NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of NLRB decisions. Readers are requested
to notify the Executive Secretary, National Labor Relations Board,
Correctional Medical Services, Inc. and Civil Service Employees
Association, Local 1000, AFSCME. Case 3–CA–23855
May 31, 2007
DECISION AND ORDER
By Chairman Battista and Members Liebman
and Schaumber
Upon a charge filed on October 1, 2002, by Civil Service Employees Association, Local 1000, AFSCME (the Union), the General Counsel of the National Labor Relations Board issued a complaint on January 6, 2003, against Correctional Medical Services, Inc. (the Respondent or CMS), alleging that it had engaged in certain unfair labor practices affecting commerce within the meaning of Section 8(a)(3) and (1) and Section 2(6) and (7) of the National Labor Relations Act. Copies of the charge and complaint were served on the Respondent. The Respondent filed a timely answer denying the commission of any unfair labor practices.
On March 24, 2003, the
The National Labor Relations Board has delegated authority in this proceeding to a three-member panel.
On the entire record in the case, the Board makes the following.
Findings of Fact
i. jurisdiction
The Respondent, a corporation with an office and place of
business located in
ii. alleged unfair labor practices
The issues before the Board are whether the Respondent violated Section 8(a)(1) by interrogating employees about their participation in certain conduct, Section 8(a)(3) by terminating them for that conduct, and Section 8(a)(1) by subsequently threatening employees with discipline if they engaged in such conduct.[1] A principal subsidiary issue is whether the conduct amounted to picketing within the meaning of Section 8(g).
For the reasons set forth below, we find that the Respondent did not violate the Act.
A. Factual Background
On April 1, 2002,[2]
the Respondent began operating the medical clinic at the Albany County
Correctional Facility (
The clinic operates around the clock, providing chronic care, emergency care, lab services, dental care, and minor surgical services. It sees over 100 inmate patients a day. Although the number of employees fluctuates, the clinic usually employs one physician, one physician’s assistant, one dental assistant, eight registered nurses, six licensed practical nurses, one office clerical, one medical records clerk, and two other individuals whom the parties have stipulated are supervisors.
The Union represents the correctional officers at the
jail, who are employed by the State of
On August 15, the
On September 12, under the direction of the Union and
another
The September 12 labor action lasted about 40 minutes,
during which the 20 individuals continually walked in a circle across the
The participants did not block the main entrance, but
continuously patrolled in front of it.
While they were patrolling, at least 10 vehicles entered or exited by
that entrance, without impediment. The
participants spoke to other drivers as they traveled past the entrance on
Many of the participants wore union T-shirts and carried
placards with various messages, including “C.S.E.A. [the
The day after the conduct, the Respondent issued a letter
to the five employees who had taken part in the labor action. The letter stated that the employees had participated
in union picketing of a health care facility without the
On September 24, the Regional Office advised the parties
of its view that the charge was meritorious.
On September 26, the Regional Office issued a complaint alleging that
the Union, by its conduct on September 12, violated Section 8(g) of the
Act. Sometime after September 30, the
In the meantime, on September 25, the Respondent’s counsel individually questioned three of the five employees involved in the conduct. The attorney asked them whether they had participated, who had solicited their participation, and to name the other employees who had participated.
On September 30, the Respondent terminated the five employees for engaging in an “illegal picket.” That same day, the Respondent posted a notice to employees advising them of the notice requirement of Section 8(g), and that the Respondent had filed a Board charge. The notice further stated (emphasis in original):
The NLRB Regional Director has announced his decision. THE NLRB HAS RULED LOCAL 1000’S PICKET WAS ILLEGAL.
* * *
Employees who participate in an illegal picket are violating federal law and are not protected by the National Labor Relations Act
. . . . When employees participate in an illegal picket, they lose their jobs.
On October 1, the
B. The Parties’ Contentions
The General Counsel contends that the Union and the individuals who participated in the September 12 conduct were engaged in “picketing” within the meaning of Section 8(g), and therefore that the Union violated the Act by not giving the prior written notice required by that section.[4] Nevertheless, the General Counsel contends, the Respondent violated Section 8(a)(3) and (1) by discharging the participating employees.
