West Lawrence Care Center

National Labor Relations Board - Board Decisions

Sep 25, 1992

308 N.L.R.B. 1011 (N.L.R.B. 1992)

1011
308 NLRB No. 132
WEST LAWRENCE CARE CENTER
1 The parties have excepted to the judge’s credibility findings. The
Board’s established policy is not to overrule an administrative law
judge’s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis
for reversing the findings.
2 In adopting the judge’s 8(a)(1) finding based on the Respondent
Employer’s threat of disciplinary action to employees who refused
to remove their ‘‘Vote 1115’’ buttons, we additionally rely on
uncontradicted evidence of disparate treatment, i.e., that no similar
threats or demands were directed at employees wearing ‘‘Vote man-
agement. We care.’’ or ‘‘Vote 1199’’ buttons.
West Lawrence Care Center Inc. and 1115 Nursing
Home and Hospital Employees Union, a Divi-
sion of 1115 Joint Board
1115 Nursing Home and Hospital Employees Union,
a Division of 1115 Joint Board and Morris
Tuchman, Attorney for West Lawrence Care
Center Inc. Cases 29–CA–14841, 29–CA–14895,
and 29–CG–89
September 25, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On July 8, 1991, Administrative Law Judge Ray-
mond P. Green issued the attached decision. The Re-
spondent Employer and the Respondent Union filed
exceptions and supporting briefs.
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,1 and con-
clusions and to adopt the recommended Order for the
following reasons.
1. The judge found, and we agree, that the Respond-
ent Employer violated Section 8(a)(5) and (1) by refus-
ing to allow Local 1115’s representatives to come onto
its premises on May 3, 1990, and by removing union
literature from a union bulletin board, and that it vio-
lated Section 8(a)(1) by threatening employees for
wearing union buttons.2 We likewise adopt the judge’s
finding that Respondent Local 1115 violated Section
8(g) by picketing without giving prior written notices.
2. Contrary to our dissenting colleague, we adopt
the judge’s finding that the Respondent Employer vio-
lated Section 8(a)(1) and (5) of the Act on May 2,
1990, when it engaged in surveillance and caused the
removal of Respondent Local 1115 Business Agent
Edith Lohlein from the nursing home premises.
The evidence reveals that on May 2, during the
pendency of an election campaign resulting from a
competing union’s representation petition, Lohlein at-
tended a grievance meeting on the first floor of the
nursing home. After the meeting, Lohlein was heading
toward the upper floors to distribute union buttons and
visit with unit employees when she met Administrator
Radzik, who told Lohlein that she did not belong on
the premises and threatened to call the police to re-
move her. Lohlein ignored Radzik and proceeded to
the upper floor nursing areas. Upstairs, Lohlein was
followed by In-Service Director Bols and Assistant
Nursing Director Garvin, who observed and listened
while Lohlein conversed with shop stewards and union
members. When Lohlein objected to Bols’ and Gar-
vin’s standing next to her while she talked with union
members, they responded that they had to listen to
what she said. After approximately 40–90 minutes, the
police arrived, found Lohlein talking with Shop Stew-
ard Marion Watkins, and escorted Lohlein down to the
lobby and, after a brief conversation with Radzik, off
the premises. At the time of this incident, Respondent
Local 1115’s bargaining agreement with the Employer
was still in effect. It included a visitation clause which
stated in pertinent part:
The Union Business Representative or the
Union’s designee, shall have admission to all
properties covered by this Agreement to discharge
his duties as representative of the Union. . . .
The Union shall be permitted to conduct Union
meetings on the premises.
The judge found that the visitation clause gave Re-
spondent Local 1115 the right of access to the Re-
spondent Employer’s premises and was not limited to
allowing only the discussion of grievances with man-
agement or employees. He rejected the Respondent
Employer’s assertion that Respondent Local 1115 Vice
President Aldrich ‘‘basically agreed’’ by telephone to
waive 1115’s right to visit the facility except for pur-
poses of grievance handling and, instead, found that
such a conversation with Aldrich, if held, did not con-
stitute a clear and unmistakable waiver of the Union’s
contract rights. Citing RCA Del Caribe, 262 NLRB
963 (1982), the judge further found no merit in the Re-
spondent Employer’s position that because it was
obliged to maintain neutrality between the competing
unions it could not honor the contract’s access provi-
sions. He accordingly concluded that the Respondent
Employer’s decision to abrogate the contract by bar-
ring Lohlein from visiting with employees at the facil-
ity on May 2, and calling the police to have her eject-
ed, violated Section 8(a)(5) and (1). He further found
that given Lohlein’s lawful presence on May 2, the
management’s actions of following and monitoring her
activities constituted surveillance in violation of Sec-
tion 8(a)(1).
