Teamsters Local 803 (St Luke's-Roosevelt)

National Labor Relations Board - Board Decisions

Mar 13, 1985

274 N.L.R.B. 905 (N.L.R.B. 1985)

TEAMSTERS LOCAL 803 (ST LUKE'S-ROOSEVELT) 905'
Local Union No. 803 affiliated with the Internation-
al Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America and St.
Luke's-Roosevelt Hospital Center. Cases 2 'CP-
753 and 2-CP-754
13 March 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 29 September 1983 Administrative Law
Judge Steven Davis issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel and the Charging
Party filed briefs in support of the judge's decision.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Local Union
No. 803 affiliated with the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, New York, New York, its of-
ficers, agents, and representatives, shall take the
action set forth in the Order
Respondent's threat to picket the Employer, and despite
that the election did not result in the Board certifying
Respondent as the exclusive collective-bargaining repre-
sentative of the security guards employed by the Em-
ployer at its Roosevelt Hospital facility
The hearing was held on August 10, 1983, in New
York, New York.
On the entire record, and after due consideration of
the briefs filed by all parties, I make the following'
FINDINGS OF FACT
1. JURISDICTION
The Employer, a New York not-for-profit corporation,
with a facility at 428 West 59th Street, New York, New
York (Roosevelt Hospital facility), has been engaged as a
health care institution in the operation of a voluntary
hospital providing inpatient and outpatient medical and
professional care services. The Employer annually de-
rives gross revenues valued in excess of $1 million, and
purchases and receives supplies and equipment valued in
excess of $50,000 directly from firms located outside the
State of New York.
Respondent admits and I find that the Employer is en-
gaged in commerce within the meaning of Section 2(1),
(2), (6), and (7) of the Act, and is a health care institution
within the meaning of Section 2(14) of the Act.
I also find that Respondent, the International Guards
and Armored Security Union (IGASU), and the Brother-
hood of Security Personnel Officers and Guards Interna-
tional Union (Brotherhood) are and have been at all
times material labor organizations within the meaning of
Section 2(5) of the Act.
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge. Pursuant
to charges filed on March 11 and 15, 1983, by St Luke's-
Roosevelt Hospital Center (the Employer), a consolidat-
ed complaint was issued by Region 2 of the National
Labor Relations Board on March 22, 1983. The com-
plaint alleges that Local Union No. 803 affiliated with
the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America (Respondent)
threatened to picket the Employer, with an object of
forcing or requiring the Employer to recognize or bar-
gain with the Respondent as the representative of the se-
curity guards employed by the Employer at its Roose-
velt Hospital facility.
The complaint further alleges that Respondent's con-
duct violated Section 8(b)(7)(C) of the Act, inasmuch as
Respondent is not currently certified by the Board as the
representative of the security guards employed by the
Employer at its Roosevelt Hospital facility, and inas-
much as it is ineligible, under Section 9(b)(3) of the Act,
to be so certified since Respondent admits nonguards to
membership.
The complaint also alleges that Respondent's conduct
violated Section 8(b)(7)(B) of the Act inasmuch as a
valid election under Section 9(c) of the Act had been
held within the preceding 12 months from the date of
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
On August 10, 1982, IGASU filed a petition2 in which
it sought to represent the security guards employed by
the Employer at its Rossevelt Hospital facility Respond-
ent and the Brotherhood were permitted to intervene in
that proceeding.' On October 21, 1982, an election was
held pursuant to a Stipulation for Certification Upon
Consent Election, and the result of the election was that,
of the 33 eligible voters, 22 voted for Respondent, 7
votes were cast for "no union," and no votes were cast
for either IGASU or the Brotherhood
On October 22, 1982, the Regional Director issued a
Certification of Arithmetical Results of Election, in
which it was stated that Respondent was selected by the
majority of the employees of the Employer in a unit con-
sisting of all security guards employed by the Employer
at its Roosevelt Hospital facility. The certification fur-
ther stated that "in accordance with Section 9(b)(3) of
the National Labor Relations Act, as amended, the [Re-
gional Director] does not certify this labor organization
as the bargaining representative of the employees in the
The material facts herein are not at issue
z Case 2-RC-19386
Respondent's intervention was allowed pursuant to Bally's Park
Place, 257 NLRB 777 (1981)
274 NLRB No. 133
906 DECISIONS OF NATIONAL' ILABOR RELATIONS BOARD
unit because it admits to membership or is affidiated di-
rectly with an organization which 'admits to membership
employees who are not guards "4
Thereafter, on November 8, 1982, William Hagner,
Respondent's president, sent a letter to the Employer re-
questing that collective-bargaining negotiations begin,
basing such a request on the Board's certification that it
had won the election
On January 10, 1983, Hagner sent a letter to the Fed-
eral Mediation and Conciliation Service (FMCS) which
stated that Respondent represented the security guards at
the Roosevelt Hospital facility and that "pursuant to Sec-
tion 158(d)(B) of the National Labor Relations Act, you
are hereby advised of the existence of a dispute in con-
nection with collective bargaining for an initial agree-
ment covering said security guards."5
On January 21, 1983, the Employer's attorney sent a
letter to the FMCS which essentially stated that the
Board did not certify Respondent as the collective-bar-
gaining representative of the guards, and therefore no
dispute existed.
