Alexandria Clinic, P.A.

National Labor Relations Board - Board Decisions

Aug 21, 2003

339 N.L.R.B. 1262 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1262
Alexandria Clinic, P.A. and Minnesota Licensed
Practical Nurses Association. Case 18–CA–
15371
August 21, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN,
SCHAUMBER, WALSH, AND ACOSTA
This case raises an issue under Section 8(g) of the Act,
which requires that labor organizations give health care
institutions 10 days advance written notice of an intent to
strike. More precisely, the question presented herein is
whether the judge correctly found that the Respondent
violated Section 8(a)(3) and (1) by discharging its nurs-
ing employees because there was a failure to comply
with the literal requirements of Section 8(g), i.e., there
was a delay in the start of the economic strike of 4 hours
after the time set forth in the Union’s 10-day notice to
the Respondent.1
The National Labor Relations Board has considered
the judge’s decision and the record in light of the excep-
tions and briefs and has decided to affirm the judge’s
rulings, findings, and conclusions only to the extent con-
sistent with this Decision and Order.
The Respondent operates a health clinic in Alexandria,
Minnesota. The Charging Party Union, since winning a
Board-conducted election in March 1998, has been the
exclusive bargaining representative of the Respondent’s
licensed practical nurses and medical assistant employees
(nurses).
Negotiations for an initial contract between the parties
began soon after the Union’s certification. After several
meetings, the Respondent submitted a final contract offer
to the Union, which the nurses considered at an August
25, 1999 meeting.2 The nurses rejected the offer and
voted to strike.
In accordance with 8(g)’s requirement of 10 days writ-
ten notice by a union of the date and time of its intended
strike,3 the Union informed the Respondent by letter

1 On June 16, 2000, Administrative Law Judge John H. West issued
the attached decision. The Respondent filed exceptions and a support-
ing brief and the General Counsel and Charging Party filed answering
briefs. The Respondent then filed a reply brief.
The Respondent also requested oral argument. The request is denied
as the record, exceptions, and briefs adequately present the issues and
the positions of the parties.
2 All dates are in 1999.
3 Sec. 8(g) 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 com-
dated August 30, that it would strike the clinic on Sep-
tember 10, starting at 8 a.m. The Respondent, which
received this letter no later than August 31, posted a no-
tice to employees on that date announcing that the Union
had served notice of its intent to strike, picket, and leaflet
Respondent commencing at 8 a.m. on September 10.
After the Union served its 8(g) strike notice on Re-
spondent, organizer Kleckner e-mailed employee orga-
nizing committee member Radil that:

I faxed a strike notice to the Clinic today. It is effective
at 8:00 a.m. on Friday, September 10th. We have the
ability to go out within 72 hours after we say we will
(72 hours after 8:00 am on 9/10). This means that we
can go at 8:00; or just have everyone go to lunch and
not come back; or work as usual on Friday, but not
show up for Urgent Care Saturday—and have them
wondering about Monday (when no one will come to
work)! Think about what makes the most sense, and
then we can firm up some plans.

Thereafter, on September 7, members of the Union’s
negotiating committee made a change to the commence-
ment time of the strike from 8 a.m. to noon on September
10. The Union was aware of this change. It was also
decided that neither the nurses nor the Respondent was to
be notified of this change. Rather, employees were told
that someone would come to get them when it was time
to strike.
The nurses who were scheduled to start work at 8 a.m.
on September 10 reported for work. Because they did so,
the Respondent placed the contingent of temporary
nurses (that it had hired to replace the striking nurses) in
a lounge area in the clinic, rather than assign them work.
The unit nurses carried out their regular duties during
the morning of September 10. Shortly before noon, they
were individually notified that the strike was about to
start and that they should gather outside the clinic to
conduct picketing activity. The 13 working nurses (12 at
the main clinic and 1 at a satellite facility) walked off the
job. Eight other nurses, whose shifts began after noon,
did not report for work. When the walkout commenced,
the Respondent assigned to the replacement nurses, who
were still in the clinic lounge, the unit nurses’ work.
On September 13, the Respondent wrote the Union
seeking an explanation as to “why the Union chose to
delay the commencement of the strike and why the Un-
ion did not give the clinic advance notice of this change
in plan.” The Union replied by letter the next day, stat-
ing that “[u]nder statute, we gave the proper notice to

