, an
inference is reasonably warranted, and I so find, that Local
144's picketing was in furtherance of the position it had
asserted and of the demands it had made prior to the
picketing, and which BMCH had rejected.
Local 144 contends in its brief that its picketing, even if
found to have been in furtherance of its earlier demands on
BMCH, cannot be deemed to have had the recognitional
objective that Section 8(b)(7)(A) proscribes because in its
contacts with BMCH prior to the picketing it had never
expressed a desire to bargain for the employees who had
worked for BMCH at Park Place. What it had demanded,
it says, was the BMCH give the jobs at BMCH's Dumont
Avenue facility to Local 144 members, rather than to
District 1199 members, and that BMCH recognize and
bargain with Local 144 as their representative when the
9 The law is, of course, well established that it is not essential for proof of
an 8(b)(7XA) violation that recognition be the only object of the picketing or
even the predominate one; it is enough - as the section itself states - that
recognition be "an object." See, e.g., Local 3, International Brotherhood of
Electrical Workers, AFL-CIO (Darby Electric Corporation), 153 NLRB 717.
722 (1965), enfd. 362 F.2d 232 (C.A. 2. 1966).
hO Under applicable principles oflaw relating to employer successorships
it is clear, of course, that BMCH was not bound by the successor clause in
Local 144's contract with Lindenboro; was not required to retain
Lindenboro's employees absent an unlawfully discriminatory motive for not
jobs it demanded were secured. I find no validity to that
contention in the circumstances of this case. Realistically,
the two demands - one for the jobs, the other for
recognition once such jobs were obtained - can only be
viewed as inseparably tied together. It is obvious that Local
144 intended, and BMCH understood, that if BMCH
yielded to Local 144's picketing for the jobs, BMCH's
recognition of Local 144 was to follow as a matter of
course. The Board has held that where, as here, a union
engages in picketing to obtain the mass displacement by its
own members of employees who are represented by
another union that has a lawful contract with the employer,
the picketing must be regarded as having an immediate
recognitional objective violative of Section 8(b)7)(A). See
International Longshoremen's and Warehousemen's Union
Local No. 8 (Waterway Terminals Company), 193 NLRB
477 (1971). Although otherwise analagous, the circum-
stances in this case are stronger than in the cited case for
finding a recognitional objective, for in the cited case the
picketing union had never specifically stated anything
about recognition; here it had.
Accordingly, I conclude and find on all the evidence that
Respondent Local 144 violated Section 8(bX7)(A) by its
conduct in picketing BMCH.
The 8(g) violation This section makes it an unfair labor
practice for a union to picket or strike a health care
institution without having first given the health care
institution and the Federal Mediation Conciliation Service
at least 10 days notice in writing of its intention to picket,
stating in such notice the date and the time when the
picketing is to begin. Here, Local 144 concedes that it did
not give BMCH and FMCS the I0-day notice called for by
Section 8(g) before it began its picketing of BMCH on
December 2, 1976. As a defense to the complaint's 8 (g)
allegation, Local 144 contends that it was excused from
complying with the statutory notice requirement because it
engaged in its picketing to protest conduct by BMCH
which it characterizes in its brief as "flagrant unfair labor
practices." The brief defines the "flagrant unfair labor
practices" more specifically as consisting of BMCH's
"refusal" to hire Local 144 members for jobs that were
available at BMCH's Dumont Avenue facility and
BMCH's offer of those jobs instead to members of District
1199, conduct which the brief would have it was unlawfully
discriminatory under Section 8(aX3) of the Act.
There is legislative history to support the view that
serious or flagrant unfair labor practices by a health care
institution may in certain circumstances excuse a labor
organization from complying with the 8(g) notice require-
ments as a precondition to lawful strike or picketing
activity." I find it unnecessary in this case, however, to
rule definitely on whether the legislative history is sufficient
to overcome the language of Section 8(g) which, literally
doing so; and was not obliged, unless it substantially took over the
Lindenboro work force, to honor Lindenboro's bargaining obligation to
Local 144. N.LR.B v. Burns International Security Services, Inc., 406 U.S.
272 (1972); Howard Johnson Co., Inc. v. Detroit Local Joint Executive Board,
Hotel & Restaurant Employees & Bartenders International Union, AFL-CIO,
417 U.S. 249 (1974).
I1 See, e.g., S. Rept. 93-766, 93d Cong. 2d sess. 4 (1974); H. Rep. 93
1051, 93d Cong.. 2d sess. 6 (1974): Comments of Senator Taft. 120 Cong.
Rec. S73 10 (Daily ed., May 7. 1974).
29
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
read, allows for no such exception from its notice
requirements. The facts of this case, as fully reported
above, make it manifestly clear that there is no support in
this record for Local 144's claim that BMCH engaged in
unlawfully discriminatory conduct or in any other conduct
prohibited by the Act, let alone in "flagrant unfair labor
practices" as Local 144 asserts.
