Akron General Medical Center

National Labor Relations Board - Board Decisions

Sep 30, 1977

232 N.L.R.B. 920 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Akron General Medical Center and Local No. 1014,
United Rubber, Cork, Linoleum and Plastic
Workers of America, AFL-CIO-CLC. Case 8-
CA-10394
September 30, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND MURPHY
On June 23, 1977, Administrative Law Judge
George Norman issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the Charging Party filed
an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, 1 and conclusions of the Administrative Law
Judge, and to modify his remedy2 and to adopt his
recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Akron General
Medical Center, Akron, Ohio. its officers, agents,
successors, and assigns, shall take the action set forth
in said recommended Order, except that the attached
notice is substituted for that of the Administrative
Law Judge.
I The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry I4all Producri,
Inc., 91 NLRB 544 (1950). enfd. 188 F.2d 362 (C.A 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 Interest on monetary awards mandated by this Decision is to be
computed in the manner set forth in Florida Steel Corporation. 231 NLRB
651 (1977).
APPENDIX
NOTICE To EMPI'IOYFLS
POSTED BY ORDER OF TIHE
NATIONAL LABOR RIEI.A IIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse, or continue to refuse, to
bargain collectively with Local No. 1014, United
Rubber, Cork, Linoleum and Plastic Workers of
232 NLRB No. 140
America, AFL-CIO-CLC, as the exclusive collec-
tive-bargaining representative of all employees in
the unit, described below, by unilaterally chang-
ing the layoff and recall procedures described in
article XVI of the collective-bargaining agree-
ment, without first notifying Local No. 1014 of
our intention to do so, or giving Local No. 1014
an opportunity to bargain regarding that subject.
The bargaining unit is:
All employees of Akron General Medical
Center, excluding personnel department
employees, confidential secretaries, aide-oc-
cupational therapy, artist, case aide, chief
clerk, computer operator, credit interview-
ers, dietary assistant, draftsman, electrophy-
siology technician, general accounting clerk,
housekeeper, housemother, junior medical
technologists, junior radiological technolo-
gist, junior secretary, key punch I, key punch
II, maid instructor, medical records techni-
cian, medical technician, pharmacist assis-
tant, physical therapist, physician's recep-
tionist physician's secretary, pulmonary
technologist, recreational therapist, respira-
tory technologist, senior charge clerk, senior
laundry employee, senior materials handling
clerk, senior print clerk, senior radiologic
technologist, senior secretary, staff nurse,
training supervisor, unit leader, part-time
employees working 20 hours or less per
week, temporary employees, and oncall,
professional employees, guards and supervi-
sors as defined in the Act.
WE WILL NOT schedule mandatory days off
without pay for unit employees because they have
joined, assisted, or favored the aforesaid Union,
or engaged in other protected concerted activity
for the purpose of collective bargaining or other
mutual aid or protection.
WE WILL NOT discharge or fail and refuse to
reinstate any employee in consequence of his
protected activity.
WE- WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights under the Act.
WE WILL make unit employees, listed above,
whole for any loss of wages they have suffered by
reason of the unlawful discrimination against
them.
WE WILL offer to reinstate Ronald A. Arfons to
his former job or, if that job no longer exists, to a
substantially equivalent job, and make him whole,
with interest, for any loss of pay resulting from his
unlawful discharge.
920
AKRON GENERAL MEDICAL CENTER
All our employees are free to become or remain, or
refrain from becoming or remaining, members of any
labor organization, except to the extent that union
membership may be required by a collective-bargain-
ing agreement as a condition of continued employ-
ment as permitted by the proviso to Section 8(a)(3) of
the Act.
AKRON GENERAL
MEDICAL CENTER
DECISION
STATEMENT OF THE CASE
GEORGE NORMAN, Administrative Law Judge: This
matter was heard at Akron, Ohio, on January 18 and 19,
and February 1, 2, 15, and 16, 1977, upon a complaint
issued by the Regional Director for Region 8, on October
8, 1976, based upon a charge filed on August 27, 1976, and
an amended charge filed on October 6, 1976, by Local No.
1014, United Rubber, Cork, Linoleum and Plastic Workers
of America, AFL-CIO-CLC (herein the Union).
The complaint alleges that the above-named Respondent
(I) had unilaterally changed the layoff and recall proce-
dures described in article XVI of the collective-bargaining
agreement between Respondent and the Union without
first notifying the Union of its intention to do so, or giving
the Union an opportunity to bargain regarding such
subject, thus refusing, and continuing to refuse, to bargain
collectively with the Union as the exclusive bargaining
representative of said employees; (2) reduced the work
hours of many employees in the unit because said
employees engaged in protected concerted activities for the
purpose of collective bargaining or other mutual aid or
protection; and (3) discharged employee Ronald A.
Arfons, and refuses to reinstate him to his former or
substantially equivalent position of employment because
he had, or Respondent believed he had, joined, assisted, or
supported the Union, or engaged in other union activity, or
concerted activities, for the purpose of collective bargain-
ing. The complaint also alleges that Respondent's conduct
constitutes unfair labor practices affecting commerce
within the meaning of Sections 8(a)(l), (3), and (5), and
2(6) and (7) of the Act.
