SEIU United Healthcare Workers-West

National Labor Relations Board - Board Decisions

Jul 23, 2007

350 N.L.R.B. 284 (N.L.R.B. 2007)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
350 NLRB No. 34
284
SEIU United Healthcare Workers-West and Califor-
nia Pacific Medical Center. Case 20–CG–65
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 Charg-
ing 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, pick-
eting, or other concerted refusal to work, including a

1 The Respondent excepts to the judge’s failure to defer the 8(g) al-
legation to the parties’ arbitration mechanism. Deferral is an affirma-
tive 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 interpreta-
tion. 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 Union, on
June 1, told the Employer that employees would refuse to work volun-
tary overtime for 7 days starting on June 5. At the very least, the Union
was required to delay the start of the period for 10 days after June 1. In
addition, the Union sent no notice at all to FMCS. Thus, the Union
made no attempt to comply with 8(g)’s notice requirements. We need
not, therefore, address the hypothetical concern raised by our dissenting
colleague.
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 employ-
ees’ conduct in this case constitutes a strike.
3 In the order section of his decision, the judge inadvertently mis-
stated the name of the hospital as “Mount Sinai Hospital.” We correct
this error. We shall also substitute a new notice in accordance with our
decision in Ishikawa Gasket America, Inc., 337 NLRB 175 (2001),
enfd. 354 F.3d 534 (6th Cir. 2004).
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 San Francisco,
California, copies of the attached notice marked “Appen-
dix.”4 Copies of the notice, on forms provided by the
Regional Director for Region 20, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees and members are customar-
ily posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(b) Furnish to the Regional Director signed copies of
the notice for posting by California Pacific Medical Cen-
ter, if it is willing, in places where notices to employees
are customarily posted.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
MEMBER LIEBMAN, dissenting in part.
I dissent from the majority’s conclusion that the Re-
spondent Union violated Section 8(g) of the Act. I ad-
here to the views expressed in my dissent in New York
State Nurses Assn. (Mt. Sinai Hospital), 334 NLRB 798
(2001). There, under similar circumstances, I concluded
that employees’ refusal to volunteer for overtime did not
constitute a “concerted refusal to work” within the mean-
ing of Section 8(g) and therefore that the Union did not
violate that provision by failing to provide the required
notices.
Moreover, a decision issued after Mt. Sinai Hospital il-
lustrates why it is unreasonable to treat a refusal to per-
form 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 require-
ments of the statutory provision in such cases.

4 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
SEIU UNITED HEALTHCARE WORKERS-WEST 285
In Alexandria Clinic, P.A., 339 NLRB 1262 (2003),
enfd. 406 F.3d 1020 (8th Cir. 2005), the Board upheld
the discharge of striking nurses because their union did
not satisfy Section 8(g)’s 10-day notice requirement,
where it delayed the start of a strike for 4 hours after the
time specified in its notice. The Board held that where a
union wishes to strike after the original notice period has
expired, it must either give a new notice and wait a new
10 days, or obtain the written consent of the employer to
strike at an earlier point.
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 over-
time, 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 re-
fusal 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 volun-
tary overtime only at the risk of losing their jobs.
That situation is untenable, but it follows directly from
the holdings in Mount Sinai Hospital and Alexandria
Clinic. Both decisions, in my view, were mistaken on
their own terms. Taken together, they predictably will
chill healthcare workers’ exercise of their rights under
the Act.
APPENDIX
NOTICE TO EMPLOYEES AND 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 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 bene-
fit 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, in-
cluding a concerted refusal to volunteer for overtime
work, at the premises of California Pacific Medical Cen-
ter, 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
Alameda, California, for the Respondent.
Jason M. Mayo, Esq. (O’Melveny & Myers), of San Francisco,
California, for the Employer.
DECISION
STATEMENT OF THE CASE
JAY R. POLLACK, Administrative Law Judge. I heard this
case in trial at San Francisco, California, on October 3 and 25,
2006. On June 13, 2006, California Pacific Medical Center (the
Hospital or the Employer) filed the charge in the instant case
alleging that SEIU United Healthcare Workers-West (Respon-
dent) committed certain violations of Section 8(g) of the Na-
tional Labor Relations Act (the Act). On July 10, 2006, the
Regional Director for Region 20 of the National Labor Rela-
tions Board issued a complaint and notice of hearing against
Respondent, alleging that Respondent violated Section 8(g) of
the Act. Respondent filed a timely answer to the complaint,
denying all wrongdoing.
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 con-
sidered the posthearing briefs of the parties, I make the follow-
ing1
FINDINGS OF FACT
I. JURISDICTION
California Pacific Medical Center is a California corporation
with offices and principal places of business located in San
Francisco, California, where it is engaged in business as a
health care institution in the operation of acute-care hospitals
and related facilities. The Employer, during the 12 months
prior to the issuance of the complaint, derived gross revenues in
excess of $250,000. During the same time period, the Hospital
purchased and received goods and materials valued in excess of
$5000 which originated from points outside the State of Cali-
fornia. Accordingly, I find that the Hospital is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act. Respondent admits and I find that it is 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 wit-
nesses 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD286
labor organization within the meaning of Section 2(5) of the
Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Issues
The Employer operates acute-care hospitals and related fa-
cilities in San Francisco, California. Respondent represents a
bargaining unit of employees including, inter alia, housekeepers
and linen aides in the Employer’s Medical Center’s Environ-
mental Services (EVS) department at the Employer’s Davies
and Pacific campuses. The Respondent and the Employer have
been party to a series of collective-bargaining agreements, the
most recent of which is effective by its terms from November
2005 to June 2008. The collective-bargaining agreement con-
tains a provision prohibiting mandatory overtime. The Hospital
relies on volunteers to fill in for EVS employees on leave or
otherwise absent—either by volunteering for overtime or by
volunteering for extra shifts. Under the collective-bargaining
agreement, the Hospital may not assign mandatory overtime
except for a state of emergency. The record reveals that the
Hospital has never required mandatory overtime under the con-
tract. Prior to the instant dispute, the Hospital has been able to
meet its overtime requirements because a sufficient number of
employees have volunteered for overtime.
In May 2006, the Hospital proposed changing the way it dis-
tributed linen at its medical centers. The Union objected to the
proposed changed and contended that the proposed change was
a violation of the subcontracting clause of the collective-
bargaining agreement.
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 peti-
tion 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 Cam-
pus 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 in-

