St. Mary's Hospital of Roswell, Inc.

National Labor Relations Board - Board Decisions

Mar 10, 1980

248 N.L.R.B. 244 (N.L.R.B. 1980)

244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Laborers' International Union of North America,
Local 1253, AFL-CIO (St. Mary's Hospital of
Roswell, Inc.) and Page & Wirtz Construction
Company. Case 28-CG-5
March 10, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
Upon a charge filed on April 11, 1979,1 by Page
& Wirtz Construction Company, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 28, issued a com-
plaint and notice of hearing on April 27, alleging
that Respondent Laborers' International Union of
North America, Local 1253, AFL-CIO, had en-
gaged in and was engaging in unfair labor practices
affecting commerce within the meaning of Sections
8(g) and 2(6) and (7) of the National Labor Rela-
tions Act, as amended. Respondent timely filed an
answer to the complaint, denying the commission
of unfair labor practices.
Between July 5 and July 16, Respondent, the
Charging Party, and the General Counsel entered
into a stipulation in which they agreed that the
formal papers filed in this proceeding and the facts
contained in the stipulation, together with the ex-
hibits attached thereto, constitute the entire record
in this case. The parties further stipulated that they
waived their right to a hearing before an adminis-
trative law judge and the issuance of an administra-
tive law judge's decision and recommended order.
On July 19, based on the foregoing stipulation, the
parties requested that the proceeding be transferred
to the Board for decision.
On September 5, the Board issued an order ap-
proving the stipulation and transferring the pro-
ceeding to the Board. Subsequently, Respondent,
the Charging Party, and the General Counsel filed
briefs with the Board.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Having accepted transfer of this proceeding to it,
the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPI.OYERS
Page & Wirtz Construction Company (herein
called Page & Wirtz or the Employer) is a New
Mexico corporation having its principal office and
place of business in Lubbock, Texas. At all times
I All dates herein are in 1979, unless otherwise indicated
248 NLRB No. 30
material herein, it has been engaged in business as a
general contractor in the building and construction
industry in several States of the United States, in-
cluding the State of New Mexico. Pursuant to a
contract valued at approximately $1,800,000 with
St. Mary's Hospital of Roswell, Inc. (herein called
St. Mary's), the Employer has, at all times material
herein, been engaged in the construction of a nurs-
ing home facility adjacent to the building currently
occupied by St. Mary's at Roswell, New Mexico
(herein called the St. Mary's construction site).
Further, at all times material herein, under a con-
tract with St. Mary's valued at approximately
$2,250,000, Page & Wirtz has been engaged in the
construction of additions to, and the remodeling of,
the existing St. Mary's hospital building at the St.
Mary's construction site.
In connection with its work on these projects,
the Employer, during the 12-month period preced-
ing issuance of the complaint, purchased and
caused to be delivered to the St. Mary's construc-
tion site goods and materials valued in excess of
$50,000 directly from suppliers located outside the
State of New Mexico. Accordingly, we find that
Page & Wirtz is, and has been at all times material
herein, an employer engaged in commerce and in
operations affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
St. Mary's is a New Mexico nonprofit corpora-
tion which, at all times material herein, has been
engaged in providing acute health care, nursing
care, and related services from its principal office
and place of business in Roswell, New Mexico.
During the 12-month period immediately preceding
issuance of the complaint, St. Mary's had a gross
volume of business in excess of $6 million, and,
during the same period, it purchased and caused to
be delivered to its Roswell facility medical sup-
plies, appliances, and related materials valued in ex-
cesss of $50,000 directly from suppliers located out-
side the State of New Mexico. Therefore, we find
that St. Mary's is, and has been at all times material
herein, an employer and a health care institution
engaged in commerce and in operations affecting
commerce within the meaning of Section 2(6), (7),
and (14) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
The Respondent, Laborers' International Union
of North America, Local 1253, AFL-CIO, is, and
has been at all times material herein, a labor orga-
nization within the meaning of Section 2(5) of the
Act.
