Lake Shore Hospital

National Labor Relations Board - Board Decisions

Jan 14, 1981

254 N.L.R.B. 536 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sheet Metal Workers Local Union 324, AFL-CIO
and Lake Shore Hospital and Health Related
Facility. Case 3-CG-19
January 14, 1981
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
Upon a charge filed by Lake Shore Hospital and
Health Related Facility, herein called the Hospital
or the Charging Party, the General Counsel for the
National Labor Relations Board, by the Regional
Director for Region 3, issued a complaint on
March 28, 1980, against Sheet Metal Workers
Local Union 324, AFL-CIO, herein called Respon-
dent. Copies of the charge and complaint and
notice of hearing before an administrative law
judge were duly served on Respondent and the
Charging Party. The complaint alleges that Re-
spondent violated Section 8(g) of the National
Labor Relations Act, as amended, by picketing the
premises of the Hospital without first giving 10
days' written notice of its intent to do so to the
Hospital and to the Federal Mediation and Conci-
liation Service.
The answer duly filed by Respondent admits cer-
tain allegations of the complaint but denies that Re-
spondent has engaged in any unfair labor practices.
Thereafter, on July 25, 1980, the Hospital, Re-
spondent, and the General Counsel filed a stipula-
tion of facts and a motion to transfer proceedings
to the Board. They agreed that the charge, the
complaint and notice of hearing, the answer, and
the stipulation of facts constitute the entire record
in this case, and that no oral testimony is necessary
or desired by any of the parties. The parties ex-
pressly waived a hearing before an administrative
law judge, the making of findings of fact and con-
clusions of law by an administrative law judge, and
the issuance of an administrative law judge's deci-
sion. They stipulated that they desired to submit
the case directly to the Board for findings of fact,
conclusions of law, and order.
By order dated September 5, 1980, the Board ap-
proved the stipulation, transferred the proceeding
to itself, and set a date for the filing of briefs.
Thereafter, the General Counsel filed a brief which
has been duly considered by the Board.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the entire record
herein as stipulated by the parties, as well as the
254 NLRB No. 64
brief filed by the General Counsel, and hereby
makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
Lake Shore Hospital and Health Related Facility
is a not-for-profit corporation duly organized
under, and existing by virtue of, the laws of the
State of New York, with its principal office, a
health care facility and place of business, at Routes
5 and 20, Irving, New York, where it is engaged in
the business of operating a proprietary hospital and
health related facility. In the operation of its busi-
ness, the Hospital annually receives gross revenues
in excess of $250,000, and purchases goods and ma-
terials valued in excess of $5,000 which goods and
materials are delivered to its Irving, New York, fa-
cility directly from States of the United States
other than the State of New York.
The parties stipulated, and we find, that the Hos-
pital is now, and has been at all times material
herein, an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act and
a health care institution within the meaning of Sec-
tions 2(14) and 8(g) of the Act. We further find
that it will effectuate the purposes of the Act to
assert jurisdiction in this proceeding.
II1. THE L.ABOR ORGANIZATION INVOLVED
The parties stipulated and we find that Sheet
Metal Workers Local Union 324, AFL-CIO, is
now, and has been at all times material herein, 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 Lake
Shore Hospital without first giving 10 days' written
notice of its intent to do so to the Hospital and to
the Federal Mediation and Conciliation Service.
B. The Stipulated Facts
Lake Shore Hospital is currently constructing an
addition to the Hospital and its related health care
facilities at Routes 5 and 20, Irving, New York. At
all times material herein, other employers in the
construction industry have, at various times, been
engaged in the construction of the addition on the
Charging Party's premises, pursuant to contracts
with the Hospital.
Respondent does not represent any employees
employed by the Hospital nor has Respondent filed
536
SHEI METAL WORKERS LOCAL UNION 324
a representation petition with the Board under Sec-
tion 9(c) of the Act seeking to represent any em-
ployees employed by the Hospital.