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.
formed 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 volun-
teers for overtime. Nader experienced an increase in employ-
ees 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 Union published a newsletter in which it
stated in pertinent part:
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 ex-
posed 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 institu-
tion shall, not less than ten days prior to such action, notify the
institution in writing and the Federal Mediation and Concilia-
tion 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 result-
ing from labor disputes. New York State Nurses Assn. (Mt.
Sinai Hospital), 334 NLRB 798, 800 (2001). The Union con-
tends that the employees had a collectively-bargained contract
that prohibited mandatory overtime and that therefore, there
was no strike or refusal to work. The General Counsel and the
Hospital relying on New York State Nurses Assn. contend that
the EVS employees refused to volunteer for overtime and to
SEIU UNITED HEALTHCARE WORKERS-WEST 287
work overtime, and that they thereby engaged in a strike or
concerted refusal to work. They contend that both of those
actions fall within the definition of “strike” contained in Sec-
tion 501(2) of the Act, which includes “any strike or other con-
certed stoppage of work by employees . . . and any concerted
slowdown or other concerted interruption of operations by em-
ployees.”
In New York State Nurses Assn., supra, nurses working at
Mt. Sinai Hospital had a past practice of volunteering to work
overtime. The nurses’ bargaining agreement with that hospital
provided that nurses were not required to work involuntary
overtime except in a disaster/emergency. However, under the
past practice of nurses volunteering for overtime, the hospital
was able to meet its overtime needs. The nurses decided to
refuse to volunteer for overtime work in order to put pressure
on the hospital to change its staffing practices.
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 estab-
lished 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 staff-
ing practices.
I find the instant case, controlled by New York State Nurses
Assn. Here the petitions and the union newsletter show that
there was a concerted refusal to volunteer for overtime and that
concerted work stoppage was intended to pressure the Hospital
not to engage in what the Union viewed as subcontracting.
Respondent did not give the required written 10 days notice to
either the Hospital or the FMCS.
The Union contends that St. Barnabas Hospital, 334 NLRB
1000, 1011 (2001), requires a different result. In St. Barnabus
Hospital, four physicians who threatened not to perform on-call
work were discharged. The Board found that the physicians
performed on-call work on a voluntary basis. It therefore found
that the refusal to perform voluntary work would not be an
unprotected partial strike. Because the on-call work was volun-
tary, the Board found that the discriminatees’ concerted threat
to stop performing on-call work was protected activity. See
also Dow Chemical Co., 152 NLRB 1150, 1151–1152 (1965);
Jasta Mfg. Co., 246 NLRB 48, 49 (1979), enfd. mem. 634 F.2d
623 (4th Cir. 1980). See also Riverside Cement Co., 296
NLRB 840, 841 (1989). The Board concluded that the dis-
charge of the four physicians violated Section 8(a)(1) of the
Act.
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 con-
certed 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 per-
mits 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 Union failed to give the required notices.”
Similarly, the issue herein, is not whether the Union had a
contractual or statutory right to refuse to work overtime but
rather whether the Union was required to give the notice re-
quired by Section 8(g). New York State Nurses Assn. clearly
holds that the Union was required to send the proper notices.
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 California Pacific Medical
Center to refuse to volunteer to work overtime or extra shifts
without providing the Hospital and the Federal Mediation and
Conciliation Service 10 days’ notice of the job action as re-
quired by Section 8(g).
THE REMEDY
Having found that Respondent engaged in unfair labor prac-
tices, I shall recommend that it be ordered to cease and desist
therefrom to take certain affirmative action designed to effectu-
ate 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, 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 circum-
stances involving frivolous defenses, would discourage respon-
dents 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 impor-
tantly, the Board’s rationale that a concerted refusal to volun-
teer 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 Union to obtain review of the Board’s ration-
ale by a United States Court of Appeals is to have a Section
8(g) unfair labor practice finding by the Board. It seems clear
to me that the Union’s legal position in this case cannot be
characterized as frivolous.
The General Counsel argues that Respondent should have
stipulated to the undisputed facts and still preserved its legal
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD288
position. I do not believe Tiidee Products or Heck’s, Inc. re-
quire 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 ac-
cordance with the remedy in New York State Nurses Assn. (Mt.
Sinai Hospital), 334 NLRB 798 (2001).
[Recommended Order omitted from publication.]