Nurses ANA (City of Hope)

National Labor Relations Board - Board Decisions

Oct 31, 1994

315 N.L.R.B. 468 (N.L.R.B. 1994)

468
315 NLRB No. 59
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Sec. 8(g) provides that
A labor organization before engaging in any strike, picketing, or
other concerted refusal to work at any health care institution
shall, not less than ten days prior to such action, notify the insti-
tution in writing . . . of that intention. . . . The notice shall
state the date and time that such action will commence. The no-
tice, once given, may be extended by the written agreement of
both parties.’’ (Emphasis added.)
California Nurses Association, American Nurses’
Association and City of Hope National Medical
Center. Case 21–CG–16
October 31, 1994
DECISION AND ORDER
BY MEMBERS DEVANEY, BROWNING, AND COHEN
On June 2, 1994, Administrative Law Judge Gerald
A. Wacknov issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the Charging Party filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order.
We find, for the reasons given by the administrative
law judge, that the Respondent was required, pursuant
to Section 8(g) of the Act,1 to give a new 10-day no-
tice, in writing, before it resumed picketing at the
Charging Party’s medical facility on July 18, after a 3-
week hiatus from its earlier lawful picketing. It did not
do so and, thus, violated the Act.
The relevant facts are undisputed. In conjunction
with the parties’ collective-bargaining negotiations the
Respondent (the Union) decided to engage in an eco-
nomic strike and picketing against the Charging Party
(the Medical Center). On June 5, 1993, pursuant to
Section 8(g), the Union tendered timely and effective
notice to the Medical Center of its intent to strike and
picket beginning June 15. The Union struck and pick-
eted from June 15 until June 27. The Union ended the
economic strike and picketing on June 27 and made an
unconditional offer to return to work on behalf of the
striking employees. It resumed picketing at the Medi-
cal Center on July 18, 1993, without giving 8(g) ad-
vance notice.
The date and time provisions of Section 8(g) are
mandatory and must be applied and enforced in ac-
cordance with their express terms. NLRB v. Operating
Engineers Local 39 (Kaiser Foundation), 746 F.2d
530, 533 (9th Cir. 1984), enfg. 268 NLRB 115 (1983).
Thus, contrary to the Respondent’s contention, it is no
defense that, in light of the 8(g) notice tendered on
June 5 and the parties’ ongoing labor dispute, the
Charging Party was ‘‘aware of’’ possible picketing on
July 18. Operating Engineers Local 39, 746 F.2d at
532. The strike and picketing had ceased as of June
27, and the Respondent was free from strikes and pick-
eting for 3 weeks, thereby allowing for a resumption
of normal operations. Although the Respondent, during
this period, may have had grounds for fearing a re-
sumption of picketing, it could not be certain that such
picketing would occur, and it could not be secure that
it would not occur. In these circumstances, the Union
must give a new 10-day notice if it intends to resume
picketing. In that way, the health care institution is not
forced to play a guessing game with respect to the
welfare of its patients. We believe that this reasonable
construction of Section 8(g) fully comports with the
legislative history of the provision. ‘‘Thus, e.g., if the
hospital has been lulled by the cessation of the strike
and subsequent bargaining from a ‘siege’ situation . . .
it is apparent that a second notice would be required.’’
Leg. Hist. 410, (1974 Amendments); 120 Cong.Rec.
22948–22949 (July 11, 1974) (remarks of Rep.
Ashbrook). This result is also consistent with our hold-
ing that a union may not commence picketing more
than 72 hours after the time specified in its initial 8(g)
notice without providing a new 10-day notice. See,
e.g., Hospital Employees (Federal Hill Nursing), 243
NLRB 23, 24 (1979). In light of this precedent, it
would be anomalous to hold that the June 5 notice re-
tained its validity for almost 6 weeks, particularly
where the Union had ceased its original picketing and
made an unconditional offer to return to work 3 weeks
before it resumed picketing on July 18.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, California Nurses Associa-
tion, American Nurses’ Association, Los Angeles,
California, its officers, agents, and representatives,
shall take the action set forth in the Order.