mence. The notice, once given, may be extended by the written agree-
ment of both parties.
339 NLRB No. 162
ALEXANDRIA CLINIC, P.A. 1263
strike and went out on strike within the allowable time.”
Asserting that this response was legally inadequate, the
Respondent wrote the striking nurses that their walkout
was “in violation of the notice provisions of Section
8(g)” and that their employment was, therefore, termi-
nated.
The Judge’s Decision
The judge found that the Respondent violated Section
8(a)(3) by terminating the striking employees. The judge
determined that, despite the strike’s delay of 4 hours be-
yond the specified hour of 8 a.m. set forth in its written
notice to the Respondent, the Union’s noon-time strike
on September 10 did not violate Section 8(g). In reach-
ing this result, the judge relied on Greater New Orleans
Artificial Kidney Center4 where the Board held that Sec-
tion 8(g) was not to be “rigidly applied” in accordance
with its statutory language which provides for extensions
of strike time by “written agreement of both parties.” In
that case, the Board reviewed the legislative history of
Section 8(g) and determined that Congress both contem-
plated and approved a union’s unilateral extension of its
10-day notice of a strike’s commencement, provided,
however, that the delayed start did not exceed 72 hours
and the union furnished 12 hours supplemental notice of
the new start time.5 Because the union in Greater New
Orleans provided the employer with 12-hours supple-
mental notice that it was extending the time set forth in
its initial 10-day notice for the commencement of the
strike, and because the new strike time was within 72
hours of the originally noticed strike time, the Board
found that the union was in “substantial compliance”
with Section 8(g) and that the employer was, therefore,
not privileged to discharge employees whom it con-
tended had engaged in a strike in violation of Section
8(g).
Applying this rationale to the instant case, the judge
found that, despite the Union’s failure to provide 12-hour
supplemental notice that the strike’s commencement time
had been extended—which 12-hour notice the Board had
specifically relied upon in Greater New Orleans in find-
ing “substantial compliance”—no supplemental notice