Respondent's answer denies the commission of the
alleged unfair labor practices, but admits allegations of the
complaint sufficient to justify the assertion of jurisdiction
under current standards of the Board, and to support a
finding that the Union is a labor organization within the
meaning of the Act.
Upon the entire record in this case, including my
observation of the witnesses, and upon consideration of the
briefs,' I make the following:
I Briefs were filed by the General (ounsel and the Union. Respondent
did not file any brief.
I At the heanng the General Counsel moved to amend par. 7 of the
complaint to include the two job classifications which were inadvertently
omitted from the description of the unit. The motion to amend was granted,
and the description was amended as follows:
FINDINGS OF FACT
I. JURISDICTION
Akron General Medical Center, an Ohio corporation
with its principal place of business at 400 Wabash Avenue,
Akron, Ohio, is engaged in the operation of a nonprofit
hospital.
Annually, in the course and conduct of its business
operations, Respondent derives gross revenues in excess of
$250,000, from the operation of its hospital, and receives
supplies valued in excess of $50,000, transported to its
facility in interstate commerce directly from places outside
the State of Ohio.
Respondent admits, and I find, that it is now, and has
been, since the effective date of the Health Care Amend-
ment to the Act, an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
ii. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
ill. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Unilateral Change in Hours of Employment
On April I, 1973, Respondent voluntarily recognized the
Akron General Medical Center Employees Labor Union as
the exclusive collective-bargaining representative of its
employees in the unit described as follows:
All employees of Akron General Medical Center,
excluding Personnel Department employees, Confiden-
tial Secretaries, Aide-Occupational Therapy, Artist,
Case Aide, Chief Clerk, Computer Operator, Credit
Interviewer, Dietary Assistant, Draftsman, Electrophy-
siology Technician, General Accounting Clerk, House-
keeper, Housemother, Junior Secretary, Key Punch 1,
Key Punch II, Maid Instructor, Medical Records,
Technician, Medical Technician, Pharmacist Assistant,
Physical Therapist, Physician's Receptionist, Physi-
cian's Secretary, Pulmonary Technologist, Recreational
Therapist, Respiratory Technologist, Senior Charge
Clerk, Senior Laundry Employee, Senior Materials
Handling Clerk, Senior Print Clerk, Senior Radiologic
Technologist, Senior Secretary, Staff Nurse, Training
Supervisor, Unit Leader, part time employees working
20 hours or less per week, temporary employees and
oncall, professional employees, guards and supervisors
as defined in the Act.2
On or about May 16, 1973, the parties entered into a
collective-bargaining agreement covering the employees in
the above-described unit. The agreement was in effect from
April 1, 1973, through April 1, 1976, and was extended by
the parties until July 15, 1976.
After the word "Housemother." the words "Junior Medical Technolo-
gists." and "Junior Radiological Technologist." were inserted. In
addition, the comma was deleted after the words "Medical Records."
921
DIECISIONS OF NATIONAL LABOR RELATIONS BOARD
On April 7, 1976, the Akron General Medical Center
Employees Labor Union became affiliated with the United
Rubber, Cork, Linoleum and Plastic Workers of America,
AFL-CIO-CLC. On June 11, 1976, a majority of the
employees of Respondent in the unit described above, in
Case 8-RM-748, designated and selected the international
union as their representative for the purpose of collective
bargaining with Respondent; and on June 18, 1976, the
international union was certified as the exclusive collective-
bargaining representative of the employees in the above
unit. On July 1, 1976, Local No. 1014, was created for the
purpose of representing the employees in the above-
described unit, and since that time, Respondent has
recognized Local No. 1014, as the exclusive collective-
bargaining representative of its employees in said unit
described above.
On July 15, 1976, Respondent and the Union entered
into an agreement to extend the duration of the collective-
bargaining agreement described above through July 31,
1976. Article XVI of that agreement contains provisions for
reducing hours of bargaining unit employees should it be
necessary to do so.
On or about August 16, 1976, while negotiations for a
new contract were in process, Respondent unilaterally
reduced the hours of bargaining unit personnel by I day,
without regard to the procedures contained in article XVI
of the collective-bargaining agreement. At no time did
Respondent negotiate with the Union concerning the
manner in which the hours would be reduced, and, indeed,
failed to even inform the Union of its plan to reduce the
hours of the employees in the unit prior to its implementa-
tion.3
Respondent's Executive Director James M. Reynolds
sent the following memo, dated July 30, 1976, to all
employees: 4
As you may know, the Administration and the Union
have not yet reached agreement on a new contract. The
3 Art. XVI of the collective-bargaining agreement has been in successive
collective-bargaining agreements between the parties since 1969. It provides
as follows:
ARTICLE XVI
Lay-Off and Recall
Section I. When reduction of the working force within a department
becomes necessary, because of lack of work, lay-offs shall proceed in
the following order:
(a) All temporary employees within the job classification shall be
laid off first;
(b) All probationary employees within the job classification shall be
laid off next;
(c) All part-time employees shall be laid off in the inverse order of
their seniority.
(d) All semi-full-time employees shall be laid off' in the inverse order
of their bargaining unit seniority;
(e) If further reduction in the working force is required, lay-off of
the full-time employees in that department shall be made within the job
classification in the inverse order of their bargaining unit seniority:
(f) Lay-offs of full-time employees shall be made rather than the
reduction of any lull-time employee's hours below forty (40) in a work
week provided that part-time jobs which the operational needs of the
Medical Center requires shall he maintained and tilled in accord with
the provisions of this Section:
extension of the old contract will expire at midnight,
July 31st. As a consequence, there will be no contract
after midnight on Saturday.
