District 1199-E, National Union of Hospital & Health Care Employees

National Labor Relations Board - Board Decisions

May 27, 1977

229 N.L.R.B. 1010 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
District 1199-E, National Union of Hospital & Health
Care Employees, Retail, Wholesale and Depart-
ment Store Union, AFL-CIO and CHC Corpora-
tion. Case 5-CG-3
May 27, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On August 24, 1976, Administrative Law Judge
William F. Jacobs issued the attached Decision in
this proceeding. Thereafter, Respondent, herein also
called the Union, filed exceptions and a supporting
brief, and Charging Party and the General Counsel
filed answering briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
only to the extent consistent herewith.
As found by the Administrative Law Judge,
Respondent represents the service and maintenance
employees at a nursing home operated by Charging
Party CHC Corporation in Pikesville, Maryland.
Under the terms of the parties' collective-bargaining
agreement,' they are required to hold periodic
meetings to discuss and resolve grievances. A
grievance meeting was scheduled for March 2, 1976,2
postponed by the Charging Party to March 4, then
canceled by the Charging Party and rescheduled for
March 9. Despite the pendency of seven grievances,
including one involving a discharge, on March 8 the
nursing home's administrator, Maury Leibowitz,
sought to cancel the meeting again. Unable to reach
Union Representative Richard Ehrmann, Leibowitz
left a message that he had called, but did not say he
had canceled the meeting set for the following day.
Ehrmann called the nursing home about noon the
next day and learned that the meeting was canceled
because Leibowitz had a more important and
conflicting appointment.
Thereafter, an employee heard that Leibowitz and
other members of management had gone to a
birthday party luncheon and so informed Ehrmann,
who called the Charging Party's personnel director to
complain that management's conduct exhibited
disrespect for the grievance process. When Ehrmann
arrived at the home about 2 p.m., shortly after the
The contract is effective from September 1974 to August 1977.
229 NLRB No. 115
group which had attended the birthday party
returned to the home, he went to Leibowitz' office
and was advised that Leibowitz had not returned,
that he had another meeting to attend, and that the
grievance meeting had been canceled. Ehrmann then
went to the directress of nursing and complained that
the cancellation was unfair to the union members,
who had come to the home despite the inclement
weather solely to attend the scheduled meeting, and
was told that Leibowitz would be gone for the
remainder of the day.
Ehrmann next went to the lounge to confer with
the waiting employees and union delegates. When
those waiting learned from another employee that
Leibowitz was in fact in, Ehrmann and three
employees proceeded to Leibowitz' office. There,
however, they were told that Leibowitz was not in
and when they knocked on his door there was no
response. As the group was preparing to leave, they
noticed a light in Leibowitz' office and, peering
under the door, saw the shoes of a man who was
walking about. When one of the employees said
"He's in there," the light went out. At this point
Ehrmann went upstairs and ordered the employees
down to Leibowitz' office.
About I to 3 minutes after the light went out,
Leibowitz, who was coatless and wore the same shoes
that had been seen under the door, came through the
front door of the home brushing snow from his
trousers and went directly to his office where he
paged Ehrmann. After a heated exchange between
the two, Leibowitz agreed to conduct the meeting as
scheduled and Ehrmann directed the employees, who
had been off the floor a total of 5 to 15 minutes, to
return to their work stations. While the grievance
meeting was in progress, an employee leaving the
building observed tracks in the newly fallen snow
leading from Leibowitz' office window to the front
door.