Contrary to our dissenting colleague’s argument that
the visitation clause of the contract limits Respondent
1115’s access to matters of contract administration, we
1012 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Because there is no indication of any historical limitation on
Local 1115’s right of access to the Respondent’s facility, we find
irrelevant the purpose of Lohlein’s visit to the upper floors. We also
note that the Respondent’s surveillance impeded Lohlein from en-
gaging in whatever had been her intended business.
1 The majority contends that the Employer’s surveillance prevented
Lohlein from engaging in union business. The record is devoid,
however, of any evidence to substantiate this assertion. Lohlein
began electioneering as soon as she left the grievance meeting, and
there is no testimony that she would have engaged in union business
of contract administration in the absence of the Employer surveil-
lance.
2 My colleagues contend that the contract permitted access for or-
ganizational purposes. The contract permits the union agent to ‘‘dis-
charge his duties as representative of the Union’’ and to ‘‘conduct
union meetings on the premises.’’ I cannot interpret the contract in
a vacuum. I find that this refers to the Union’s role as bargaining
find it clear from the above-quoted language that the
clause permits 1115 broad access to conduct any union
business, including union meetings on the premises.
Indeed, the Respondent itself recognized that the con-
tract permitted access for organizational purposes. In
this regard, we note that the Respondent sought to per-
suade Local 1115 not to exercise its contract right to
enter the premises for organizational purposes.3 Prece-
dent clearly holds that a negotiated access provision
for union agents that places no restriction on the scope
of such access does not permit an employer, acting
unilaterally, to attempt to restrict access solely to
grievance or contract administration purposes. See
Gilliam Candy Co., 282 NLRB 624 (1987); American
Commercial Lines, 291 NLRB 1066, 1070–1072
(1988). Nor may an employer obtain authority for such
action by placing its own limiting gloss on the provi-
sion—especially a gloss conflict with the provision’s
plain meaning. See Harvey’s Wagon Wheel, 236
NLRB 1670, 1677 (1988).
The dissent’s reference to a neutrality policy is in
fact premised on the Respondent Employer’s claim, re-
jected by the judge, that Respondent Local 1115 had
agreed to waive its right to visit the facility for any
purpose other than grievance handling. We decline to
join in our colleague’s position that the contract’s ac-
cess provision can be truncated by the Respondent
Employer’s purportedly mutually agreed to, but in fact
unilaterally imposed, policy of neutrality. As the judge
recognized, the Board in RCA Del Caribe established
that strict neutrality is not the sole concern where an
incumbent union is challenged by a rival labor organi-
zation, and that the parties to an established bargaining
relationship must be required to continue to meet their
full bargaining obligations under Section 8(a)(5) and
(1). To the extent that our colleague seeks to require
such ‘‘neutrality’’ in derogation of contractual terms,
he implicitly challenges the Board’s position in RCA
Del Caribe.
Accordingly, we adopt the judge’s May 2 violation
findings in their entirety.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, West Lawrence Care Cen-
ter Inc., Far Rockaway, New York, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order, and the Respondent, 1115 Nursing Home
and Hospital Employees Union, a Division of 1115
Joint Board, Far Rockaway, New York, its officers,
agents, and representatives, shall take the action set
forth in the Order.
MEMBER OVIATT, concurring and dissenting in part.
