Massachusetts Nurses Association

National Labor Relations Board - Board Decisions

Jul 15, 1976

225 N.L.R.B. 678 (N.L.R.B. 1976)

678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Massachusetts Nurses Association and Lawrence Gen-
eral Hospital. Case 1-CB-2908
July 15, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
of furnishing health care to patients in Lawrence,
Massachusetts. Over a representative period, the hos-
pital had annual gross revenues in excess of $250,000
and received medical and surgical supplies valued in
excess of $50,000 from firms located outside the
Commonwealth of Massachusetts. The complaint al-
leges, Respondent admits, and we find that Lawrence
General Hospital is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act, and that it will effectuate the purposes of the
Act to assert jurisdiction herein.
Upon charges duly filed, the General Counsel of
the National Labor Relations Board, by the Acting
Regional Director for Region 1, issued a complaint
and notice of hearing on September 15, 1975, against
Massachusetts Nurses Association. The complaint
alleged that Respondent had engaged in, and was
engaging in, certain unfair labor practices affecting
commerce within the meaning of Section 8(b)(3) and
Section 2(6) and (7) of the National Labor Relations
Act, as amended. Copies of the charge, complaint,
and notice of hearing were duly served on the parties.
On September 22, 1975, Respondent filed its answer
to the complaint denying the commission of unfair
labor practices and requesting that the complaint be
dismissed.
Thereafter, the parties entered into a stipulation of
facts and jointly requested that the proceeding be
transferred directly to the Board for findings of fact,
conclusions of law, and Order. The parties waived a
hearing before, and the making of findings of fact
and conclusions of law by, an Administrative Law
Judge. The parties agreed that the stipulation, togeth-
er with the exhibits attached thereto, constitutes the
entire record in this case.
On February 3, 1976, the Board issued its Order
approving the stipulation, transferring the proceed-
ing to the Board, and setting February 19, 1976, as
the time for filing briefs. Briefs have been filed on
behalf of Respondent, General Counsel, and the
Charging Party.
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 stipulation, includ-
ing exhibits, the briefs, and the entire record in this
proceeding, and hereby makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
Lawrence General Hospital is a private nonprofit
Massachusetts corporation engaged in the operation
If. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, Respondent admits, and we
find that Respondent is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
By statute enacted in 1965, the Commonwealth of
Massachusetts provides for mandatory interest, or
termination, arbitration of grievances or disputes be-
tween health care facilities and the exclusive repre-
sentatives of their employees, that have "not been
settled by collective bargaining." '
In view of the foregoing statute, the Charging Par-
ty and the Respondent in March 1973 entered into a
2-year contract, expiring on March 1, 1975, which
contained the following provision:
In the event the parties are unable to reach a
settlement on the terms of a new Agreement, all
issues in dispute will be submitted to arbitration
in accordance with the rules of the American
Arbitration Association.
Negotiations began on or about January 28, 1975,2
for a new collective-bargaining agreement. Through-
out the negotiations the Employer sought to remove
the termination arbitration clause from inclusion in
any future agreement on the ground that such a
clause was not a mandatory subject of bargaining.
However, the Respondent refused to enter into a new
and complete agreement without the inclusion of the
provision in question. On May 6, 1975, the parties
executed a new collective-bargaining agreement
which embodied their agreement on all terms and
conditions of employment but contained a new con-
ditional interest arbitration clause, as set forth be-
low:
1 Massachusetts General Laws, ch 150A, sec 9A
2 Public Law 93-360 became effective August 25, 1974 This legislation
repeals the exemption for nonprofit hospitals as formerly found in Sec 2(2)
of the National Labor Relations Act, so that nonprofit hospitals are now
within the Act's definition of "employer"
225 NLRB No. 91
MASSACHUSETTS NURSES ASSN. 679
This Agreement is subject to disposition of the
issue concerning impasse resolution. If it is de-
termined that the Association may not under the
National Labor Relations Act insist to impasse
upon the continuance of the termination arbitra-
tion procedure previously contained in the col-
lective bargaining agreements between the par-
ties, no such procedure will be provided for
herein for purposes of resolving any dispute
either in negotiating any changes in Article II,
Section 1, or a new Agreement. In the event it is
determined that the Association may insist to
impasse on such a procedure, then if the parties
are unable to reach a settlement on the terms of
any changes in Article II, Section 1, or a new
Agreement, all issues in dispute will be submit-
ted to arbitration in accordance with the rules of
the American Arbitration Association and the
instant Agreement will remain in effect pending
the outcome of such arbitration.