LABORERS' LOCAL 1253 245
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Facts
In July 1978, Page & Wirtz, as general contrac-
tor, began construction of the nursing home facili-
ty, referred to in section I, above, on the premises
of St. Mary's. The nursing home facility is located
approximately 500 feet south of the existing St.
Mary's hospital building, and is connected to the
building by a covered sidewalk, which was also
under construction during all times material herein.
In January 1979, the Employer, also as general
contractor, initiated construction of a new emer-
gency room and a new intensive care unit, and
commenced remodeling and enlargement of the
kitchen and dining room facilities, at the existing
St. Mary's hospital building.
St. Mary's premises are bounded on the north
side by Chisum Street, on the east side by South-
east Main Street, on the south side by Hobbs
Street, and on the west side by South Main Street.
On Chisum Street, there are two entrances to St.
Mary's premises, one towards the west leading into
the emergency facility, and another towards the
east leading to the parking lot area. On Southeast
Main Street, there are two entrances approximately
150 feet apart. The northern entrance on Southeast
Main Street is directly east of the existing hospital
building and leads into the parking lot area. At all
times material herein, this entrance was used by the
general public, St. Mary's employees and suppliers,
and by employees of the Employer and its subcon-
tractors engaged in the construction at St. Mary's.
The southern entrance on Southeast Main Street is
located directly east of the nursing home facility,
and, during the relevant period, was used primarily
by employees of the Employer and its subcontrac-
tors at the site and, occasionally, by St. Mary's em-
ployees. There is a single entrance on Hobbs Street
that is rarely used by anyone. On South Main
Street, there are two entrances to St. Mary's. The
southern most entrance on South Main Street is lo-
cated directly west of the nursing home facility,
and the northern most entrance on the street is lo-
cated directly west of the existing hospital facility.
The latter entrance leads into the emergency facili-
ty and a general parking area. At all times material
herein, the South Main Street entrances were used
primarily by employees of the Employer and its
subcontractors involved in construction at the St.
Mary's site, and only occasionally by St. Mary's
employees and the general public.
On March 31, St. Mary's received the following
telegram, dated March 30, from Respondent:
This is to advise you that Local Union 1253
has been in the process of negotiating a union
contract and have [sic] been unable to reach
an agreement. We would like to advise you
that we will be taking action and placing pick-
ets on your job site in the immediate future.
Respondent did not at any time serve written or
other notice upon the Federal Mediation and Con-
ciliation Service (FMCS) of its intention to engage
in picketing at the St. Mary's construction site.
Beginning on April 9, and continuing through
April 11, Respondent picketed the Employer, or
caused the Employer to be picketed, at the St.
Mary's construction site between the hours of 7
a.m. and 12 noon. One picket patrolled at and be-
tween the two entrances on Southeast Main Street.
From time to time, one and sometimes two pickets
patrolled at and between the two entrances on
South Main Street. There was no picketing at
either Chisum Street entrance. The pickets carried
signs reading:
PAGE & WIRTZ CONST. CO.
DOES NOT HAVE
AN AGREEMENT
WITH LABORERS
LOCAL, 1253
AFL-CIO
The picketing at St. Mary's was in furtherance of
an economic strike called by Respondent against
the Employer when the parties' 1977-79 labor con-
tract for Lubbock, Texas, and surrounding west
Texas counties, expired. Respondent does not rep-
resent St. Mary's employees, nor has it ever sought
to represent such employees. At no time material
herein has Respondent had a dispute with St.
Mary's.
From time to time during the 3 days of picketing
at the St. Mary's construction site, employees of
the Employer and its various subcontractors, in-
cluding employees classified as laborers, plumbers,
electricians, and sheet metal workers, honored the
picket line erected by Respondent and refused to
work. However, the picketing did not cause any
employees of St. Mary's not to work during the
April 9-11 period. Respondent's picketing did not
result in any disruption to the immediate delivery
of patient care services at St. Mary's and it did not
interfere with deliveries of goods, supplies, and ma-
terials related to patient care at the hospital. How-
ever, the picketing by Respondent did cause an ap-
proximate 3-day delay in the Employer's work
schedule at the St. Mary's construction site.