I concur in my colleague’s decision to find that the
Respondent Employer violated Section 8(a)(5) and (1)
of the Act by refusing to allow Local 1115’s represent-
ative to come onto its premises on May 3, 1990, to
talk to employees as required by the collective-bargain-
ing agreement and by removing union literature from
a union bulletin board provided pursuant to the con-
tract. I further agree that the Respondent Employer
violated Section 8(a)(1) by threatening employees with
loss of contractual benefits and by threatening employ-
ees for wearing union buttons. Lastly, I concur in the
finding that Respondent Local 1115 violated Section
8(g) by picketing the Employer’s nursing home with-
out providing the required written notice. I disagree,
however, that the Respondent Employer committed any
unfair labor practices by its actions on May 2, 1990.
The alleged unfair labor practices occured during an
election campaign between incumbent Local 1115 and
its rival, Local 1199. The Employer established a pol-
icy of neutrality during the election which prohibited
union representatives from electioneering on the nurs-
ing home premises. On May 2, Local 1115 Business
Agent Lohlein attended a grievance meeting at the
nursing home. During a break in the meeting, Lohlein
wandered through the facility electioneering and hand-
ing out Local 1115 buttons. Lohlein ignored manage-
ment’s requests to leave the premises. The record does
not support a finding that Lohlein was engaged in ad-
ministering the collective-bargaining agreement. Man-
agement officials followed Lohlein and listened to her
conversations with employees. Lohlein left the facility
after the police arrived pursuant to the Employer’s re-
quest. My colleagues find that the Employer’s ejection
of Lohlein from the facility violated Section 8(a)(5)
and (1), and that the Employer’s following Lohlein and
listening to her conversations violated Section 8(a)(1).
I find that although Lohlein validly entered the Em-
ployer’s premises pursuant to the collective-bargaining
agreement to adjust a grievance, the nature of her pres-
ence changed once she began roaming the facility to
engage in electioneering.1 Lohlein’s electioneering was
unrelated to any contractual right of access2 and was
1013WEST LAWRENCE CARE CENTER
representative and contract administrator for the unit employees, not
as an organization engaged in a contested election with a rival union.
I further find, contrary to my colleagues, that the Employer’s attempt
to establish ground rules on neutrality was not an admission that
Local 1115 had the right of access for electioneering. Indeed, my
colleagues have not explained to my satisfaction how the Employer
could lawfully permit campaigning by one rival union without also
permitting the other union access. That would surely stretch the con-
tract language.
3 My colleagues contend that I am requiring neutrality in deroga-
tion of contractual terms, contrary to Board precedent as expressed
in RCA Del Caribe, 262 NLRB 963 (1982). In that case, the Board
found that an employer did not violate the Act by continuing to bar-
gain and executing a contract with the incumbent union during the
course of an election campaign involving a rival union. The Board
held that ‘‘preservation of the status quo through an employer’s con-
tinued bargaining with an incumbent is the better way to approxi-
mate employer neutrality.’’ Id. at 965. My position is consistent with
RCA Del Caribe because I would require maintenance of the status
quo, which I find does not include access for electioneering pur-
poses.
in violation of the Employer’s prohibition regarding
union agents’ electioneering activities.3 At that point,
Lohlein was no longer present as the employees’ col-
lective-bargaining agent administering a contract, and
her entitlement to access to the Employer’s premises
ceased. Accordingly, I find that the Employer was per-
mitted to ask Lohlein to leave the premises once she
ceased engaging in her collective-bargaining represent-
ative duties.
Because I find no violation for denying Lohlein ac-
cess to the facility for electioneering purposes, I also
find that the Employer did not engage in unlawful sur-
veillance by observing Lohlein following her unjusti-
fied, unprotected refusal to leave the premises.
Katie Parkin, Esq. and Brian Quinn, Esq., for the General
Counsel.
Morris Tuchman, Esq., for the Employer.
Richard Greenspan, Esq., for the Union.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. This case
was tried in New York, New York, on February 13 and April
17, 1991.
The charges in Cases 29–CA–14841 and 29–CA–14895
were filed by Local 1115 on May 7 and 9, 1990. A consoli-
dated complaint based on those charges was issued by the
Regional Director on July 31, 1990. In substance, that com-
plaint alleged:
1. That from on or about May 2, 1990, the Company, not-
withstanding provisions in its contract with Local 1115, has
unilaterally refused to allow Local 1115 representatives to
have access to its facility for the purpose of communicating
with employees with respect to the enforcement of the exist-
ing collective-bargaining agreement.
