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,
SEIU United Healthcare Workers-West and
July 23, 2007
DECISION AND ORDER
By Chairman Battista and Members Liebman
and Kirsanow
On December 29, 2006, Administrative Law Judge Jay R. Pollack issued the attached decision. The Respondent and the General Counsel filed exceptions and supporting briefs, and the Charging Party filed cross-exceptions and a supporting brief. The General Counsel and the Charging Party also filed answering briefs to the Respondent’s exceptions, and the Respondent filed an answering brief to the Charging Party’s cross-exceptions.
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 exceptions1 and briefs and has decided to affirm the judge’s rulings, findings, and conclusions2 and to adopt the recommended Order as modified and set forth in full below.3
ORDER
The National Labor Relations Board orders that the Respondent, SEIU United Healthcare Workers-West, its officers, agents, and representatives, shall
1. Cease and desist from engaging in any strike, picketing, or other concerted refusal to work, including a concerted refusal to volunteer for overtime work, at the premises of California Pacific Medical Center, or any other health care institution, without timely notifying, in writing, any such health care institution and the Federal Mediation and Conciliation Service, not less than 10 days prior to such action, of that intention.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at
its business office and meeting halls in
(b) Furnish to the Regional Director signed copies of the
notice for posting by
(c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply.
Dated,
______________________________________
Robert J. Battista, Chairman
______________________________________
Peter N. Kirsanow, Member
(seal) National
Labor Relations Board
Member Liebman, dissenting in part.
I dissent from the majority’s conclusion that the Respondent
Union violated Section 8(g) of the Act.
I adhere to the views expressed in my dissent in
Moreover, a decision issued after Mt. Sinai Hospital illustrates why it is unreasonable to treat a refusal to perform voluntary overtime as a concerted refusal to work for purposes of Section 8(g): as a practical matter, there is no way for a union to comply with the notice requirements of the statutory provision in such cases.
In
How is a union to comply with this requirement when the refusal to work is not a strike called for a set time, but rather the refusal of individual employees to work overtime, if and when the opportunity is offered to them by the employer? The employer exercises complete control over when employees will be asked to work overtime, and the union has no way of knowing when the employer might make that request. Even where the union sets a prospective date and time for employees’ concerted refusal to volunteer, as it did here, there is no guarantee that the overtime will be offered precisely then. And once the specified date and time have passed, the union’s 8(g) notice, at least under Alexandria Clinic, is no longer valid. Employees, then, may concertedly refuse voluntary overtime only at the risk of losing their jobs.
That situation is untenable, but it follows directly from
the holdings in
Dated,
______________________________________
Wilma B. Liebman, Member
National Labor Relations Board
APPENDIX
Notice To Employees and
Members
Posted by Order
of the
National Labor Relations
Board
An Agency of the
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice.
federal law gives you the right to
Form, join, or assist a union
Choose representatives to bargain on your behalf with your employer
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
We will not induce our members to engage in any strike, picketing, or other concerted refusal to work, including a concerted refusal to volunteer for overtime work, at the premises of California Pacific Medical Center, or any other health care institution, without timely notifying, in writing, any such health care institution and the Federal Mediation and Conciliation Service, not less than 10 days prior to such action, of that intention.
SEIU United Healthcare Workers-West
David
B. Reeves, Esq., for the General
Counsel.
Bruce
A. Harland, Esq. (Weinberg, Roger & Rosenfeld), of
Jason
M. Mayo, Esq. (O’Melveny & Myers), of
DECISION
Statement of the Case
Jay R. Pollack,
Administrative Law Judge. I heard this
case in trial at
All parties have been afforded full opportunity to appear, to introduce relevant evidence, to examine and cross-examine witnesses and to file briefs. On the entire record, including observation of the demeanor of the witnesses, and having considered the posthearing briefs of the parties, I make the following1
Findings of Fact
i.
jurisdiction
ii. the
alleged unfair labor practices
A. Issues
The Employer operates acute-care hospitals and related facilities
in
In May 2006, the Hospital proposed changing the way it distributed
linen at its medical centers. The
Carolina Nader, operations manager, who oversees the EVS department at the Davies Campus, testified that on June 1, 2006, Nate Gunderson, union field representative,2 presented her with a petition signed by over 100 EVS employees entitled “No-Subcontracting.” The petition stated:
We the undersigned SEIU-UHW members in Environmental Services hereby protest the proposal of CPMC management to sub-contract our work in the linen room out to the West Bay Distribution center. This is a direct violation of the no sub-contracting clause of our contract. By signing this petition we hereby authorize our shop stewards to call for one week, no overtime no extra shift policy amongst SEIU-UHW members in the Environmental Service department on an as needed basis. We commit to one-another that we will honor this commitment to action and stand strong in our fight with CMPC to force them to respect and honor our contract.