4 240 NLRB 432 (1979).
5 Specifically, the cited legislative history provided that “[S]ince the
purpose of the [8(g)] notice is to give a health care institution advance
notice of the actual commencement of a strike or picketing, if a labor
organization does not strike at the time specified in the notice, at least
12 hours notice should be given of the actual time for commencement
of the action.” S. Rep. at 4; H. Rep. at 5. As further stated, “[W]here
the notice was mailed in timely fashion, and the union was not respon-
sible for the delay, or where under such circumstances, the employer
has been provided with more than 12 hours actual notice, then the fail-
ure to comply with the 12-hour notice seems excusable.” Leg. Hist. at
409–410.
was necessary because the “strike and picketing began
within a reasonable time after the scheduled time [and]
. . . the Union was in substantial compliance with Section
8(g).” Accordingly, the judge concluded that the Re-
spondent violated Section 8(a)(3) by discharging the
nurses for engaging in the strike and picketing. We dis-
agree.
We find that the Union satisfied neither the “substan-
tial compliance” requirements as interpreted by the
Board in Greater New Orleans nor the literal 8(g) re-
quirements. We further find, upon reconsideration of the
relevant statutory language and decisional law, that con-
sistent with the District of Columbia Court of Appeals
decision in Beverly Health & Rehabilitation Services v.
NLRB, 317 F.3d 316 (2003), Section 8(g) must be ap-
plied as it was written. Accordingly, we reverse the
judge and dismiss the complaint.
Discussion
We view this case as covered by the clear language of
Section 8(g). Section 8(g) requires that the union give 10
days notice of the date and time of the strike. The last
sentence of Section 8(g) says that the 10-day “notice,
once given, may be extended by the written agreement of
both parties.” Thus, a union cannot unilaterally extend
the commencement time of its strike. To the extent that
the Board’s decision in Greater New Orleans holds to
the contrary, we overrule it.6
Until 1974, health care employees employed by non-
profit hospitals were not entitled to collective-bargaining
rights under the Act. Congress amended the Act that
year by extending the Act’s jurisdiction to cover all non-
profit health care institutions, thereby bestowing upon
6 We also correct two errors underlying the judge’s legal analysis
that are unrelated to the issue presented by the decision in Greater New
Orleans. First, we do not agree with his finding that there are separate
standards for evaluating the lawfulness of an 8(g) strike—one standard
applicable where strikers have not been discharged, and a different
standard when, as in the instant case, the strikers have been discharged.
As the Respondent correctly observes, there is nothing in the legislative
history or case law interpreting Sec. 8(g) that supports application of
these different standards. In recognition of this fact, the General Coun-
sel joins the Respondent in urging rejection of the judge’s “two tiered
system for evaluating alleged violations of Section 8(g).” See GC
Answer Br. at 28–29.
Second, in direct contravention of the specific language of Sec. 8(g)
and case precedent, the judge reasoned that because unrepresented
health care employees are not covered by Sec. 8(g)—and, thus, are
protected from discharge under Sec. 7 if they strike without notice to
their employer—the same protection should not be denied the nurses
here merely because they are represented by the Union. Congress,
however, deliberately legislated this difference in treatment between
represented and unrepresented health care employees with respect to
the requirements of an 8(g) notice. Bethany Medical Center, 328
NLRB 1094 (1999). Accordingly, as the General Counsel again con-
cedes on brief (Br. at 29–30), we must reject this finding by the judge.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1264
those employed by such institutions the same collective-
bargaining rights possessed by employees in other indus-
tries. But accompanying this extension of the Act’s pro-
tections was a tradeoff: to address the concerns of health
care business groups who feared that extending coverage
to this new group of employees might lead to an in-
creased disruption in health care services caused by labor
disputes, Section 8(g) was added to the amendments in
order to give the health care institutions sufficient ad-
vance notice of a strike or picketing to permit timely ar-
rangements for continuity of patient care. Hospital Em-
ployees District 1199, (United Hospitals of Newark), 232
NLRB 443 (1977); Walker Methodist Residence, 227
NLRB 1630, 1631 (1977).
Since its enactment, the Board and courts have found
that the text of Section 8(g) is clear and unambiguous
and have therefore applied that text as written. For ex-
ample, in one of its earliest decisions issued following
passage of the health care amendments, the Board, in
Parkway Pavilion Healthcare,7 set out the following rea-
sons for finding that Section 8(g) must be read literally:

[T]he 8(g) notice requirement is clear and absolute.
First, it is mandatory rather than discretionary—the
statute provides that “a labor organization . . . shall”
give written notice. Second, it applies regardless of the
nature of the picketing involved – notice must be pro-
vided in advance of “any strike, picketing or other con-
certed refusal to work at any health care institution
. . . .” Finally, Section 8(g) is devoid of any modifying
language respecting the character of the picketing, its
objectives, or the type of economic pressures gener-
ated. Id. at 212. [Emphasis in original.]

The issue in Parkway Pavilion was whether an 8(g) written
notice requirements applied not only to primary picketing,
but to sympathy picketing as well. Applying the above
guidelines, and concluding that “Congress intended that the
10-day notice provision of Section 8(g) be interpreted ac-
cording to its literal meaning” (222 NLRB at 213),8 the