The General Counsel observes that the 1974 Health Care Amendments simultaneously created Section 8(g) and amended Section 8(d). Although Section 8(g) makes it an unfair labor practice for a union to “engag[e] in any strike, picketing, or other concerted refusal to work at any health care institution” without first giving the requisite notice, Section 8(d), in relevant part, states that any employee “who engages in a strike within the appropriate period specified in subsection (g) of this section, shall lose his status as an employee . . . for the purposes of sections 8, 9, and 10 of this Act . . .” (emphasis added). Thus, according to the General Counsel, the “plain meaning” of the statute, confirmed by the legislative history, is that the omission of “picketing” from 8(d) is intentional; there is a clear distinction between “picketing” and “striking,” i.e., the withholding of services; and, therefore, the employees did not lose their employee status when they engaged in off-duty picketing, at least on these facts.
The Respondent, like the General Counsel, contends that
the Union and the individuals who participated in the conduct were engaged in
picketing, and therefore that the
The
iii. discussion
A. The
Employees Were Engaged in Picketing, and the
Initially, we must determine whether the five employees
whom the Respondent discharged were engaged in “picketing” on September
12. As stated above, they, along with
about 15 other individuals, walked continuously in a circle in front of the
main entrance to the
Our dissenting colleague does not quarrel with the
proposition that the employees herein were engaged in picketing. The
Section 8(g) does not define “picketing,” nor is it defined
elsewhere in the Act. The Board has had
little difficulty in similar cases, however, in finding that the kind of
conduct that occurred here amounted to picketing. See, e.g., Hospital Employees District 1199 (United Hospitals of
Finding that the conduct here constituted picketing is
also consonant with the legislative purpose behind Section 8(g). That section
is designed “to assure continuity of patient care.”
The
Based on the foregoing considerations, we find that the
conduct on September 12 constituted “picketing” within the meaning of Section
8(g). It is undisputed that the Union
failed to comply with the notice requirements of that section. It therefore follows that the
B. The Respondent Did Not Violate the Act by Discharging the Employees Who Participated in the Unlawful Picketing
It has long been settled that the protections of Section 7
are not absolute. See, e.g.,
It is well settled, for example, that an employer is free to discharge an employee who pickets in violation of Section 8(b)(7). See, e.g., Rapid Armored Truck Corp., 281 NLRB 371, 371, 382 fn. 1 (1986) (8(b)(7)(C)); Teamsters Local 707 (Claremont Polychemical Corp.), 196 NLRB 613, 614 (1972) (8(b)(7)(B)). The same result obtains when employees engage in conduct in violation of Section 8(b)(4) (see, e.g., Pratt Towers, Inc., 338 NLRB 61, 63–64 (2002)), and when employees strike in violation of Section 8(b)(2). Mackay Radio & Telegraph Co., 96 NLRB 740, 740–742 (1951). Notably, an employer is free to discharge an employee who innocently honors a stranger picket line, if that picketing is itself a violation of the Act. See, e.g., American Telephone & Telegraph Co., 231 NLRB 556, 561–562 (1977), and cases cited. In each of those instances, as in cases arising under Section 8(g), only the labor organization commits the violation, but the employer is free to discharge an employee who engages in the conduct.
Similarly, employees who engage in a strike that is
unlawful for reasons extrinsic to the Act may be subject to discipline
including discharge. See, e.g., Southern Steamship Co. v. NLRB, 316 U.S.
31 (1942) (mutiny); NLRB v. Fansteel Metallurgical
Corp., 306 U.S. 240 (1939) (seizure of employer’s property); see also Laredo Coca Cola
Bottling Co., 258 NLRB 491, 496–499 (1981)
(aggravated violence).
Finally, employees who engage in concerted action in a
manner or for an end deemed inconsistent with the Act may be subject to discipline
including discharge. For example,
employees who engage in a partial strike (Valley City
Furniture Co., 110 NLRB 1589 (1954), enfd. 230 F.2d 947 (5th Cir. 1956)), or an
intermittent strike or slowdown (Elk
Lumber Co., 91 NLRB 333 (1950)), are subject to discharge. See also Confectionery
& Tobacco Drivers Local 805 v. NLRB, 312 F.2d 108, 112 (2d Cir. 1963)
(employees who engage in minority or wildcat strike are subject to discharge)
(enfg. M. Eskin & Son, 135 NLRB
666 (1962)); Emporium Capwell v. West Addition
Community Org., 420 U.S. 50 (1975) (employees who demand separate minority
bargaining rights are subject to discharge); NLRB v. Sands Mfg. Co., 306 U.S. 332 (1939) (employees who engage
in a strike in breach of no-strike clause are subject to discharge).