On February 18, 1983, Hagner sent a strike ballot to
the security guards employed at the Roosevelt Hospital
facility. In an attached letter, he stated:
We have contacted the management of St. Luke's-
Roosevelt Hospital to negotiate a contract, howev-
er, we have not heard from them as of this date.The
next step is to take a strike vote.
The letter asked that the guards return the ballot to Re-
spondent by February 28, 1983.
The result of the strike vote was not placed in evi-
dence but it appears that the guards voted to strike.
Thus, on March 3, 1983, Hagner sent a letter to the Em-
ployer and the FMCS which stated-
Pursuant to Section 8(g) of the National Labor
Relations Act, please be advised that the security
guards represented by Local 803, I.B.T employed
by St. Luke's Roosevelt Hospital Center at its Roo-
sevelt Hospital site, 428 West 59th Street, New
York, New York, will go on strike against the em-
ployer on March 18, 1983 at 7:00 a in Picketing of
the entrances to the facility will begin by the em-
ployees and Local 803, I.B.T. on March 18, 1983 at
7:00 a.m
On March 11 and 15, 1983, the instant charges were
filed, and on April 11, 1983, United States District Judge
John M. Cannella issued a temporary injunction pursuant
to Section 10(1) of the Act, upon the petition of the Re-
gional Director.6
4 Sec 9(b)(3) of the Act essentially provides , in relevant part, that "no
labor organization shall be certified as the representative of employees in
a bargaining unit of guards if such organization admits to membership or
is affiliated directly with an organization which admits to membership
employees other than guards "
5 Copies of the letter were sent to the Employe _and the New York
State Mediation Board
6 Docket No 83 Civ 2095
Respondent concedes, that it admits nonguards as
members of its labor organization and that it is not cur-
rently certified by the Board as the exclusive collective-
bargaining representative of the security guards em-
ployed by the Employer at its Roosevelt Hospital facili-
ty.
B. Discussion and Analysis
The General Counsel and the Employer argue that a
literal reading of the statute is all that is necessary to find
the alleged violations.
Respondent, however, urges that I ignore the clear
language of the statute and instead rely on the legislative
history of Section 8(b)(7)(B) and (C) which, according to
Respondent, supports its contention that no violation has
occurred. I am unable to do so.
Section 8(b)(7)(B) and (C) of the Act provides, in rele-
vant part, that it is an unfair labor practice for a labor
organization-
(7) to picket or cause to be picketed or threaten
to picket or cause to be picketed, any employer
where an object thereof is forcing or requiring an
employer to recognize or bargain with a labor orga-
nization as the representative of his employees . . .
unless such labor organization is currently certified
as the representative of such employees:
(B) where within the preceding twelve months a
valid election under section 9(c) of this Act has
been conducted, or
(C) where such picketing has been conducted
without a petition under section 9(c) being filed
within a reasonable period of time not to exceed
thirty days from the commencement of such picket-
ing. . . .
With respect to Section 8(b)(7)(B), the General Coun-
sel urges that inasmuch as a valid election had been con-
ducted within the past 12 months, Respondent is barred
from threatening to picket. Respondent argues that that
section was only designed to prohibit picketing by
unions which have lost an election, and was not intended
to interfere with a winning union's rights to picket or
threaten to picket.
Notwithstanding Respondent's claim, the statute is
clear in its prohibition of threats to picket by "a labor
organization" which is not the currently certified repre-
sentative of the employees, where "a valid election" has
been conducted within the preceding 12 months. The
statutory language draws no distinction between a union
which has won or lost the election, although this section
was obviously designed to prevent a situation where a
losing union continues to picket for recognition. Howev-
er, Respondent's election victory is insufficient reason to
permit it to picket or threaten to picket in the face of the
clear, express statutory mandate that noncertified unions
not be allowed to engage in such activity within 12
months of a valid election having been conducted.