7 222 NLRB 212 (1976).
8 Although the Board and some courts have employed the term “in-
terpret” when setting out their reading of Sec. 8(g), we find that the use
of this term can be misleading when, as here, Sec. 8(g) is clear and
unambiguous on its face. The verb “interpret” means “to explain or tell
the meaning of translate; elucidate.” Webster’s New Collegiate Dic-
tionary 440 (13th ed. 1961). Obviously, when a text is clear and unam-
biguous, there is no need to “explain,” “translate,” or “elucidate” its
meaning.
Similarly, there is no need to resort to legislative history as a refer-
ence to what Congress intended when it enacted clear and unambiguous
legislation. When the words of the text are clear and unambiguous, the
text need not be “interpreted” to understand its plain meaning. The
proper understanding of the text is to be found in the plain language of
the text itself.
Board found that 10-day notice was required in situations
involving sympathy strikes or picketing.9
In Walker Methodist Residence, supra, the Board simi-
larly held that 8(g) should be interpreted according to its
literal language. In Walker, the employer argued that
Section 8(g) applied to work stoppages in which no labor
organization was involved. Although there was some
legislative history indicating that the provision applied
both to individuals and to labor organizations, the Board
noted that “Section 8(g) appears on its face to apply only
to striking or picketing by a labor organization.” Citing,
inter alia, Parkway Pavillion, discussed above, for the
proposition that “the Board has examined the legislative
history and found that the section should properly be
interpreted according to its clear language,” the Board
found that Section 8(g) was applicable only to strikes or
picketing involving a labor organization. Id. at 1631.
The Second Circuit reached the same result in Monte-
fiore Hospital & Medical Center v. NLRB, 621 F.2d 510,
514 (1980). In rejecting the employer’s reliance on
legislative history to support its argument that the 8(g)
notice requirements should apply to strikes by unrepre-
sented employees as well as unions, the court held that
“we are here confronted with one whose language is
crystal clear. We cannot disregard the ‘ordinary meaning
of plain language . . . .’” (Citation omitted.)
In Retail Clerks Local 727 (Devon Gables Health Care
Center), 244 NLRB 586 (1979), the Board examined
another provision of Section 8(g) and concluded that the
literal terms of the section applied. At issue in Retail
Clerks Local 727 (Devon Gables Health Care Center)
was whether the union had supplied the requisite 10-day
written notice when it mailed its notice to the employer
10 days before the planned strike. The Board determined
that this notice, which was received 9 days before the
scheduled picketing, did not satisfy Section 8(g). Reject-
ing the union’s argument that 9 days notice constituted
substantial compliance, the Board adopted the judge’s
conclusion that “in light of the literal construction of
Section 8(g) decreed by the Board, the Respondent’s
picketing violated the Act as alleged.”
Finally, in Hospital Workers Local 250 (Affiliated
Hospitals of San Francisco), 255 NLRB 502 (1981), the
Board adopted the judge’s finding that 8(g) language
must be read literally. In Hospital Workers, the union’s
initial written strike notice was deficient in that it omitted
both the date and time of its planned strike. As stated by
the judge, “Section 8(g) of the Act ‘should properly be
interpreted according to its clear language.’” Id. at 504
9 Although the union did not commence its strike at the precise time
specified in their 8(g) notice, there is no evidence that this was alleged
as violative of the 8(g) requirements.
ALEXANDRIA CLINIC, P.A. 1265
quoting Walker Methodist, supra at 1631. The Board and
judge likewise found deficient the union’s second letter,
sent 4 days later, announcing a strike set to commence 7
days after the second notice. In defending against the
complaint allegation that it violated Section 8(g), the
union argued that the combined effect of its two letters
constituted “reasonable steps” to satisfy its statutory 10-
day notice obligation. Id. at 504. The judge, affirmed by
the Board, rejected this argument because:

[i]ts acceptance would oblige the Board to delete the
express commands of the second sentence of Section
8(g) of the Act by, in effect, subtracting from it the re-
quirement that the date and time of commencement be
recited in the notice. This it cannot do . . . . [T]he
Board is not free to rewrite the second sentence of Sec-
tion 8(g) of the Act to make its requirements discre-
tionary, rather than mandatory. Id.