Jean Libby, Esq., for the General Counsel.
Ira L. Gottlieb, Esq. (Taylor, Roth, Bush & Geffner), of Bur-
bank, California, for the Respondent.
Lynn K. Thompson, Esq. (Brian Cave), of Los Angeles, Cali-
fornia, for the Charging Party.
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge. Pursu-
ant to notice, a hearing in this matter was held before me
in Los Angeles, California, on February 17, 1994. The
charge was filed on July 19, 1993, by City of Hope National
Medical Center (the Employer or the Hospital). On August
31, 1993, the Regional Director for Region 21 of the Na-
tional Labor Relations Board (the Board) issued a complaint
and notice of hearing alleging a violation by California
Nurses Association, American Nurses’ Association (the Re-
469NURSES ANA (CITY OF HOPE)
spondent or the Union) of Section 8(g) of the National Labor
Relations Act (the Act). In its duly filed answer to the com-
plaint, the Respondent denies that it has violated the Act.
The parties were afforded a full opportunity to be heard,
to call, to examine and cross-examine witnesses, and to intro-
duce relevant evidence. Since the close of the hearing, briefs
have been received from counsel for the General Counsel,
counsel for the Respondent, and counsel for the Employer.
Upon the entire record, and based upon my observation of
the witnesses and consideration of the briefs submitted, I
make the following
FINDINGS OF FACT
I. JURISDICTION
The Employer is an acute care hospital providing health
care services, with facilities located in Duarte, California. In
the course and conduct of its business operations the Em-
ployer annually purchases and receives goods and materials
valued in excess of $50,000 directly from suppliers located
outside the State of California, and derives gross revenues in
excess of $250,000. It is admitted, and I find, that the Em-
ployer is now, and at all times material has been, an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act, and has been a health care insti-
tution within the meaning of Section 2(14) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted, and I find, that the Respondent is, and at
all times material has been, a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issue
The principal issue in this proceeding is whether the Re-
spondent has engaged in a violation of Section 8(g) of the
Act by picketing at the Employer’s hospital facilities on July
18, 1993, without providing advance written notice to the
Employer and the Federal Mediation and Conciliation Serv-
ice of its intention to engage in such picketing.
B. The Facts
The Union has represented nurses at City of Hope Na-
tional Medical Center for many years. In the most recent
round of negotiations, the parties were unable to agree upon
the terms of a new contract. Therefore, on June 5, 1993, in
accordance with Section 8(g) of the Act, the Union provided
the Hospital and the Federal Mediation and Conciliation
Service with the following letter which constituted the 10-
day notice required by Section 8(g) of the Act:
The California Nurses Association hereby serves notice,
pursuant to Section 8(g) of the National Labor Rela-
tions Act, as amended, of its intention to engage in a
strike, picketing or other concerted activity at City of
Hope National Medical Center. Said activity shall com-
mence on Tuesday, June 15, 1993 at 7 a.m.
From June 15 through 27, 1993, the nurses engaged in an
economic strike against the Hospital, during which picketing
occurred at the Hospital everyday. On June 27, 1993, the
Union made an unconditional offer to return to work on be-
half of the striking nurses, and the picketing activity ceased.
On June 16, 1993, the Hospital obtained a temporary re-
straining order against the Respondent from the superior
court of the county of Los Angeles, which imposed certain
restrictions on the manner of the Union’s picketing at the
Hospital, its two Los Angeles offices, or ‘‘at any location in
Los Angeles County at which an event sponsored by City of
Hope takes place.’’ In support of the temporary restraining
order, the Hospital’s vice president submitted a declaration to
the court, inter alia, as follows:
As a non-profit, charitable institution, the City of Hope
regularly sponsors fundraising events which are held in
hotel and convention facilities. Our biannual conven-
tion, which is attended by volunteers from all over the
United States, is scheduled for July 17–19, 1993, and
includes scheduled events at the Beverly Hilton hotel.