Thus, it is not open to serious dispute that BMCH had a
lawful right to transfer all of its bargaining unit employees
at Park Place to Dumont Avenue when it relocated its
operation at the latter address and to continue to accord
District 1199 recognition as the majority representative of
the employees in the bargaining unit. BMCH's offer, on a
number of occasions, to hire Lindenboro employees,
members of Local 144, to fill the additional jobs it had
available at Dumont Avenue quite clearly reflects the
absence of any motivation on BMCH's part to discriminate
against Local 144 members because of their membership in
that union. It is true, as Local 144 stresses in its brief, that
that offer was not maintained after District 1199 withdrew
its earlier waiver of the job referral requirements of its
contract with BMCH. But this did not occur until after
Local 144 had made it clear that it did not want any of its
members to be employed by BMCH subject to the union-
security provisions of the BMCH - District 1199 contract,
a contract to which BMCH was legally bound to conform.
The job referral procedures specified in District 1199's
contract with BMCH were nondiscriminatory on their face,
and there is nothing in this record to show that they were
not applied as written. There is thus no basis in this record
for Local 144's suggestion that BMCH acted unlawfully in
utilizing the hiring hall procedures required by its contract
with District 1199 to fill out the employee complement it
needed at Dumont Avenue.
Accordingly, I conclude and find that Respondent Local
144 violated Section 8(g) of the Act by picketing BMCH
without first complying with the notice provisions of that
section.
CONCLUSIONS OF LAW
I. BMCH is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act and is a health care
institution within the meaning of Section 2(14) of the Act.
2. Respondent, Local 144, is a labor organization
within the meaning of Section 2(3) of the Act.
3. By picketing Brooklyn Methodist Church Home
with an object of forcing or requiring BMCH to recognize
and bargain with and/or to accept Respondent as the
collective-bargaining representative, inter alia, of BMCH's
service and maintenance employees, at a time when
District 1199 was the lawfully recognized representative of
BMCH's service and maintenance employees and a
question concerning the representation of such employees
might not have been appropriately raised under Section
9(e) of the Act, Respondent Local 144 has engaged in and
12 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.
is engaging in unfair labor practices affecting commerce
within the meaning of Section 8(bX)(7XA) of the Act.
4. By picketing BMCH at its Dumont Avenue facility
in Brooklyn, New York, without first giving 10 days'
written notice of such picketing to BMCH and to the
Federal Mediation and Conciliation Service, Respondent
has violated Section 8(g) of the Act.
5. The foregoing unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has committed certain
unfair labor practices, I shall recommend that it be ordered
to cease and desist therefrom, and from any like or related
unfair labor practices, and that it take the affirmative
action provided for in the recommended Order below,
which I find necessary to effectuate the policies of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 12
.The Respondent, Local 144, Hotel, Hospital, Nursing
Home and Allied Services Employees Union, SEIU, AFL-
CIO, its officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Picketing and threatening to picket Brooklyn Meth-
odist Church Home with an object of forcing or requiring
said employees to bargain with and/or to accept Respon-
dent as the collective-bargaining representative of its
service and maintenance employees, or of any other of its
employees, in circumstances where the BMCH has lawfully
recognized another labor organization as the collective-
bargaining representative of said employees and a question
concerning representation may not appropriately be raised
under Section 9(c) of the Act.
(b) Engaging in any picketing, strike, or other concerted
refusal to work at the premises of Brooklyn Methodist
Church Home without notifying in writing Brooklyn
Methodist Church Home and the Federal Mediation and
Conciliation Service, not less than 10 days prior to any
such action, of an intention to engage in such action.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post in conspicuous places at its business offices and
meeting halls, including all places where notices to
members are customarily posted, copies of the attached
notice marked "Appendix."' 3 Copies of said notice, on
forms provided by the Regional Director for Region 29,
after being duly signed by an authorized representative of
Respondent, shall be posted by Respondent upon receipt
thereof, and be maintained for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to members are customarily posted. Reason-
"3 In the event the Board's Order is enforced by a Judgment of the
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."
30
SEIU, LOCAL 144
able steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(b) Deliver or mail to the said Regional Director a signed
copy of said notice for posting by Brooklyn Methodist
Church Home, if willing.
(c) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT picket or threaten to picket Brooklyn
Methodist Church Home with an object of forcing or
requiring Brooklyn Methodist Church Home to bargain
with and/or to accept us as the collective-bargaining
representative of its service and maintenance employ-
ees, or of any other employees, in circumstances where
Brooklyn Methodist Church Home has lawfully recog-
nized another labor organization as the collective-
bargaining representative of said employees and a
question concerning representation may not appropri-
ately be raised under Section 9(c) of the Act.
WE WILL NOT engage in any picketing, strike or other
concerted refusal to work at the premises of Brooklyn
Methodist Church Home, without notifying in writing
the Brooklyn Methodist Church Home and the Federal
Mediation and Conciliation Service, not less than 10
days prior to any such action, of our intention to
engage in such action.
LOCAL 144, HOTEL,
HOSPITAL, NURSIrN HOME
AND ALLIED SERVICE
EMPLOYEES UNION, SEIU,
AFL-CIO
31