We have advised the Union that we intend to preserve,
until future notification, employee benefits though
there is no contract. This means that your insurance,
tuition assistance, grievance procedure, and similar
employee benefits will remain in full force and effect on
a day-to-day basis until such time as the Medical center
advises the Union of the contrary. Negotiations will
continue next week at times that are yet to be decided,
based on the availability of each side.
Administration intends for the Medical Center to
continue its operations "business as usual" even though
we are without a contract.
If you have any specific questions of this matter, direct
your questions to your supervisor and they, in turn, will
direct the questions to me.
Thank you for your loyal service and dedication to
patient care.
/s/ James M. Reynolds
On August 5, 1976, the president of the Union notified
the personnel director of Respondent of the Union's intent
to strike 10 days from service of that notice. The 10-day
period would end at midnight, Sunday, August 15, 1976.
Thereafter, by decision of the Executive Board of the
Union, on August 14, 1976, the Union at a union meeting
announced its intention not to conduct a strike to members
6 hours prior to the strike deadline of midnight, August 15,
1976, and posted a notice to employees informing them of
this action. In addition, the employer was orally notified by
the Union of its decision not to carry out the earlier notice
conduct.
(g) Part-time and semi-full-time positions in a department shall be
filled by full-time employees who would otherwise be laid off from that
department, in the direct order of their bargaining unit seniority in
accord with their qualifications, skill, ability, and experience to perform
the work required satisfactorily and efficiently. Employees shall be
given a two week notice for non-emergency layoff.
Section 2. Employees laid off in a department shall be recalled to
available vacant jobs in that department on the basis of the direct order
of their bargaining unit seniority as follows:
(a) Full-time employees shall be recalled first to fill both full-time
and part-time positions.
(b) Semi-full-time employees shall be recalled within a department
to available vacancies.
(c) Part-time personnel shall then be recalled.
Section 3. Employees being recalled to work after lay-off shall be
notified by the Medical Center by registered mail sent to each
employee's last known address with a copy to the Union office and the
employee shall have five (5) days, exclusive of Saturdays, Sundays, and
holidays, from the date of mailing within which to report to work. An
employee's seniority shall be terminated if he fails to report to work
within the said period unless his failure to do so is due to reasons
beyond his control. It shall be the responsibility of each employee to
keep the Medical Center informed of his current correct address and
telephone number if any.
G.C. Exh. 5.
922
AKRON GENERAL MEDICAL CENTER
In anticipation of the strike, Respondent, by letter dated
August 10, 1976, addressed the following to all doctors who
exercise privileges at Respondent's hospital: 5
Akron General Medical Center/400 Wabash Avenue,
Akron, Ohio 44307/(216) 384-6000
August 10, 1976
Dear Doctor:
On Thursday, 5 August 1976 the Medical Center
received an official "Ten Day Strike Notice" from
Local #1014 of the United Rubber Workers, repre-
senting approximately 1,000 of our non-professional
personnel.
The notice indicated there would be a stike effective at
12:01 a.m. 16 August 1976.
The immediate concern of Administration was, of
course, the health and welfare of the hospitalized
patients of AGMC as of 12:01 a.m. on that date.
Certainly there would be no way we could assure
quality nursing care, protection, food, clothing and
other services to over 500 patients if approximately
1,000 of our personnel go out on strike. Administration
decided we could provide excellent care to approxi-
mately 250 patients if they were concentrated in a
centralized area of the Medical Center.
As of 1:00 p.m. on 10 August 1976, I was notified that
there was not significant progress being made in our
negotiations with the URW and we should begin our
preparation to reduce our operations with our primary
concern being the health and welfare of our hospital-
ized patients and emergency patients coming to the
Emergency Department.
The procedure put into operation at 2:00 p.m. on 10
August is as follows:
I. Elective admissions are terminated until further
notice.
2. Emergency patients only would be admitted
through the Emergency Department.
3. Maternity patients would be admitted until the
Maternity Nursing Unit is closed.
4. Heart catherization patients already scheduled
through 13 August would be accepted.
5. On 11 August the 1600 and 3600 Nursing Units
would be closed.
6. On 12 August the 4400 and 5400 Nursing Units
would be closed.
7. On 13 August the 4300 and 5300 Nursing Units
would be closed.
8. On 14 August the 1700 and 2600 Nursing Units
would be closed.
9. From 10 August through 15 August patients on
the 6400 Psychiatry Nursing Unit would be discharged
or transferred to 6100.
10. The closing of additional nursing units and
other facilities would be evaluated after 16 August by
the Board of Trustees, Medical Staff and Administra-
tion.
II. All Departments of the Medical Center have
plans to provide services to a reduced number of
patients.
12. Beds are available at other area hospitals to
physicians and their patients.
13. Physicians who do not have privileges at other
hospitals should call AGMC Administration 384-6550
and the Excutive Director will, in a matter of minutes,
arrange temporary privileges at the designated hospi-
tals.
14. Patients who are annoyed by our reduction in
service should be told the steps taken were necessary to
protect the life and well-being of the hospitalized
patients.
