United Assn. of Journeymen, Local 630

National Labor Relations Board - Board Decisions

Jul 30, 1975

219 N.L.R.B. 837 (N.L.R.B. 1975)

UNITED ASSN . OF JOURNEYMEN , LOCAL 630 837
United Association of Journeymen and Apprentices of
the Plumbing and Pipefitting Industry of the United
States and Canada , Local 630 , AFL-CIO and Lein-
Steenberg. Case 12-CG-3
July 30, 1975
DECISION AND ORDER
Upon charges filed by Lein-Steenberg, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 12, issued a com-
plaint on October 25, 1974,' amended November 8,
against Respondent United Association of Journey-
men and Apprentices of the Plumbing and Pipefit-
ting Industry of the United States and Canada, Local
630, AFL-CIO, herein called Respondent or the
Union. Copies of the charge and the complaint and
notice of hearing before an Administrative Law
Judge were duly served on the Respondent and the
Charging Party. In substance, the amended com-
plaint alleges that Respondent violated Section 8(g)
of the National Labor Relations Act,2 as amended,
by picketing at the premises of Martin Memorial
Hospital Association , Inc., herein called Martin Me-
morial or the Hospital, without first giving 10 days'
written notice of its intent to do so to Martin Memo-
rial and to the Federal Mediation and Conciliation
Service.
The amended answer duly filed by Respondent
substantially admits the jurisdictional and factual
allegations of the complaint, but denies the commis-
sion of any unfair labor practices.
On December 3, the Charging Party, the General
Counsel, and Respondent entered into a stipulation
in which they agreed that certain documents shall
constitute the entire record herein 3 and that no oral
testimony is necessary or desired by, any of the par-
ties . Thus, the parties expressly waived all intermedi-
ate proceedings before an Administrative Law Judge
and petitioned that this case be transferred to the
Board for the purpose of making findings of facts
1 All dates herein are in 1974 unless otherwise indicated.
2 Sec. 8(g) provides:
A labor organization before engaging in any strike, picketing, or
other concerted refusal to work at any health care institution shall, not
less than ten days prior to such action , notify the institution in writing
and the Federal Mediation and Conciliation Service of that intention,
except that in the case of bargaining for an initial agreement following
certification or recognition the notice required by this subsection shall
not be given until the expiration of the period specified in clause (B) of
the last sentence of section 8(d) of this Act . The notice shall state the
date and time that such action will commence. The notice , once given,
may be extended by the written agreement of both parties.
3 The stipulated record consists of the charge , complaint, amendment to
complaint, answer, answer to amendment to complaint , aerial site plan-
Joint Exh. 1, and the stipulation.
and conclusions of law and issuing an appropriate
order, reserving to themselves only the right to object
to the materiality or relevancy of any of the stipulat-
ed facts.
By Order dated December 10, the Board approved
the stipulation, transferred the proceedings to itself,
and set a date for the filing of briefs. Thereafter, the
General Counsel and the Respondent filed briefs,
which have been duly considered by the Board.
The Board has considered the entire record herein
as stipulated by the parties, as well as the briefs filed
by the Respondent and General Counsel, and makes
the following findings and conclusions:
FACTS
I. THE BUSINESS OF THE EMPLOYERS
Charging Party Lein-Steenberg is a joint venture of
Roy Lein Construction, Inc., and Steenberg Con-
struction Company, and is engaged at Stuart, Flori-
da, as a general contractor in the building and con-
struction industry. During the past 12 months, in the
course and conduct of its business, Charging Party
purchased and received in Florida goods and sup-
plies valued in excess of $50,000 directly from points
outside the State of Florida.
Don Taylor Mechanical, Inc. (herein called Tay-
lor), is a Florida corporation engaged in mechanical,
plumbing, and air-conditioning contracting. During
the past 12 months in the course and conduct of its
business Taylor purchased and received in Florida
supplies and materials valued in, excess of $50,000
directly from points outside the State of Florida.
Martin Memorial Hospital Association, Inc., is a
private, nonprofit Florida corporation located in
Stuart, Florida, where it is engaged in the operation
of a nonprofit hospital which provides inpatient and
outpatient medical services for the sick and injured,
including a full range of emergency medical services.
During the past 12 months in the course and conduct
of its operation Martin Memorial had gross revenues
in excess of $5 million and purchased and received at
its Stuart, Florida, location goods, supplies, and ma-
terials valued in excess of $50,000 from points out-
side the State of Florida.
The parties stipulated, and we find, that Lein-
Steenberg, Taylor, and Martin Memorial are now,
and at all times material herein have been, employers
engaged in commerce or in an industry affecting
commerce within the meaning of Section 2(6) and (7)
of the Act, and that Martin Memorial is now, and at
all times material herein has been, a health care insti-
tution as defined in Section 2(14) of the Act 4 We
4 Sec 2(14) provides: "The term `health care institution ' shall include any
Continued
219 NLRB No. 153
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
further find that it will effectuate the purposes of the
Act to assert jurisdiction in this proceeding.
11. THE LABOR ORGANIZATION INVOLVED
The parties stipulated, and we find, that Respon-
dent is now, and at all times material herein has
been, a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issue
The question presented is whether Respondent
violated Section 8(g) of the Act by picketing Taylor
at a reserved gate at the hospital premises without
first giving 10 days' written notice of its intent to do
so to Martin Memorial and to the Federal Mediation
and Conciliation Service.