As
stated above, we view the instant dispute as but one more example of this
general principle. The
We
agree with our dissenting colleague that an employee who pickets in violation of Section 8(g) does not lose his status as an
employee under the Act. This is in
contrast to an employee who strikes
in violation of Section 8(g) or 8(d), where the striker does lose status as an
employee under the Act. However, our
point is that the employee who pickets in violation of Section8(g) is engaged
in unprotected conduct, and is thus vulnerable to employer discipline.
In
short, the matter of “status” is not the same as the matter of
protectedness. Obviously, there are instances
where an employee engages in unprotected conduct and yet retains his “status”
as an employee of the employer. An employee who physically assaults another
because the latter will not sign a card remains an employee. However, he is subject to employer discipline
for his unprotected conduct.
Our
colleague has confused “status” with protectedness. She says that the employees here did not lose
status inasmuch as they engaged in picketing rather than striking, and she then
leaps to the conclusion that they cannot be disciplined, at all, for their
picketing conduct. She fails to
recognize that the 8(g) conduct is nonetheless unlawful and thus unprotected.
Our dissenting colleague says that the Act itself provides
an “express limitation on the Board’s authority” to declare that picketing in
violation of Section 8(g) is unprotected.
In fact, there is no such expression in the Act. And, it is well within the Board’s
discretion to hold that such picketing is unprotected.
It
is one thing to say that Congress did not intend to impose a “loss of status”
on those who engage in 8(g) picketing conduct.
However, it is quite another (as well as an unreasonable stretch) to say
that Congress intended to protect unlawful conduct. That proposition is counterintuitive, and cannot
rest on the mere absence of “loss of status.”
Our colleague contends that, by holding that a healthcare employer may discharge picketers, as well as strikers, who participate in job actions made unlawful by Section 8(g), we are rendering “superfluous” the language of Section 8(d) that mandates loss of status for the striker. We disagree. Our colleague’s contention is ultimately a claim that Congress, by amending Section 8(d) to extend its loss-of-status sanction to cover one particular form of misconduct violative of Section 8(g), namely striking, intended Section 8(d) to be the sole response to 8(g) employee misconduct. We do not discern any such intent. Such an interpretation, moreover, would preclude a health care employer from taking any disciplinary action against employees who participate in non-strike violations of Section 8(g), including “other concerted refusal[s] to work,” which have as detrimental an impact on continuity of patient care as do strikes. We reject that reading of the statute, which would require us to ignore the overarching principle that employees who engage in unlawful activity are subject to discipline.[7]
Our dissenting colleague says that our position renders meaningless the distinction between striking and picketing. We disagree. A person who strikes in violation of Section 8(d) or (g) loses his status as an employee by virtue of the language of the statute. A person who pickets in violation of 8(g) does not lose such status. He is merely vulnerable to employer disciplinary action. That action can run the gamut from no discipline at all, to suspension, to the ultimate punishment of discharge.
Thus, an 8(d) striker loses status as an employee of the
employer, irrespective of whether the employer takes the ultimate step of discharge. The 8(g) picketer is simply subject to
employer discretionary discipline.
Neither is there merit to our colleague’s reliance on the
fact that the employees are not represented by the
As noted above,
we rely on 8(b)(4) and (7) cases to show that picketing that is unlawful under
these sections renders unprotected the conduct of the picketers. Like those cases, the picketing here
unlawfully interfered with the employer’s legitimate interests. Section 8(b)(4) is aimed at protecting the
neutral employer, and Section 8(b)(7) is aimed, at least in part, at protecting
an employer from “blackmail picketing.”
The picketing here unlawfully interfered with the legitimate interests
of the employer, a health care institution.
In sum, the conduct was unprotected, and the discharges were lawful.