We sincerely hope that negotiations will result in a
settlement by 12:01 a.m. 16 August 1976 and that we
can immediately begin opening nursing units and
admitting patients.
Your cooperation during these difficult days will be
greatly appreciated. Let me reiterate once again, what
we have attempted to do is to assure the hospitalized
patient and emergency patient that our available
resources will be directed to their care.
Sincerely,
/s/ James M. Reynolds
James M. Reynolds
Executive Director
Upon receiving notification that the strike would not
take place at midnight on August 15 as scheduled,
Respondent, by letter dated August 16, 1976, sent the
following followup letter to the doctors who practice at the
hospital: 6
AGMC
MEDICAL STAFF UNDATE
August 16, 1976 - 5:00 p.m.
Dear Doctor:
The Medical Center is preparing to reopen the closed
nursing units and is gearing for full resumption of
services as soon as possible. Thank you for your
cooperation during these difficult days.
We are aware that the possibility exists that we may
close down again. We want to serve you and your
patients to the best of our ability.
The "ten-bed available" policy in Emergency will
still exist until all units are open again. The Medical
6 Res. Exh. 2.
923
s Resp. Exh. I
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Center is following the reopening plan presented by
Herbert E. Croft, M.D.. Chief of Staff.
We will be notifying ambulance companies that we
are now accepting emergency cases.
It is our prime objective to open the operating room
as soon as possible and surgical patients will have
admission preference.
James H. Reynolds
Executive Director
Herbert E. Croft, M.D.
Chief of Staff
Respondent claims that as a result of the Union's 10-day
notice to strike it had to reduce its normal patient census
from about 503 to approximately 300 patients. It also
contended that it had incurred a gross loss of revenue of
about $309,000, and thus, unilaterally imposed a mandato-
ry leave of absence days policy beginning on about August
16, 1976, to recoup the losses.
There is no dispute that Respondent unilaterally institut-
ed this policy without first notifying the Union, or
providing the Union with an opportunity to bargain
7 By memorandum dated October 20, 1976, addressed to all bargaining
unit employees, subject, contract negotiations, James M. Reynolds, on
behalf of Respondent. sent the follovwing:
October 20, 1976
TO: AlL BARGAINING UNIT FMPIOYEi: S
Re: Contract Negotiations
On behalf of the entire Administration and the Board of TIrustees, I
want to thank each employee working in the bargaining unit covered by
the U.R.W. for the fine work you have been doing this year under most
trying and unsettled circumstances. Negotiations for renewal of the
contract began more than eight months aigo and no agreement has been
reached. The last extension of the contract expired July 31, and you
have worked without a contract on a day-to-day basis since that time.
There has been a lot of scare talk and rumors that you have no rights or
protection while you are working without a contract. These statements
are entirely untrue. The Union and our employees have been informed
on several occasions that even though there is no contract presently in
effect, we will continue to abide by the terms and provisions of the
previous agreement until further notice. T'o date. we have notified the
Union that we will no longer honor the Union shop and C(heck-off of
Union Dues. Grievances are being pr-ocessed through the Second Step
and it has been tentatively agreed that. followsing negotiations, the
Medical (Center and the Union will meet as often as necessary and
process grievances unresolved under the old contract through all Steps
including arbitration, and to resolve them as soon as possible.
Shortly after the strike was cancelled by the Union, a temporary
lack of work situation existed because of the reduction in patient census
brought about by the strike threatl. ours were reduced in work units
where necessary by the scheduling of one day off for employees
affected by the work shortage, Many others voluntarily took time off
and by thus sharing the work. lay-ofls were prevented. While this action
was charged by the Union as an Unfair L.abor Practice and a complaint
filed by the N...R.B. on a technicality, prompt action was required and
was initiated by the Administration in the best interest of the
employees, the Medical C'enter, and patient care. All other provisions
of the agreement have remained, and continue to remain, in effect for
the protection, security, and benefit of all bargaining unit employees.
Any statements or rumors to the contrary are untrue and no provisions
or terms will be changed or abandoned without notification to the
Union. If you have an' question about your rights or yourjohb. please
do not hesitate to communicate with your supervisor. and if he or she
cannot answer your questions, then will be forwarded to the Personnel
Department where you will get an answer. Please be assured that no
regarding that subject. The policy affected bargaining unit
members almost exclusively. Thus, registered nurses, who
like bargaining unit employees, are involved in direct
patient care, were offered a voluntary day off, but those
who refused it continued to work as surplus help. In
addition, the nursing department reduced the impact on
registered nurses by not calling in part-time help. There is
no evidence that bargaining unit personnel were given
these considerations.
Respondent's Executive Director, James M. Reynolds,
testified that in his judgment, if the reduction-in-hours
policy had been applied only to temporary and part-time
employees, about 200 to 300 people, the same savings result
would have been accomplished.7 The policy was discontin-
ued after the employees affected had taken off the I day
mandatorily.8
B. The Discharge of Ronald A. Arfons
Arfons was hired on June 23, 1976, as a probationary
employee in Respondent's laundry facility. He continued
in the employ of Respondent until August 20, 1976, when
he was discharged. Arfons was discharged on the last day
employee's rights are impaired in even the slightest extent by the fact
that we are working without a contract.