The Respondent contends that section 9A, supra,
has not been preempted by the Act, and, in the alter-
native, even if preemption does apply the Respon-
dent may insist to the point of impasse on the inclu-
sion of the interest arbitration clause because of the
special nature of the health care industry.
We find no merit in either of Respondent's conten-
tions.' As noted, chapter 150A of the General Laws
of Massachusetts, which also prohibits lockouts 4 and
strikes,' provides for arbitration as the final and
binding means of resolving all hospital labor dis-
putes, including those "not settled by collective bar-
gaining." In In Re: State of Minnesota, by Warren
Spannaus, et al.,6 the Board, in denying a petition to
cede its jurisdiction over nonprofit hospitals in the
State of Minnesota, found that the Minnesota stat-
utes-which contained provisions relating to hospital
labor disputes similar to those found in chapter
150A-represented "a substantial departure from the
Federal statutory scheme contained in the National
Labor Relations Act . . . . Just as the National La-
bor Relations Act itself has been consistently viewed
as preempting existing state laws, so, too, would state
labor relations laws concerning health care institu-
tions now covered by the Act be preempted." Ac-
cordingly, we find that section 9A, supra, has been
3 We find no merit in the Respondent 's contention that sec 9A requires
that the parties include an interest arbitration provision in their agreement
Rather, sec 9A provides that either party may invoke mandatory interest
arbitration even "if there is no collective bargaining agreement in force
or such an agreement is in force but it contains no [such ] provision
In any event , even if we adopted the Respondent 's interpretation it would
not change the result we have reached
4Sec 4C(1)
5 Sec 4C(2)
6219 NLRB 1095 (1975)
preempted by the Act, and that it would be improper
for the Board to cede its jurisdiction in the instant
proceeding, for the foregoing reasons.
The remaining question raised by the stipulation is
whether the Respondent violated Section 8(b)(3) of
the Act by insisting to the point of impasse upon the
termination arbitration provision. The Board held in
The Columbus Printing Pressmen & Assistants' Union
No. 252, Subordinate to IP&GCU (The R. W. Page
Corporation), 219 NLRB 268 (1975), that an interest
arbitration clause is not a mandatory subject of bar-
gaining and that by bargaining to impasse concern-
ing such clause the respondent union violated Sec-
tion 8(b)(3) of the Act. Although that case arose in
an industrial setting, we find nothing in Public Law
93-360, or its legislative history, which would war-
rant carving out an exception for the health care in-
dustry on this particular issue . We have carefully
considered the Respondent's arguments for creating
such an exception, and its general contentions that
state legislation should not be required to yield to a
paramount uniform Federal policy which fosters free
and unfettered collective bargaining. But, in lan-
guage equally applicable here, we noted in State of
Minnesota, supra, that:
When it amended [the Act], Public Law 93-360,
Congress was not only cognizant of the policy
questions that have been raised herein, but it
was also well aware of the problems in balanc-
ing state-Federal relationships . . . . and con-
sciously chose to embody national standards
with respect to federally protected labor rights.
Accordingly, we find that the Respondent by in-
sisting to impasse upon a nonmandatory subject of
bargaining engaged in an unfair labor practice within
the meaning of Section 8(b)(3) of the Act.'
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with the
hospital's operations described in section I, 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 com-
merce.