Turning briefly
to the 8(a)(1) allegations here, we note that the alleged threats and coercive
interrogations occurred after the employees engaged in the unlawful and unprotected
picketing. As the General Counsel
appears to concede, if the employee conduct that was the subject of the threats
and interrogations was itself unprotected, it was not unlawful for the
Respondent to respond in that manner. We
therefore find that the Respondent did not violate Section 8(a)(1) of the Act.
We shall
therefore order that the complaint be dismissed in its entirety.
ORDER
The
complaint is dismissed.
Dated,
Robert
J. Battista, Chairman
Peter
C. Schaumber,
Member
(seal) National Labor Relations Board
Member Liebman, dissenting.
My colleagues have said, with regard to Sections 8(g) and (d) of the Act, that the Board’s “obligation is to honor the statute as it is written.”1 A plain reading of these provisions shows that a worker who pickets—but does not strike—a health-care employer in the absence of an appropriate prior notice retains his status “as an employee of the employer.” By preserving this employment status, Congress has chosen to preclude employers from taking action against picketing employees. The majority, however, mistakenly finds that five such picketers lost the Act’s protection, and upholds their discharge.
i.
The stipulated facts are fully set forth in the majority
opinion. In short, the
ii.
Peaceful picketing is both protected, concerted activity
under Section 7 of the Act, as well as conduct shielded by the First
Amendment. “Throughout the history of
federal regulation of labor relations, Congress has consistently refused to prohibit
peaceful picketing except where it is used as a means to achieve specific ends
which experience has shown are undesirable.”
NLRB v. Fruit & Vegetable
Packers Local 760, 377
Congress carefully balanced competing concerns in drafting Section 8(g) and the corresponding terms of Section 8(d).
In enacting the 1974 Health Care Amendments, Congress was faced with two conflicting interests. On the one hand, it was noted that it is unjust to deny to the employees of nonprofit hospitals the rights granted to employees in other industries to organize and bargain collectively. On the other hand, special protection seemed necessary when dealing with health care institutions in order to assure continuity of patient care. As a result of a balancing of these concerns, the Act was amended by extending coverage to employees of nonprofit hospitals and adding a new Section 8(g) requiring a labor organization to give 10 days’ written notice before striking or picketing at a health care institution. Additionally, Section 8(d) was modified to extend the loss of status sanction to employees who engage in a strike proscribed by Section 8(g).
Walker Methodist Residence, 227 NLRB 1630 (1977) (footnote citations omitted).
The Board and the courts have interpreted the 1974 Health Care Amendments on several occasions. Where the related language of Sections 8(g) and 8(d) is unambiguous, it is to be given its plain meaning.4 Section 8(g) requires a union to provide a 10-day notice before it may engage “in any strike, picketing, or other concerted refusal to work.”5 Section 8(d) states that where a union has failed to meet the notice requirement, an employee “who engages in any strike” within the notice period “shall lose his status as an employee of the employer engaged in the particular labor dispute.”6 Although Section 8(g) includes picketing as well as strikes in its regulation of union conduct, Section 8(d) mandates the loss of employee status only for striking.
The absence of “picketing” in Section 8(d) is not accidental.7 In a different context, the Supreme Court stated that if Congress had intended to include unfair labor practice strikers in the loss-of-status penalty of Section 8(d):
[I]t could readily have done so by specific provision. Congress cannot fairly be held to have made such an intrusion on employees’ rights . . . without some more explicit expression of its purpose to do so than appears here.8
The Board has echoed the Court in the context of the 1974 amendments, observing that the legislation should “not be read to reduce the preexisting rights of health care employees unless explicit language mandates that result.”9
It is evident, then, that Congress, in fashioning Sections
8(g) and (d), chose not to authorize employer reprisals against employees who
merely picket, even if the union which sponsors the picketing is subject to
unfair labor practice liability. Picketing obviously poses a lesser threat to
continuity of patient care than a strike does. Because Congress has spoken
clearly, the Board lacks discretion to apply rules fashioned in other contexts
to this case. Cf. Whitman v. American Trucking Assns., Inc., 531
This caution against administrative overreaching is especially
significant in the present case. On its face, Section 8(g) sanctions labor organizations,
not employees, for untimely strikes and picketing. The five employees who
engaged in picketing were not represented by the
iii.