The Union has been saying that the Medical Center will not agree to
a Union Shop clause in the new contract because the Medical Center is
trying to force a strike in order to get out of paying wages retro-actively
to Apnl I of this year. As you know, the Medical Center's offer to the
Union on wages for the first year is 28 cents across the board, which
will be retro-active back to April I of this year, but that the retro-
activity would be withdrawn if there was a stnke. Obviously, when that
offer was made, nobody could know that we would be working this
long without a contract. Consequently, the amount of retro-active pay.
if the Union accepts the Medical Center's offer, is quite large. The
amount of that retro-activity can easily be estimated by all of you when
you realize that each employee that has worked full-time since April I
would be entitled to over $300 in retro-active pay if we were to sign an
agreement now Obviously, that amount increases with each week that
passes. However, we have made it very clear to the Union's negotiating
committee that retro-activity is still a part of our offer and that it will be
paid if the Union accepts the offer.
There is a very simple reason why we will not agree to a Union Shop
clause. We believe that each employee should have the freedom of'
choice to decide whether or not he or she wants tojoin the Union. The
Employees' Association went for four years without a Union Shop
clause. In the last two years of its existence, there was a Union Shop
clause and many of you were involved in endless controversy regarding
Association matters, particularly dues increases.
The Medical Center recognizes your right to join the Union if you
want to, however, we also respect your right not to join if you do not
want to join. If every member of the bargaining unit joins the Union.
that is fine with the Medical Center, so long as it is your decision tojoin
and that you are not forced to join against your will. We believe that
this will give you a better Union and better service. Historically, it has
been proven that where the Union has a captive membership that is
required to pay dues, it is not apt to be as responsive to the wishes and
needs of the membership. We believe that if you have the nght to be a
non-member of the Union, its leaders will have to work a lot better for
you in order to persuade you to exercise your voluntary right to join.
Very truly yours,
/s/ James M. Reynolds
James M. Reynolds
Executive Director
Some unit employees volunteered and did take mandatory days off
scheduled for others to spare the others the loss of the day's work and pay.
924
AKRON GENERAL MEDICAL CENTER
of his probationary period of 60 days. Respondent listed
the reasons for Arfons' discharge as follows: 9
Ronald Arfons started to work in the Laundry
Department on June 23, 1976, as a porter.
June 29, 1976: Ronald Arfons was talked to about
his work not being up to standard, and at that time was
asked if he understood his job. His reply was that he
knew his job.
July 8, 1976: Ronald Arfons was again talked to
about failing to maintain acceptable work standards,
and was asked again if he understood his job. He stated
that he did understand his job.
July 20, 1976: Ronald Arfons was talked to about
cleaning behind the washers, which he had been
instructed to do, and he had failed to clean the lint
traps of both dryers, overhead lights and pipes.
July 26, 1976: Ronald Arfons complained of the lint
and dust in the department. He said that he couldn't
breathe. Suggested he gets out if he can't stand it. He
then stated that he hit his finger on a door by X-ray, he
was sent to personnel health was off work for 2-1/2
days. It appears that this employee is a very unhappy
employee in his job, because he cannot seem to submit
to the authority that is over him, and doesn't want to
humble himself to being a cleanup man.
August 12, 1976: Ronald Arfons again complained
about the dust in the department, and wanted to
transfer into delivery but his request was refused
because he would still be in the dust, and it would not
have benefited the operation of the department to
transfer him into the sorting and delivery area. He tried
to transfer before but Ann Brown has not gotten back
to us as yet.
Note: Ronald Arfons in the last fifty some days has
had to (two written by hand) accidents in the hospital
that have been due to carelessness and not watching
what he was doing. It is not conducive to good
employment and health practices to have a careless and
undisciplined employee in a department where the
safety of others are involved. It is not likely that this
employee will be a happy and productive employee for
the laundry department at the Medical Center.
Arfons' supervisor, Vernon Troyer, testified that Arfons
was discharged for failing to maintain standards of work
and for not following instructions. He further testified that
Arfons was informed of this by telephone (Pamela Vaughn,
a union steward from another department was also on the
phone extension, and William T. McRae, the union
steward in Arfons' department, and Bill Troglen, the
assistant laundry manager, were present in the office).
Troyer's testimony controverts that of Arfons, Vaughn,
and McRae. The latter three testified that Troyer informed
Arfons that he was terminated because of a cutback in
personnel attributed to the hospital's temporary financial
setback. The testimony of Vaughn and McRae is that
Troyer made it clear that Arfons was not terminated
because of his work performance. Both Troyer and Troglen
testified that Arfons was given oral warnings, but there is
no record of either oral or written warnings after the 30-
day learning period, although Troyer admitted that it is his
normal practice to document such warnings. Arfons
testified that he had never received a reprimand either oral
or written and that he had been praised for his work as late
as early August. McRae testified that he also heard Arfons
being praised for his good work.
The record shows that Arfons was engaged in extensive
union activity. On or about August 12, 1976. Arfons
informed Troglen, the assistant laundry supervisor, that as
soon as his probationary period expired he would be the
alternate union steward. Prior to that discussion with
Troglen, Arfons discussed with fellow employees whether
or not they should resign from the Union and persuaded
several of them not to resign.
Arfons also advised employees not to cross the picket
line if the Union engaged in strike activity. The conversa-
tions that Arfons had with fellow employees about the
Union were often within the close proximity of Troyer. or
Troglen, or both. Arfons' union campaign took place at a
time when Respondent, in a letter dated August 11, 1976.
addressed to all employees, from James M. Reynolds,
executive director, instructed the employees how to resign
from the Union.