LABORERS' LOCAL 1253 45
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Contentions of the Parties
It is the General Counsel's position that Respon-
dent violated Section 8(g) of the Act2 by picketing
at the St. Mary's construction site without furnish-
ing St. Mary's with adequate notice of its intention
to picket, and without providing FMCS any notice
of such an intention. The General Counsel cites
two alleged defects in the notice given to the hos-
pital. First, Respondent's telegram failed to "state
the date and time" that picketing was to com-
mence, and, instead, referred only to the "immedi-
ate future." Second, St. Mary's received the tele-
gram on March 31, and picketing began on April 9,
1 day short of the 10-day period specified in the
statute.
The General Counsel seeks to distinguish two
appellate court decisions, 3 which rejected Board
findings of 8(g) violations where, in the absence of
notice, non-health care unions picketed gates re-
served for employees of contractors engaged in
construction on the premises of a hospital. Unlike
those situations, the General Counsel points out
that there were no reserved entrances at the St.
Mary's construction site, and that Respondent pick-
eted a major entrance on Southeast Main Street
used by hospital employees and suppliers, and three
other entrances, one on Southeast Main Street and
two on South Main Street, occasionally used by St.
Mary's employees. Accordingly, the General
Counsel urges that "the picketing had the reason-
ably foreseeable consequence of tending to cause
work stoppages of the Hospital's employees or dis-
rupt the deliveries of health care supplies, both of
which would have had an impact on patient care,"
and that lack of actual interference with hospital
operations is irrelevant. 4 Finally, again relying
upon Saint Joseph Hospital, General Counsel argues
that Section 8(g) applies even though the picketing
was aimed at employees who did not perform "pa-
tient related" functions.
2 Sec. 8(g) provides, in pertinent part:
(g) 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 institu-
tion 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....
3 N.L.R.B. v. International Brotherhood of Electrical Workers Local
Union No. 388 [St. Joseph's Hospital of Marshfield, Inc. , 548 F.2d 704 (7th
Cir. 1977), denying enforcement to 220 NLRB 665 (1975); Laborers' In-
ternational Union of North America, AFL-CIO, Local Union No. 1075
[Mercy Hospital of Laredo] v. N.L.R.B., 567 F.2d 1006 (D.C. Cir. 1977),
denying enforcement to 219 NLRB 846 (1975), and United Association of
Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the
United States and Canada, Local 630, AFL-CIO (Lein-Steenberg), 219
NLRB 837 (1975)(herein called Lein-Steengerg).
4 Citing Orange Belt District Council of Painters No. 48, International
Brotherhood of Painters and Allied Trades AFL-CIO (Saint Joseph Hospi-
tal), 243 NLRB No. 113 (1979)
The Employer asserts that Respondent's notice
to the hospital was inadequate in the same respects
noted by the General Counsel, and that Respon-
dent failed to provide any notice to FMCS. The
Employer contends that the plain language of the
statute requires 10-day written notice by any labor
organization prior to picketing on the premises of a
health care institution, and urges the Board to
adhere to its decision so interpreting Section 8(g)
in Lein-Steenberg.
Respondent denies that it violated Section 8(g),
and straightforwardly requests that the Board over-
rule Lein-Steenberg, and adopt the view of the Sev-
enth and District of Columbia Circuits that, as in-
terpreted by
Respondent, "Section 8(g) does not apply to
non-healthcare employees engaged in an economic
struggle against their non-healthcare employer."
Respondent contends, among other things, that the
literal language of the statute does not require the
result reached by the Board in Lein-Steenberg, and
that the legislative history of the 1974 amendments
to the Act indicates that they were intended to
apply exclusively to health care employees.