7 While Chairman Murphy comments that Congress has encouraged the
use of interest arbitration in the health care field, this does not mean that
Congress has thereby approved a party's insisting to impasse on such a
subject Our decision leaves the parties free to voluntarily agree on such a
provision , but bargaining to impasse on this nonmandatory subject is clear-
ly a violation of the Act
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Having found that the Respondent violated Sec-
tion 8(b)(3) of the Act by insisting on a nonmandato-
ry contract provision to which the Employer object-
ed, we shall order Respondent to cease and desist
from such conduct and take certain affirmative ac-
tion to effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. The Employer is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Respondent is a labor organization within
the meaning of Section 2(5) of the Act.
3. By insisting to the point of impasse that a new
collective -bargaining agreement include a provision
for termination arbitration , the Respondent has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(b)(3) of the Act.
4. The aforesaid 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,
Massachusetts Nurses Association, Boston, Massa-
chusetts, its officers, agents, and representatives,
shall:
1. Cease and desist from insisting that the Em-
ployer agree to include in any collective-bargaining
contract the termination arbitration procedure previ-
ously contained in the collective-bargaining agree-
ments between the parties.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Notify the Lawrence General Hospital, in writ-
ing, that the Respondent will not insist that the Em-
ployer agree to include in any collective-bargaining
agreement a provision requiring it to arbitrate new
contract terms.
(b) Post at Respondent's offices and meeting halls
copies of the attached notice marked "Appendix." 8
Copies of said notice, on forms provided by the Re-
8In 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 "
gional Director for Region 1, after being duly signed
by Respondent's representatives, shall be posted by it
immediately upon receipt thereof, and be maintained
by Respondent for 60 consecutive days thereafter, in
conspicuous places, including all places where no-
tices to members are customarily posted. Reasonable
steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by
any other material.
(c) Sign and mail sufficient copies of said notice to
the aforesaid Regional Director for forwarding to
Lawrence General Hospital for information, and, if
they are willing, for posting by them in all locations
where notices to employees are customarily posted.
(d) Notify the Regional Director for Region 1, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
CHAIRMAN MURPHY, dissenting:
I disagree with my colleagues' finding that Re-
spondent violated Section 8(b)(3) by insisting to im-
passe on an interest arbitration provision in a collec-
tive-bargaining agreement. I would find this a
mandatory subject of bargaining and dismiss the
allegations for the reasons set forth in my dissenting
opinions in The Columbus Printing Pressmen & Assis-
tants' Union No. 252, Subordinate to IP & GCU (The
R. W. Page Corporation), 219 NLRB 268 (1975), and
Greensboro Printing Pressmen and Assistants' Union
No. 319 (The Greensboro News Company), 222 NLRB
893 (1976). See also Chattanooga Mailers Union, Lo-
cal No. 92 v. The Chattanooga News-Free Press Com-
pany, 524 F.2d 1305 (C.A. 6, 1975).
Moreover, my colleagues are finding a violation
here despite the clear statements in the legislative his-
tory of the health care amendments that Congress
favors interest arbitration in the health care industry.
Thus, in explaining the desirability of the special pro-
visions for conciliation of disputes in this industry
included in Section 213 of the Act , the conference
committee in its report stated:
The committee, in adding special mediation
and conciliation procedures, including the
Board of Inquiry, for the health care industry,
recognized the need for continuity of health
services during labor-management disputes and
that the labor organizations representing health
care workers have publicly pledged their best ef-
forts to persuade their affiliates voluntarily to
avoid work stoppages through acceptance of ar-
bitration in the event of an impasse in negotia-
tions. Under these new procedures, it is antici-
pated that, in the event of such an impasse, the
findings of fact and recommendations of the
MASSACHUSETTS NURSES ASSN.
Board of Inquiry would provide the framework
of the arbitrator's decision. [S. Rep. No. 93-988,
93d Cong. 2d Sess. 5 (1974).]
In light of congressional encouragement of the use of
interest arbitration in the health care industry, I fail
to understand how my colleagues are able to con-
clude that by insisting on such provisions Respon-
dent violated Section 8(b)(3).
APPENDIX
681
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively by
insisting that any collective -bargaining agree-
ment contain a provision providing for a termi-
nation arbitration procedure.
MASSACHUSETTS NURSES ASSOCIATION