During the first part of August, Arfons and Trover had a
conversation in Troyer's office in which Troyer told Arfons
that the Union was not worth joining, and "that the union
president. Loretta Rogers, was totally incompetent."
Arfons responded that Troyer could have that opinion if he
wanted, but Arfons didn't believe it. Arfons stated further
that he believed in the Union and if the Union would have
a strike, he would honor the picket line.
IV. DISCUSSION AND CONCLUSIONS
A. The Unilateral Change
Although Respondent contends that the reduction of
hours for bargaining unit employees was economically
motivated in view of the impending strike, which in fact
never occurred, Respondent admitted that the same result
could have been achieved by reducing the hours of only the
temporary and part-time employees. Notwithstanding,
economic motivation does not excuse Respondent from its
obligation to give prior notification to the Union concern-
ing the change, or to negotiate concerning the reduction of
hours provisions that were in effect in collective-bargaining
agreements since 1969. In Amoco Chemicals Corporation,
211 NLRB 618 (1974), the Board held that economic
motivation does not justify a refusal to bargain over a
reduction of hours, even though there was no allegation or
finding that the reduction in hours was carried out in a
discriminatory manner. The Board ordered a monetary
remedy in that case. In footnote 2, on page 618, the
majority of the Board (Member Kennedy dissenting) said:
Members Kennedy also states that a monetary
remedy is unwarranted in this case. He states that it is
difficult to perceive how bargaining over the reduction
G.C. Exh. 11.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in hours would have changed matters. However, if the
Union is deprived of any opportunity to bargain, and
to militate against the reductions, there is no way to tell
what might have happened. Here, the Union could
have agreed to layoffs of transfers to other operations
of the parent corporation, or to implement some other
proposal. Neither the Union nor the employees, who
were not the wrongdoers in this case, should suffer from
the speculation of what might have happened.
Even assuming that Respondent's unilateral action was
motivated by good-faith economic considerations, this
alone did not relieve Respondent of its obligation to
bargain over its decision to reduce the hours of the unit
employees. The Weston and Brooker Company, 154 NLRB
747 (1965). The reduction in hours was implemented
without regard to the established conditions of employ-
ment as reflected in the procedures contained in article
XVI of the contract, supra, and in the face of Respondent's
assurances to the Union and the unit employees, during the
negotiations, that it would continue to abide by the expired
agreement.
Such conduct on the part of Respondent is a violation of
Section 8(a)(l) and (5) of the Act. Moreover, the applica-
tion of that policy almost exclusively to bargaining unit
employees, while other employees similarly situated such as
nurses and part-time employees remained unaffected,
constitutes inherent discrimination in violation of Section
8(a)(1) and (3) of the Act. See N.L.R.B. v. Katz, et al, 369
U.S. 736 (1962); Boland Marine and Manufacturing Compa-
ny, Inc., 225 NLRB 824 (1976); and The Radio Officers'
Union of the Commercial Telegraphers Union, AFL v.
N.L.R.B., 347 U.S. 17 (1954). For discriminatory intent and
union animus, also see Akron General Medical Center, 226
NLRB 953 (1976).
B. The Discharge of Arfons
Ronald A. Arfons was discharged by Respondent on the
last day of his 60-day probationary period. Respondent
had knowledge that Arfons was to become a union
member and alternate union steward upon the termination
of his probationary period. That Arfons engaged in
extensive union activity during his probationary period is
undisputed. Supervisor Troyer was told by Arfons that he
was in support of the Union in response to Troyer's
attempt to dissuade Arfons from joining the Union.
Arfons, Vaughn, and McRae were all credible witnesses.
Their testimony was consistent and forthright. To the
extent that their testimony conflicts with that of Supervi-
sors Troyer and Troglen, I credit the former and not the
latter testimony. Troyer testified that he fired Arfons for
"failing to maintain standards of work and not following
instructions the way he was told to, and so on and so
forth." It would seem that he would have been terminated
on the spot, for the insubordination he was allegedly guilty
of, rather than on the last day of his probationary period.
Mr. Troyer also testified that Arfons failed to clean certain
areas of the floors from the time he started until he was
terminated. He also said as to "cleaning of equipment,
there was places that he had never even begun to clean up,
even after we had pointed out to him on numerous
occasions." When asked if Arfons was told about the
things that he was doing wrong prior to the day of his
discharge, Troyer answered, "I told him on several
occasions that he wasn't coming up to standards, and I had
asked him to correct it." Again, it would seem that Mr.
Troyer would have pointed out specifically and simply to
Arfons that he hadn't cleaned certain areas of the floor and
certain equipment from the first day that he was hired.
There is no evidence that he ever told Arfons the latter.
Troyer's testimony conflicted with his and Troglen's
written reasons for Arfons' discharge. When asked if one of
the reasons for Arfons' discharge was that he complained
to Troyer on several occasions about the lint and dust in
the air (listed twice in the reasons for discharge written by
them) his answer was, "No." Troyer admitted that he gave
Arfons no written warnings (only oral warnings) and did
not document any of the warnings, although he admitted
he documented oral warnings anytime he talked to an
employee "as a rule, but in this particular case, I did not."