B. The Stipulated Facts
In December 1973 Lein-Steenberg, pursuant to a
contract with Martin Memorial, began working on
expansion and renovation of the existing hospital fa-
cilities, including the addition of a third and fourth
story and the "shelling-in" of a fifth and sixth story
on the existing , patient tower, the construction of a
new two-story ancillary services building, the remo-
deling and expansion of the ground floor in and ad-
jacent to the existing patient tower, and construction
of a new mechanical and electrical services building.
• Taylor, who was and is a nonunion contractor, has
a subcontract valued at approximately $2 million
with Lein-Steenberg to perform mechanical work on
the alteration and construction project at the hospital
jobsite. Prior to commencing construction at the
Martin Memorial project, Lein-Steenberg established
three properly marked reserved gates, allocating two
of these gates for its own use and setting aside the
third gate solely for use by Taylor.
At all times material herein Respondent has had a
labor dispute with Taylor but did not and does not
have any dispute with Martin Memorial, Lein-Steen-
berg, or any other contractor performing work at the
hospital jobsite. Commencing on or about September
16 and continuing until October 21, Respondent
picketed Taylor at the gate reserved for Taylor's use,
with signs stating:
hospital , convalescent hospital , health maintenance organization , health
clinic, nursing home , extended care facility , or other institution devoted to
the care of sick , infirm, or aged person"
Notice to the Public, Don Taylor Mechanical,
Inc., Lowers Our Standards. We have no dispute
with any other employer. This is not intended to
stop work or deliveries. UA Local Union 630.
Respondent's picketing of Taylor at the Martin
Memorial jobsite was visible to some hospital em-
ployees during their working day, but Martin Memo-
rial employees did not use the reserved gate as an
entry point to the Hospital and were not required to
cross the picket line in order to gain access to the
Hospital. No Martin Memorial employees engaged
in a work stoppage or other refusal to work as a re-
sult of the picketing, and there has been no disrup-
tion of any of the services offered by the Hospital.
However, during the course of the picketing, employ-
ees of Lein-Steenberg and various other union sub-
contractors performing work at the jobsite, including
individuals classified as ironworkers, operating engi-
neers, carpenters, electricians, and laborers, elected
from time to time to honor the picket line established
by Respondent against Taylor. At no time did Re-
spondent give notice of its intent to picket Taylor to
either Martin Memorial or to the Federal Mediation
and Conciliation Service.
C. Contentions of the Parties
The General Counsel contends that the Union vio-
lated Section 8(g) of the Act by failing to notify the
Hospital and the Federal Mediation and Concilia-
tion Service of its intent to picket Taylor at least 10
days before such picketing began, arguing that the
plain language of that section proscribes any picket-
ing at any health care institution in the absence of
proper notices. Respondent contends, to the con-
trary, that the intention of Congress in enacting the
hospital amendments, as revealed in the legislative
history, was twofold; i.e., to extend coverage of the
Act to employees of nonprofit hospitals, and to mini-
mize disruption of patient care in the event of a labor
dispute involving a health care institution. Respon-
dent argues that neither purpose would be served by
finding a violation of Section 8(g) in the instant case
and that, therefore, the complaint should be dis-
missed.
D. Discussion
In 1974 Congress enacted, and the President
signed, the so-called hospital amendments to the
Acts These amendments deleted from Section 2(2). of
the Act the exemption of nonprofit hospitals from
the definition of "employer" and added Section 2(14)
5 Public Law 93-360 , 93d Cong ., S. 3203 , 88 Stat . 395, effective August
25, 1974.
UNITED ASSN. OF JOURNEYMEN, LOCAL 630 839
which defined a new category of employers, termed
"health care institutions," to include, as noted above,
all hospitals. The amendments further contained, in
Section 8(g), special notice requirements as follows:
A labor organization before engaging in any
strike, picketing, or other concerted refusal to
work at any health care institution shall, not less
than ten days prior to such action, notify the
institution in writing and the Federal Mediation
and Conciliation Service of that intention ... .
The notice shall state the date and time that
such action will commence. The notice, once
given, may be extended by the written agree-
ment of both parties.
As stated, the issue presented here is whether
Respondent's otherwise lawful primary picketing of
Taylor at a reserved gate violates Section 8(g) solely
because the picketing occurred at the premises of a
health care institution and proper notices were not
given. Essentially, we are called upon to determine
for the first time whether Congress intended Section
8(g) to be read literally so as to apply to any picket-
ing at any health care institution, or whether the in-
tent of Congress was that the section apply only to
picketing directed against a health care institution or
which has an immediate adverse impact on the
institution's ability to provide health care services.
Respondent urges that the intent of Section 8(g),
as revealed by its legislative history, was to minimize
disruptions in patient care caused by labor disputes,
and that the likelihood of such disruptions here was
virtually nonexistent. Indeed, Respondent emphasiz-
es that no Martin Memorial employees engaged in a
work stoppage or other refusal to work as a result of
the picketing, and there was no disruption of or inter-
ference with any of the services offered by the Hospi-
tal.