C. Discussion and Conclusions
Recently, in Painters Local No. 452 (Henry C.
Beck Company),5 we reversed Lein-Steenberg, and
decided that "Section 8(g) does not require a labor
union . . . to give notice of its intention to engage
in concerted activity against an employer which is
not a health care institution, simply because the ac-
tivity is to take place at the premises of a neutral
health care institution . . . ." Instead, "Section
8(g) becomes operational only when the concerted
activity is directed against the health care institu-
tion.""
The application of the principles announced by
us in Beck to the instant facts clearly calls for dis-
missal of the complaint. The parties stipulated that
the picketing was directed against Page & Wirtz,
and not against St. Mary's, with whom Respondent
had no dispute. It is uncontested that Respondent's
picketing was undertaken in furtherance of its eco-
nomic conflict with Page & Wirtz, and that the
picket signs so stated. Accordingly, Respondent
had no statutory obligation to notify either St.
Mary's or FMCS of its intention to engage in pick-
eting at the hospital premises.
We are not persuaded that a different rule should
govern this case because Respondent picketed at
entrances to the site used by hospital employees
and suppliers as well as by employees of Respon-
dent and its subcontractors. For one thing, an im-
s 246 NLRB No. 148, sl. op., p. 11 (1979).
Id., sl. op., p. 12.
LABORERS' LOCAL 1253 247
portant part of the rationale for Beck was that anal-
ysis of the 1974 health care amendments and their
legislative history revealed that "Congress did not
intend to alter the status quo with respect to non-
health care employes who had never been required
to notify employers of their intent to engage in
concerted activity against non-health care employ-
ers."7 Second, at no time before or during the 3
days of picketing did St. Mary's or the Employer
establish a reserved gate for the exclusive use of
Page & Wirtz employees and suppliers. Each en-
trance to the hospital site picketed by Respondent
was in fact used by Page & Wirtz employees. Thus,
under the circumstances, Respondent carefully
limited its action "to places reasonably close to the
location of the situs," of the primary dispute, in
conformity with this, standard, as well as the other
traditional standards, for common situs picketing.8
Nor is there any proof that Respondent sought un-
lawfully to enmesh St. Mary's in its dispute with
the Employer. Consequently, any possibility of dis-
ruption of health care services could quickly have
been eliminated with the erection of reserved gates
which would have placed the burden on Respon-
dent to picket at entrances not utilized by hospital
employees. For this reason, we find our colleague's
comparison of the instant case to Saint Joseph Hos-
pital, to be unpersuasive. In that case the picketing
was directed against the hospital as the primary
employer, while in this case the picketing was di-
rected against a non-health care employer, and, ac-
cordingly, Respondent exercised its statutory privi-
lege to carry its dispute to the primary employees
where they were to be found. We do not disregard
the stated purpose of the 10-day notice requirement
of Section 8(g), but rather we remain fully cogni-
zant that Section 8(g) is an exception to the broad-
er provisions of the statute which sanction Respon-
dent's conduct here. As would be true of any other
common situs situation, the secondary employer,
here a health care institution, may insulate itself
from such a labor dispute by immediately establish-
ing appropriate reserved gates.
For the reasons stated, we find that Respondent
was not required to notify St. Mary's or FMCS of
its intent to picket.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
7Ibid
Sailors' Union of the Pacific. AFL (Moore Dry Dock Company), 92
NLRB 547, 549 (1950).
MEMBER PENELLO, dissenting:
As alleged by the General Counsel, I would find
that Respondent violated Section 8(g) of the Act,9
by giving inadequate notice of its intention to
picket at a hospital, and by failing to provide the
Federal Mediation and Conciliation Service
(FMCS) with any notice of its intention to do so. It
is clear, as set forth below, that Respondent did not
comply with Section 8(g) before commencing its
picketing; the only question is whether that provi-
sion is applicable to the instant situation.
