National Labor Relations Board v. Washington Heights-West Harlem-Inwood Mental Health Council, Inc.

897 F.2d 1238
CourtCourt of Appeals for the Second Circuit
DecidedMarch 6, 1990
DocketNo. 485, Docket 89-4079
StatusPublished
Cited by1 cases

This text of 897 F.2d 1238 (National Labor Relations Board v. Washington Heights-West Harlem-Inwood Mental Health Council, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
National Labor Relations Board v. Washington Heights-West Harlem-Inwood Mental Health Council, Inc., 897 F.2d 1238 (2d Cir. 1990).

Opinion

OAKES, Chief Judge:

This case is before us under 29 U.S.C. § 160(e) (1982) on a petition for enforcement by the National Labor Relations Board (the “Board”) of an order dated July 26, 1988, against Washington Heights-West Harlem-Inwood Mental Health Council, Inc., d/b/a The Council’s Center for Problems of Living (the “Center”). The Board’s order, reported at 289 N.L.R.B. No. 145, seeks remedial measures against the Center for its discharge of thirty-four striking employees in April 1983. The central issue presented by the Board’s petition is whether the Center’s employees violated the ten-day advance notice requirement of section 8(g) of the National Labor Relations Act, see 29 U.S.C. § 158(g) (1982), before going on strike. We find that the employees did violate the notice requirement, and accordingly deny the Board’s petition for enforcement of its order.

The Center is a non-profit corporation providing medical and professional care services for the mentally disabled. The registered nurses and professional and technical employees of the Center are organized into a union, Local 1199, Hospital & Health Care Employees Union, AFL-CIO (the “Union”), which has been their recognized collective bargaining representative since 1974 and has intervened in support of the Board’s petition.

The last collective bargaining agreement between the parties was effective from January 1, 1979, through December 31, 1980. From January 1, 1981, to September 1982, the parties had no written agreement and operated under an oral agreement on [1241]*1241wages. Negotiations for a new agreement were scheduled to begin on September 16, 1982.

To plan for upcoming negotiations, on September 15, Union Vice President David White met with a group of employees at 2:00 p.m. in a meeting room at the Center. Several employees rearranged their lunch hours and break periods to attend the meeting. The Center frequently permitted the Union to meet with employees on its premises, although these meetings were generally held at noon or after 5:00 p.m.

Apparently because the meeting was being held during regular working hours, the Center’s executive director, Dr. Clyde Pem-berton, interrupted the meeting, ordered White to leave, and instructed the employees to return to work. White responded that it was a regular Union meeting and that he would not leave until it was finished. Pemberton left, then returned, announced he had a “job action” on his hands, and left the room again.

At the end of the meeting, several employees discovered that their timecards had been pulled. White and thirty to forty employees went to the second floor to speak with Pemberton. Pemberton agreed to meet with White only, but White declined on the basis that it was against Union policy for a Union official to meet with management unaccompanied by an employee. The employees and White remained outside Pemberton’s office chanting in unison to have their timecards returned and to see Pemberton. In the meantime, because of the state of disorder, the Center locked its doors to the public. At about 4:45 p.m., the police arrived and dispersed the crowd of employees.

The following morning of September 16, the day set for contract negotiations, approximately twenty-six employees were issued disciplinary letters accusing them of an illegal work stoppage during the previous afternoon and informing them that their pay would be docked for the time between 2:00 p.m. and the close of their regular duty. At the afternoon’s scheduled bargaining session, Pemberton refused to discuss with White the events of that day and of the previous afternoon. The parties then discussed the Union’s proposals for a new contract, but no agreement was reached on any issue.

At the close of the meeting, Pemberton was informed that the Union had sent the Center a telegram serving ten-day notice of the Union’s intent to strike on September 28 at 9:00 a.m. Written notice specifying the date and time of a strike is required by section 8(g) of the National Labor Relations Act (the “Act”) not less than ten days prior to commencing a strike at a health care institution.1

The telegram arrived the next day, September 17. At 5:00 p.m., thirteen employees discovered their timecards missing and were issued termination letters. The employees refused to accept them, because they were not accompanied by final paychecks. The letters were rescinded, but then reissued for eleven employees the following Monday, September 20. The stated basis for the termination letters was that the employees had engaged in another work stoppage by their delay in returning to work on September 16 after receiving their disciplinary letters.

On this same day, September 20, the employees confirmed by vote their decision to strike on September 28 because of the discharge of the eleven employees. The following day, however, they decided to move the strike to one day later in order that they might receive their pay checks on payday, September 29, prior to walking out. The Union gave no written notice of this change to the Center.

On September 22, the Union and the Center met again for further contract negotiations. Notwithstanding White’s apology [1242]*1242for holding the September 15 meeting, Pemberton refused White’s request to reinstate the eleven discharged employees. Amidst conflicting testimony, the administrative law judge in this case found that White also told Pemberton that the employees planned to strike on September 29, one day later than the initial date specified in their notice, through his alleged statement that “if we have not settled the issues that exist between us by the 29th, when the 29th comes we’re going to find ourselves on the street.”

One week later, on September 29, the Union went on strike. Shortly before the strike, Pemberton refused to meet with an official from the Federal Mediation and Conciliation Service. The strike continued over the next several months. On April 15, 1983, the Center discharged thirty-four employees because of their participation in the strike. The strike finally ended in August 1983.

Three separate sets of charges under 29 U.S.C. § 160(b) (1982) affecting this litigation were filed with the Regional Office of the Board, two by the Union and one by the Center. The Union filed the first charge on September 24,1982, alleging in part that the Center’s discharge of the eleven employees on September 20 violated sections 8(a)(1) and 8(a)(3) of the Act. See 29 U.S.C. §§ 158(a)(1), 158(a)(3) (1982).2 The Regional Director issued a complaint on January 14, 1983, and approved an agreement between the parties settling the complaint on June 1, 1983.

On January 19, 1983, the Center filed the second charge, alleging that the Union violated section 8(b)(3) of the Act, see 29 U.S.C. § 158(b)(3) (1982), by refusing to bargain in good faith.

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897 F.2d 1238, Counsel Stack Legal Research, https://law.counselstack.com/opinion/national-labor-relations-board-v-washington-heights-west-harlem-inwood-ca2-1990.