In stark contrast to the foregoing Board and court
precedent, which applied the 8(g) provisions presented as
written, in Greater New Orleans, the Board relied on
certain language from the legislative history10 to find that
Section 8(g) was not to be “rigidly applied . . . .” 240
NLRB at 435. Applying that view to the third sentence
of Section 8(g), the Board held that, notwithstanding that
provision’s allowance of extensions of 10-day strike no-
tices “by the written agreement of both parties,” exten-
sions could also be accomplished “by unilateral notifica-
tion to the employer . . . .” Id. We disagree. In our
view, by relying on the legislative history to find that
unilateral extensions of strike notices were permissible,
the Board in Greater New Orleans effectively rewrote
the third sentence of Section 8(g) to make its require-
ments discretionary rather than mandatory. Just as the
Board in Affiliated Hospitals refused to do this with re-
spect to the second sentence of Section 8(g), we refuse to
do it with respect to the third sentence.
We need look no further than the language of the stat-
ute itself to conclude that unilateral extensions of strike
notices are not permissible. In agreement with the D.C.
Circuit, which recently addressed the precise issue pre-
sented here, we find that 8(g)’s third sentence clearly and
unambiguously mandates that a written agreement of
both parties is the “sole statutory exception” to the re-
quirement that a strike commence at the time and date set
forth in the 10-day notice. See Beverly Health & Reha-
bilitation Services v. NLRB, 317 F.3d at 321.
In Beverly, the union initially sent effective written no-
tice to the respondent, more than 10 days in advance, of
the date and time that it intended to go on strike against

10 See fn. 5 above and accompanying text.
it. Thereafter, however, the union sent the respondent a
second notice [2 days before the scheduled strike] pur-
porting to postpone commencement of the strike by 71
hours. After the strike began as specified in the second
notice, the respondent discharged the strikers for engag-
ing in an unlawful strike. The court agreed with the re-
spondent that the strike was unlawful under Section 8(g).
Rejecting the Board’s argument that the respondent’s
defense failed under Greater New Orleans, the court held
that “[S]ection 8(g) manifests an “unambiguously ex-
pressed intent” that precludes the Board’s interpretation.”
317 F.3d at 320. As the D.C. Circuit explained:

Section 8(g) expressly states that before commencing a
strike at a health care institution a union “shall, not less
than ten days prior to such action, notify the institution
in writing” and that the “notice shall state the date and
time that such action will commence.” The meaning of
this mandatory language could not be plainer or the
Congress’s intent in enacting it clearer. Id. at 321.

The court further concluded that the “plain meaning of the
statute” cannot be overcome simply because the statute
“does not expressly state that agreement of the parties is the
only means to obtain an extension.” Id. (Emphasis in origi-
nal.) In so holding, the court rejected the express premise of
the Board’s finding in Greater New Orleans that “the cited
language does not expressly provide that a written agree-
ment of the parties is the exclusive manner of extending an
initial strike date.” 240 NLRB at 434. We reject it for the
same reason that the Beverly court did:

No such express provision is necessary. If the Con-
gress had intended to allow either party to extend the
notice unilaterally, it could easily have said so—but it
did not. Instead the Congress carved out but a single
express exception—when both parties consent in writ-
ing—an exception that would be unnecessary if either
party could unilaterally extend the notice at will. Id.