The complaint alleges that the work stoppage
violated Section 8(g) of the Act, because Respondent
failed to give the 10-day notice to the Charging Party
and to the Federal Mediation and Conciliation
Service required by that section. The Administrative
Law Judge found that "Leibowitz was trying to avoid
the scheduled meeting, first by attempting to cancel
it and later by the subterfuge of hiding and denying
his presence at the nursing center . . . [and] [t]hat
Leibowitz's behavior resulted in Ehrmann's genuine
feeling of frustration which he considered tanta-
mount to provocation can hardly be doubted." The
Administrative Law Judge concluded, however, that
the action taken by Respondent nonetheless violated
Section 8(g), on grounds that Respondent "failed to
2 Unless otherwise indicated, all events herein occurred in 1976.
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DISTRICT 1199-E, HEALTH CARE EMPLOYEES
give due consideration to the possible effects of its
work stoppage on the patients by not giving the
proper 10-day notice and thus endangered that
continuity of service which [Section] 8(g) was
designed to guarantee." We disagree.
No doubt there is a high duty of care owed to the
patients in health care institutions but an employer
also owes some duties to his employees and their
representative. Certainly, Section 8(g) was not
intended to license deliberate and blatant frustration
of the bargaining process.3
The purpose of the health care amendments to the
Act was to bring the protections and benefits of
collective bargaining to employees of health care
institutions. Section 8(g) of the Act was intended to
guarantee continuity of services to patients, but not
at the cost of abridging the traditional rights of
employees under the Act. In this case, the Charging
Party has flouted the rights of the employees and
spurned its collective-bargaining obligation under
the Act. The Charging Party repeatedly canceled
scheduled grievance meetings and evaded explaining
said conduct by subterfuge. Goaded beyond endur-
ance, the employees left their work stations for 5 to
15 minutes seeking a personal explanation for the
Charging Party's apparent disregard of its legal
responsibilities. To find under these circumstances
that Respondent violated Section 8(g) of the Act
would be contrary to the purpose and legislative
intent of that section.
While as a general proposition the Board is
concerned with the possibility of harm rather than
actual harm resulting from strikes, picketing, or other
concerted refusals to work at health care institutions,
where one party to a dispute is so clearly in the
wrong, and the other is provoked to a minimal and
innocuous transgression, the fact that no harm was
caused is important. Here, the Charging Party
impeded the bargaining process and the record fails
to establish that Respondent caused harm to any
patient. We see no reason, therefore, to assess any
blame against the Respondent. 4
Furthermore, the employees' conduct herein was
not intended to bring pressure on the Charging Party
through interruption or stoppage of work and
cannot, therefore, be regarded as a "strike" within
the meaning of Section 8(g) of the Act. Instead, the
employees engaged in a spontaneous reaction to the
Charging Party's flouting of its statutory obligation
to them. Their purpose was simply to confront the
Charging Party with its disruptive conduct and to
communicate in person their sense of outrage and
frustration. The interruption of work did not exceed
the time required to satisfy this objective. Such a
response to the Charging Party's provocation is
neither within the letter nor the spirit of Section 8(g)
of the Act.5
Accordingly, based on all the foregoing, we find
that Respondent has not violated Section 8(g) of the
Act, and we shall dismiss the complaint in its
entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint be,
and it hereby is, dismissed in its entirety.
MEMBER MURPHY, concurring:
Like my colleagues, I do not find that Respondent
violated Section 8(g) of the Act. The sole purpose of
the employees here was to personally confront the
Charging Party to express their dissatisfaction with
the latter's conduct, which was unquestionably
disruptive of the collective-bargaining process. I
therefore do not believe that the brief work stoppage
which occurred in this case can be considered a
"strike" within the meaning of Section 8(g) of the
Act. On this ground alone, I concur in the dismissal
of the complaint.
I Likewise, the public interest demands that employees of health care
institutions be accorded the same type of treatment under the law as other
employees in our society, and that the
8(g) notice requirement not be
utilized to deprive employees of their statutory rights. It is clear, therefore,
that a labor organization will not be required to serve a 10-day notice or to
wait until the expiration of the 10-day notice when the employer has
committed unfair labor practices as in Mastro Plastics Corp. v. N. LR.B., 350
U.S. 270 (1956).