2. That on or about May 2 and 3, 1990, the Company’s
agents engaged in surveillance of Local 1115’s agents when
they visited the Employer’s faculty.
3. That on or about May 2 and 3, 1990, the Company, by
its agents, threatened employees with loss of contractual ben-
efits including insurance benefits.
4. That on or about May 15, 1990, company agents threat-
ened employees if they wore Local 1115 insignia.
5. That on or about May 21, 1990, the Company unilater-
ally removed Local 1115 literature from a bulletin board
which that Union had been permitted to use in the past.
The Charge in Case 29–CG–89 was filed on May 16,
1990, and the complaint in that case was issued on June 29,
1990. That complaint alleged that the Union, on May 15,
1990, engaged in picketing without first having given the no-
tices required by Section 8(g) of the Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed, I make the following
FINDINGS OF FACT
I. JURISDICTION
It is admitted, and I find, that West Lawrence Care Center
Inc. is an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act and that it is a
health care institution within the meaning of Section 2(14) of
the Act. It is also conceded, and I find, that Local 1115 is
a labor organization within the meaning of Section 2(5) of
the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The CA Cases
For a number of years Local 1115 has had a collective-
bargaining relationship with the United Care Facilities Asso-
ciation of which West Lawrence is a member. An agreement
was made on October 18, 1988, which ran from April 1,
1986, to March 30, 1990. Thereafter, that agreement was re-
newed for a term to run from July 1, 1989, to June 30, 1993.
The economic terms for the renewed contract were submitted
to interest arbitration and those terms were established in an
award which issued on November 20, 1989. In essence, the
basic terms of the 1986 to 1989 contract were retained but
the award provided for wage and benefit increases over a 3-
year period with an option for a reopening for the 4th and
final year of the contract.
Pursuant to the collective-bargaining agreement in effect
between Local 1115 and the Employer as of May 1990, there
was a grievance/arbitration procedure. There also was, at arti-
cle 5, a provision reading as follows:
The Union Business Representative or the Union’s des-
ignee, shall have admission to all properties covered by
this Agreement to discharge his duties as representative
of the Union. The Employer shall make available to the
Union locked glass enclosed bulletin boards in the es-
tablishment for Union notices. The Union shall be per-
mitted to conduct Union meetings on the Employer’s
premise.
At some time unknown to me, an election petition was
filed by another union, District 1199. After a hearing, the
Regional Director, ordered that an election take place
amongst certain employees of the Company. That election
1014 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Marion Watkins, a Local 1115 shop steward, testified that the
discussion with Radzik about the contributions and the July raise
took place on May 3 instead of May 2. Her testimony was that
Radzik said that Local 1115 was not the union in there anymore;
that he wasn’t going to pay any welfare fund or wage increases due
in July; and that ‘‘whatever happened, happened after everything
was over in court.’’
was scheduled to take place on May 17, 1990. Before the
election was held, the Employer filed a request for review
and that apparently was granted by the Board on or about
May 16, 1990. As a result, although the election was held,
the ballots were impounded. As far as I know, no further ac-
tion has taken place with respect to the representation case
and no certification has issued.
Maurice Radzik, the Employer’s administrator, asserts that
sometime in April 1990, an employee supporter of District
1199 asked that District 1199 have equal access to the facil-
ity as did the incumbent Union, Local 1115. Radzik claims
that as a consequence, he called up Raul Aldrich, Local
1115’s secretary-treasurer and discussed ground rules for
visitations by that union’s representatives. He testified that he
told Aldrich that he had no problem with visits for handling
grievances but that he did not want union representatives en-
gaged in election campaigning on the premises. According to
Radzik, when he told Aldrich of the Company’s position, Al-
drich ‘‘basically agreed.’’ Thus, in conclusionary language
and without eliciting testimony as to Aldrich’s actual re-
sponse, the Company asserts that Local 1115 agreed to limit
its contractual visitation rights solely to grievances.