Accord: NLRB v. Washington Heights-West Harlem-
Inwood Mental Health Council, 897 F.2d 1238, 1246 (2d
Cir. 1990) (union’s oral unilateral notice extending by 1 day
its 10-day strike notice “not enough [because] . . . [S]ection
8(g) makes clear that notice, or any extension of notice,
must be in written form”).
Since the text of the statute is the law and that text is
crystal clear and unambiguous, no further discussion is
necessary. However, we hasten to point out that the pol-
icy considerations underlying Section 8(g) are effectu-
ated by applying Section 8(g) as written. The purpose of
Section 8(g) is to provide a mechanism to insure that a
health care institution be apprised of any planned picket-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1266
ing or work stoppage sufficiently in advance of any such
actions in order to take steps that it may deem necessary
to protect the continuity of the health care services it ren-
ders to its patients. Walker Methodist Residence, supra
at 1631. Matters such as “[p]atient needs, staffing re-
quirements, and supplies must all be examined . . . [as
well as] the ability of strike replacements to cross the
picket lines, and the willingness of nonstriking personnel
to work behind the picket line.” Parkway Pavilion, supra
at 213. In this respect, Congress chose to treat the health
care industry uniquely because of its importance to hu-
man life, cognizant of the possibility that “disruption in
patient care of even a few hours may cost lives.” Wash-
ington Heights, supra at 1247. Consequently, determin-
ing the lawfulness of any work stoppage without ade-
quate notice to a health care institution must take into
account the high public interest in uninterrupted health
services.
These important policy concerns would be ill-served
by revising the text of Section 8(g) to permit unilateral
extensions of strike notices which, by their inherent na-
ture, carry the potential element of surprise, disruption,
and jeopardized patient care. In fact, this potential ele-
ment was fully realized in the instant case by the nurses’
unilateral decision, made 3 days before the scheduled
strike date, to delay the strike start time by 4 hours, and
to deliberately withhold from the Respondent the vital
information as to when, if at all, the strike would occur.11
This result, which essentially forces health care institu-
tions “to play a guessing game with respect to the wel-
fare of its patients,”12 is completely at odds with the
statutory objective. In light of Congress’ concern that
“sudden, massive strikes could endanger the lives and
health of patients in health care institutions,”13 the burden
cannot be placed on those institutions to anticipate when
a work stoppage might occur. A wrong guess, with its
potential adverse effect on patient care, is too critical a
matter to be left to chance or to the health care institu-
tion’s ability to intuit what a union likely will do when
the 8(g) notice strike fails to commence at the scheduled
time.
Finally, we find that strict adherence to the statutorily-
mandated requirement of written bilateral consent will
have the beneficial effect of eliminating, in the future, the

11 This was precisely what the Union counseled the nurses when it
informed them that they could strike within 72 hours of the written 8(g)
notice: “[W]e can go at 8:00; or just have everyone go to lunch and not
come back; or work as usual on Friday, but not show up for Urgent
Care Saturday—and have them wondering about Monday (when no one
will come to work)!”
12 Nurses ANA (City of Hope), 315 NLRB 468 (1994) (new 10-day
notice required after union resumes picketing after 3-week hiatus).
13 Walker Methodist Residence, supra at 1631.
kind of needless uncertainty and concomitant litigation
generated in this and other Board and court cases due to
the application of what we regard as the imprecise and
ambiguous “substantial compliance” standard of Greater
New Orleans. As discussed above, this Greater New
Orleans standard of allowing unions leeway of up to 72
hours to postpone commencement of a strike beyond its
originally noticed strike time, provided 12 hours supple-
mental notice is given of the new start time, has never
been entirely clear. For example, when the postpone-
ment is between 12 and 72 hours, the standard would
appear to require that 12 hours supplemental notice must
always be given, and that it be given in advance of the
original start time of the strike so that the health care
institution is aware when the strike will begin. However,
Greater New Orleans leaves open the issue of what no-
tice, if any, is required if the strike is less than 12 hours
after the scheduled time. As the Board said, a union’s
notice will be sufficient “at least in circumstances in
which the postponement of the strike is between 12 and
72 hours of the time set forth in that initial notice and
where there is at least 12 hours advance notice given to
the employer of the postponement.” (Supra at 435.)
That was the situation in Greater New Orleans. How-
ever, in the instant case, the delay was less than 12 hours
and the Union gave no notice of the delay. The Union
apparently thought that this was permissible. Indeed, it
appears that this interpretation is what the Union urges
here in defense of its 4-hour strike delay. As discussed
above, in response to the demand by the Respondent on
September 13 for an explanation for its delayed strike
without notice of its change in plans, the Union replied
that it gave the proper notice, i.e., its 10-day notice alone
was sufficient. Consistent with this position, the Union
argued in this proceeding that “a 12-hour notice of actual
commencement does not apply to delays of a strike of
less than 12 hours.” (Answer Br. at 12.)
All of this confusion and misunderstanding is avoided
by adhering to the statutorily-mandated requirement of
written bilateral consent of the parties. This requirement
is unambiguous, easily understood, and less likely to
spawn litigation regarding its application. Indeed, even
were this requirement not statutorily mandated by Con-
gress, it is clearly superior to the ephemeral “substantial
compliance” standard of Greater New Orleans.
Our dissenting colleagues say that the statute is un-
clear. We disagree. Section 8(d) of the Act states that
“an employee who engages in a strike within the appro-
priate period specified in subsection (g) of this section
shall lose his status as an employee.”14 Our colleagues
14 The pertinent portion of Sec. 8(d) provides:

