Service Employees Local 535 (Kaiser Foundation Hospitals)

National Labor Relations Board - Board Decisions

May 9, 1994

313 N.L.R.B. 1201 (N.L.R.B. 1994)

1201
313 NLRB No. 211
SERVICE EMPLOYEES LOCAL 535 (KAISER FOUNDATION)
1 In adopting the judge’s findings, we note that holding a press
conference at a hospital entrance would not, in itself, implicate Sec.
8(g) of the Act. The Respondent, however, did more than hold a
press conference at a hospital entrance. Here, approximately 15 peo-
ple, including agents of the Respondent, carried signs regarding
staffing levels at health care institutions and were ‘‘milling around’’
at the hospital entrance. This, as the judge found, was ‘‘picketing,’’
notwithstanding that the activity occurred in conjunction with a press
conference. Accordingly, the Respondent was required under Sec.
8(g) to give 10 days’ advance written notice prior to its picketing
activity. Therefore, as the judge concluded, the Respondent violated
the Act by failing to give the required notice.
1 Unless otherwise indicated, all dates herein will be in 1993.
2 This is from the undisputed testimony of Richard Broyer.
3 Charlene Masters, Gloria Lazarine, and Rhonda Goode.
American Federation of Nurses, Local 535, S.E.I.U.
and Kaiser Foundation Hospitals. Case 31–CG–
23
May 9, 1994
DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND COHEN
On September 30, 1993, Administrative Law Judge
Earldean V.S. Robbins issued the attached decision.
The Respondent filed exceptions and a supporting
brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, American Federation of
Nurses, Local 535, S.E.I.U., its officers, agents, and
representatives, shall take the action set forth in the
Order.
Alice Garfield, Esq., for the General Counsel.
James Rutkowski, Esq., of Los Angeles, California, for the
Respondent.
Beverly Stuart, Esq., of Pasadena, California, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
EARLDEAN V.S. ROBBINS, Administrative Law Judge. This
case was heard before me in Los Angeles, California, on
May 5, 1993. The charge was filed by Kaiser Foundation
Hospitals (Kaiser) and served on American Federation of
Nurses, Local 535, S.E.I.U. (Respondent) on January 11,
1993. The complaint, which issued on February 24, l993, al-
leges that Respondent picketed one of Kaiser’s facilities
without providing the 10-day written notice required by Sec-
tion 8(g) of the Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after due consideration of the
posthearing briefs filed by the General Counsel and the Re-
spondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
At all times material herein, Kaiser, a California nonprofit
corporation, with offices and places of business in Pasadena
and Los Angeles, California, has been engaged in providing
hospital services. Kaiser, in the course and conduct of said
business operations, annually derives gross revenues in ex-
cess of $250,000 and annually purchases and receives goods
or services valued in excess of $50,000 directly from suppli-
ers located outside the State of California.
The complaint alleges, Respondent admits, and I find that
Kaiser is now, and has been at all times material herein, an
employer engaged in commerce and in a business affecting
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find that,
at all times material herein, Respondent has been a labor or-
ganization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
On January 6, l993,1 Dick Rogers, business agent for
S.E.I.U Local 399, informed Richard Broyer, area personnel
director for Kaiser’s Los Angeles Medical Center, by tele-
phone that the International Union and three local unions, in-
cluding Respondent, were planning to hold a press con-
ference on the following day in front of the main entrance
of the Kaiser Hospital on Sunset Boulevard. Rogers said the
purpose of the press conference was to release the results of
a national survey prepared by the International Union during
the summer of l992. Broyer asked why the Kaiser hospital
had been chosen as the site of the press conference. Rogers
said people would be there from Hollywood Presbyterian
Hospital and from the County Hospital as well as from Kai-
ser, that the Kaiser location was centralized, a media loca-
tion, and they felt they could get good press coverage there.
Broyer asked if there would be any pickets. Rogers said
there would be no pickets, that this was not an intent to bash
Kaiser, that it was intended just to focus on the results of
the survey.2
It is undisputed that a press conference was held at that
location on January 7. Approximately 30–45 person were in
attendance. Six or seven representatives of the three locals
spoke. Media representatives were present and asked ques-
tions of the speakers. The event lasted 30–45 minutes. The
parties stipulated that, during this period, approximately 15
persons, including 3 agents of Respondent,3 carried signs
bearing the names of various S.E.I.U. local unions, including
Respondent. The parties further stipulated that the legends on
1202 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Edward J. Debartolo Corp. v. Fla. Gulf Coast Bldg. & Construc-
tions Trades, 485 U.S. 568 1403–1404 (1988).
these signs included ‘‘SEIU NURSES CARE,’’ ‘‘SEIU
NURSES FOR SAFE AND QUALITY CARE,’’ ‘‘NO TIME
TO TALK, NO TIME TO CARE,’’ and ‘‘SHORT-
STAFFING IS LIFE THREATENING.’’ Although the record
fails to establish that the participants engaged in organized
patrolling, it is clear from the testimony that participants car-
rying signs milled around in a 30 to 35 feet area in front of
the speakers platform and the hospital entrance.