Supervisor Troyer was not consistent, straightforward, nor
candid in his testimony, and therefore, I do not credit him.
Similarly, I do not credit Supervisor Troglen. Supervisor
Troglen, on a number of occasions, stated that he did not
recall certain matters including conversations he had with
counsel for the General Counsel during the investigation of
the instant case. For example, the following is excerpted
from the transcript of testimony of Mr. Troglen while being
cross-examined by counsel for the General Counsel:
Q. (By Mr. Ross) Do you recall during our
meeting, me asking you why Ron Arfons was dis-
charged?
A. I don't remember the specific questions, but I
am sure I told you the same answer that I told these
gentlemen here, he was terminated because he was a
probationary employee and an unsatisfactory employ-
ee.
* *
Q. (By Mr. Ross) Isn't it in fact true that during the
investigation you told me you never gave Mr. Arfons
any warnings, nor did you have any input into Mr.
Troyer giving Mr. Arfons any warnings?
A. No, I recall no such statement like that.
Q. And you did tell me during the investigation
that numerous employees had resigned from the
Union; didn't you?
THE WITNESS: If I stated it-I don't recall making
that statement, but maybe I did. I don't know.
Q. Then, didn't you describe to me the campaign
that was going on in the laundry with respect to
employees resigning from the Union?
THE WITNESS: I don't recall what you are talking
about. I don't understand the question specifically.
926
AKRON GENERAL MEDICAL CENTER
* * *
Q. (By Mr. Ross) How many did you tell me
wanted to resign during the course of the investigation,
now that you recall that you did hear that?
A. I have no idea what I told you.
In addition to the memory lapses, Mr. Troglen's testimony
was inconsistent. In sum, I do not credit his testimony.
The list of reasons for Arfons' discharge prepared by
Troyer and Troglen in two instances listed Arfons'
complaint about the lint and dust in the laundry. The
presence of lint and dust may affect the health of all the
employees who are subjected to it, and therefore, the
presence of it is of concern to all the employees. A
complaint concerning the atmosphere in the place of
employment is a complaint about "conditions of employ-
ment," and is therefore a protected activity, and, indeed,
concerted activity even absent a showing that other
employees joined in the complaint. There is no evidence
that fellow employees disavowed the substance of the
complaint, thus raising the presumption of implied consent
resulting in the activity being concerted activity within the
meaning of the Act. Alleluia Cushion Co., Inc., 221 NLRB
999 (1975). Even though that case involved the filing of a
complaint with the California OSHA Office, I see no
distinction between that case and the instant case where
the employee complained to the employer rather than to a
governmental agency. As in Alleluia, the complainant
herein sought to compel Respondent to comply with
standards concerning occupational safety. While his own
personal health may have been one motivation, it is clear
from the nature of the complaint that Arfons' object
encompassed the well-being of his fellow employees as well
and, therefore, should not be considered any less concerted
activity than was found by the Board in Alleluia. See Air
Surrey Corporation, 229 NLRB 1064 (1977).
CONCLUSIONS OF LAW
1. The Respondent, Akron General Medical Center, is
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Local No. 1014, United Rubber, Cork, Linoleum
and Plastic Workers of America, AFL-CIO-CLC, is a
labor organization within the meaning of Section 2(5) of
the Act.
3. By refusing to bargain collectively with Local No.
1014, United Rubber, Cork, Linoleum and Plastic Workers
of America, AFL-CIO-CLC, as the exclusive bargaining
'representative of all the employees in the unit described
above in unilaterally changing the layoff and recall
provisions described in article XVI of the collective-
bargaining agreement without first notifying Local No.
1014 of its intention to do so, or giving Local No. 1014 an
opportunity to bargain regarding this subject, Respondent
violated Section 8(a)(5) and (1) of the Act.
4. By unilaterally requiring employees to take manda-
tory leave of absence days without pay, Respondent has
10 Although the General Counsel subpenaed the records of Respondent
in order to identify the employees arfected, the records produced by
Respondent were either incomplete or inadequate. Certain of the affected
engaged in, and is engaging in, unfair labor practices in
violation of Section 8(aX5) and (1) of the Act.
5. By unilaterally requiring bargaining unit employees
to take mandatory leave of absence days without pay,
while other employees similarly situated were not so
required, Respondent's action was inherently discriminato-
ry in violation of Section 8(aX3) and (I) of the Act.
6. By discharging Ronald A. Arfons because he
engaged in union activity, Respondent has discriminated
against him and has engaged in, and is engaging in, unfair
labor practices in violation of Section 8(a)(3) and (I) of the
Act.
7. By discharging Ronald A. Arfons because he
engaged in protected concerted activity, Respondent
interfered with, restrained, and coerced him in the exercise
of his rights protected by the Act, and engaged in an unfair
labor practice in violation of Section 8(a)(1) of the Act.
THE REMEDY
Inasmuch as Respondent violated Section 8(aX 1) and (5)
of the Act by its unilateral action, the remedy should be
that all those employees affected by such unlawful action
be made whole for any loss of pay resulting from that
action. The identification of the employees affected is a
matter for compliance.t 0 Therefore, I shall recommend that
Respondent make whole those employees who were either
required to take mandatory leave of absence days without
pay, by assignment, or by having been asked to volunteer
for such a reduction in hours, or were otherwise denied
work opportunities, including but not limited to those
employees whose scheduled overtime was canceled as a
result of the unilateral implementation of the reduction-in-
hours policy.