On May 2, 1990, Edith Lohlein, a business representative
of Local 1115, visited the facility for the purpose of discuss-
ing an employee’s seniority grievance. While in the first
floor office of Carla Fria (the director of nursing) a factual
issue arose which required Fria to look for and get some
documentary information. At this point, Lohlein left the of-
fice with the intention of using the extra time to visit with
employees, hand out union buttons and do some electioneer-
ing. However, before getting very far, Radzik confronted her
and told her that she did not belong on the premises. When
Lohlein ignored him and continued to go into the building,
he threatened to call the police. When she still ignored him,
various supervisors followed Lohlein around the building.
When Lohlein told Garvin (assistant director of nurses) and
Bols (the in-service director) that she did not appreciate man-
agement standing next to her while she spoke to union mem-
bers, they said that they had to watch her and listen to what
she said.
At some point during Lohlein’s visit, and while she was
conversing on the fourth floor with Shop Steward Marion
Watkins, the police arrived and escorted Lohlein down to the
lobby. After insisting that she vacate the premises, Lohlein
eventually did so. According to Lohlein, before leaving,
Radzik told Marion Watkins not to talk with her (Lohlein),
and said that the Company’s contract with Local 1115 was
null and void.
Radzik’s version of the events on May 2 is only slightly
different. He acknowledged that Lohlein visited the facility
because she had to discuss a grievance with Carla Fria. He
claims that during the interim period when Fria was obtain-
ing some information, he received reports that Lohlein was
going through the building and engaging in campaigning.
According to Radzik, he told her to leave and when she re-
fused, he called the police to get her out. He also states that
on this date, Lohlein asked him whether the Company was
going to make its contractual payments to Local 1115’s
funds and whether it intended to pay the wage increases that
were supposed to go into effect on July 1, 1990. Radzik tes-
tified that he told Lohlein, in the presence of employees, that
if Local 1115 won the election, the payments would be
made, but that neither the fund contributions nor the wage
increase would be paid if Local 1115 lost the election.
Lohlein again visited the facility on May 3, 1990, to allay
any fears that the employees might have had that the benefits
in the Local 1115 contract were going to be cancelled by the
Company. On this occasion, Radzik again called the police
and caused Lohlein to be ejected from the building.1
The election commenced at 6 a.m. on May 17, 1990. At
about 12:45 p.m. Lohlein entered the facility and went to
speak with employees Marion Watkins, Carrie Cobb, and
Gladys Harrison. Shortly thereafter, Radzik approached the
group, told Lohlein to leave, and told the three employees
that they had to take off their ‘‘Vote 1115’’ buttons or be
punched out. This was viewed by the three employees as a
threat of discharge. Radzik acknowledges that he made the
statement and concedes that ‘‘punching out an employee’’
would, at a minimum, be construed as a suspension.
B. Discussion
The Employer’s contract with Local 1115 gives that Union
the right of access to the Employer’s premises. Moreover,
this right is not limited solely for the purpose of discussing
grievances either with management or with employees. Fur-
ther, pursuant to contract, the Union has been given access
to a bulletin board on company premises for the purpose of
notifying employees of union business.
The Company asserts that its decision not to honor the ac-
cess provisions of the contract was motivated by its desire
to maintain neutrality between the two unions that were com-
peting in the election to be held on May 17, 1990. It also
asserts that in a telephone conversation between Radzik and
Aldrich, the Union agreed to waive its right to visit the facil-
ity except for purposes of grievance handling. In the latter
respect, Radzik’s testimony that Aldrich ‘‘basically agreed,’’
is not viewed by me as constituting a clear and unmistakable
waiver of the Union’s contractual rights.
In RCA Del Caribe, Inc., 262 NLRB 963 (1982), the
Board held that an employer need not maintain strict neutral-
ity where there is a competing labor organization seeking to
represent employees already represented by an incumbent
union. The Board concluded that in such circumstances the
‘‘price to the stability of collective bargaining relationships’’
outweighed the benefits of strict neutrality, despite the inher-
ent advantage enjoyed by an incumbent union. The Board
also concluded that in addition to requiring an employer to
process grievances under the existing contract, as required by
Shea Chemical Corp., 121 NLRB 1027 (1958), the employer
was required to bargain and execute a new contract with an
incumbent union if an agreement was reached. The Board
stated:
For the foregoing reasons, we have determined that
the mere filing of a representation petition by an out-
side, challenging union will no longer require or permit
an employer to withdraw from bargaining or executing
1015WEST LAWRENCE CARE CENTER
2 Shea Chemical was overruled to the extent that it held that an
employer faced with an election petition by a rival union was re-
quired to cease bargaining with the incumbent union for a new con-
tract.