Respondent further contends that, even if there
were some possibility of disruption, the amendments
were not intended to interfere with otherwise lawful
primary picketing of a contractor at a common situs,
even though such situs happens to be a health care
institution. In this connection, Respondent points to
the fact that the building trades unions were not in-
vited to testify at the congressional hearings as to the
possible impact the amendments might have upon
their right to engage in lawful common situs picket-
ing. Accordingly, Respondent argues, no violation of
Section 8(g) should be found in the circumstances of
this case. We disagree.
We agree with Respondent's major premise that
Congress intended by enacting the hospital amend-
ments to extend the protection of the Act to some 1.5
million employees 6 previously excluded from its cov-
erage, while also protecting the public against undue
disruptions in health care services caused by labor
disputes. We are particularly mindful of the follow-
ing from the Senate committee's report on the mea-
sure:
In the Committee's deliberations on this mea-
sure, it was recognized that the needs of patients
in health care institutions required special con-
sideration in the Act including a provision re-
quiring hospitals to have sufficient notice of any
strike or picketing to allow for appropriate ar-
rangements to be made for the continuance of
patient care in the event of a work stoppage.'
We further recognize that the legislative history of
this section does not contain any specific references
to reserved gate picketing of a contractor or subcon-
tractor at a functioning hospital construction site.
However, we cannot agree with Respondent that the
lack of such references indicates that Congress did
not intend Section 8(g) to apply in these circum-
stances. Rather, there is ample support in the legisla-
tive history that Congress intended the words "any
... picketing . . . at any health care institution" to
cover all picketing at the premises of such an em-
ployer. Thus, for example, Senator Taft explained
that: "This subsection applies not only to bargaining
strikes or pickets, but also, as stated in the statute, to
,any picket or strike."' I (Emphasis supplied.) Simi-
larly, Senator Javits pointed out that: "10 days notice
of any strike or picketing, including stranger picket-
ing, must be given to a health care institution." 9
It also appears to us that if Congress had intended
to exempt some types of picketing from the require-
ments of Section 8(g) the wording of that section.
would have specified the circumstances in which it
was to be applied. In this connection, we especially
note Senator Williams' injunction during the Senate
debates that:
This legislation is the product of compromise,
and the National Labor Relations Board in ad-
ministering the act should understand specifical-
ly that this committee understood the issues
confronting it, and went as far as it decided to
go and no further and the Labor Board should
use extreme caution not to read into this act by
implication-or general logical reasoning-
something that is not contained in the bill, its
report and the explanation thereof.10
From all of the above, we conclude that Congress
6 S. Rept . 93-766, 93d Cong, 2d Sess (1974)
Ibid.
s 120 Cong. Rec. S6941 (daily ed., May 2, 1974)
9 120 Cong. Rec S6935 (daily ed., May 2, 1974)
10 120 Cong Rec 512104 (daily ed, July 10, 1974)
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
intended us to interpret Section 8(g) according to its
plain language and that, therefore, any strike or pick-
eting at the premises of a health care institution, even
primary reserved gate picketing directed at a subcon-
tractor, is proscribed in the absence of proper no-
tices."
Our dissenting colleagues take issue with this inter-
pretation, citing rules of grammar and portions of the
legislative history. They particularly rely on the testi-
mony of then Under Secretary of Labor Schubert at
the Senate hearings on the bills which were the pre-
cursors of the health care amendments. Schubert tes-
tified that under a provision of the bill he recom-
mended
a 10-day strike notice would be required before
a union could go on strike against a private
health care facility , , .. 'Z [Emphasis supplied.]
According to the dissent , this statement indicates
that Congress intended the proscriptions in Section
8(g) as eventually enacted to apply only to actions
directed against a health care institution. To the con-
trary, in our view, had Congress intended to limit
only conduct against a health care institution, Con-
gress would have utilized that word or a similarly
qualified preposition. We find that the failure to use
Schubert's wording is another indication that Con-
gress did not choose to limit Section 8(g) as our col-
leagues suggest . Moreover, unlike the dissent, we see
no anomaly in finding that the first portion of that
section may apply to strikes of picketing which do
not involve health care institution employees while
the scope of the second portion is more limited. The
first part refers to "any strike or picketing." The sec-
ond portion is specifically limited by Section 8(d) so
as to apply only to cases concerning "collective bar-
gaining [which] involves employees of a health care
institution." Indeed, the fact that Congress in one
amended section of the Act, Section 8(d), explicitly
limited the scope of the changes to employees of
health care institutions further buttresses our conclu-
sion that if Congress had intended to qualify the ap-
plication of the first portion of Section 8(g) that in-
tention would have been made clear.
Furthermore, if we interpret Section 8(g) as ex-
empting the picketing herein because such picketing
did not in fact disrupt the services offered by the
Hospital, we might well set a troublesome precedent
requiring us, in each case involving application of
Section 8(g), to determine whether the potential for
disruption of medical services was sufficiently serious
11 The fact that representatives of the building trades unions did not testi-
fy on the bill does not indicate to us that Congress did not intend Sec. 8(g)
to apply to picketing such as that involved in this case.
to warrant a finding that the notices are required. We
are not convinced that such a case-by-case analysis
was within the intent of Congress. Rather, while we
agree with Respondent that the purpose of Section
8(g) is to minimize disruption of health care services
in the event of a labor dispute, it appears to us that
Congress viewed any strike or picketing at the prem-
ises of a health care institution as constituting suffi-
cient potential for disruption of medical care to re-
quire notice to the institution and to the Federal
Mediation and Conciliation Service.