I also find that Ronald A. Arfons was discharged
because of his union activities in violation of Section
8(a)(l) and (3) of the Act. I find that the reasons given by
Respondent for Arfons' discharge are pretextual. In
addition, I find that although there was no specific
allegation that Arfons was discharged because of his
having engaged in protected concerted activity in violation
of Section 8(a)(1) of the Act, the matter was fully litigated
and, therefore, I find such conduct on the part of
Respondent to be in violation of Section 8(a)(1) of the Act.
The General Counsel is allowed considerable leeway in
amplifying or expanding certain details not specifically set
forth in the complaint if they accord with the general
substance of the complaint. As long as those details are
fully litigated and offer no element of surprise to Respon-
dent, they are usually held to be a proper basis for an
unfair labor practice finding. Only when the General
Counsel attempts to prove, or the Administrative Law
Judge makes a finding of an entirely new cause of action or
violation not covered in the complaint has the Board
rejected such offer of proof or findings. Curtiss Wright
Corporation v. N.L.R.B., 347 F.2d 61 (C.A. 3, 1965);
Stokeley-Bordo Company, 130 NLRB 869, 872-873 (1961). 1
shall recommend that Respondent be ordered to offer
reinstatement to Ronald A. Arfons to his former or
employees, but by no means all of them, were identified at the heanng. The
remaining affected employees must be identified at the compliance stage.
927
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
substantially equivalent position, without prejudice to his
seniority or other rights or privileges, and that he be made
whole for any loss of earnings sustained by reason of the
discrimination against him together with interest at the rate
of 6 percent per annum in accordance with Isis Plumbing &
Heating Co., 138 NLRB 716 (1962), and F. W. Woolworth
Company, 90 NLRB 289 (1950).
Upon the basis of the foregoing findings of fact,
conclusions of law, and upon the entire record in this case,
I hereby issue the following recommended:
ORDER I
The Respondent, Akron General Medical Center, Ak-
ron, Ohio, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Local No. 1014,
United Rubber, Cork, Linoleum and Plastic Workers of
America, AFL-CIO-CLC, as the exclusive bargaining
representative of all the employees in the unit described
below, in unilaterally changing the layoff and recall
procedures described in article XVI of the collective-
bargaining agreement, without first notifying Local No.
1014, United Rubber, Cork, Linoleum and Plastic Workers
of America, AFL-CIO-CLC, of its intention to do so, or
giving Local No. 1014, United Rubber, Cork, Linoleum
and Plastic Workers of America, AFL-CIOCLC, an
opportunity to bargain regarding such subject.
All employees of Akron General Medical Center,
excluding Personnel Department employees, Confiden-
tial Secretaries, Aide-Occupational Therapy, Artist,
Case Aide, Chief Clerk, Computer Operator, Credit
Interviewer, Dietary Assistant, Draftsman, Electrophy-
siology Technician, General Accounting Clerk, House-
keeper, Housemother, Junior Medical Technologists,
Junior Radiological Technologist, Junior Secretary,
Key Punch 1, Key Punch II, Maid Instructor, Medical
Records Technician, Medical Technician, Pharmacist
Assistant, Physical Therapist, Physician's Receptionist,
Physician's Secretary, Pulmonary Technologist, Recre-
ational Therapist, Respiratory Technologist, Senior
Charge Clerk, Senior Laundry Employee, Senior
Materials Handling Clerk, Senior Print Clerk, Senior
Radiologic Technologist, Senior Secretary, Staff Nurse,
Training Supervisor, Unit Leader, part time employees
working 20 hours or less per week, temporary employ-
ees and oncall, professional employees, guards and
supervisors as defined in the Act.
H' In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
(b) Reducing, or continuing to reduce, the work hours of
its employees in the unit described above.
(c) Interfering with, restraining, or coercing its employees
in the exercise of their rights guaranteed in Section 7 of the
Act.
(d) Discriminating against employees by layoff, dis-
charge, or in any other manner, because its employees
joined, aided, or supported a labor organization, or
engaged in other protected concerted activities.
(e) In any other manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed in
Section 7 of the Act.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Offer Ronald A. Arfons immediate and full reinstate-
ment to his former position, or, if such position no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges
previously enjoyed, and make him whole for any loss of
pay or other benefits suffered by reason of the discrimina-
tion against him in the manner described above in the
section entitled "The Remedy."
(b) Make whole all employees in the unit for any loss of
earnings sustained by them by reason of the implementa-
tion of the mandatory leave of absence days without pay
policy in the manner provided in "The Remedy."
(c) Preserve and, upon request, make available to the
Board and its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
relevant and necessary to determine the amounts of money
due under the terms of this recommended Order.
(d) Post at its Akron, Ohio, place of business, copies of
the attached notice marked "Appendix." 12 Copies of said
notice on forms provided by the Regional Director for
Region 8, after being duly signed by Respondent's
authorized representative, shall be posted by it immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
ensure that said notices are not altered, defaced, or covered
by any other material.
(e) Notify the said Regional Director, in writing, within
20 days from the date of this Order, what steps Respondent
has taken to comply herewith.
12 In the event the Board's Order is enforced by a Judgment of the
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
928