Gunderson informed Nader that he was giving the Hospital official notice that the EVS employees intended not to work overtime.
Ernesto Rivera, director of housekeeping at the Pacific Campus testified that on June 2, 2006, Catalino Colonsag, shop steward, presented him with a copy of the same petition that had been given to Nader at the Davies Campus. Colonsag informed Rivera that, as of Monday, June 5, 2006, none of the employees in the EVS department would work overtime or extra shifts.
Beginning on June 5, 2006, Nader attempted to secure volunteers for overtime. Nader experienced an increase in employees calling in sick. She followed her usual routine of asking for volunteers for overtime by seniority but was turned down by employees. Nader could not cover shifts on June 5, 9, 10, and 11. Similarly, on June 5, Rivera attempted to secure volunteers for overtime at the Pacific Campus but was turned down by employees. Rivera testified that he needed to fill six 8-hour shifts but was unable to do so. After June 6, Rivera gave up trying to find volunteers for overtime. Beginning on June 12, 2006, EVS employees again began accepting offers of overtime and extra shifts.
On June 8, the
EVS workers at all three CMPC campuses are standing up to management’s attempt to subcontract jobs of our coworkers in the Linen Room. Last week a super majority of SEIU-UHW members in the EVS department signed a petition demanding CMPC respect our contract and halt its plans to subcontract the Linen Room. . . . In addition, the petition called for one week of no overtime, no extra shifts for UHW members in the EVS department. Starting on June 5th, the no overtime, no extra shift policy has exposed the short staffing that management created in the EVS department. It is now crystal clear that CMPC needs to hire more EVS staff, not eliminate jobs.
In response, management has attempted to force UHW
members to do extra work to cover the shifts management has failed to fill. . .
.
Respondent did not provide the Employer or the Federal Mediation
and Conciliation Service with written notice of the concerted refusal to work
overtime.
B. Analysis and Conclusions
Sec. 8(g) of the Act provides, in pertinent part, 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 institution in writing and the Federal Mediation and Conciliation Service of that intention. . . . 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.
Section 8(g) was added because, in extending the protections
of the Act to hospital employees, Congress meant to protect the public against
undue disruptions in health care services resulting from labor disputes.
In New York State
Nurses Assn., supra, nurses
working at
The Board, in overruling the administrative law judge, found that the nurses’ concerted refusal to volunteer for overtime and to work through their lunch periods, contrary to their established practice, was clearly meant to cause, and did cause, an interruption of the hospital’s functions within the meaning of Section 8(g). The Board found that the concerted refusal to volunteer for overtime was a concerted work stoppage and was intended to pressure the hospital-employer to change its staffing practices.
I find the instant case, controlled by
The
I find that the St.
Barnabas Hospital is inapposite. In New York State Nurses Assn. (Mt. Sinai
Hospital), 334 NLRB 798, 801 fn. 16 (2001), the Board noted “our finding that the concerted refusal to perform
voluntary overtime at the Union’s request is a concerted refusal to work for
purposes of Sec. 8(g) neither deprives employees of their contractual rights
nor permits the Hospital to modify the contract unilaterally by making
voluntary overtime mandatory.” The Board
further noted “the partial strike cases are not on point here. This is not a partial strike case. The
question here is whether the nurses’ refusal to perform that work at the Union’s
request was a strike or at least a concerted refusal to work, and therefore
violated Sec. 8(g) because the
Similarly, the issue herein, is not whether the Union had
a contractual or statutory right to refuse to work overtime but rather whether
the
Conclusions of Law
1. The Employer is an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act.
2. Respondent is a labor organization within the meaning of Section 2(5) of the Act.
3. Respondent
violated Section 8(g) of the Act, by inducing and directing the EVS employees
of
The Remedy
Having found that Respondent engaged in unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom to take certain affirmative action designed to effectuate the policies of the Act.