Finally, we are of the view that our interpretation
of the statute in the manner set forth above does not
appear to impose any undue burden or hardship on
labor organizations which, like Respondent here, are
engaged in performing construction work at the site
of a functioning health care institution. Indeed, we
note that Respondent has not argued otherwise in its
brief to the Board.
We acknowledge that in some circumstances, such
as those presented by Casey & Glass, Inc., 219 NLRB
698 (1975), our decision may lead to a loss of
employee status by individuals who, although not
employed by a health care institution, engage in a
proscribed strike at such institution. These employ-
ees are indeed innocent victims of their labor
organization's failure to provide the requisite 8(g) no-
tices. However, Congress, by its amendment to Sec-
tion 8(d),13 obviously intended this very result when
it chose to deprive such strikers of their employee
status rather than devising some other sanction
against the offending union.
Furthermore, we are convinced of the ability of
labor organizations to recognize and fulfill their re-
sponsibility to provide proper and timely notices be-
fore commencing a strike or picketing at the premises
of a health care establishment and to caution em-
ployees whom they represent not to engage in pro-
scribed activity. Moreover, we are certain that as la-
bor organizations gain awareness of their obligations
in this area the giving of notices will become a pro
forma procedure much as the giving of notices of ter-
mination of collective-bargaining agreements is now.
Accordingly, for all of the reasons discussed
above, we find that Respondent, by picketing Taylor
at the Martin Memorial jobsite without first giving
the required notices, violated Section 8(g) of the
Act.14
13 The pertinent portion of Sec . 8(d), as amended , provides:
Any employee who engages in a strike within any notice period speci-
fied in this subsection , or who engages in any strike within the appro-
priate period specified in subsection (g) of this section shall lose his
status as an employee of the employer engaged, in the particular labor
dispute . for the purposes of section 8, 9, and 10 of this Act, as amended
i2 Heanngs on S. 794 , S. 2292 , before the Subcommittee on Labor of the 14 Our dissenting colleagues contend that we erred in not directing a hear-
Committee on Labor and Public Welfare , 93d Cong., 1st sess 3 ( 1973). ing in this case and its companions , Mercy Hospital of Laredo, 219 NLRB
UNITED ASSN . OF JOURNEYMEN , LOCAL 630 841
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICE UPON
COMMERCE
The activities of Respondent set forth above have
a close, intimate, and substantial relation to trade,
traffic, and commerce among the several States, and
tend to lead to industrial strife burdening and ob-
structing commerce.
V. THE REMEDY
Having found that Respondent has engaged, and
is engaging, in unfair labor practices in violation of
Section 8(g) of the Act, we shall order that it cease
and desist therefrom, and take certain affirmative ac-
tion designed to effectuate the policies of the Act.
On the basis of the foregoing findings of fact and
on the entire record in this case, we make the follow-
ing:
CONCLUSIONS OF LAW
1. Lein-Steenberg, Don Taylor Mechanical, Inc.,
and Martin Memorial Hospital Association, Inc., are
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Martin Memorial Hospital Association, Inc., is
a health care institution within the meaning of Sec-
tion 2(14) of the Act.
3. Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
4. By picketing Taylor at the Martin Memorial
jobsite without first giving 10 days' written notice to
Martin Memorial and to the Federal Mediation and
Conciliation Service, Respondent has violated Sec-
tion 8(g) of the Act.
5. The foregoing unfair labor practice is an unfair
labor practice affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor Re-
lations Board hereby orders that the Respondent,
United Association of Journeymen and Apprentices
of the Plumbing and Pipefitting Industry of the Unit-
ed States and Canada , Local 630 , AFL-CIO, its offi-
cers, agents , and representatives shall:
846, and Casey & Glass, inc., supra, issued today. However , because we
hold for the reasons stated above that any picketing or strike by a labor
organization at the premises of a health care institution falls within the
proscription of Sec . 8(g) and inasmuch as in all of these cases the labor
organizations involved conceded that such picketing occurred, we find it
unnecessary to order hearings
1. Cease and desist from engaging in any strike,
picketing, or other concerted refusal to work at the
premises of Martin Memorial Hospital Association,
Inc., or any other health care institution without no-
tifying in writing Martin Memorial Hospital Associa-
tion, Inc., or such other health care institution, and
the Federal Mediation and Conciliation Service, not
less than 10 days prior to such action, of that inten-
tion.
2. Take the following affirmative action which is
necessary to effectuate the purposes of the Act:
(a) Post at its business offices, meeting halls, and
all other places where notices to its members are cus-
tomarily posted copies of the attached notice marked
"Appendix." 15 Copies of said notice, on forms pro-
vided by the Regional Director for Region 12, after
being duly signed by Respondent's authorized repre-
sentative, shall be posted by the Respondent immedi-
ately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to members
are customarily posted. Reasonable steps shall be
taken by the Respondent to insure that said notices
are not altered, defaced, or covered by any other ma-
terial.