I accordingly find and conclude that Respondent has
violated Section 8(b)(7)(B) of the Act by threatening to
picket the Employer.
TEAMSTERS LOCAL 803 (ST LUKE'S-ROOSEVELT) 907
With respect to Section 8(b)(7)(C), the General Coun-
sel argues that a violation has been established because
Respondent , a union which admits guards and nonguards
to membership , is therefore incapable of being certified
by the Board as the collective -bargaining representative
of the employees involved herein , and thus any petition
filed by it could not result in such certification . Accord-
ingly, the General Counsel claims that any recognitional
picketing , or threat thereof, for whatever duration,
would be unreasonable under Section 8(b)(7)(C).
Respondent points to the language of the statute and
contends that Section 8(b)(7)(C) is aimed only at picket-
ing being conducted "without a petition . . . being
filed ." It further argues that that section is not applicable
herein inasmuch as it has won the election that was con-
ducted and is accordingly the majority representative of
the employees involved.
I cannot agree with Respondent 's position . The Board
has long held that Section 8(b)(7)(C) may be applied to
proscribe picketing by majority unions .7 It has more re-
cently held that a union which admits guards and non-
guards to membership violates Section 8 (b)(7)(C) by
picketing for a unit of guards, notwithstanding that it
represents a majority of the employees sought and has
filed a petition to represent such employees.8
In finding a violation of Section 8(b)(7)(C), the Board
has concluded-
Clearly, under Section 9(b)(3), Respondent herein is
ineligible to be certified as collective-bargaining
representative of A-1 Security's employees because
it admits both guard and nonguard employees to
membership and any petition for an election filed by
Respondent would therefore be dismissed Further-
more, under Board law any recognitional picketing
of A-1 Security the Respondent might engage in,
for whatever duration, would be a violation of Sec-
tion 8(b)(7)(C). Only finding that both picketing and
the threat to picket serve the same proscribed
object will meet with the statutory language and
the congressional intent therein 9
Respondent's reliance on Vila-Barr10 is misplaced. In
that case, the Board found no violation in the union's
picketing for a one-man unit because the union there was
"disabled through no fault of its own from invoking the
Board's election processes" because it would not enter-
tain a petition for a one-man unit However, in the in-
stant case, as in Dunbar Armored Express, Respondent's
inability to obtain certification arises from its voluntary
practice of admitting nonguards to membership, and not
due to any policy developed by the Board.
' Hod Carriers (Blinne Construction), 135 NLRB 1153, 1162 (1962) The
Board stated that although the statute was designed to prohibit "black-
mail picketing" by unions which represent none or few of the employees,
nevertheless it would not ignore the express language of the statute in
finding picketing by a majority union to be unlawful
8 Teamsters Local 639 (Dunbar Armored Express), 211 NLRB 687
(1974)
9 General Service Employees Local 73 (A-I Security Service), 224 NLRB
434, 436 (1976), enfd 578 F 2d 361 (D C Cir 1978)
10 Teamsters Local 115 (Vila Barr), 157 NLRB 588 (1966)
In conclusion, therefore, the statutory language of Sec-
tion 8(b)(7)(B) and (C) is clear in requiring that a noncer-
tified union which threatens to picket for a recognitional
object within 12 months of previously conducted elec-
tion, and under circumstances where, as here, the union
cannot be certified, and therefore any picketing, or threat
to picket, would be of unreasonable duration, be found
to violate that Section. i i
I accordiigly find and conclude that on March 3,
1983, Respondent violated Section 8(b)(7)(B) and (C) by
its threat to picket the Employer.
CONCLUSIONS OF LAW
1. The Employer is engaged in commerce within the
meaning of Section 2(1), (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, the International Guards and Armored
Security Union, and the Brotherhood of Security Person-
nel, Officers and Guards International Union are labor
organizations within the meaning of Section 2(5) of the
Act.