The General Counsel seeks litigation expenses for himself and the Employer. The Board has held that it has authority to award litigation expenses where a respondent engages in “frivolous rather than debatable litigation” before the Board. See Tiidee Products, Inc., 194 NLRB 1234, 1235–1237 (1972). In Heck’s, Inc., 215 NLRB 765 (1974), the Board held that the award of litigation expenses, except in extraordinary circumstances involving frivolous defenses, would discourage respondents from gaining access to the appropriate forum in order to fully litigate debatable defenses. Thus, the Board has been very hesitant in awarding attorney’s fees to the General Counsel and charging party. It is only appropriate where Respondent has raised patently frivolous defenses. Super Save, 273 NLRB 20 fn. 1 (1984); Park Inn Home for Adults, 293 NLRB 1082 fn. 3 (1989); Heck’s, Inc., supra at 765–768. A frivolous defense is not merely found to be without merit, but refers to contentions “which are clearly meritless on their face.” Heck’s, Inc., 191 NLRB 886, 889 (1971); See also Heck’s, Inc., 215 NLRB 765, 767–768 (1974).
While I found that the instant case was clearly controlled
by the Board’s decision in New York State
Nurses Assn., supra, I also note
that there was a dissent in that case.
More importantly, the Board’s rationale that a concerted refusal to volunteer
for overtime constitutes a strike within the meaning of Section 8(g) has not
been reviewed by a court of appeals.
The only way for the
The General Counsel argues that Respondent should have stipulated to the undisputed facts and still preserved its legal position. I do not believe Tiidee Products or Heck’s, Inc. require a respondent to waive its day in court. Finally, while Respondent did cause unnecessary delay regarding the issue of Gunderson’s status as an agent of Respondent, I do not find that such delay was so egregious as to trigger the imposition of litigation expenses.
Accordingly, I will recommend a remedy in this case in accordance
with the remedy in
ORDER
Respondent SEIU United Healthcare Workers-West, its officers, agents, and representatives, shall
1. Cease and desist from engaging in any strike, picketing, or other concerted refusal to work; including a concerted refusal to volunteer for overtime work, at the premises of Mount Sinai Hospital, or any other health care institution, without timely notifying, in writing, any such health care institution and the Federal Mediation and Conciliation Service, not less than 10 days prior to such action, of that intention.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at
its business office and meeting halls in
(b) Furnish to the Regional Director signed copies of the
notice for posting by
(c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply.
Dated,
APPENDIX
Notice To
Employees and Members
Posted
by Order of the
National
Labor Relations Board
An Agency of the
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has ordered us to post and abide
by this notice.
We will not induce our members to engage in any strike, picketing, or other concerted refusal to work, including a concerted refusal to volunteer for overtime work, at the premises of California Pacific Medical Center, or any other health care institution, without timely notifying, in writing, any such health care institution and the Federal Mediation and Conciliation Service, not less than 10 days prior to such action, of that intention.
SEIU United Healthcare Workers-West
1 The Respondent excepts to the judge’s failure to defer the 8(g) allegation to the parties’ arbitration mechanism. Deferral is an affirmative defense that can be waived if not raised timely. New Associates, 314 NLRB 893, 894 (1994). This deferral argument was not raised by the Respondent in its answer to the complaint or during the hearing. It thus was waived. In addition, the issue of whether the Respondent provided sufficient 8(g) notice of the employees’ planned concerted refusal to work is one of statutory interpretation, not contract interpretation. Therefore, deferral of this issue is not appropriate. Accordingly, we find no merit in this exception.
2 In response to our
dissenting colleague, we note that the
In adopting the judge’s finding of a violation, we agree with the judge that the employees’ concerted refusal to volunteer for overtime falls within 8(g)’s notice requirement for “other concerted refusals to work.” Accordingly, we do not reach the issue of whether the employees’ conduct in this case constitutes a strike.
3 In the order section of
his decision, the judge inadvertently misstated the name of the hospital as “
4 If this Order is
enforced by a judgment of a
1 The credibility resolutions herein have been derived from a review of the entire testimonial record and exhibits, with due regard for the logic of probability, the demeanor of the witnesses, and the teachings of NLRB v. Walton Mfg. Co., 369 U.S. 404, 408 (1962). As to those witnesses testifying in contradiction to the findings herein, their testimony has been discredited, either as having been in conflict with credited documentary or testimonial evidence, or because it was in and of itself incredible and unworthy of belief.
2 At the conclusion of the hearing there was no issue that Gunderson was an agent of Respondent. However, during the hearing, Respondent refused to stipulate that Gunderson was its agent and refused to make Gunderson available as a witness.
3 All motions inconsistent with this recommended Order are hereby denied. In the event no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended 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.
4 If this Order is
enforced by a judgment of a