(b) Furnish to the Regional Director for Region
12 enough signed copies of the aforesaid notice for
posting by Lein-Steenberg, Don Taylor Mechanical,
Inc., and Martin Memorial Hospital Association,
Inc., if they are willing, in places where notices to
their employees are customarily posted.
(c) Notify the Regional Director for Region 12, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
MEMBERS FANNING and JENKINS, dissenting:
For a number of reasons, we do not believe viola-
tions of Section 8(g) have occurred in this case and
its companion Mercy Hospital of Laredo, similarly de-
cided this day. Because we do not believe the impli-
cations of the majority's determination in the instant
case can be fully understood without resort to the
determinations made in Mercy Hospital and Casey &
Glass, Inc., the representation proceeding accompa-
nying Mercy Hospital, we shall treat all three cases
together.
These three cases are the first cases decided by the
Board involving the interplay of the amended Sec-
tion 8(d) and the new Section 8(g) of the Act. And
yet Lein-Steenberg is being decided without hearing,
IS In the event that 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 "
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
based on a stipulated record and Mercy Hospital is
being decided without hearing, based on General
Counsel's motion for summary judgment. Such pro-
cedures may, perhaps, facilitate the administrative
responsibilities the Board bears, but, because a com-
plete record invariably presents more fully developed
factual and legal considerations, we do not believe
such procedures are properly invoked when, as here,
we are called upon to decide the very first cases aris-
ing under a new section of the Act. This would be the
case even if the facts were as clear as the majority
would lead one to believe. The proposition becomes
unassailable when they are, in several respects, in
doubt.
We will give but two examples. In Lein-Steenberg
there is a clear conflict in the precise location of the
pickets. According to the "Aerial Site Plan" incorpo-
rated into the "record" the picketing took place al-
most totally off the hospital premises, some 125 feet
from the gate reserved for the subcontractor Taylor's
employees. What minor portion took place on hospi-
tal premises was some 100 feet from the gate and was
even further away from all access roads and gates
used by the hospital's employees. In Mercy Hospital,
there is an allegation on respondent's part that the
general contractor, Casey & Glass, purposely entan-
gled the hospital 16 in the dispute and deliberately
placed the gate reserved for its employees "adjacent
to the emergency room" to create 8(g) consequences.
In both Lein-Steenberg and Mercy Hospital, and
we stress this point, the questions that come to mind
because of lack of factual clarity may not necessarily
portend a result different than the one reached by the
majority, but such questions do form an integral part
of the deliberative process which hopefully results in
a considered judgment. Moreover, even if we assume
such procedures are properly invoked, there are con-
siderations of magnitude at work in these cases
which, from the majority's silence , we can only con-
clude have not been considered. In the course of this
dissent we will explore the more significant consider-
ations but, at the outset, we must emphasize that a
decision which proximately causes nine employees of
Casey & Glass to lose their jobs and right to rein-
statement, as does the instant decision, should at
least consider that fact in the course of the decision.
But all that appears "considered" in these cases is
whether "any picketing" has occurred "at the prem-
ises" of the health care institutions involved. Which
brings us to the heart of the matter.
There are two fundamental flaws in the majority
16 We think it worthy of mention that in Lein-Steenberg, besides the ad-
mission that the picketing had absolutely no effect on the hospital 's opera-
lions, the hospital did not file the charge involved and , in no way. has
participated in these proceedings
opinion, as we view the matter. First, while the ma-
jority suggests a "literal" reading of Section 8(g) re-
quires the result reached, we do not believe a truly
literal reading of Section 8(g) has been undertaken.
Second, and more important, even if the majority is
correct in its literal reading of Section 8(g), such a
reading does not compel the result reached if Section
8(g) was not intended by Congress to reach that re-
sult and we do not agree with the majority's evalua-
tion of that congressional intent.
With regard to the majority's literal analysis of
Section 8(g), a violation has been established, we are
told, by virtue of Respondents' "picketing . . . at any
health care institution," whether or not the health
care institution is involved in the labor dispute which
generated the picketing or refusal to work. The open-
ing lines of Section 8(g) read in full:
A labor organization before engaging in any
strike, picketing, or other concerted refusal to
work at any health care institution ... .
The majority assumes the word "at" necessarily
means "at the premises," 17 no doubt to overcome the
assertion that the employees involved in these cases
were not picketing at the hospitals but rather at the
gates of their employers. Without questioning that
interpretation, why is the word "at" necessarily asso-
ciated with the phrase "any health care institution"
rather than with the phrase "concerted refusals to
work"? We do not mean to belabor the point, but the
intransitive nature of the verb "work" requires the
usage of a preposition. One can "picket" a health
care institution but not "refuse to work a health care
institution." Thus if Congress had chosen not to in-
clude a prohibition against "other concerted refusals
to work" but rather had limited itself to prohibiting
striking and/or picketing, the word "at" would not
be necessary. In fact, in the committee reports ac-
companying the legislation and in the remarks of
Senators Williams and Cranston on the Senate floor
describing the 8(g) prohibitions, there is no reference
to "other concerted refusals to work" but only to
picketing and striking. Significantly, Section 8(g) is
then described as prohibiting "striking or picketing a
health care institution." IS The importance of the
17 Note the inherent vagueness of the term "premises" in this regard.
Suppose there is health care facility , e.g, a small clinic , on one of the floors
of a building which houses numerous other nonhealth -related employers.
