Methodist Hospital of Kentucky, Inc.

National Labor Relations Board - Board Decisions

Nov 14, 1975

221 N.L.R.B. 692 (N.L.R.B. 1975)

692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Methodist Hospital of Kentucky , Inc. and Communi-
cations Workers of America, AFL-CIO. Case 9-
CA-8939
November 14, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On August 29, 1975, Administrative Law Judge
Herbert Silberman issued the attached Decision in
this proceeding in which he granted the Respon-
dent's motion to dismiss the complaint in its entirety.
Thereafter, in accordance with Section 102.27 of the
National Labor Relations Board Rules and Regula-
tions, Series' 8, as amended, the General Counsel and
the Charging Party filed timely requests for review of
the Administrative Law Judge's recommended Order
of dismissal and briefs in support thereof, and the
Respondent filed an answering brief.
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 requests for review
and briefs and has decided to reverse the Adminis-
trative Law Judge's recommended Order dismissing
the complaint herein.
The facts of this case are not in substantial dispute.
The Respondent, Methodist Hospital of Kentucky,
Inc., is a nonprofit Kentucky corporation engaged in
the operation of a hospital in Pikeville, Kentucky. On
June 10, 1972, the employees of the hospital
commenced a strike against the hospital. Shortly
thereafter, the strike was ratified by the Charging
Party, Communications Workers of America, AFL-
CIO. The strike continued until October 1974.1 On
October 7, the Charging Party sent a letter to the
Respondent. This letter, a copy of which was sent to
the Federal Mediation and Conciliation Service,
stated that the Charging Party was terminating the
strike and picketing connected therewith, effective
October 10. This letter also contained an uncondi-
tional offer on behalf of all the striking employees to
return to work. At the hearing, the parties stipulated
that this letter was the only notice given by the
Charging Party to the Federal Mediation and
Conciliation Service concerning the strike and
i All dates herein are in 1974 unless otherwise indicated.
2 The nonprofit hospital amendments to the Act were signed into law by
the President on July 26, 1974, and became effective on August 25, 1974
3 In pertinent part, Sec. 8(g) provides:
A labor organization before engaging in any strike , picketing, or other
concerted refusal to work at any health care institution shall , not less
221 NLRB No. 87
picketing since July 26.2 On October 12, the
Charging Party sent another letter to the Respon-
dent. This letter renewed the unconditional offer to
return to work and also- informed,the Respondent
that the striking employees were applying for
employment with the Respondent as new applicants.
The complaint,,as amended at,hearing, alleged, in
substance, that the Respondent had violated, the Act
by refusing after October 7 to reinstate the -striking
employees or hire, the striking employees-as appli-
cants for new employment. During the course of the
hearing, and prior-to the completion of the General
Counsel's case in chief,., the Respondent -made a
motion to dismiss the, complaint on the ground that
the Charging Party -had failed to comply with the
notice requirements of Section 8(g) of the Act3 and
therefore it was relieved of any obligation to reinstate
the striking employees or to hire them as. applicants
for new employment: The General Counsel resisted
the motion arguing, inter alia, that the notice
requirements of Section 8(g) did not apply to the
facts, of this case since the strike had begun -many
months prior to the effective'date of the -hospital
amendments. The Administrative Law Judge granted-
the motion, relying on certain guidelines set forth by
the General Counsel in a memorandum entitled
"Guidelines for Handling Unfair "Labor Practice
Cases Arising Under the 1974 Nonprofit Hospital
Amendments to the Act," dated August 20. The
pertinent portion of the guidelines provides, in
substance, that, after the effective date of the hospital
amendments, a labor organization engaged in ongo-
ing strikes, picketing, or other concerted refusals to
work will be required to cease such ongoing
activities, serve the appropriate notices, and wait the
full statutory period required before resuming such
activities. We do not agree.
In our view, nothing in Section 8(g) or in the
applicable legislative history requires the result
reached by the Administrative Law Judge herein. On
the contrary, it is apparent from the plain language
of Section 8(g) that the 10-day notice requirement
provided for therein is not applicable where the strike
or other activity began prior to the effective date of
the hospital amendments.4 Thus, Section 8(g) specifi-
cally provides that a labor organization must give the
applicable 10-day notice "before engaging in any
strike, picketing, or other concerted refusal to work"
(emphasis supplied). Clearly, the use of the word
"before" can fairly be read only as contemplating
than ten days prior to such action, notify the institution in wasting and
the Federal Mediation and Conciliation Service of that intention ....
4 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 No. 153 (1975 ), cited by the Respondent, is
inapposite since there the strike commenced after the effective date of the
hospital amendments
METHODIST HOSPITAL OF KENTUCKY, INC. 693
activity commencing after the effective date of the
hospital amendments. This plain reading of the
statute is consistent with the 'stated legislative
purpose behind the 10-day notice requirement
provided for in Section 8(g), i.e., "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." 5 Thus, where, as
here , the strike or other activity began prior to the
effective date of the hospital amendments, the health
care institution is already possessed of actual notice
and continuity of patient care cannot be further