Commencing on or about February 27, 1980, and
continuing to the date of the stipulation, Respon-
dent, by its agents, has picketed at the jobsite with
signs, herein referred to as signs A, B, and C, that
read as follows:
SIGN A-From February 27 to March 31, 1980:
U
N
F
A
It
NOTICL
LAKE SHORE HOSPITAI ANI)
HEAI.IH RI.ATED FCII.IT
Notice to the Public
Lake Shore Hospital and Health Related
R Facility
Unfair
The Purpose of Patrolling This Site Is to Alert
The Public That Lake Shore Hospital and
Health Related Facility is Financing Work
And/Or Building A Complex At Routes 5 and
20, Irving, New York Which is Not Being
Done By Nor Scheduled To Be Completely
Done By Qualified Building Trades Craftsmen.
By Doing So, Lake Shore Hospital And
Health Related Facility Undermines The Pre-
vailing Rates Of Pay And Conditions Which
Exist For Qualified Building Trades Crafts-
men. Lake Shore Hospital Arid Health Related
Facility Is Undermining Job Opportunities and
Union Standards.
This Notice Is Addressed To The Public Only
And Not To Any Employee Employed by
Lake Shore Hospital And Health Related Fa-
cility. Nor To Any Employer OR Employee
On The Jobsite.
SHEET METAl. WORKERS UNION LOCAI. 324,
AFL-CIO
SIGN B-From March 31 to April 9, 1980:
U Notice
N Lake Shore Hospital and Health Related Fa-
F cility
A Mel Heating & Cooling, Inc. does not have a
I contract with or employ members of Sheet
R Metal Workers Union 324, AFL-CIO
SIGN C On March 31, 1980 and from April 10,
1980 onward:
Notice To The Public
Information Only
Mel Heating and Cooling, Inc. Does Not Have
A Contract With Or Employ Members of
Sheet Metal Workers Union, Local 324, AFL-
CIO
Respondent's pickets have not stopped any deliv-
eries intended for the Hospital, nor have any hospi-
tal employees engaged in a strike in support of Re-
spondent.
Respondent did not at any time mail a written
notice to the Charging Party and the Federal Me-
diation and Conciliation Service of its intention to
engage in picketing on February 27, 1980.
C. Contentions of the Parties
The General Counsel contends that Respondent
violated Section 8(g) of the Act by picketing the
Hospital without giving written notice to the Hos-
pital and to the Federal Mediation and Conciliation
Service of its intent to picket at least 10 days prior
to the commencement of its picketing. The General
Counsel also contends that the nature of the picket-
ing does not exempt the picketing from the provi-
sions of Section 8(g) of the Act.
Respondent, in its answer to the complaint, con-
tends that the picketing had a lawful objective, that
it was informational picketing in purpose and ob-
jective.
D. Discussion
We agree with the General Counsel that Respon-
dent, by picketing at the jobsite from February 27
to March 31, 1980, and for March 31 to April 9,
1980, with picket signs heretofore referred to as
Signs A and B, violated Section 8(g) of the Act. It
is settled that the notice requirements of Section
8(g) are applicable even though a labor organiza-
tion does not represent, or seek to represent, health
care employees or even if health care employees
did not engage in picketing or other concerted re-
fusals to work. Indeed, in a prior case at the same
jobsite, we found that similar picketing directed at
the Hospital, although disavowing any appeal to
hospital employees, had a potential to disrupt
health care services at the Hospital and was subject
to the notice requirements of Section 8(g). 1
i Bricktlaers & Allied Cra/fimen. Local 40 (Lake Shore Hospital and
Health Related acriltili, 252 NLRB No 30 (1980). See also Orange Belt
Distrit' Council of Painteri .', 48, Inernational Brotherhood of Painters
and 4lied 7rade. Al- CIO (Sain Joseph ospital), 243 N.RB 60
(1979)
537
DECISIONS OF NATIONAL LABOR RELATIONS OARD
We further reject Respondent's contention that
its picketing was protected informational picketing
and thus exempt from the notice requirements of
Section 8(g).2 We therefore findd that, in the fact
situation herein, Respondent's picketing described
as Signs A and B violated Section 8(g) of the Act.
With respect to the picketing heretofore de-
scribed as Sign C, Chairman Fanning finds that
such picketing is not subject to the notice require-
ments of Section 8(g). Picket Sign C clearly dis-
closes that Respondent's dispute was limited to Mel
Heating and Cooling, Inc., a contractor at the job-
site, and did not either directly or indirectly in-
volve the Hospital or its employees.3 Member Pen-
ello, for the reasons set forth in his dissenting opin-
ion in Henry C. Beck Company, supra, would find
that the picketing described as Sign C falls within
the notice requirements of Section 8(g) and in the
absence of proper notice violated that section of
the Act.