What is the "premises " of the clinic? Does it encompass the elevators which
its employees also use , the common entrances , and the hallways? In some
large buildings , we would suspect , there are employees who do not even
now whether the building houses what this Board would find to be a
"health care institution ." If they decide to picket their nonhealth facility
employer , must they , on penalty of possibly losing their jobs, file a 10-day
notice?
is See S . Rept . 93-766, 93d Cong., 2d Sess. 4 (1974), H. Rept . 93-1051,
93d Cong.. 2d Sess 5 (1974) (hereinafter Reports). See also 120 Cong Rec
S6932 (remarks of Sen Cranston ), 6934 (remarks of Sen Williams) (daily
ed, May 2, 1974)
UNITED ASSN. OF JOURNEYMEN, LOCAL 630 843
word "at," utilized as it is merely to conform to the
dictates of the language , thus diminishes in our view.
Note further the "literal" meaning of the conclusion
of Section 8(g):
except that in the case of bargaining for an ini-
tial agreement following certification or recogni-
tion the notice required by this subsection shall
not be given until the expiration of the period speci-
fied in clause (B) of the last sentence of section 8(d)
of this Act. The notice shall state the date and
time that such action will commence. The no-
tice, once given, may be extended by the written
agreement of both parties. [Emphasis supplied.]
The last sentence of Section 8(d) begins "[w]henev-
er the collective bargaining involves employees of a
health care institution, the provisions of this section
8(d) shall be modified as follows . . . ." The clause
(B) of Section 8(d) to which Section 8(g) refers states
that in cases of initial bargaining following recogni-
tion or certification the labor organization (which,
when one recalls the final sentence of Section 8(d)
quoted above, can only mean the labor organization
representing the employees of the health care institu-
tion), must provide for at least 30 days' involvement
of the Federal Mediation and Conciliation Service
(FMCS) and any state agency established for such
purposes in the initial contract negotiations. The "ex-
ception" of Section 8(g) thus can apply only to labor
organizations representing health care institution em-
ployees. The majority concedes as much when it
states that "the second portion [of 8(g)] is specifically
limited to Section 8(d) so as to apply only to cases
concerning `collective bargaining [which] involves
employees of a health care institution.' " However,
the final sentence of Section 8(g) allows for exten-
sions of the notice by written agreement of "both"
(not "all") parties. We trust that the majority does
not include this final sentence of Section 8(g) within
the bounds of what it calls "the second portion" of
Section 8(g)-to do so would necessarily mean Sec-
tion 8(g) provides, under the majority's view, no stat-
utory provision for extensions of time in cases involv-
ing, as the instant ones do, nonhealth care
employers. Thus, by its own words, the majority's
"literal" reading of 8(g) results in that section 's being
divided into three parts. First, any labor organiza-
tion , no matter whom it represents or seeks to repre-
sent, must file a 10-day notice before picketing "at"
any health care institution even though the employer
being picketed is not a health care facility or in-
volved in providing patient care. The second part of
Section 8(g), the initial bargaining exception, is clear-
ly limited, as the majority acknowledges, to labor or-
ganizations representing health care institution em-
ployees. Finally, the third part of Section 8(g), its
final sentence, applies, once again, to all labor orga-
nizations, not just those representing health care in-
stitution employees.19 In sum, the majority concludes
that Congress wrote Section 8(g) with all labor orga-
nizations in mind for the first 45 and final 14 words
of that section but limited the intervening 59 words
to some labor organizations.
The majority's understanding of legislative drafts-
manship is the product of its analysis of the legisla-
tive history. As indicated earlier, that analysis leaves
much unsaid. Assuming the majority's literal reading
of Section 8(g) is correct:
It is a "familiar rule, that a thing may be within
the letter of the statute and yet not within the
statute, because not within its spirit, nor within
the intentions of its makers." [Citation omit-
ted.] 20
The 10-day notice in Section 8(g) was first pro-
posed by then Under Secretary of Labor Schubert,
testifying, in August 1973, on S.794 and S.2292 21 be-
fore the Senate Subcommittee on Labor. He suggest-
ed as amendments to S.794, a bill which simply delet-
ed the former-language of Section 2(2) of the Act
excluding nonprofit hospitals,22 that, inter alia,
... FMCS participation should be statutorily
mandated upon the request of any party to a
health care industry labor dispute. When there is
a strike, or notice of intent to strike, FMCS par-
ticipation should be mandated, whether or not
any of the parties request its presence. In addi-
tion a 10-day strike notice would be required
before a union could go on strike against a pri-
vate health care facility . . . . We believe these
provisions should go a long way toward helping
health care institutions and their employees set-
tle their disputes responsibly and peacefully,
while not significantly restricting either party's
freedom of action 23 [Emphasis supplied.]
19 A further anomaly in the ma jority's interpretation of Sec. 8(g): in the
instant cases the labor organizations involved could extend commencement
of the work stoppages by reaching written agreement with - the hospitals and
without ever having to notify their own employers, since such agreements are
made by both, not all, parties.
20 National Woodwork Manufacturers Association v. N.L.R .B., 386 U.S
612, 619 (1967).