3 Respondent admits into membership employees
other than guards and is barred by Section 9(b)(3) of the
Act from obtaining certification as the collective-bargain-
ing representative of the Employer's guards
4 Respondent violated Section 8(b)(7)(C) of the Act
by threatening on March 3, 1983, to picket the Employ-
er, with an object of forcing or requiring the Employer
to recognize or bargain with Respondent as the repre-
sentative of the Employer's security guards employed at
its Roosevelt Hospital facility, inasmuch as Respondent is
not currently certified by the Board as the representative
of the security guards employed by the Employer at its
Roosevelt Hospital facility, and inasmuch as it is ineligi-
ble, under Section 9(b)(3) of the Act, to be so certified
since it admits nonguards to membership.
5. Respondent violated Section 8(b)(7)(B) of the Act
by threatening on March 3, 1983, to picket the Employ-
er, with an object of forcing or requiring the Employer
to recognize or bargain with Respondent as the repre-
sentative of the Employer's security guards employed at
its Roosevelt Hospital facility, inasmuch as a valid elec-
tion under Section 9(c) of the Act had been held within
the preceding 12 months from March 3, 1983, and de-
spite the fact that the election did not result in the Board
certifying Respondent as the exclusive collective- bargain-
ing representative of the security guards employed by
the Employer at its Roosevelt Hospital facility.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
11 The evidence is clear that Respondent 's threat to picket was for a
recognitional object Thus , Respondent ( 1) demanded that the Employer
bargain after the Board election , (2) advised the FMCS that there was a
dispute in "connection with collective bargaining for an initial agree-
ment," (3 ) notified the unit employees that it had "contacted the manage-
ment to negotiate a contract ," and (4) shortly after a strike vote was
taken notified the Employer that a strike and picketing would take place
908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
Having found that the Respondent has engaged in and
is engaging in unfair labor practices in violation of Sec-
tion 8(b)(7)(B) and (C) of the Act, I find it necessary to
order that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of
the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed12
ORDER
The Respondent, Local Union No. 803 affiliated with
the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, New York,
New York, its officers, agents, and representatives, shall
1. Cease and desist from threatening to picket St.
Luke's-Roosevelt Hospital Center (the Employer) with
an object of forcing or requiring the Employer to recog-
nize or bargain with Respondent as the representative of
the Employer's security guards employed at its Roose-
velt Hospital facility:
(a) Inasmuch as Respondent is not currently certified
by the Board as the representative of the security guards
employed by the Employer at its Roosevelt Hospital fa-
cility, and inasmuch as it is ineligible, under Section
9(b)(3) of the Act, to be so certified since it admits non-
guards to membership.
(b) Inasmuch as a valid election under Section 9(c) of
the Act had been held within the preceding 12 months
from the date of the threat to picket, and despite the fact
that the election did not result in the Board certifying
Respondent as the exclusive collective -bargaining repre-
sentative of the security guards employed by the Em-
ployer at its Roosevelt Hospital facility.
2: Take the following affirmative action which is nec-
essary to effectuate the purposes of the Act.
(a) Post at its offices and meeting halls copies of the
attached notice marked "Appendix."13 Copies of the
notice, on forms provided by the Regional Director for
Region 2, after being signed by the Respondent' s author-
ized representative, shall be posted by the Respondent
12 If 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 pur-
poses
13 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to members are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(b) Deliver to the Regional Director for Region 2
signed copies of the notice sufficient in number for post-
ing by St. Luke's-Roosevelt Hospital Center, that Hospi-
tal being willing , at all locations where notices to its em-
ployees are customarily posted.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent 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
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT threaten to picket St. Luke's-Roosevelt
Hospital Center, with an object of forcing or requiring
the Employer to recognize or bargain with us as the rep-
resentative of the Employer's security guards employed
at its Roosevelt Hospital facility, inasmuch as we are not
currently certified by the Board as the representative of
the security guards employed by the Employer at its
Roosevelt Hospital facility , and inasmuch as we are ineli-
gible, under Section 9(b)(3) of the Act, to be so certified
since we admit nonguards to membership.
WE WILL NOT threaten to picket St. Luke's-Roosevelt
Hospital Center with an object of forcing or requiring
the Employer to recognize or bargain with us as the rep-
resentative of the Employer's security guards employed
at its Roosevelt Hospital facility, inasmuch as a valid
election under Section 9(c) of the Act had been held
within the preceding 12 months from the date of our
threat to picket, and despite that the election did not
result in the Board certifying us as the exclusive collec-
tive-bargaining representative of the security guards em-
ployed by the Employer at its Roosevelt Hospital facili-
ty.
LOCAL UNION No. 803 AFFILIATED WITH
THE INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, WAREHOUSE-
MEN and HELPERS OF AMERICA