ALEXANDRIA CLINIC, P.A. 1267
state that there is an ambiguity as to what “appropriate
period” means. There is no such ambiguity. As made
clear in Section 8(g), the “appropriate period” is the wait-
ing period after a notice that gives the date and time for a
strike. Obviously, if there is no notice, there can be no
lawful strike. Concededly, in the instant case, there was
a notice and the employees did not strike within the pe-
riod set by the notice. However, the employees did strike
thereafter, and there was no notice with respect to that
strike. Under the statute, a union that wants to strike
after the original notice period has two choices. It can
give a new notice and wait a new 10 days, or it can ob-
tain the written consent of the employer to strike in less
than a new 10 days. The Union here did neither. In sum,
the strike was without notice, and it was therefore unlaw-
ful.
Our colleagues also rely upon Mastro Plastics Corp. v.
NLRB, 350 U.S. 270 (1956). In that case, the Supreme
Court dealt with “an ambiguity” in certain language of
Section 8(d), i.e., whether a strike to protest unfair labor
practices was a strike “to terminate or modify” a contract
because the strike was conducted within the 60-day wait-
ing period after notice. The Court construed the lan-
guage to answer the question in the negative. By con-
trast, the instant case involves different language, as to
which there is no ambiguity.
Our colleagues also rely on legislative history, the al-
leged absence of harm to the patients, and their own no-
tions of what is reasonable. Our obligation is to honor
the statute as it is written. That is what we have done.15
Applying the statutorily mandated requirement here,
we conclude that by extending the start time of its strike
without the written agreement of the Respondent, the
strike was unlawful under Section 8(g). We acknowl-
edge that this conclusion results in the nurses losing their
protected employee status under Section 8(d) for engag-
ing in an unlawful strike, and subjects them to lawful
discharge. See Betances Health Unit, 283 NLRB 369,
370 (1987). However, the statutory language is clear.

Any employee who engages in a strike within any notice pe-
riod specified in this subsection, or who engages in any strike
within the appropriate period specified in subsection (g) of this
section shall lose his status as an employee of the employer en-
gaged in the particular labor dispute, for the purposes of Section
8, 9, and 10 of this Act.
15 Our colleagues cite a selected portion from the Committee Reports
on the 1974 amendments to the Act. The reports also state that the
“purpose of the notice is to give a health care institution advance notice
of the actual commencement of a strike or picketing.” S. Rep. 93-766,
93d Cong., 2d Sess. at 5, as reprinted in Legislative History of the Cov-
erage of Nonprofit Hospitals under the National Labor Relations Act,
1974, at 11 and 273 (1974). (Emphasis added.) That is exactly what
the majority finds here. However, we need not resort to the legislative
history when, as here, the statute is clear and unambiguous on its face.
Further, even Greater New Orleans did not teach that
there could be no notice at all for a postponement of less
than 12 hours. Indeed, the judge found that the “nurses
were misled by the union regarding what is permissible
under the notice requirements.”16 Pursuant to that mis-
leading advice, the nurse leadership, knowing for a full 3
days that the strike was not going to commence at the
time specified in their strike notice, purposely kept secret
from the Respondent the strike’s new start time.
Accordingly, for all the reasons discussed above, we
find that by discharging the nurses for engaging in a
strike without satisfying the notice requirements of Sec-
tion 8(g), the Respondent did not violate Section 8(a)(3)
and (1). Therefore, we shall dismiss the complaint in its
entirety.17
ORDER
The National Labor Relations Board orders that the
complaint be dismissed in its entirety.