21 Introduced by Senators Cranston and Taft, respectively . Neither bill
was reported out of committee . The amending legislation , with the excep-
tion of two House amendments, was substantially the result of Senator
Williams' bill, S.3203, introduced in March 1974 and H .R. 13678, intro-
duced in the House at the same time by Representatives Thompson and
Ashbrook
22 See Hearings on S. 794, S. 2292 before the Subcommittee on Labor of
the Committee on Labor and Public Welfare , 93d Cong., 1st Sess. 3 (1973).
23 Id at 428, 429. The significance of then Under Secretary Schubert's
testimony cannot be overemphasized. With the exception of the new Sec-
tions 19 and 213 all his proposals were eventually embodied in the recent
Continued
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
That Section 8(g) was not intended to encompass
disputes between nonhealth care industry parties is
supported by a reading of the Committee Reports
accompanying the legislation:24
[8(g)] generally prohibits a labor organization
from striking or picketing a health care institu-
tion without first giving 10 days' notice.
Repeatedly serving such ten-day notices upon
the employer is to be construed as constituting
evidence of a refusal to bargain in good faith by
the labor organization 25
[A] labor organization will not be required to
serve a ten-day notice or to wait until expiration
of the ten-day notice when the employer has
committed unfair labor practices as in Mastro
Plastics Corp. v. N.L.R.B., 305 U.S. 270, 37
L.R.R.M. 2587 (1956).
This latter comment in the Reports is especially
significant when one considers its relation with the
cases at hand. If Taylor or Casey & Glass had com-
mitted violations of Section 8(a)(3), the Respondents
would be relieved of the duty to serve the 8(g) notice
required by the majority. It indeed seems strange that
Congress, in its interest to give an added protection
to the health care institution's delivery capabilities
would allow a construction contractor's unfair labor
practices to overcome that design.
The interpretation the majority gives to other legis-
lative history is questionable. Senator Taft's remark
that Section 8(g) would apply not only to "bargain-
ing strikes" but to "any picket or strike" does not
necessarily mean more than that Section 8(g) prohib-
its, in addition to bargaining strikes against a hospital,
any other picketing or striking against a hospital, such
as recognitional or jurisdictional picketing or strikes.
This interpretation is supported by other remarks of
Senator Taft:
Finally, the health care institution must be given
a 10-day notice by a labor organization before
any picketing or strike-whether or not related
to bargaining-can take place . . . . I believe
amendments or the Committee Reports accompanying the legislation. In
addition , all his recommendations against other proposals , most notably the
proposals to statutorily restrict the number of bargaining units the Board
could designate appropriate in the health care industry and to statutorily
exempt certain States from the coverage of the amendments because of their
preexisting labor laws covering employees of nonprofit hospitals , were omit-
ted from all subsequent legislation introduced via committee. It is a matter
of congressional record that Schubert and other Department of Labor staff
worked closely in the preparation of the legislation ultimately enacted See
120 Cong. Rec. S6940 (daily ed., May 2, 1974- letter of Secretary Brennan)
24 Reports, fn. 18 supra, 4-5 (Senate), 5-6 (House).
25 It is crystal clear that the "employer" referred to in the Committee
Reports is the health care institution . E.g., ". . . the employer should re-
main free to take whatever action is necessary to maintain health care,"-a
freedom we would , with all due respect , hardly entrust to the construction
industry.
these safeguard procedures will substantially aid
health care institutions and their employees set-
tle their disputes while not significantly re-
stricting either party's freedom of action.26 [Em-
phasis supplied.]
Senator Javits' reference to "stranger picketing,"
cited by the majority, merely means, as we under-
stand the term, picketing by employees of a labor
organization?? We know of no support for the
majority's apparent interpretation that it refers to
picketing at the premises of a stranger to the dispute.
The majority notes that the fact that representa-
tives of the building trades did not testify on the
scope of Section 8(g) "does not indicate. . . that
Congress did not intend Section 8(g) to apply to pick-
eting such as that involved in this case." 28 But, in
attempting to determine the intent of Congress, such
considerations are of value, the pertinent question
being whether that absence of testimony on Section
8(g) does provide some indication whether Congress
did intend Section 8(g) to encompass the activity in-
volved in these cases . We say this because we cannot
conceive Congress intending the result reached here
not only without seeking the testimony of the build-
ing trades, but without commenting at all on the
Board's Moore Dry Dock 29 standards, without a
mention of the monumental increase in the workload
of the Federal Mediation and Conciliation Service
caused by the result reached here '30 and without any
indication that Congress intended, practically speak-
ing, to impose a new requirement on all the labor
organizations who represent or seek to represent em-
ployees of the countless employers who might trans-
act business "at the premises" of all the "health-care
institutions" across this country. These are, we sub-
mit, considerations of value in arriving at Congress'
intention.
26 120 Cong. Rec 12108 (daily ed., July 10, 1974). When one recalls Un-
der Secretary Schubert 's clear limitation that Sec 8(g) would prohibit, in the
absence of notice , striking or picketing against health care institutions, the
similar close of his quoted remarks at fn . 23, supra, with the close of Senator
Taft's quoted remarks takes on added meaning
27 "Picketing by individuals who are not employees of the company being
picketed . Usually they belong to the union which is seeking to organize
employees in the plant." "Roberts' Dictionary of Industrial Relations," 512
(1971). "Picketing in which non-employees are used ." Casselman , "Labor
Dictionary." 445 (1949).
