Application for Enforcement of an Order of the National Labor Relations Board
Fairchild, Chief Judge, Tone and Bauer, Circuit Judges.
This case is brought by the National Labor Relations Board seeking enforcement of its order of September 25, 1975, against the International Brotherhood of Electrical Workers Local Union No. 388. The Board has found the Union in violation of Section 8(g) of the National Labor Relations Act as a result of its picketing at St. Joseph's Hospital without first giving the ten day notices required by that section of the Act.*fn1 Its order requires Local 388 to cease and desist from this unfair labor practice and to post copies of a notice, signed by its authorized representative, at its business offices and meeting halls, assuring that no further violations of Section 8(g) will ensue. For the reasons set forth below, we have decided to deny the Board's request for enforcement of this order.
The Picketing at St. Joseph's Hospital
St. Joseph's Hospital is a private non-profit hospital located in Marshfield, Wisconsin.*fn2 In 1974 the hospital contracted with Hoffman Company, Inc. for construction of a laboratory building to be connected to the main hospital facility by a common wall and corridor. In connection with the planned expansion, St. Joseph's executed a direct contract with Thomas Electrical Services, Inc. to perform all necessary electrical work on the laboratory project.
On or about February 11, 1975, members of Local 388 began an area standards picket action against Thomas, establishing two pickets at St. Joseph's Court, the hospital's delivery access street.*fn3 The picketing was thus on hospital property, directly across from the existing hospital building and directly adjacent to a parking lot provided for the employees of the hospital. After approximately two hours, the Union moved the pickets from the delivery access street to the corner of a city street on the perimeter of hospital grounds. They remained at this location until approximately February 27, 1975, when they were moved back to their original position at the delivery access street. The picketing at this spot continued until April 15, 1975. As a result, employees of other contractors engaged in construction of the laboratory project at various times refused to work during the picketing. There is no allegation, however, that any hospital employees ceased work as a result of the picketing, or that the picketing had any adverse impact on the hospital's ability to provide its customary medical services. Picketing ultimately forced Thomas to cease all daytime operations and to limit its work on the jobsite to night time.
The Union's picketing was commenced and continued without the service of Section 8(g) notice upon either St. Joseph's Hospital or the Federal Mediation and Conciliation Service. On February 20, 1975, the Hoffman Company brought this fact to the attention of the Board in a charge filed against Local 388. The Union, which at this time was picketing on the city street corner at the hospital's perimeter, responded by writing to St. Joseph's on February 21, 1975, informing the hospital that it had no dispute with the health care institution and that the only purpose of the picketing was to publicize the substandard wages and benefits provided by Thomas. In its letter, the Union refused to concede the applicability of Section 8(g) to its area standards picketing of Thomas but noted that, if there were any notice obligation under the Act, its failure to comply was strictly an oversight. Neither at this time, nor when the pickets were moved back to the delivery access street, nor at any time through April 15, however, did the Union serve formal 8(g) notice on the hospital or on the Federal Mediation and Conciliation Service. Thus, on April 1, 1975, the Hoffman Company filed another charge against Local 388 with the Board. The parties having stipulated to the above-outlined facts, the Board considered the case and, on September 25, 1975, issued the order against Local 388 that it now seeks to have enforced.
The Applicability of Section 8(g) to the Union's Picketing at St. Joseph's Hospital
The particular issue confronting the court in this case is one of statutory construction, specifically: When Section 8(g) requires ten day notices to be filed by "a labor organization . . . engaging in any strike, picketing, or other concerted refusal to work at any health care institution," does the section apply only to unions directing concerted activity at the health care institution, purportedly on behalf of the employees of the institution, or is it also applicable to unions such as Local 388 which represent employees of others, not involved in any dispute with a health care institution, but, whose labor activities take place on the premises of the institution?*fn4 There is much to be said for both views, but, in the end, we conclude that 8(g) does apply only to unions representing health care institution employees.*fn5
A. The Language of Section 8(g)
We have considered a number of factors in reaching this conclusion, the first being the language of the amendment itself. In the briefs filed by the parties, there is much discussion of the plain meaning of Section 8(g) and particularly of the word "at" in the phrase, "engaging in any strike, picketing or other concerted refusal to work at any health care institution." The Board argues that "at" refers to the location of the labor activity with reference to the property of the health care institution, and therefore, that any strikes, picketing, etc., occurring on the premises of the institution by any union, regardless of the employer or labor dispute involved, should be covered. The Union's position, however, is that "at" refers to the target at which strikes, picketing, etc. are directed, so that only unions directing their protests against the health care institution, i.e., only unions purportedly representing employees of the health care institution, should be covered.
Quite frankly, we find the language of the amendment equivocal, and cannot accept either of the positions outlined as the "plain meaning" of 8(g). While we believe the common understanding of the word "at" to be related to location, we do not believe the language of 8(g) offers much guidance in helping us decide whether the location we are to focus on is (1) the one where a labor activity takes place, or (2) the one where the persons on whose behalf the activity is undertaken are employed. When we read the phrase "picketing . . . at a health care institution," we tend to think in broad terms of physical activity taking place on the premises of a health care institution. But, when we read the phrase "strike . . . at a health care institution" or "refusal to work at a health care institution," we tend to think more narrowly of activity involving a group of employees and the health care institution that employs them. We do not, however, believe that the sentence structure of 8(g) will tolerate an interpretation of the word "at" that shifts the location meant from place of employment to place of activity and back again. The preposition serves as a common link between all three forms of labor protest and the health care institution involved,*fn6 and thus, we believe, must have a common meaning applicable in all three contexts.
It accordingly proved necessary for the court to look outside the statutory language for guidance in choosing a uniform meaning for the word "at," and thereby in determining the ...