Alexandria Clinic, P.A. - Decision Summary

Alexandria Clinic, P.A. (18-CA-15371; 339 NLRB No. 162) Alexandria, MN Aug. 21, 2003. Chairman Battista and Members Schaumber and Acosta reversed the administrative law judge's finding that the Respondent violated Section 8(a)(3) and (1) of the Act by terminating its striking nursing employees and dismissed the complaint in its entirety. Member Acosta also wrote a separate concurrence. Members Liebman and Walsh dissented.

The Respondent's licensed practical nurses and medical assistant employees (nurses) on August 25, 1999, rejected the Respondent's final contract offer and voted to strike. In accordance with Section 8(g)'s requirement that labor organizations give health care institutions 10- days advance written notice of the date and time of its intended strike, the Union informed the Respondent that it would strike the clinic on September 10, 1999, starting at 8 a.m. On September 7, members of the Union's negotiating committee changed the commencement time of the strike from 8 a.m. to noon. Although the Union was aware of this change, it was decided that neither the nurses nor the Respondent was to be notified. The employees were told that someone would come to get them when it was time to strike.

The Respondent hired temporary nurses to replace the striking nurses and when the walkout commenced, the replacement nurses were assigned the unit nurses' work. On September 13 the Respondent sought an explanation as to "why the Union chose to delay the commencement of the strike and why the Union did not give the clinic advance notice of this change in plan." The Union replied by letter, stating that "[u]nder statute, we gave the proper notice to strike and went out on strike within the allowable time." Claiming that this response was legally inadequate, the Respondent wrote to the striking nurses that their walkout was "in violation of the notice provisions of Section 8(g)" and that their employment was, therefore, terminated.

The issue presented in this matter was whether the judge correctly found that the Respondent committed unfair labor practices when it discharged its nursing employees because of the failure to comply with the literal requirements of Section 8(g), i.e. there was a delay in the start of the economic strike of 4 hours after the time set forth in the Union's 10-day notice to the Respondent.

The judge determined that, despite the strike's delay of 4 hours beyond the specified hour of 8 a.m., the Union's noon-time strike did not violate Section 8(g). In reaching this conclusion, the judge relied on Greater New Orleans Artificial Kidney Center, 240 NLRB 432 (1979), where the Board held that Section 8(g) was not to be "rigidly applied" in accordance with its statutory language which provides for extension of strike time by "written agreement of both parties." The judge asserted that no supplemental notice was necessary in this matter because the "strike and picketing began within a reasonable time after the scheduled time [and] . . . the Union was in substantial compliance with Section 8(g)."

Chairman Battista and Member Schaumber noted that the last sentence of Section 8(g) says that the 10-day "notice, once given, may be extended by the written agreement of both parties." Thus, they asserted, a union cannot unilaterally extend the commencement time of its strike and to the extent that the Board's decision in Greater New Orleans holds to the contrary, they overruled it.

Concurring, Member Acosta noted that Section 8(g) of the Act expressly states that a labor organization, before commencing a strike at a health care institution, "shall not less than 10 days prior to such action, notify the institution in writing" and that the "notice shall state the date and time that such action will commence." He said in his view, because the statutory language is unambiguous, "we cannot depart from it." Member Acosta agreed with Chairman Battista and Member Schaumber that the Board inappropriately relied on legislative history to turn the plain statutory language on its head. Therefore, he joined them in overruling Greater New Orleans.

Dissenting, Members Liebman and Walsh concluded that the relevant statutory language is ambiguous with respect to the situation presented here. They wrote:

Read together, Section 8(g) and 8(d) simply do not compel the result the majority reaches. . . . [T]he Board must interpret the Act, taking into account not merely the words of Section 8(g) and 8(d), but also the purpose of these provisions and of the Act as a whole. . . . Applying a rule of reason derived from these legitimate guides to Congressional intent¾and not the majority's mechanical approach¾demonstrates that the discharged nurses did not lose the protection of the Act and that their employer did indeed violate Section 8(a)(3) and (1) by discharging them. The contrary result reached today would surely appall the Congress that enacted Section 8(g), even if it does not trouble the majority.

(Full Board participated.)

Charges filed by Minnesota Licensed Practical Nurses Assn.; complaint alleged violation of Section 8(a)(1) and (3). Hearing in Alexandria, Jan. 24-27, 2000 and Minneapolis on February 3, 2000. Adm. Law Judge John H. West issued his decision June 16, 2000.