As the Senate Committee on Labor and Public Welfare emphasized:
". .. it is the sense of the Committee that during the ten-day notice period
the employer should remain free to take whatever action is necessary to
maintain health care, but not to use the ten-day period to undermine the
bargaining relationship that would otherwise exist. For example. the
employer would not be free to bring in large numbers of supervisory help,
nurses, staff and other personnel from other facilities for replacement
purposes. It would clearly be free to receive supplies, but it would not be free
to take extraordinary steps to stock up on ordinary supplies for an unduly
extended period. While not necessarily a violation of the Act, violation of
these principles would serve to release the labor organization from its
obligation not to engage in economic action during the course of the ten-day
notice period." (S. Rept. 93-766, 93d Cong., 2d sess., Coverage of Nonprofit
Hospitals Under the National Labor Relations Act.)
4 Chairman Fanning relies solely on the foregoing rationale to dismiss
this complaint.
I Cf. N.LR.B. v. District 1199, National Union of Hospital and Health
Care Employees, No. 76-4073 (C.A. 2, November 23, 1976), denying
enforcement of 222 NLRB 212.
DECISION
STATEMENT OF THE CASE
WILLIAM F. JACOBS, Administrative Law Judge: This
case was heard before me on May 17, 1976, at Baltimore,
Maryland. The charge was filed on March 16, 1976, by
CHC Corporation, herein called CHC. The complaint
issued April 9, 1976, alleging that District 1199-E, National
Union of Hospital & Health Care Employees, Retail,
Wholesale and Department Store Union, AFL-CIO,
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
herein called Respondent or Union, violated Section 8(g)
of the National Labor Relations Act, as amended, by
engaging in a concerted refusal to work at the Pikesville
Nursing and Convalescent Center, herein called Pikesville
Nursing, without giving prior written notification to
Pikesville Nursing and the Federal Mediation and Concili-
ation Service as required by Section 8(g) of the Act. In its
answer Respondent denied that it engaged in the alleged
unfair labor practices.
Representatives of all parties were present and were
given full opportunity to participate in the hearing and
subsequently filed briefs. Based upon the entire record,
including my observation of the witnesses and after due
consideration of the briefs, I make the following:
FINDINGS OF FACT
I. JURISDICTION
CHC, a Maryland corporation, is engaged in the
operation of proprietary nursing homes in the States of
Maryland and Pennsylvania, including the Pikesville
Nursing and Convalescent Center also a Maryland corpo-
ration located in Pikesville, Maryland. During the 12
months immediately preceding the issuance of complaint,
Pikesville Nursing received gross revenues in excess of
$100,000 and purchased and received products in interstate
commerce, valued in excess of $3,000, from points located
outside the State of Maryland. Respondent admits, and I
find, that Pikesville Nursing is an employer within the
meaning of Section 2(2) of the Act, engaged in commerce
and in operations affecting commerce as defined in Section
2(6) and (7) of the Act, respectively.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
The issues presented in this case are whether, as alleged
in the complaint, the Union engaged in a concerted refusal
to work at Pikesville Nursing without giving prior written
notification to Pikesville Nursing and the Federal Media-
tion and Conciliation Service; whether Pikesville Nursing
engaged in such flagrant or serious activities as to justify a
concerted work stoppage without giving proper notice; and
whether the incident giving rise to the charge was so short-
lived and its impact so minor as to make the incident de
minimis and therefore nonviolative.
A. Background
The Union under its current contract represents all
service and maintenance employees employed by Pikesville
Nursing at its nursing home located in Pikesville, Mary-
land. This collective-bargaining agreement is effective from
September 19, 1974, through August 31, 1977. Under its
terms the parties are required to meet periodically for the
purpose of discussing and resolving employee grievances.
