DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local Union No. 200, General Service Employees'
Union, S.E.I.U., AFL-CIO and Eden Park
Management, Inc. d/b/a Eden Park Nursing
Home and Health Related Facility, Poughkeep-
sie, New York. Case 3-CG-12
August 16, 1982
DECISION AND ORDER
Upon an unfair labor practice charge filed, on
September 17, 1979, by Eden Park Management,
Inc. d/b/a Eden Park Nursing Home and Health
Related Facility, Poughkeepsie, New York (herein
also called Eden Park Management or the Employ-
er), and duly served on Local Union No. 200, Gen-
eral Service Employees' Union, S.E.I.U., AFL-
CIO (herein also called Local 200 or Respondent),
the General Counsel of the National Labor Rela-
tions Board, by the Regional Director for Region
3, issued a complaint on December 27, 1979,
against Respondent alleging that Respondent had
engaged in, and was engaging in, unfair labor prac-
tices affecting commerce within the meaning of
Section 8(g) of the National Labor Relations Act,
as amended. Copies of the charge and complaint
and notice of hearing before an administrative law
judge were duly served on the parties to this pro-
ceeding. Thereafter, Respondent filed a timely
answer denying the commission of any unfair labor
practices and asserting certain affirmative defenses.
On May 27, 1980, the parties jointly moved the
Board to transfer the instant proceeding to the
Board without the benefit of a hearing before an
administrative law judge, and submitted therewith
a proposed record consisting of the formal papers
and the parties' stipulation of facts with attached
exhibits. On August 15, 1980, the Associate Execu-
tive Secretary of the Board, by direction of the
Board, issued an order granting the motion, ap-
proving the stipulation, and transferring the pro-
ceeding to the Board. Thereafter, the General
Counsel filed a memorandum brief.
Upon the entire record in the case, the Board
makes the following findings:
I. JURISDICTION
The Employer is, and has been at all times mate-
rial herein, a corporation duly organized under,
and existing by virtue of, the laws of the State of
New York. At all times material herein, the Em-
ployer has maintained its principal office and place
of business at 22 Holland Avenue in the city of
Albany and State of New York and various other
facilities throughout the State of New York, in-
cluding a facility located at 100 Franklin Street in
the city of Poughkeepsie and State of New York
(herein also called the Poughkeepsie facility),
263 NLRB No. 16
where it is, and has been at all times material
herein, engaged in the operation of a health care
institution supplying related care and services to
nursing home patients. During the past year the
Employer, in the course and conduct of its business
operations, derived gross revenue from its oper-
ations in excess of $100,000, and purchased and re-
ceived goods and services valued in excess of
$10,000 directly from points located outside the
State of New York. We therefore find that the Em-
ployer 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.
II. THE LABOR ORGANIZATION INVOLVED
Respondent is, 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
The issue presented is whether Respondent vio-
lated Section 8(g) of the Act' by engaging in a
sympathy strike without first giving 10 days' notice
to the Employer and the Federal Mediation and
Conciliation Service (herein also called the FMCS)
of its intention to do so.
A. Facts
The Employer operates a health care institution
in Poughkeepsie, New York, with facilities for 192
geriatric residents. On January 25, 1979,2 Local
144, Hotel, Hospital, Nursing Home and Allied
Health Services Union, S.E.I.U., AFL-CIO (herein
also called Local 144), was certified in Case 3-RC-
7268 as the exclusive representative for a unit of
the service and maintenance employees at the
Poughkeepsie facility. On September 11, having
given appropriate notice under Section 8(g) of the
Act, Local 144 commenced an economic strike
against the Employer, with picketing on the public
sidewalk and street outside the Poughkeepsie facili-
ty.
Local 200 traditionally represents employees of
health care institutions located in and around the
Poughkeepsie, New York, area, but represents no
i Sec. 8(g) provides:
A labor organization before engaging in any stnke, 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 agree-
ment 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 com-
mence. The notice, once given, may be extended by the written
agreement of both parties.
2 All dates herein are in 1979 unless otherwise indicated.
400
LOCAL UNION NO. 200, S.E.I.U.
employees of the Employer at the Poughkeepsie fa-
cility. s On September 11 and other dates in Sep-
tember and October, Local 200 Vice President
David Patrick and Local 200 business agents Millie
Melendez and John Muir participated in the picket-
ing at the Poughkeepsie facility. At no time did
Local 200 give notice under Section 8(g) of the
Act of its intent to picket the Poughkeepsie facility.