3 I view Hoschton Garment Co., 279 NLRB 565 (1986), as being
distinguishable. In that case union agents who were subjected to sur-
veillance while attempting to speak to a company’s employees were
trespassers on the Company’s property.
a contract with an incumbent union. Under this rule an
employer will not violate Section 8(a)(2) by
postpetition negotiations or execution of a contact with
an incumbent, but an employer will violate Section
8(a)(5) by withdrawing from bargaining based soley on
the fact that a petition has been filed by an outside
union. [Citations omitted.]2
It is my opinion that the Company’s decision to abrogate
provisions of the collective-bargaining agreement by its ac-
tions of barring Lohlein from visiting with employees at the
facility on May 2 and 3, 1990 (and calling the police to have
her ejected), constituted a violation of Section 8(a)(1) and (5)
of the Act. Tom’s Ford, 253 NLRB 888, 893 (1980). I also
conclude that the evidence establishes that after the election
was held on May 17, 1990, the Company removed union no-
tices from the bulletin board reserved for union use pursuant
to the collective-bargaining agreement. This too, I conclude
was a unilateral modification of the existing contract and vio-
lative of Section 8(a)(1) and (5) of the Act.
The uncontroverted testimony of Lohlein shows that when
she visited the facility on May 2, 1990, management person-
nel followed her around and stood alongside her when she
spoke with employees. When Lohlein asked them to go
away, they refused and insisted on listening in on Lohlein’s
conversations with employees. Given Lohlein’s lawful pres-
ence at the facility pursuant to the collective-bargaining
agreement, I conclude that the actions of the Company’s su-
pervisors in this respect constituted unlawful surveillance in
violation of Section 8(a)(1) of the Act.3
There is no disagreement that on May 17, 1990, Radzik
told several employees to remove ‘‘Vote 1115’’ buttons on
pain of disciplinary action. In my opinion, this also con-
stituted a violation of Section 8(a)(1) of the Act as an em-
ployer may not prohibit employees from wearing union in-
signia in the work place absent some legitimate business
concern or absent a showing that such badges, buttons, or in-
signia contain messages that are vulgar, obscene, or other-
wise offensive. NLRB v. Malta Construction Co., 806 F.2d
1009 (11th Cir. 1986); Cannon Industries, 291 NLRB 632
(1988); Page Avjet Corp., 275 NLRB 773 (1985);
Albertson’s Inc., 272 NLRB 865 (1984); Dixie Machine Re-
builders, 248 NLRB 881, 882 (1980).
Finally, the evidence establishes to my satisfaction that on
May 2 or 3 1990, the Employer told employees, in effect,
that pending the outcome of the election, it was not going
to contribute moneys to the Union’s welfare fund and would
not put into effect the contractually required July 1990 wage
increase. The Company in its brief argues that such state-
ments merely constituted a clear recitation of the law. Unfor-
tunately that is not the case. As noted above, RCA Del
Caribe, supra, requires a company to continue in effect the
terms of an existing collective-bargaining agreement during
the pendancy of a representation proceeding. Such a contract
(or any succeeding contract), becomes null and void pursuant
to Section 8(d) of the Act, only on an intervening Board cer-
tification following an election. Accordingly, the statements
attributed to Radzik are construed as threats to withhold ex-
isting contractual benefits in violation of Section 8(a)(1) of
the Act.
C. The 8(g) Allegation
Section 8(g) states:
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, except that in the case of bargaining for an ini-
tial agreement 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 commence. The notice, once given, may be ex-
tended by the written agreement of both parties.
On May 15, 1990, three representatives of Local 1115
walked outside the Employer’s facility for about 30 to 45
minutes wearing signs stating:
Management is unfair to its workers.
Support us in our stand.