The stipulated facts disclose that Page & Wirtz, a
general contractor, was engaged in building a nurs-
ing home facility on the premises of St. Mary's
Hospital in Roswell, New Mexico, as well as a new
emergency room and intensive care unit at the ex-
isting hospital building. 10 In furtherance of an eco-
nomic strike initiated by Respondent when its
1977-79 contract with Page & Wirtz for a neigh-
boring geographic area expired, Respondent picket-
ed the Employer for several hours a day from
April 9 through April 11, 1979.11 Picketing was
conducted at one major entrance used by hospital
employees and suppliers, and at three other en-
trances occasionally used by St. Mary's employees.
The picket signs read:
PAGE & WIRTZ CONST. CO.
DOES NOT HAVE
AN AGREEMENT
WITH LABORERS
LOCAL 1253
AFL-CIO
During the period of the picketing, no hospital em-
ployees refused to cross the line, although employ-
ees of the Employer and its various subcontractors
honored the line from time to time. The picketing
did not cause any interruption in the delivery of
patient care services at St. Mary's, nor did it inter-
fere with the delivery of goods, supplies, and mate-
rials needed for patient care.
Nine days prior to beginning its picketing, Re-
spondent sent this telegram to St. Mary's:
This is to advise you that Local 1253 has been
in the process of negotiating a union contract
and have [sic] been unable to reach an agree-
In relevant part, Sec. 8(g) provides:
(g) A labor organization before engaging in any strike, picketing.
or other concerted refusal to work at any health care institution
shall, not less than the days prior to such action, notify the institu-
tion 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....
'0 Page & Wirtz was also engaged in the remodeling and enlargement
of the kitchen and dining room facilities in the existing hospital building
" Respondent had no dispute with St Mary's. nor did it seek to repre-
sent any of the hospital's employees
LABORERS' LOCAL 1253 7
248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment. We would like to advise you that we
will be taking action and placing pickets on
your job site in the immediate future.
Respondent did not communicate at all with
FMCS regarding its intention to picket at the hos-
pital site.
At the outset, it is observed that the notice to St.
Mary's was defective in two respects: it did not
state the "date and time" picketing was to start, re-
ferring only to the "immediate future," and picket-
ing in fact began 9, not 10, days after the notice
was served. Of course, FMCS received no notice
at all.
In dismissing the complaint, my colleagues rely
upon their decision in Painters Local No. 452
(Henry C. Beck Company),'2 in which I dissented
from the Board's overturning of Lein-Steenberg.'3
Broadly speaking, the Board in Beck concluded
that Lein-Steenberg was wrong in holding that any
picketing at the premises of a health care institution
was subject to Section 8(g). There is, however, no
need to debate the relative merits of Lein-Steenberg
and Beck here, because a very important fact
serves to distinguish the present circumstances
from those in Beck. That fact is that Respondent
carried on its picketing in front of entrances used
by hospital employees and suppliers, whereas pick-
eting in Beck and Lein-Steenberg was confined to
entrances used only by construction workers.
This draws me to the conclusion that the instant
case more logically falls within the ambit of Saint
Joseph Hospital 4 than Beck. Briefly, in Saint
Joseph, a union which did not represent hospital
employees picketed an entrance used by hospital
employees and suppliers without giving any notice
under Section 8(g). The union was picketing be-
cause Saint Joseph had assigned interior and exteri-
or painting work on one of its buildings to four of
its own maintenance employees who were not rep-
resented by the union. Although there was no evi-
dence that any hospital employee declined to cross
the picket line, or that any disruption in health care
services resulted from the picketing, the Board
found that the union violated Section 8(g) by not
providing the notice required therein. In so doing,
it made several observations pertinent here. First,
the Board said that Section 8(g) was designed to
regulate hospital picketing and work stoppages,
even if unrelated to bargaining, and even if picket-
:2 246 NLRB No, 148 (1979)
la United Association of Journeymen and Apprentices of the Plumbing
and Pipefitting Industry of the United States and Canada, Local 630, AFL-
CIO (Lein-Steenberg), 219 NLRB 837, enforcement denied 567 F 2d 1006
(D.C. Cir. 1977).