On July 1, 1993, after the picketing had ceased, the court
held a hearing pursuant to an Order to Show Cause why a
preliminary injunction should not issue. The Union argued
that an injunction was not appropriate as the strike had
ended, but did not say whether it would engage in further
picketing. The Hospital argued that the injunction should be
issued since the labor dispute was not over and the Respond-
ent was unwilling to disavow further picketing. Thereupon,
the court issued a preliminary injunction on the same terms
as the temporary restraining order.
The Hospital’s biennial convention was held on July 17–
19, 1993, in Los Angeles, as scheduled. On July 17, 1993,
a reception and dinner was held at the Beverly Hilton Hotel
for the delegates who raise money for the Hospital. During
this time the Union picketed outside the hotel.
The following morning, Sunday, July 18, 1993, the con-
vention activities included a tour of the Hospital by the dele-
gates to the convention. They were transported to the Hos-
pital in buses. The Union picketed for approximately 1 hour
at the main entrance to the Hospital, during the time the
buses were transporting the delegates through the gate, and
for a brief period thereafter. No amplification devices were
used by those individuals who engaged in the picketing. The
picketing took place approximately 150 yards from the near-
est hospital facility where patient care is administered.
Approximately the same number of security guards were
present and available for duty on the hospital campus at the
time of the picketing on July 18, 1993, as were present on
a daily basis during the June 15–27 strike, when picketing
occurred every day. It appears that on both occasions the
Union picketed at the main entrance to the Hospital.
Dennis Pruett is director of security for the Hospital.
Pruett testified that although he had no idea that there would
be picketing at the Hospital on July 18, 1993, he had suffi-
cient security personnel on duty that morning because of the
heavy influx of delegates that were scheduled to tour the fa-
cility. Pruett testified that the main entrance is the only hos-
pital entrance open on weekends, and all employees, patients,
visitors, and delivery vehicles must use this one entrance;
during weekdays, other entrances are also used. According to
Pruett, there were approximately 30 individuals picketing the
entrance, and a security report shows one instance of an al-
470 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Union had previously filed an unfair labor practice charge,
apparently alleging that the newly hired nurses were not legitimate
permanent replacements. The charge was dismissed by the Regional
Office, and the dismissal, appealed by the Union, was recently af-
firmed by the Board.
2 It should be pointed out that the Hospital did not engage in any
conduct related to the dispute which might arguably have warranted
tercation that became physical between a supervisor and one
of the picketers.
Susan Nye, a labor representative for the Union, testified
that the picketing on July 17 and 18, 1993, was part of a
‘‘corporate campaign’’ to pressure the hospital into rehiring
some 52 nurses who had been permanently replaced during
the strike. The campaign included leafleting at various
events, and, in addition, leafleting at board members’ homes
and in the neighborhood of the Hospital’s chief executive of-
ficer. The July 18, 1993 picketing at the Hospital was di-
rected at the delegates and was for the purpose of advising
them of the Union’s ‘‘outrage at the City of Hope perma-
nently replacing 52 . . . experienced nurses.’’ In this en-
deavor the picket signs carried by off-duty nurses were
shaped like tombstones and stated: ‘‘Three hundred and
seven years of nursing experience cannot be permanently re-
placed.’’1
A letter to the delegates from the Hospital, dated July 17,
1993, signed by Sanford Shapero, president and chief execu-
tive officer, discusses the Hospital’s position regarding the
strike and the hiring of permanent replacements, and contains
the following paragraph:
CNA may believe that it can gain leverage in the con-
tract negotiations by disrupting our convention. For this
reason, you may see CNA representatives with placards
and leaflets outside the hotel or at the Medical Center
during Sunday’s tour. For our part, we will proceed
with our deliberations and meetings on schedule. If you
have specific questions about this labor dispute, I or a
member of our administrative team will be happy to an-
swer them.
Heather Hand-Ruger, associate director of human re-
sources for the Hospital, testified that she did not know there
would be picketing or any kind of disruption at the Hospital
on July 18, 1993, and no preparations were made for such
picketing or disruptions.
C. Analysis and Conclusions
Section 8(g) of the Act provides as follows:
A labor organization before engaging in any strike,
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 in-
tention. . . . The notice shall state the date and time
that such action will commence. The notice, once
given, may be extended by the written agreement of
both parties.