1115 Joint Board.
There is no dispute about the Respondent’s status as a
health care facility. Nor is there any dispute about the fact
that the Union did not send any of the notices required by
Section 8(g) of the Act.
Local 1115’s contention is that because the picketing was
of such a limited duration, the alleged violation should be
considered de minimus. While the picketing did not go on
for more than 45 minutes, I cannot say that this constituted
a de minimus action, especially as there was no assurance
given that there would not be any recurrences. Therefore and
also in accord with the Board’s decision in Hospital Employ-
ees District 1199, 256 NLRB 74 (1981), I must reject this
defense.
The Union’s second line of defense is that the picketing
was in response to the Employer’s ‘‘serious and flagrant’’
violations of the Act. It argues that although no such defense
is explicated in the statute, it may be inferred that Congress
did not intend to prevent a union from being able to respond
immediately (and without requiring a 10-day notice) to an
employer’s serious violations of the Act.
In Council’s Center for Problems of Living, 289 NLRB
1122 at fn. 3 (1988), the Board held that a union did not vio-
late the Act where, in a strike to protest the Employer’s un-
fair labor practices (the mass discharge of 17 employees) the
union may not have fully complied with the notice require-
ments of Section 8(g). The Board applied to Section 8(g) the
rationale of Mastro Plastics Corp. v. NLRB, 350 U.S. 270
(1956), wherein the Supreme Court excused a union’s failure
to file the notices required in Section 8(d) because of the
1016 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 As to employers which are not health care institutions, Sec. 8(d),
among other things, requires that a union having a contract with an
employer must, prior to or after the termination date of its contract,
meet certain notice requirements before terminating the contract and
engaging in a strike.
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.
strikers’ protest against the employer’s serious unfair labor
practices.4
On the other hand, the Second Circuit Court of Appeals
expressed a contrary view when the above-cited case was
presented on appeal. Thus, in NLRB v. Mental Health Coun-
cil, 897 F.2d 1238 (2d Cir. 1990), the court stated:
In enacting section 8(g) in 1974, long after Mastro
Plastics was decided, Congress did not include any ex-
ception for unfair labor practice strikes. The Senate and
House reports, however, indicate that the exception
fashioned in Mastro Plastics for section 8(d) should
also be applied to the section 8(g) ten day notice re-
quirement. . . . Again we are somewhat hesitant to
give this legislative history effect, because it not so
much guides interpretation of ambiguous wording in the
statute, but rather creates a significant exception. We do
not find it so clear, as the drafters of the Senate report
did, that the exception should, or was meant to, apply
in the section 8(g) context. Although section 8(d) notice
is designed to equalize bargaining power during collec-
tive bargaining negotiations by preventing ‘‘quickie
strikes,’’. . . section 8(g) notice is not designed to pro-
tect the interests of either employers or emplovees. Sec-
tion 8(g) notice protects the interests of third parties for
whom an unanticipated work stoppage may be a life-
or-death matter. We are reluctant to conclude that the
full Congress intended to sacrifice the safety of the sick
or dying to help labor organizations at health care insti-
tutions avoid a ten-day delay in going on strike.
In sum, the two notice requirements serve very dif-
ferent purposes, and we see no reason to assume that
an exception to one should automatically transfer to the
other. Nevertheless, because the parties did not brief
this issue and because its resolution is not necessary to
our holding today, we do not base or decision on these
grounds.
In my opinion, I do not have to reach the issue of whether
the Mastro Plastics doctrine should apply to 8(g) cases. Even
assuming that it did, I do not believe that the Employer’s un-
fair labor practices were either flagrant or serious enough to
excuse the failure by Local 1115 to file the required notices.
At most, there were a few unfair labor practices committed
by the Employer during the period shortly before and after
the election. Accordingly, I conclude, based on the facts in
this particular case, that Local 1115 has violated Section 8(g)
of the Act.
CONCLUSIONS OF LAW
1. West Lawrence Care Center Inc. is engaged in com-
merce 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. By refusing to allow representatives of Local 1115 to
come onto its premises to talk to employees as required
under its collective-bargaining agreement, the Company has
violated Section 8(a)(1) and (5) of the Act.