The purpose of the picketing by agents of Local
200 was to lend support and assistance to, as well
as to generate publicity for, the employees repre-
sented by Local 144. The picketing activities of
Local 200 agents in support of Local 144 were
publicized in the December edition of the "Local
144 News," a Local 144 publication, as follows:
Local 200 President David Patrick, Repre-
sentatives John Muir and Millie Melendez,
along with 100 Dutchess County members of
144's sister union in the Service Employees In-
ternational Union, turned out to walk with
their fraternal brothers and sisters on the Eden
Park strike line.
The Poughkeepsie Journal, a daily newspaper of
general circulation, noted in a September 11 article
Patrick's participation in the picketing on Septem-
ber 11, but did not indicate Patrick's affiliation
with Local 200. 4
B. Contentions of the Parties
Relying on District 1199, National Union of Hos-
pital & Healthcare Employees, R WDSU, AFL-CIO
(First Healthcare Corporation, d/b/a Parkway Pavil-
ion Healthcare),5 the General Counsel contends
that sympathy striking by a union against a health
care institution comes within the purview of Sec-
tion 8(g) of the Act and that Respondent's agents
therefore acted unlawfully when they failed to give
the requisite 8(g) notice before participating in
Local 144's lawful economic strike at the Employ-
er's Poughkeepsie facility.
Respondent did not file a brief with the Board.
However, in its answer to the complaint Respond-
s In fact, other than those employees represented by Local 144, no em-
ployees at the Poughkeepsie facility are represented by a labor organiza-
ton.
4 While Respondent asserted in its amended answer to the complaint
that the individual actions of Patrick, Melendez, and Muir at the Pough-
keepsie facility were not authorized or sanctioned by Local 200, it is
clear from the stipulated facts that Respondent now acknowledges that
the sympathy picketing at issue was by agents of Local 200. In any event,
we note that the Board regularly considers individuals in positions similar
to those held by Patrick, Melendez, and Muir to be agents of a union;
that Respondent admitted in its amended answer to the complaint that,
pursuant to the provisions of the constitution and bylaws of the Interna-
tional Union, Local 200 "through its agents and or employees" was
acting in sympathy with the strike activity of Local 144; and that Re-
spondent took no affirmative steps to indicate this sympathy activity was
not sanctioned by Local 200. We therefore find the sympathy strike ac-
tivity herein attributable to Local 200.
' 222 NLRB 212 (1976).
ent asserted affirmatively that, because Local 200 is
not the certified collective-bargaining representa-
tive of any employees at the Poughkeepsie facility,
it has no bargaining status or rights under the Act
and, therefore, was not obligated under Section
8(g) to notify the Employer of its intention to
engage in picketing at said facility; and further
that, since sympathy picketing constitutes an infor-
mal showing of support for another union, it is not
the type of activity described in Section 8(g), and
does not therefore require compliance with the 10-
day notice provisions of that section.6
C. Discussion of Law and Conclusions
In Parkway Pavilion Healthcare, supra, the Board
found, inter alia, that the legislative history and
policy considerations which prompted the enact-
ment of Section 8(g) mandate a finding that irre-
spective of its character, objectives, or the type of
economic pressure it generates any strike, work
stoppage, or picketing, including sympathy picket-
ing, at a health care institution violates Section 8(g)
if the 10-day notice requirements of that section
have not been fulfilled. Applying this principle to
the instant case, we find that by failing to notify
separately the Employer and the FMCS of its in-
tention to participate in strike activity at the
Poughkeepsie facility, albeit in sympathy with
Local 144's lawful economic strike, Respondent
violated Section 8(g) of the Act.
We find no merit to Respondent's affirmative de-
fenses that, due to the sympathy nature of its con-
duct or the fact that it represents no employees at
the Poughkeepsie facility, it was relieved of any
obligation to give the 8(g) notice. As the Board in-
dicated in Parkway Pavilion Healthcare, supra, Sec-
tion 8(g) makes it clear that compliance with the
10-day notice provisions by a labor organization is
required in advance of "any strike, picketing, or
other concerted refusal to work at any health care
institution." (Emphasis supplied.) Because Section
8(g) was designed to provide every health care in-
stitution with sufficient time to make arrangements
for continuing patient care during a labor dispute,
compliance with the notice requirements is not ne-
gated by the fact that the participating labor orga-
nization does not enjoy representational status at
the subject facility.7 Nor does compliance by one
* Respondent also defended its conduct on the grounds that other
labor organizations picketed in sympathy with Local 144 without first
giving the allegedly proper notice under Sec. 8(g). We find that the legal-
ity of the conduct of any other labor organization is not before us, and
further is irrelevant to the question of whether Respondent engaged in
unlawful conduct.