The Union gave the requisite 8(g) notice prior to com-
mencing the strike and picketing of the Hospital on June 15,
1993. The strike and picketing was discontinued on June 27,
1993, at which time the striking employees returned to work.
Nevertheless, the underlying labor dispute has continued and
has even been expanded from an initial disagreement over
contract terms to a further disagreement over the refusal of
the Hospital to reinstate nurses who were permanently re-
placed during the strike. In furtherance of its efforts to cause
the Hospital to reinstate the employees, the Union engaged
in picketing at the main entrance to the Hospital on July 18,
1993, 21 days after the initial strike and picketing had been
discontinued.
It is the position of the General Counsel and the Hospital
that the Union has violated the intent of Section 8(g) by fail-
ing to give the Hospital a second 10-day notice prior to the
July 18, 1993 picketing. The Union takes the position that
during a continuing labor dispute subsequent notices for re-
peated instances of picketing or work stoppage are not lit-
erally mandated by Section 8(g), and that the ongoing and
active nature of the dispute necessarily provided the Hospital
with sufficient notice that a renewal of picketing was a dis-
tinct possibility; further, the picketing was clearly not di-
rected at employees or suppliers of the Hospital, but rather
was directed at delegates to the convention who were being
bused through the main gate, and was of short duration.
‘‘The purpose of Section 8(g) is to give hospitals suffi-
cient notice of any strike or picketing to allow for appro-
priate arrangement to be made for the continuance of patient
care in the event of a work stoppage.’’ Montefiore Hospital
& Medical Center v. NLRB, 621 F.2d 510, 515 (1980).
The evidence shows that the Union’s intent in engaging in
the July 18, 1993 picketing was not for the purpose of induc-
ing a work stoppage, or disrupting deliveries or patient care.
Nevertheless, the Board has held that the very nature of pick-
eting may bring about such an unintended result, and the rea-
sonable expectations of a union in the conduct of picketing
activity are not to be given greater weight than the potential
adverse effect such picketing may have upon patient care.
Under Section 8(g), the uninterrupted continuance of patient
care is of overriding significance, and it appears that this
purpose would not be best served by subjecting patients to
the vicissitudes of labor disputes in the first instance and
then engaging in an after-the-fact analysis of the actual re-
sult. See Hospital Employees (United Hospitals), 232 NLRB
443 (1977); Bricklayers Local 40 (Lake Shore Hospital), 252
NLRB 252 (1980). I conclude that the significant aspect of
the Union’s conduct is the act of picketing, and that the
Union’s purposes or motives or the actual effects of such
picketing upon patient care are immaterial to the finding of
a violation.
Section 8(g) requires that the health care institution be ap-
prised, in writing, of ‘‘the date and time that such action will
commence.’’ The Union, in effect, takes the position that
once this requirement has been fulfilled, a health care institu-
tion is thereafter no different than any other employer, and
may be subjected to intermittent picketing without further ad-
vance notice regardless of the intervening time between epi-
sodes of picketing; having once been put on notice, the insti-
tution should thereafter be prepared for any eventuality until
the dispute is resolved. This does not appear to be the logical
extention or intent of the statutory scheme embodied within
Section 8(g), and would result in according paramount sig-
nificance to the Union’s economic weapon of surprise2 over
471NURSES ANA (CITY OF HOPE)
an immediate reaction by the Union. See, for example, Hospital Em-
ployees (CHC Corp.), 229 NLRB 1010 (1977).
3 In her brief, the General Counsel recommends that the Board
adopt the notice requirements set forth in General Counsel Memo-
randum 74–49, Guidelines for Handling Unfair Labor Practice Cases
Arising Under the 1974 Nonprofit Hospital Amendments to the Act.
This appears to be a matter for the Board to determine. In this deci-
sion, I find a violation because the Union gave no ‘‘reasonable’’ no-
tice to the Hospital; however, it is clear that specific notice require-
ments are necessary to preclude litigation of what might be reason-
able under various circumstances.