3. By engaging in surveillance of union agents as they
talked to its employees, the Company has violated Section
8(a)(1) of the Act.
4. By threatening employees with the loss of benefits con-
tained in its contract with Local 1115, the Company has vio-
lated Section 8(a)(1) of the Act.
5. By telling employees to remove union buttons and
threatening them with discipline if they failed to do so, the
Company has violated Section 8(a)(1) of the Act.
6. By unilaterally removing union literature from a bulletin
board which, pursuant to contract, was reserved for the use
of Local 1115, the Company has violated Section 8(a)(1) and
(5) of the Act.
7. 1115 Nursing Home and Hospital Employees Union, a
Division of 1115 Joint Board is a labor organization within
the meaning of Section 2(5) of the Act.
8. By picketing at the Employer’s facility on May 15,
1990, without first giving 10 days’ written notice to West
Lawrence Care Center Inc., and to the Federal Mediation and
Conciliation Service, Local 1115 has violated Section 8(g) of
the Act.
REMEDY
Having found that the Respondents have engaged in cer-
tain unfair labor practices, I find that they must be ordered
to cease and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended5
ORDER
A. The Respondent, West Lawrence Care Center Inc., Far
Rockaway, New York, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Refusing to allow representatives of Local 1115 to
come onto its premises to talk to employees as required
under its collective-bargaining agreement.
(b) Engaging in surveillance of union agents as they talk
to its employees.
(c) Threatening employees with the loss of benefits con-
tained in its contract with Local 1115.
(d) Telling employees to remove union buttons and threat-
ening them with discipline if they fail to do so.
(e) Unilaterally removing union literature from a bulletin
board which, pursuant to contract, is reserved for the use of
Local 1115.
(f) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
1017WEST LAWRENCE CARE CENTER
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.’’
7 See fn. 6 above.
(a) Post at its facility in Far Rockaway, New York, copies
of the attached notice marked ‘‘Appendix A.’’6 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 29, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
B. The Respondent, 1115 Nursing Home and Hospital Em-
ployees Union, a Division of 1115 Joint Board, Far Rock-
away, New York, its officers, agents, and representatives,
shall
1. Cease and desist from picketing, striking, or engaging
in any other concerted refusal to work at the premises of
West Lawrence Care Center Inc., or any other health care in-
stitution, without first giving not less than 10 days’ written
notice to them and to the Federal Mediation and Conciliation
Service.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its facility in Westbury, New York, copies of
the attached notice marked ‘‘Appendix B.’’7 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 29, after being signed by Local 1115’s authorized rep-
resentative, shall be posted by Local 1115 immediately upon
receipt and maintained for 60 consecutive days in conspicu-
ous places including all places where notices to members are
customarily posted. Reasonable steps shall be taken by Local
1115 to ensure that the notices are not altered, defaced, or
covered by any other material.
(b) Sign and return to the Regional Director sufficient cop-
ies of the notice for posting by West Lawrence Care Center
Inc., if willing, at all places where notices to employees are
customarily posted.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps Local 1115 has taken
to comply.
APPENDIX A
NOTICE TO EMPLOYEES
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.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT refuse to allow representatives of Local
1115 to come onto our premises to talk to employees in ac-
cordance with the terms of our collective-bargaining agree-
ment with that Union.
WE WILL NOT engage in surveillance of union agents as
they talk to our employees.
WE WILL NOT threaten our employees with the loss of
benefits which are contained in our contract with Local 1115.
WE WILL NOT tell our employees to remove union buttons
and threaten them with discipline if they fail to do so.
WE WILL NOT unilaterally remove union literature from a
bulletin board which, pursuant to our contract with Local
1115, is reserved for their use.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WEST LAWRENCE CARE CENTER INC.
APPENDIX B
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 any strike, picketing, or other
concerted refusal to work at the premises of West Lawrence
Care Center Inc., or any other health care institution, without
notifying in writing, West Lawrence Care Center Inc. or such
other health care institution, and the Federal Mediation and
Conciliation Service, not less than 10 days prior to such ac-
tion, of that intention.
1115 NURSING HOME AND HOSPITAL EM-
PLOYEES UNION, A DIVISION OF 1115 JOINT
BOARD