B. Position of the Parties
1. The General Counsel’s position
The General Counsel’s position is straightforward in its re-
liance on a literal reading of the statute which requires, inter
alia, a 10-day notice of intent to picket at any health care
institution. It is undisputed that Respondent did not give such
notice of its intent to engage in the January 7 activity. The
General Counsel contends that the January 7 event was not
just a ‘‘press conference,’’ to publicize the results of an
S.E.I.U. survey; but, rather, was intended to allow union
members to show their support for the upcoming contract ne-
gotiations and to protest Kaiser’s employment practices by
picketing in flagrant violation of the Act. Thus Respondent’s
conduct meets the Board’s test as to picketing ‘‘the posting
by a labor organization . . . at the approach to a place of
business to accomplish a purpose which advanced the cause
of the union.’’ Stoltz Land Co., 156 NLRB 388 (1965). The
General Counsel further argues that any reliance by Re-
spondent on Debartolo4 or other cases involving permissible
handbilling or picketing under Section 8(b)(4) or 8(b)(7)(C)
is misplaced inasmuch as those provisions do not, deal with
the unique circumstances presented by health care institutions
and do not, therefore, require the same balancing of interests
mandated by the health care amendments.
2. Respondent’s position
Respondent contends that its January 7 event was simply
a press conference on a public sidewalk in front of a hospital
entrance, where there were union members holding signs in
furtherance of the press conference’s purely informational
message, and is therefore protected speech akin to
handbilling, rather than activity which constitutes ‘‘picket-
ing.’’ Specifically, Respondent argues, its conduct did not
meet the two necessary requisites of picketing—patrolling
and the broadcasting of a labor dispute. In this regard, Re-
spondent contends that, for activity to be considered patrol-
ling, employees must (1) march in unison or form a tradi-
tional picket line, or (2) conduct surveillance of a area and
create ‘‘confrontation’’ with others. Since there was neither
marching nor confrontation, Respondent argues, there was no
‘‘picketing.’’ Further, Respondent contends, there must be a
broadcasting of a labor dispute, or of an attempt to influence
employees or customers to withdraw work or business, or of
the union’s desire to represent employees. Therefore, accord-
ing to Respondent, in the absence here of either patrolling
or broadcasting of the labor dispute, there was no picketing
and hence no violation of Section 8(g). NLRB v. Teamsters
Local 182 (Woodard Motors), 135 NLRB 851 (1962), affd.
314 F.2d 53 (1963); United Hospitals of Newark, 232 NLRB
443 (1977); Service Employees Local 200 (Eden Park), 263
NLRB 400 (1982); NLRB v. Furniture Workers (Jamestown
Sterling Corp.), 337 F.2d 936 (2d Cir. 1964); Retail Whole-
sale Union District 1199 (South Nassau Communities Hos-
pital), 256 NLRB 74 (1981); Retail Wholesale Union District
1199 (Parkway Pavilion Healthcare), 222 NLRB 212 (1976);
Typographical Union 570 (Kansas Color Press), 169 NLRB
279 (1968). Finally, Respondent argues, since its activity
cannot constitute ‘‘picketing’’ or ‘‘patrolling,’’ the press con-
ference is more akin to handbilling which is specifically pro-
tected speech. Debartolo Corp., supra at 1403–1404.
C. Conclusions
I find Respondent’s arguments unpersuasive. Section 8(g)
of the Act provides in relevant part:
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 in-
tention . . . .
The Board has concluded that Congress intended that the
10-day provision of Section 8(g) be interpreted according to
its literal meaning and therefore any of the described conduct
is violative of that provision unless the requisite notice is
given. The purpose behind this notice provision is to provide
health care institutions with sufficient time to make arrange-
ments for continuing patient care during the labor dispute.
Retail Wholesale Union District 1199 (Parkway Pavilion
Healthcare), 222 NLRB 212 (1976); Orange Belt District
Council of Painters 48 (St. Joseph Hospital), 243 NLRB
609, 611–612 (1979). Therefore, the Board has concluded
that the notice requirement applies to all forms of picketing
since any picketing may induce actions by others regardless
of the picketers’ purpose, thereby creating the risk that the
delivery of health services will be disrupted. Contrary to Re-
spondent’s contentions,
this requirement of notice is not an impermissible re-
straint on the constitutionally protected right of speech.