One such meeting was scheduled for Tuesday, March 2,
1976, but was canceled at the behest of Pikesville Nursing
and rescheduled for Thursday March 4.1 This meeting
likewise was canceled by management and rescheduled for
2 p.m. on March 9. Grievances pending by that date
numbered seven, including one termination case. The
Union was to be represented by Richard Ehrmann, its
administrative organizer, as well as by several delegates
who were also employees of Pikesville Nursing. Maury
Leibowitz, administrator for Pikesville Nursing, was
scheduled to represent the employer and possibly Alfred
M. Francis, its director of personnel, as well.
On March 8, the day preceding the scheduled meeting,
Leibowitz attempted to contact Ehrmann in order to
cancel the grievance meeting for the third time. Leibowitz
testified that the cancellation was dictated by the fact that
he had a second meeting scheduled for the same hour with
a physician concerning patient care which meeting was to
take place away from the nursing center. He resolved the
conflict by contacting the union office and leaving a
message for Ehrmann, who was absent at the time, to the
effect that he had called. He did not, however, indicate in
his message that he was canceling the meeting. Ehrmann
returned Leibowitz' call about 4:30 p.m. the same day but,
by that time, Leibowitz had left the nursing home and did
not leave any message for Ehrmann.
B. The Events of March 9
On the morning of March 9, Leibowitz again called
Ehrmann's office but Ehrmann was out. About noon
Ehrmann checked with his office and learned that
Leibowitz had once again been trying to contact him.
He then telephoned the nursing home and was advised of
the cancellation of the meeting for the ostensible reason
that Leibowitz had another more important meeting to
attend. Later, however, Betty Dunham, an employee of
Pikesville Nursing and a union delegate who was scheduled
to participate in the canceled grievance meeting, learned
that Leibowitz and several other members of management
had left the nursing home about noon to attend a birthday
celebration. Dunham, who had been told earlier by
Leibowitz that the grievance meeting was canceled because
of an important conference, was upset because she believed
that, in reality, the grievance meeting had been canceled in
order to permit Leibowitz to attend the birthday party.
Dunham felt particularly troubled since there was a heavy
snow falling, participants in the meeting were coming from
home specifically to attend the meeting, the meeting had
already been postponed on two previous occasions, and
one employee's job was dependent on the outcome of his
grievance. Despite Dunham having advised Leibowitz of
all of these considerations, he had canceled the meeting
anyway. Therefore, when Dunham concluded that Leibo-
witz had gone to a birthday party instead of attending the
grievance meeting she advised Ehrmann of the situation.
Ehrmann, also upset by Dunham's description of events
and armed with a camera, attempted to find out where the
party was being held. His intention was to take pictures of
Hereafter, all dates refer to 1976 unless otherwise noted.
1012
DISTRICT 1199-E, HEALTH CARE EMPLOYEES
Leibowitz at the party to show his membership. He also
discussed the matter by phone with Personnel Director
Francis and complained to him that this was the third time
that the grievance meeting had been canceled, that the
grievances were important, that the notice of cancellation
was extremely short, and that management was showing
disrespect by its attitude in canceling the meeting in order
to permit Leibowitz to attend a birthday party.
When Ehrmann failed to find out where the birthday
party was being held, he went to the nursing home, arriving
at or about 2 p.m. or shortly thereafter. A few minutes
before, the luncheon party including Leibowitz had
returned to the home. The testimony of witnesses concern-
ing the events that followed is conflicting:
Leibowitz testified that, upon returning from lunch, he
went into his office for about 2 minutes. While there he
signed some papers for Mrs. Millhauser, a supervisor from
the dietary department, then picked up some papers and
left to keep his appointment with the physician at a nearby
shopping center. He left by cab at or about 2:15 p.m. and
returned to the facility by cab about 3:15 p.m.
According to witnesses for the Union, a whole series of
events occurred concerning the whereabouts of Leibowitz
between 2:15 and 3:15 p.m. which Leibowitz emphatically
disputes. 2 Thus, when Ehrmann arrived at the facility
shortly after 2 p.m. he immediately went to Leibowitz'
office and inquired as to whether he had as yet returned.