During Senate debates before passage of the health care amendments
Senator Taft made it clear that Sec. 8(g) applies "not only to bargaining
Continued
401
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor organization fulfill the statutory requirement
for labor organizations which may later join the
dispute. To find otherwise would be to ignore the
potential for unexpected disruption in services re-
sulting from the addition of a second labor organi-
zation to the picketing activity. 8
In sum, we find that Respondent violated Sec-
tion 8(g) of the Act by picketing at the Poughkeep-
sie facility without first giving the requisite 8(g)
notice.
IV. THE EFFECT 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, unfair labor practices in viola-
tion of Section 8(g) of the Act, we shall order that
it cease and desist therefrom, and take certain af-
firmative 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. Eden Park Management, Inc. d/b/a Eden
Park Nursing Home and Health Related Facility,
Poughkeepsie, New York, is 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.
strikes or pickets, but also, as stated in the statute, to 'any picket or
strike.' As examples, this subsection would apply to recognition strikes,
area standard strikes, secondary strikes, jurisdictional strikes, and the
like." 120 Cong. Rec. S6941 (1974). During these same debates Senator
Javits, addresing the critical community need for continuity bf health
care and the procedures designed by Congress to avoid disruption of
health care delivery, states that "10 days notice of any strike or picketing
. . . must be given to a health care institution." 120 Cong. Rec. S6935
(1974).
8 We are mindful of the fact that Parkway Pavilion Healthcare was dis-
missed from the bench by the Second Circuit Court of Appeals, which
found that by joining the lawfully established picket line of another union
for 1-1/2 hours the respondent union's four officers engaged in a de mini-
mis violation of the Act. N.L.R.B. v. District 1199, National Union of Hos-
pital & Healthcare Employees, RWDSU, AFL-CIO, 556 F.2d 558 (1976).
We note, however, that here agents of Respondent, which traditionally
represents employees of health care institutions, engaged in sympathy
picketing at the Poughkeepsie facility at various times over a period of 2
months; said picketing was admittedly aimed at lending support and as-
sistance to, as well as generating publicity for, the cause of employees
represented by Local 144; and Respondent's participation was in fact
cited in a Local 144 publication as evidence of the breadth of strike sup-
port.
2. Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
3. By picketing at Eden Park Management, Inc.
d/b/a Eden Park Nursing Home and Health Relat-
ed Facility, Poughkeepsie, New York, without first
giving 10 days' written notice to Eden Park Man-
agement and to the Federal Mediation and Conci-
liation Service, Respondent has violated Section
8(g) of the Act.
4. The foregoing unfair labor practices are unfair
labor practices 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,
Local Union No. 200, General Service Employees'
Union, S.E.I.U., AFL-CIO, Albany, New York, its
officers, agents, and representatives, shall:
1. Cease and desist from engaging in any strike,
picketing, or other concerted refusal to work at the
premises of Eden Park Management, Inc. d/b/a
Eden Park Nursing Home and Health Related Fa-
cility without notifying in writing Eden Park Man-
agement and the Federal Mediation and Concilia-
tion Service, not less than 10 days prior to such
action, of that intention.
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."9 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 enough signed copies of the aforesaid notice for
posting by Eden Park Management, Inc. d/b/a
Eden Park Nursing Home and Health Related Fa-
cility, Poughkeepsie, New York, if it is willing, in
places where notices to employees are customarily
posted.
9 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."
402
LOCAL UNION NO. 200, S.E.I.U.