IV. THE EFFECTS OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth above
have a close, intimate, and substantial relationship
to trade, traffic, and commerce among the several
States and tend to lead to industrial strife burden-
ing and obstructing commerce.
v. THE REMEDY
Having found that Respondent has engaged in,
and is engaging in, an unfair labor practice in viola-
tion of Section 8(g) of the Act, we shall order that
it cease and desist therefrom, and take certain affir-
mative action 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 fol-
lowing:
CONCLUSIONS OF LAW
1. Lake Shore Hospital and Health Related Fa-
cility is an employer engaged in commerce within
the meaning of Section 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, Sheet Metal Workers Local
Union 324, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By picketing Lake Shore Hospital and Health
Related Facility without first giving 10 days' writ-
2 See Bricklayers & Allied Craftsmen, Local 40 (Lake Shore Hospital and
Health Related Facility), supra: District 1199, National Union of Hospital
and Health Care Employees. R WDSU, AFL-CIO (United Hospitals of
Newark), 232 NLRB 443 (1977).
a Painters Local No. 452 (Henry C. Beck Company), 246 NLRB 970
(1979).
ten notice to Lake Shore Hospital and to the Fed-
eral Mediation and Conciliation Service, Respon-
dent has violated Section 8(g) of the Act.
4. The foregoing unfair labor practice is an
unfair labor practice affecting commerce within the
meaning 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,
Sheet Metal Workers Local Union 324, AFL-CIO,
Jamestown, New York, its officers, agents, and rep-
resentatives, shall:
1. Cease and desist from engaging in any strike,
picketing, or other concerted refusal to work
against Lake Shore Hospital and Health Related
Facility, or any other health care institution, with-
out giving notice of that intention in writing to
Lake Shore Hospital and Health Related Facility,
or such other health care institution, and the Fed-
eral Mediation and Conciliation Service, not less
than 10 days prior to such action.
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
customarily posted copies of the attached notice
marked "Appendix." 4 Copies of said notice, on
forms provided by the Regional Director for
Region 3, after being duly signed by Respondent's
authorized representative, shall be posted by Re-
spondent immediately 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. Rea-
sonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(b) Furnish to the Regional Director for Region
3 sufficient signed copies of the aforesaid notice for
posting by Lake Shore Hospital and Health Relat-
ed Facility if it is willing, in places where notices
to its employees are customarily posted.
(c) Notify the Regional Director for Region 3, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
4 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
538
SHEET METAL WORKERS LOCAL UNION 324
MEMBER JENKINS, dissenting:
This case involves peaceful informational picket-
ing of a construction site on the premises of a hos-
pital. For the reasons set forth in my dissent in Dis-
trict 1199, National Union of Hospital and Health
Care Employees, R WDSU. AFL-CIO (United Hospi-
tals of Newark), 232 NLRB 443, 445-446 (1977),
and, for the additional reasons set forth in my sepa-
rate, "further" dissent in United Association of Jour-
neymen and Apprentices of the Plumbing and Pipefit-
ting Industry of the United States and Canada, Local
630, AFL-CIO (Lein-Steenberg), 219 NLRB 837,
845 (1975), I would find, based on the facts of this
case, that Section 8(g) has not been violated. See
also my dissent in Bricklayers & Allied Craftsmen,
Local 40 (Lake Shore Hospital and Health Related
Facility), 252 NLRB No. 30 (1980). Finally, I join
Chairman Fanning in finding that the picketing de-
scribed as Sign C did not violate Section 8(g) of
the Act. Accordingly, I would dismiss the com-
plaint in its entirety.
APPENDIX
NOTICE TO EMPI.OYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT picket Lake Shore Hospital
and Health Related Facility or any other em-
ployer in the health care industry, at a time
when the commencement of such picketing is
not in conformity with the notice requirements
of Section 8(g) of the National Labor Rela-
tions Act, as amended.
SHEET METAL WORKERS LOCAL
UNION 324, AFL-CIO
539