He was advised that Leibowitz had not returned, that he
had another meeting to attend, and that the grievance
meeting had been canceled. Ehrmann thereupon went to
the office of the directress of nursing where he was told by
Mrs. Trader basically the same thing and that Leibowitz
would be gone for the rest of the day. Ehrmann, excited
and upset, once again complained that his members had
come in the snow to participate in the hearings and now all
he could do was to take them home again. Trader
apologized and suggested only that Ehrmann later contact
Leibowitz or Francis to reschedule the meeting. Ehrmann
then went to the employees' lounge where he met with the
employee delegates who were scheduled to participate in
the grievance proceedings. He told them what had
occurred and suggested that they should wait for Leibowitz
and, if he did not show up, protest their treatment at a later
date. Among the delegates present was Althea Henry who
had arrived at or about 2:30 to participate in the grievance
hearings. She was not scheduled to begin her shift until 3
p.m. but had arrived early because she was unaware that
the meeting had been canceled. Also present was Matty
Naylor, another delegate who, having heard that the
meeting had been canceled, completed her shift at or about
2:30 p.m. and went to the lounge to wait for some
coworkers to whom she intended to offer transportation
home. These delegates were joined in the lounge by
employee Betty Dunham.
As Ehrmann discussed the situation with the delegates
and other employees he received reports that Leibowitz
was, in fact, in the building. Thelma Richards, an employee
who had intended to attend the grievance meeting had, at
or about 2:55 p.m., asked her supervisor, Mrs. Millhauser,
The testimony of Ehrmann, Henry. Dunham, and Naylor concerning
these events is credited. Minor discrepancies in their testimony are
inconsequential.
if Leibowitz was in his office because she wanted to see him
regarding another matter. Millhauser told Richards to wait
while she found out because she, Millhauser, had some
papers for him to sign. Shortly thereafter, Millhauser, who
had left with some papers, returned without them and
informed Richards that Leibowitz was, in fact, in his office.
Richards then went to Leibowitz' office and knocked on
the door. There was no answer. Richards therefore asked
Leibowitz' secretary if she could see him but was told that
he was not in. Richards then punched out at 3:07 p.m. and
went to the lounge where she informed the others that
Leibowitz was in his office and recited her reasons for
believing this to be so. Ehrmann, Naylor, Dunham, and
Henry then went to Leibowitz' office. Both Ehrmann and
Dunham knocked on the door but there was no reply. One
of the clericals told them that Leibowitz was not in.
Ehrmann announced that it appeared to be another "put
off" and offered to drive Henry home. Henry was in the
process of accepting the offer while voicing her disappoint-
ment about having had to come out in the snow for nothing
when Dunham noticed a light shining through from under
the door leading to Leibowitz' office. She got down flat on
the floor and looked under the door. The space under the
door was about I or 1-1/2 inches. When Dunham looked
under the door she saw someone walking back and forth in
Leibowitz' office, but she could only see the shoes, a pair of
men's black shoes. She concluded that it was Leibowitz
and announced that Leibowitz was in his office walking
around. Naylor then got down flat on the floor, looked
under the door, and, like Dunham, could also see someone
walking around. When Dunham announced, "He's in
there!" the light suddenly went out in Leibowitz' office.
Ehrmann, on the strength of what he was witnessing, and
clearly provoked by the events unfolding, stated that he
was going to take everyone off the floor since it appeared
that there would be no hearing until his membership came
down and demanded one. Ehrmann went upstairs to the
second floor, called his membership off the floor, told them
what was occurring, and ordered them to go down to the
main office. In accordance with Ehrmann's instructions the
employees in the unit, nurses' assistants, dietary personnel,
and other service employees, left their posts and began
walking downstairs toward Leibowitz' office.