First amendment guarantees are not absolute and must
often be balanced against other public interest. . . .
Here, the public interest in continuous health care is
balanced against the right to picket as an exercise of
free speech. The result of the balancing is simply the
requirement that 10 days written notice be given prior
to engaging in any form of picketing so that the health
care institution may have the time to prepare for pos-
sible disruptions of patient care. Such a restraint is rea-
sonable and does not result in a construction of Section
8(g) which is inconsistent with the first amendment.
[Retail Wholesale Union District 1199 (United Hos-
pitals of Newark), 232 NLRB 443 (1977).]
It is clear that Respondent’s January 7 event was a press
conference which purpose was, at least partially, to publicize
the results of its survey. However, Respondent chose to hold
the press conference at an entrance to a health care institu-
tion and to display signs which identified Respondent and
could reasonably be considered by employees, patients, and
the public as proclaiming its disagreement with the staffing
1203SERVICE EMPLOYEES LOCAL 535 (KAISER FOUNDATION)
5 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
6 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.’’
levels of that particular health care institution. Therefore, re-
gardless of Respondent’s intentions, the presence of persons
carrying such signs at the hospital entrance could induce ac-
tion disruptive of patient care. Moreover, the press packet
distributed to the media specifically referred to the staffing
levels at Kaiser, Respondent’s status as representative of the
Kaiser nurses, and Respondent’s preparations to negotiate a
new collective-bargaining agreement with Kaiser. In these
circumstances, I conclude that on January 7, Respondent was
engaged in picketing at the Sunset Boulevard entrance of
Kaiser Hospital. See Retail Wholesale Union District 1199
(South Nassau Communities Hospital), 256 NLRB 74 (1981).
Accordingly, I find that Respondent violated Section 8(g) of
the Act by engaging in such picketing without giving the no-
tice mandated by that section.
CONCLUSIONS OF LAW
1. Kaiser Foundation Hospital is, and at all times material
herein has been, an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. Kaiser Foundation Hospital is a health care institution
within the meaning of Section 2(14) of the Act.
3. Respondent, American Foundation of Nurses, Local
535, S.E.I.U., is, and at all times material herein has been,
a labor organization within the meaning of Section 2(5) of
the Act.
4. By picketing at the premises of Kaiser Foundation Hos-
pital, located at 4867 Sunset Boulevard in Los Angeles, Cali-
fornia, without first giving 10 days written notice to Kaiser
Foundation Hospital and to the Federal Mediation and Con-
ciliation Service, Respondent has violated Section 8(g) of the
Act.
5. The foregoing unfair labor practice is an unfair labor
practice affecting commerce within the meaning of Section
2(6) and (7) of the Act.
REMEDY
Having found that Respondent has engaged in, and is en-
gaging in, an unfair labor practice in violation of Section
8(g) of the Act, we shall order that it cease and desist there-
from, and take certain affirmative action designed to effec-
tuate the policies of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended5
ORDER
The Respondent, American Federation of Nurses, Local
535, S.E.I.U., its officers, agents, successors, and assigns,
shall
1. Cease and desist from engaging in any strike, picketing,
or other concerted refusal to work at Kaiser Foundation Hos-
pital, or any other health care institution, without notifying
in writing Kaiser Foundation Hospital, or such other 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 ef-
fectuate the policies of the Act.
(a) Post at its business offices, meeting halls, and all other
places where notices to its members are customarily posted,
copies of the attached notice marked ‘‘Appendix.’’6 Copies
of said notice, on forms provided by the Regional Director
for Region 31, after being signed by Respondent’s authorized
representative, shall be posted by Respondent immediately on
receipt and maintained for 60 consecutive days in conspicu-
ous places, including all places where notices to members are
customarily posted. Reasonable steps shall be taken by Re-
spondent to ensure that said notices are not altered, defaced,
or covered by any other material.
(b) Furnish to the Regional Director for Region 31 signed
copies of the aforesaid notice for posting by Kaiser Founda-
tion Hospital, if it is willing, in places where notices to its
employees are customarily posted.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps Respondent has taken
to comply.
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT engage in any strike, picketing, or other
concerted refusal to work at Kaiser Foundation Hospital, or
any other health care institution, without notifying, in writ-
ing, any such health care institution, and the Federal Medi-
ation and Conciliation Service, not less than l0 days prior to
such action, of that intention.
AMERICAN FEDERATION OF NURSES, LOCAL
535, S.E.I.U.