provided for by requiring additional notice. The case
of Grand Lodge of Free and Accepted Masons,
Masonic Home, 220 NLRB No. 206 (1975), is
apposite here. In Grand Lodge, the union went on
strike against a nonprofit nursing home prior to the
Board's assertion of jurisdiction over nonprofit
nursing homes. The strike continued after the Board
had asserted jurisdiction and the union did not
thereafter comply with the notice requirements of
Section 8(d)(3). The Board concluded that since the
strike was legal when commenced, the union was not
thereafter required to comply with the notice
requirements of Section 8(d)(3). Accordingly, as we
have determined that the Charging Party was not
required to comply with the notice requirements of
Section 8(g), we shall order the record to be reopened
and the proceeding remanded for further hearing
before the Administrative Law Judge and for the
preparation of a Decision.
ORDER
It is hereby ordered that the record in this
proceeding be, and it hereby is, reopened and that a
further hearing be held before Administrative Law
Judge Herbert Silberman to take testimony and
receive evidence from the General Counsel, the
Charging Party, and the Respondent.
IT IS ALSO ORDERED that this proceeding be
remanded to the Regional Director for Region 9 for
the purpose of arranging such further hearing, and
that said Regional Director be, and he hereby is,
authorized to issue notice thereof.
IT IS FURTHER ORDERED that upon conclusion of
such further hearing, the Administrative Law Judge
shall prepare and serve on the parties a Decision
containing findings of facts upon the evidence
received pursuant to this Order, and such conclu-
5 S. Rept 93-766, 93d Cong ., 2d Sess 4 ( 1974); H. Rept. 93-1051, 93d
Cong., 2d Sess. 5 ( 1974); see also the remarks of Senator Taft in 120 Cong.
Rec., July 10, 1974, at S. 12108; of Senator Cranston in 120 Cong Rec,
May 2, 1974 , at S. 6932; of Senator Williams in 120 Cong Rec., May 2,
1974, at S. 6934, and of Representative Ashrook in 120 Cong Rec., May 30,
1974, at H. 4589
sions of law and recommendations that he may deem
appropriate; and that, following the service of such
Decision on the parties, the provisions of Section
102.46 of the Board's Rules and Regulations, Series
8, as amended, shall be applicable.
DECISION
STATEMENT OF THE CASE
HERBERT SILBERMAN, Administrative Law Judge: On a
charge filed on November 11, 1974, by Communications
Workers of America, AFL-CIO, herein called the Union, a
complaint was issued on June 18, 1975, alleging that
Respondent, Methodist Hospital of Kentucky, Inc., herein
called the Hospital, has, engaged in unfair labor practices
within the meaning of Section 8(a)(1) and (3) of the
National Labor Relations Act, as amended. Respondent
filed an answer generally denying that it has engaged in the
unfair labor practices alleged in the complaint and
asserting various affirmative defenses. A hearing in this
proceeding was held in Pikeville, Kentucky, on August 27
and 28, 1975.
Upon the entire record in this proceeding, I make the
following:
FINDINGS OF FACT
1. JURISDICTION
Methodist Hospital of Kentucky, Inc., a nonprofit
Kentucky corporation, is engaged in the operation of a
health care institution in Pikeville, Kentucky. During the
12 months preceding the issuance of the complaint, which
period fairly represents the Hospital's operations, Respon-
dent purchased goods and products valued in excess of
$50,000 which were shipped to its premises through
channels of interstate commerce directly from points
located outside the Commonwealth of Kentucky. During
the same period the Hospital' s gross revenues exceeded
$250,000. Respondent admits, and I find, that the Hospital
is an employer within the meaning of Section 2(2) and (14)
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint as amended at the hearing, in substance,
alleges that employees of the Hospital were engaged in a
strike against the Hospital during the period from June 10,
1972, until October 7, 1974. On October 7, 1974, the
striking employees referred to in paragraph 7 of the
complaint made an unconditional offer to return to work.
On the same day and also on November 12, 1974, the
striking employees also made applications for employment
with the Hospital as new employees. The Hospital has
refused to reinstate the striking employees and also has
refused to hire the striking employees as applicants for new
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employment although since October 7, 1974, the Hospital
has hired many new employees. -
Uncontroverted evidence was adduced at the hearing
that prior to August 25, 1974, the effective date of the
nonprofit hospital amendments to the Act (Public Law 93-
360), the Hospital was opposed to the representation of its
employees by a labor organization. On the second day of
the hearing in this proceeding, as of which time General
Counsel had not yet finished presenting-his case-in-chief,
the Hospital made a motion to dismiss the complaint on
the ground that the Union has failed to comply with
Section 8(g) of the Act and therefore the Hospital was
relieved of all' obligation to reinstate the striking employees
or to rehire the striking employees as applicants for new
employment. Respondent's motion was argued at length
on the record. All parties agreed on the record that all
evidence bearing on the motion had been adduced at the
hearing. I concur with the position set forth in- the
memorandum of the General Counsel of the, National
Labor Relations Board, dated August 20, 1974, entitled
"Guidelines Under Hospital Amendments" and find that
the Union has failed to comply with the strictures of
Section 8(g). Accordingly, I grant the motion to dismiss the
complaint in this proceeding.
CONCLUSION OF LAW
Respondent has not engaged in the violations of the Act
alleged in the complaint.
[Recommended Order for dismissal omitted from publi-
cation.] `