28 Its fn . 11, supra (emphasis supplied).
29 Sailors ' Union of the Pacific, AFL (Moore Dry Dock Company), 92
NLRB 547 (1950)
70 FMCS must also be furnished a copy of the 8(g) notice . If FMCS is to
become potentially involved in the myriad of disputes that may occur at all
health care facilities, in all the potential disputes between the innumerable
suppliers and their employees following the delivery, in all the spontaneous
disputes that may erupt at every health facility construction site, without
regard to the participants in the dispute , no matter how unrelated to the
workings of the health care facility itself and no matter how unlikely the
potential for disruption, one would think that at least a sentence or two in
the legislative history would be devoted to this hundredfold increase in the
responsibilities of FMCS.
UNITED ASSN . OF JOURNEYMEN , LOCAL 630
So too are considerations surrounding our historic
approach regarding limitations on the right to engage
in concerted protest. The majority states that "if
Congress had intended to exempt some types of pick-
eting from the requirements of Section 8(g), the
wording of that section would have specified the cir-
cumstances in which it was to be applied." That is a
remarkable observation from our colleagues, flying,
as it does, in the face of the unaltered Section 13 of
the Act:
Nothing in this Act, except as specifically pro-
vided for herein, shall be construed so as either
to interfere with or impede or diminish in any
way the right to strike, or to affect the limita-
tions or qualifications on that right.
Section 13 constitutes "a rule of construction which
cautions against expansive reading . . . which would
adversely affect the right to strike, unless the Con-
gressional purpose to give it that meaning persuasive-
ly appears either from the structure or history of the
statute. Therefore, § 13 is a command of Congress to
the courts to resolve doubts and ambiguities in favor
of an interpretation . . . which safeguards the right
to strike as understood prior to the passage of the
[amendments]." 31
We are convinced that the real underpinning of
the majority's determinations in these cases is found
in its view that the results reached do "not appear to
impose any undue burden or hardship" on those la-
bor organizations involved at health care facility
premises. We have two serious reservations on the
worth of that judgment. First and foremost, while the
labor organizations involved may not face any undue
hardship, that fact is little comfort to the employees
of Casey & Glass who, after a lengthy recognitional
struggle culminating in a Board election, have now
lost their jobs and right to reinstatement because of
the requirements of Section 8(d) which states that
any employee who engages in a strike within the 8(g)
period has lost his "employee" status for the purpos-
es of Sections 8, 9, and 10 of the Act. Secondly, while
the majority's result may, in fact, be a "good" result,
it begs the question whether this Board has the right
to reach it. "To say `there ought to be a law against
it' does not demonstrate the propriety of the NLRB's
imposing the prohibition." 32 Simply because the ma-
jority feels that without imposing any undue burden
upon a labor organization it can give added protec-
tion to health care institutions, the premises of which
may become the situs of completely unrelated dis-
putes, does not comport with our understanding of
this Agency's function. We conclude that Congress
845
did not intend Section 8(g) to encompass the activity
involved in these cases. We thus dissent in Lein-
Steenberg, Mercy Hospital of Laredo, and Casey &
Glass, Inc.
MEMBER JENKINS, further dissenting:
Construction work within the grounds occupied by
a hospital, or adjacent to the hospital building as an
addition would be, is not necessarily hospital work or
functions, and in itself is not entitled to whatever
additional protection the Act provides to hospitals.
Such construction work, depending on the facts of
each case , can be picketed without interfering with
the adjacent hospital's own work, as innumerable
cases heretofore decided in other areas by this Board
demonstrate, and indeed as the facts in Lein-Steen-
berg show here. It is hospital functions, and not sepa-
rate nearby nonhospital work, which Congress ac-
corded special protection. Until it is established by
the facts in each case that the union has not kept
these different enterprises separate, I would not in-
clude within the hospital all adjacent or nearby non-
hospital work done for it.
31 N.L R. B v. Drivers, Chauffeurs, Helpers, Local Union No 639, IBT [Cur-
tis Bros., Inc.], 362 U .S. 274. 282 (1960). Via the majority's observation, a
different result than that reached by the Supreme Court would be required
in Local 761, International Union of Electrical, Radio & Machine Workers,
AFL-CIO [General Electric Company] v N L R B, 366 U.S . 667 (1961),
since Sec . 8(b)(4)(A), as the Court observed , literally bans almost all strikes
and Congress did not specify in the wording of that section any exemptions.
33 Cox , "The Duty to Bargain in Good Faith " 71 Harv L. Rev. 1401,
1437, quoted with approval in N L R B v. Insurance Agents' International
Union, AFL-CIO, 316 U.S . 477, 496, fn. 25 (1960).
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT engage in any strike, picketing,
or other concerted refusal to work at the prem-
ises of Martin Memorial Hospital Association,
Inc., or any other health care institution, without
notifying, in writing, Martin Memorial Hospital
Association, Inc., or such other health care insti-
tution, and the Federal Mediation and Concilia-
tion Service, not less than 10 days prior to such
action, of that intention.
UNITED ASSOCIATION OF JOURNEYMEN AND
APPRENTICES OF THE PLUMBING AND
PIPEFITTING INDUSTRY OF THE UNITED
STATES AND CANADA, LOCAL 630, AFL-CIO