The majority contends that employees who have engaged in picketing unlawful under Section 8(g), like employees involved in unlawful 8(b)-type picketing, may be discharged because their conduct is unprotected. It adopts this view notwithstanding the limitations of the “loss of status” provision in Section 8(d), which the majority regards as irrelevant. It also finds that health-care employers should be able to freely punish their employees who engage in such picketing without interference from the Board. None of these views is consistent with the intent of Congress.
The majority identifies a “basic principle” in its rationale for upholding the discharge of the five picketers: employees who participate in union picketing that is either unlawful or incompatible with the Act are subject to discharge. Primarily, the majority analogizes unlawful union picketing under Section 8(g) with picketing unlawful under Section 8(b), and concludes that the situations are similar enough that the result in the Section 8(b) context—permitting discharge of picketers for unprotected conduct—should be the same under Section 8(g).11
But, in fact, there is a fundamental distinction between the two situations. Nothing in the Act constrains the Board’s discretion to adopt a rule that an employee who engages in illegal 8(b) picketing may be lawfully discharged by his employer. Thus, as a matter of policy rather than statutory mandate, the Board determines that these employees have not engaged in conduct protected by Section 7, leaving their employer free to discipline or discharge them for that conduct.
Where picketing of health-care employers is concerned,
however, Section 8(d), in conjunction with Section 8(g), provides an express
limitation on the Board’s authority, consistent with the congressional intent
to balance employee rights with the interests of patient care. Congress itself
chose not to treat employees’ picketing, as opposed to striking, as lawful
grounds for discharge, notwithstanding the unlawfulness of the
The majority argues that I have “confused ‘status’ with protectedness”: even if a picketing employee retains his status as “an employee of the employer,” his conduct remains unprotected and so he may be discharged for it. In the majority’s view, although it may be reasonable to infer that Congress did not intend to impose a “loss of status,” it is “an unreasonable stretch” to say that Congress intended to protect unlawful conduct. “That proposition is counterintuitive,” says the majority.
The majority’s view, however, overlooks a basic point. In enacting the Health Care Amendments, which added Section 8(g) and amended Section 8(d) to incorporate the 8(g) notice period, Congress decided both what conduct to proscribe and what sanctions would be applicable to which conduct. Unlike the Section 8(b) context, it did not leave the Board free to fashion its own rule with respect to sanctions. Rather, by restricting the loss-of-status provision in Section 8(d) to employees who strike in violation of Section 8(g)—and deliberately omitting picketing as a ground for loss of status—Congress clearly expressed its intention to preclude employers from taking action against individual picketing employees.12 The majority offers no alternative explanation for the purpose served by either the loss-of-status provision or the distinction made in that provision between striking and picketing.
The majority clearly indicates that it is unnecessary to rely on Sec. 8(d) at all in this case. Without such reliance, however, there is no basis for upholding employer discipline that ultimately rests on a violation of Sec. 8(g). The Board made this point clear in Alexandria Clinic, supra, which held that the conclusion that a strike violates Sec. 8(g) “results in the [striking employees] losing their protected employee status under Section 8(d) . . . and subjects them to lawful discharge.” 339 NLRB at 1267.13
At bottom, the majority’s position wrongly makes Section 8(d)’s loss-of-status provision superfluous and the distinction between striking and picketing meaningless.14 Both strikers and picketers could be lawfully discharged without reference to Section 8(d) solely because Section 8(g) proscribes both kinds of conduct. It is this interpretation, not mine, that is counterintuitive.15
The majority justifies its position by finding that a
health-care employer must have the capability to retaliate against employees
who engage in unlawful activity. But, as I have explained, although the
iv.
Congress provided a careful balancing of employee rights and patient care interests in the 1974 amendments to the Act. By striking a different balance in this case, the majority has reached well beyond the Board’s statutory authority. The majority’s decision today contradicts the holding in Alexandria Clinic, supra, which relied on the loss-of-status provision in Section 8(d) to validate the discharge of strikers in an 8(g) context. If Section 8(d) is relevant in enforcing the discharge of strikers, it is surely relevant in determining whether picketers may be discharged. Because the Act plainly forecloses the discharge of employees where the union has failed to provide an 8(g) notice of their picketing, I dissent.17
Dated,
Wilma
B. Liebman, Member
National Labor Relations Board