(c) Notify the Regional Director for Region 3, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
MEMBERS FANNING and ZIMMERMAN, dissenting:
Our colleagues today insist on mechanistically
reading and applying the special notice require-
ments of Section 8(g) of the Act to find that the
sporadic participating of three representatives of
Local 200 in a lawful economic strike engaged in
by Local 144, after the latter union gave appropri-
ate notice, constitutes a violation of the Act. This
is hardly the exercise of careful factual analysis or
sound judgment that Congress has conferred on the
Board. Moreover, this decision perpetuates the
same error already found fatal by the Second Cir-
cuit Court of Appeals in a recent case discussed
infra. Because we find no evidence that Local 200's
actions in any way changed the character of the
strike or the picketing activity, and because the ma-
jority's decision does nothing to further the legisla-
tive purpose underlying the special notice require-
ments of Section 8(g), we dissent.
It is now settled that all strike and picketing ac-
tivity directed against a health care facility is sub-
ject to 10 days' advance notice to the employer
and the Federal Mediation and Conciliation Serv-
ice as required by Section 8(g).' 0 The purpose of
such notice was clearly set forth in the Senate
Report which accompanied the 1974 health care
amendments to the Act:
It is in the public interest to insure the con-
tinuity of health care to the community and
the care and well being of patients by provid-
ing for a statutory advance notice of any an-
ticipated 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 care1 institution without
first giving 10 days' notice.
That report went on to make clear that the notice
period was designed to permit the health care insti-
tution involved an opportunity to make arrange-
ments necessary for patient care to continue with-
out interruption.
Nothing in the record before us suggests that the
isolated and occasional participation by representa-
tives of a Union that represented no employees of
the Employer in any way altered the character of
the strike, generated any new or expanded pressure
on the Employer, or posed additional or expanded
'O Painters Local No. 452 (Henry C. Beck Company), 246 NLRB 970
(1979).
' 93d Cong., 2d Sese. 5 (1974).
threats to the Employer's ability to provide for the
care and well-being of its patients. Thus, none of
the legislative objectives that provided the basis for
enacting Section 8(g) will be served by finding a
violation here.
Nonetheless, our colleagues in the majority insist
on a literal interpretation of that section, and per-
petuate the Board's rigid and mechanistic approach
to the special notice requirements. In District 1199,
National Union of Hospital & Healthcare Employees,
R WDSU, AFL-CIO (First Healthcare Corporation,
d/b/a Parkway Pavilion Healthcare), 222 NLRB 212
(1976), the Board found that 1-1/2 hours of partici-
pation by four agents of District 1199 triggered the
8(g) notice requirements of the Act. Member Fan-
ning and former Chairman Murphy dissented from
that determination, and we reaffirm and adopt the
views expressed in their dissent. That decision,
which stands as the unfortunate predicate for the
determination the majority reaches today, was
denied enforcement by the Second Circuit Court of
Appeals on the grounds that the violation, if any,
was de minimis. 12 Whether characterized as de
minimis, or as not within the scope of the notice
requirements, we think the same fundamental prin-
ciples govern. Some underlying legislative purpose
must be served to justify imposition of the notice
requirements. Here, our colleagues can point to
none.
We agree that if the notice of the primary strik-
ing union had been defective, or if the participation
by Local 200 in the picketing had somehow broad-
ened the dispute or the effect of the picketing, a
violation by Respondent would be made out. In
that sense, it may be said that Respondent's repre-
sentatives participated in the picketing at their
peril. But since no such consequences occurred, we
would not squander the Board's limited resources
by applying the notice requirements merely to
insure against the possibility that they might have.
The right to strike is one of the core protections
guaranteed by the National Labor Relations Act.
The right to engage in peaceful picketing is guar-
anteed not only by the Act, but by the United
States Constitution. We recognize, of course, that
these rights are subject to restriction where some
legitimate governmental objective is to be protect-
ed. Here we fail to see any such objective, and the
majority fails to identify one. It is clear that Con-
gress, in imposing the restrictions of Section 8(g),
was concerned not with the acts of striking or
picketing per se, but with the effects of such activi-
ty. We would interpret that section in accord with
those objectives.
1" 556 F.2d 558 (1976).
403
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT engage in any strike, picket-
ing, or other concerted refusal to work at the
premises of Eden Park Management, Inc.
d/b/a Eden Park Nursing Home and Health
Related Facility, Poughkeepsie, New York, or
any other health care institution, without noti-
fying in writing Eden Park Management, or
such other health care institution, and the Fed-
eral Mediation and Conciliation Service, not
less than 10 days prior to such action, of that
intention.
LOCAL UNION No. 200, GENERAL
SERVICE EMPLOYEES' UNION,
S.E.I.U., AFL-CIO
404