Meanwhile, from I to 3 minutes after the light went out
in Leibowitz' office, Leibowitz came through the front door
of the nursing home. He was coatless and brushing snow
from his knees and from the bottoms of his trousers. There
were a number of employees standing in front of his office
by this time and, according to Leibowitz, several others
coming down the hallways, and still others sitting in the
dining area. He walked directly into his office and
according to the testimony of Dunham and Naylor
immediately paged Ehrmann on the intercom and directed
him to report to his office. Ehrmann was elsewhere in the
home, still in the process of calling the employees off the
floor. Leibowitz testified, as did Trader, that just as
Leibowitz returned to his office Trader called him and
advised him that Ehrmann had complained about being
lied to and that he was then pulling everyone off the floor
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and sending them down to the office. Leibowitz testified
that, on the basis of the information received from Trader,
he paged Ehrmann to his office.
When Ehrmann heard himself being paged over the
intercom, he went to Leibowitz' office. By the time he
arrived, there were large numbers of employees gathered in
front of the office. Leibowitz asked Ehrmann to come into
his office to speak with him privately and directed the
employees to return to their stations. Ehrmann refused to
speak privately with Leibowitz. He told Leibowitz that he
would have to speak to Ehrmann and his delegates together
and that the employees were not going to return to their
stations. He stated that Leibowitz had agreed to having a
grievance meeting that day and that Ehrmann wanted the
meeting held as scheduled. He shouted at Leibowitz that
the employees were going to stay right there until
Leibowitz agreed to hold the meeting. He accused
Leibowitz of having the union people come out in the snow
to attend the grievance meeting only to cancel it in order to
attend a birthday party. He also accused Leibowitz of
deceiving the union delegation by pretending that he was
absent from the facility when, in fact, he was in his office
all the time. At this point Leibowitz invited Ehrmann and
his delegates into his office. They entered, delegate
Dunham noticing that Leibowitz' shoes were the same as
those she had seen under the door. Once inside the office,
Ehrmann asked Leibowitz whether or not he intended to
conduct the grievance meeting. Leibowitz agreed to do so
provided the employees went back to work. Ehrmann left
Leibowitz' office and told the employees waiting outside to
return to their work stations. They did so. The elapsed time
from the time that Ehrmann called the employees off their
work stations to the time they returned to work amounted
to 5 to 15 minutes, depending on the testimony of the
various witnesses involved. This was the extent of the work
stoppage. Thereafter, Respondent and the charging party
met to resolve the grievances. The grievances handled
numbered two or three and were resolved in an hour's time.
When Ehrmann and his delegates and Leibowitz closed
the door behind them to consider the grievances presented
to them, Nurses' Assistant Best left the building. Once
outside, she noticed that the heavy snow had resulted in a
deep and even accumulation of snow on all of the window
sills of the nursing home except for the window sill of
Leibowitz' office where the snow had been broken down
and the bushes underneath the window had been dis-
turbed. She noticed also that there were footprints leading
from Leibowitz' window to the front door. After observing
the physical evidence outside Leibowitz' window, Ms. Best
concluded that Leibowitz had, as others presumed, exited
his office through the window, and had presented himself
at the front door of the nursing home as though newly
arrived from his conference with the surgeon. Ms. Best
reentered the nursing home and announced her discovery
to other employees still gathered around Leibowitz' front
door. These employees, like Best, went out, surveyed the
scene described above, and concluded as she had that the
evidence was clear that Leibowitz had, in fact, been in his
office all along and had exited through the window upon
discovery.
Leibowitz testified that it would be physically impossible
for anyone to leap out his window and walk around to the
front door of the nursing home.
Analysis and Conclusions
Where the testimony of Leibowitz is in conflict with that
of the several union witnesses, I credit the latter. Thus, the
evidence on which I rely includes the facts that union
witnesses noticed a light shining under Leibowitz' office
door, saw by peering underneath the door a pair of feet
walking in the office, saw the light go out when one of them
announced that Leibowitz was in there, and later, when
Leibowitz came in the front door of the hospital, noted
tracks leading from his window to the front door. Just as
Ehrmann and certain of the union delegates concluded that
Leibowitz was trying to avoid the scheduled meeting, first
by attempting to cancel it and later by the subterfuge of
hiding and denying his presence at the nursing center, I too
reach the same conclusion. That Leibowitz' behavior
resulted in Ehrmann's genuine feeling of frustration which
he considered tantamount to provocation can hardly be
doubted. My sympathy for the union delegates, and
Ehrmann in particular, under the circumstances reflected
by the credited testimony is sincere. The issue before me,
however, is whether the action taken by the Union is in
violation of Section 8(g) or should be considered condoned
because of the provocations of management.