14 Orange Belt District Council of Painters No. 48, International Brother-
hood of Painters and Allied Trades, AFL-CIO (Saint Joseph Hospital), 243
NLRB No. 113 (1979).
ing was conducted by stranger employees or
unions. Second, the Board rejected the contention
of the union that "an actual showing of disruption
of health care services is necessary before a viola-
tion of this section can be found, as the 10-day
notice period was designed to prevent disruptions
of health care services not only when they actually
occur but also when they may possibly occur."1'
Finally, the Board commented that "the legislative
history shows no support for [the] argument that
Section 8(g) was intended to be applicable only to
disputes involving employees performing direct
'patient related' functions."' 6
Similarly, in this case, a union which did not rep-
resent employees of the institution picketed en-
trances to a hospital used by its employees and sup-
pliers (although no actual disruption of health care
services occurred), and the dispute causing the
picketing did not involve employees performing
"patient related" functions. I therefore conclude,
on the authority of Saint Joseph, that Respondent
violated Section 8(g) by picketing St. Mary's with-
out proper notice.
Indeed, the only real difference between this
case and Saint Joseph is that the picketing there
was directed at the hospital, in the sense that the
dispute concerned employees of the institution
rather than a construction contractor. Accordingly,
my colleagues justify refusing to require the 10-day
notice on the ground that, quoting from Beck,
"Congress did not intend to alter the status quo
with respect to non-health care employees who
had never been required to notify employers of
their intent to engage in concerted activity against
non-health care employers." 7 The main support
for this conclusion in Beck is that the legislative
history of the 1974 amendments to the Act contains
no reference to labor activity involving non-health
care employees.
The fault in this is that such a general reading of
the legislative history, relying upon the absence of
references to non-health care employees, disregards
the clearly stated purpose of the 10-day notice, ex-
pressed in identical language in the House and
Senate Committee Reports:
It is in the public interest to insure the con-
tinuity of health care to the community and
the care and well being of patients by provid-
ing for a statutory advance notice of any an-
ticipated strike or picketing. For this reason,
the Committee approved an amendment
adding a new Section 8(g) which generally
prohibits a labor organization from striking or
' Id., s. op., p. 9.
'6Id., sI. op., p. 10.
'? Beck., sl. op., p 10.
LABORERS' LOCAL 1253 249
picketing a health care institution without first
giving 10 days' notice....
The 10-day notice is intended to give health
care institutions sufficient advance notice of a
strike or picketing to permit them to make ar-
rangements for the continuity of patient
care. . . . [Emphasis supplied.]' 8
Unquestionably, the potential for disruption of pa-
tient care is equally present whether picketing, car-
ried out at entrances used by hospital employees
iS S. Rept. 93-766, 93d Cong., 2d sess. 4 (April 2, 1974), "Legislative
History of the Coverage of Nonprofit Hospitals Under the National
Labor Relations Act, 1974" at II1; H. Rept. 93-1051. 93 Cong., 2d sess. 5
(May 20, 1974), Leg. Hist, supra at 273
and suppliers, results from a dispute involving em-
ployees of the institution or of another employer
on the site. In my view, congressional intent is
most nearly effectuated by requiring unions in
either instance to give the 10-day notice, thus al-
lowing the hospital to take steps to insure that
medical care is not interrupted. 19
g The majority suggests that a reserved gate should have been estab-
lished to isolate picketing by Respondent. This overlooks the fact that the
hospital had no advance warning of when picketing was to commence,
or even against whom the picketing was to be directed, as the telegram
from Respondent did not say. In any case, in the interest of maintaining
continuity in the delivery of patient care, it would seem more sensible to
require a 10-day notice of a strike or picketing, which would then force
the hospital to establish a reserved entrance or face picketing at all en-
trances used by employees involved in the primary dispute.