4 The Union’s constitutional arguments have been addressed by the
Board in Hospital Employees, supra, and are found here to be with-
out merit.
5 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
6 If 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.’’
the patients’ well-being; given the clear purpose of Section
8(g), such an incongruous interpretation is simply not ten-
able. Accordingly, I find that Section 8(g) must be inter-
preted to require some advance notice to a health care insti-
tution in instances of intermittent picketing.
While Section 8(g) does not expressly set forth any notice
requirements in intermittent picketing situations, such notice,
to be effective, must be reasonable under the circumstances;
that is, it must provide the health care institution with a clear
notification, sufficiently in advance of the picketing to allow
the institution to take the necessary steps to insure the con-
tinuation of patient care.
Given the fact that Congress saw fit to impose a 10-day
waiting period prior to the initial commencement of a strike
or picketing against a health care institution, it would appear
that this is also the amount of notice that health care institu-
tions should be given in the event of intermittent picketing.3
In any event, whatever reasonable notice may be required of
a union, the Union here admittedly gave no notice whatso-
ever. And, when patient care is of primary significance, the
burden should not be placed upon the health care institution
to anticipate when such picketing may reoccur because, if
negligent or incorrect in its assessment of the situation, the
patient may be adversely affected; this is too critical a matter
to be left to chance, happenstance, and an after-the-fact anal-
ysis of what the institution should have reasonably antici-
pated under all the circumstances. In lieu of such uncertainty,
a simple, unequivocal notice seems the much better alter-
native. Accordingly, I conclude that the Union has violated
Section 8(g) of the Act, as alleged.4
CONCLUSIONS OF LAW
1. City of Hope National Medical Center is an employer
within the meaning of Section 2(6) and (7) of the Act, and
a health care institution within the meaning of Sections 2(14)
and 8(g) of the Act.
2. California Nurses Association, American Nurses’ Asso-
ciation is a labor organization within the meaning of Section
2(5) of the Act.
3. By picketing the premises of the Hospital on July 18,
1993, without providing the Hospital or the Federal Medi-
ation and Conciliation Service with reasonable advance no-
tice of such picketing, the Union has violated Section 8(g)
of the Act.
4. The above unfair labor practice is an unfair labor prac-
tice affecting commerce within the meaning of Section 2(6)
of the Act.
THE REMEDY
Having found that the Union has violated Section 8(g) of
the Act, I recommend that it be required to cease and desist
therefrom and from in any like or related manner violating
Section 8(g) of the Act. Further, I recommend that the Union
be required to post an appropriate notice, attached hereto as
‘‘Appendix.’’
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended5
ORDER
The Respondent, California Nurses Association, American
Nurses’ Association, Los Angeles, California, its officers,
agents, and representatives, shall
1. Cease and desist from
(a) Engaging in picketing of City of Hope National Medi-
cal Center or any other health care institution, at a time when
the commencement of such picketing is not in conformity
with the notice requirements of Section 8(g) of the Act.
(b) In any like or related manner failing to adhere to the
notice requirements of Section 8(g) of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its offices and meeting halls copies of the at-
tached notice marked ‘‘Appendix.’’6 Copies of the notice, on
forms provided by the Regional Director for Region 21, after
being signed by the Respondent’s authorized representative,
shall be posted by Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places,
including all places where notices to members are customar-
ily posted. Reasonable steps shall be taken by Respondent to
ensure that the notices are not altered, defaced, or covered
by any other material.
(b) Sign and deliver to the Regional Director for Region
21 sufficient copies of the notice, to be furnished by the Re-
gional Director for posting by City of Hope National Medi-
cal Center if it is willing, in places where notices to its em-
ployees are customarily posted.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
472 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT engage in picketing at the premises of City
of Hope National Medical Center, or any other health care
institution, without timely notifying, in writing, any such
health care institution and the Federal Mediation and Concil-
iation Service of the intent to engage in such picketing.
WE WILL NOT in any like or related manner fail to adhere
to the notice requirements of Section 8(g) of the National
Labor Relations Act.
CALIFORNIA NURSES ASSOCIATION, AMER-
ICAN NURSES’ ASSOCIATION