The purposes of Section 8(g) are clearly set forth in
Senate Report 93-766, dated April 1974, at p. 4:
It is in the public interest to insure the continuity of
health to the community and the care and well being of
patients by providing for a statutory advance notice of
any 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 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 arrangements for the
continuity of patient care ...
Thus, it is patently clear that the primary object behind
the passage of Section 8(g) was and is to protect the
patients where a labor dispute is expected to result in a
work stoppage or strike which might, in turn, cause an
interruption in the proper care of said patients by requiring
the 10-day notice before undertaking the job action. 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). The notice is to enable the health facility to make
proper arrangements in advance of the work stoppage to
insure continuity of care. In the instant case, it is not
denied that a work stoppage occurred due directly to the
action of Respondent, without notice and without giving
any time whatsoever to the facility to make arrangements
for continued care of the patients. The action of Respon-
dent was in clear violation of Section 8(g) and moreover
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DISTRICT 1199-E, HEALTH CARE EMPLOYEES
resulted in the precise situation which the passage of
Section 8(g) was intended to avoid. A set of circumstances,
not necessarily as blatant as the one discussed herein, could
arise at any health institution at any time which a union
might consider to be sufficient reason to have its member-
ship walk off the job, but Section 8(g) places a burden on
unions representing employees at health institutions not
borne by other unions, and that burden is a requirement
that it give to the welfare of patients at such health
institutions a consideration equal to or paramount to the
consideration it owes its membership. That consideration
takes the form of a 10-day notice. The Union here, though
clearly provoked by management, was nevertheless in
violation of Section 8(g) because it failed to give due
consideration to the possible effects of its work stoppage on
the patients by not giving the proper 10-day notice; it thus
endangered that continuity of service which Section 8(g)
was designed to guarantee.
With regard to the argument that the concerted refusal to
work lasted for only 5 to 15 minutes, had little or no
impact, and was therefore not violative, I find that position
to be ill founded for the Board has ruled that, even where
there has been no interruption of patient care whatsoever,
and there has been no demonstrable adverse impact on the
health institution's ability to provide customary medical
care, a violation has occurred where the responsible labor
organization has taken a job action (in that case picketing)
without first conforming to the 10-day notice requirement
of Section 8(g). International Brotherhood of Electrical
Workers, Local Union No. 388 (St. Joseph's Hospital of
Marshfield, Inc.), 220 NLRB 665 (1975). Thus, the
considerations which are paramount are not only the
actual and demonstrable effects which have occurred as a
result of the job action but the possible or potentially
deleterious effects of the job action on the welfare of the
patients; I find that Respondent has violated Section 8(g)
of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent as set forth in section III,
above, occurring in connection with the operations of
Respondent as set forth in section 1, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(g) of the
Act, I shall recommend that it be ordered to cease and
desist therefrom and to take certain affirmative action
necessary to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and
upon the entire record, I hereby make the following:
CONCLUSIONS OF LAW
1. Pikesville Nursing and Convalescent Center is
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Pikesville Nursing and Convalescent Center is a
health care institution within the meaning of Section 2(14)
of the Act.
3. Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
4. By engaging in a concerted refusal to work at
Pikesville Nursing and Convalescent Center at Pikesville,
Maryland, without first giving 10 days' written notice to
Pikesville Nursing and Convalescent Center and to the
Federal Mediation and Conciliation Service, Respondent
has violated Section 8(g) of the Act.
5. The foregoing unfair labor practice is an unfair labor
practice affecting commerce within the meaning of Section
2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
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