MEMBER ACOSTA, concurring.
This case concerns an economic strike that began 4
hours after the time set forth by the Union in its 10-day
notice provided pursuant to Section 8(g) of the Act. The
Employer subsequently discharged its nursing employees
for participating in the strike without giving the required
8(g) notice. For the reasons discussed below, I agree
with my colleagues that Section 8(g) required the Union
to begin the strike on the date, and at the time, stated in
its notice, unless the parties agreed in writing to an ex-
tension. Because the Union did not obtain such an
agreement, the strike was not protected and the Employer
was entitled to discharge the striking employees.
In my view, the language of the statute is clear and
mandates this result. Section 8(g) of the Act expressly
states that a labor organization, before commencing a
strike at a health care institution, “shall, not less than 10
days prior to such action, notify the institution in writ-
ing” and that the “notice shall state the date and time that
such action will commence.” The final sentence of the
provision states: “The notice, once given, may be ex-
tended by the written agreement of both parties.”
16 See fn. 29 of the judge’s decision.
17 Our colleagues say that, under our view, a strike that begins 1
minute late would be unlawful. We do not agree. Although the statu-
tory language is clear, we do not believe that Congress intended to
vitiate the traditional legal principle of de minimis.
Similarly, if there were a postponement of a strike because of an un-
anticipated medical emergency, and the employer unreasonably de-
clined to grant an extension, we are not wholly persuaded that the em-
ployer could nonetheless fire the strikers. Again, we do not necessarily
believe that Congress intended to vitiate the traditional doctrine of
equitable estoppel.
However, neither of the two situations discussed above is present
here.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1268
The plain meaning of this provision can only be that, if
a union wishes to put off the date or time of the strike at
a health care institution, the union and the employer must
agree in writing to the new time or date. In my view,
because the statutory language is unambiguous, we can-
not depart from it.1
Notwithstanding the clear statutory language, the
Board in Greater New Orleans Artificial Kidney Center,2
found that the last sentence of Section 8(g) was consis-
tent with a union’s unilateral extension of the date or
time of a strike. The Board reached this result by scruti-
nizing the legislative history and determining that the last
sentence of Section 8(g) should not be “rigidly applied.”
I agree with my colleagues that the Board inappropriately
relied on legislative history to turn the plain statutory
language on its head. Therefore, I join them in overrul-
ing Greater New Orleans.3
This is precisely what the Court of Appeals for District
of Columbia Circuit recently held in Beverly Health &
Rehabilitation Services v. NLRB.4 Indeed, the court spe-
cifically rejected the argument that the last sentence of
Section 8(g) was ambiguous, and held that the statutory
language precluded an interpretation that permitted uni-
lateral notification. As the court explained, had the Con-
gress “intended to allow either party to extend the notice
unilaterally, it could have easily said so—but it did not.”
Id. at 321. Instead, it provided for one way—consent in

1 NLRB v. Washington Heights-West Harlem-Inwood Mental Health
Council, 897 F.2d 1238, 1246 (2d Cir. 1990) (holding that the Board is
not “at liberty to depart from the straightforward unambiguous lan-
guage of” Sec. 8(g)).
2 240 NLRB 432 (1979).
3 The 1974 health care amendments have provided almost a textbook
example of the misuse of legislative history. For years, the majority of
the circuit courts held that “the admonition” against undue proliferation
of health care bargaining units contained in the legislative history pre-
cluded the Board’s application of traditional community-of-interest
criteria in health care cases. See discussion in Electrical Workers Local
474 v. NLRB, 814 F.2d 697, 704–715 (D.C. Cir. 1987) (collecting
cases), and see Buckley, J., concurring at 715 (“This case is a classic
example of the dangers that can flow from an indiscriminate attempt to
read legislative meaning into congressional tea leaves.”). Eventually,
the Supreme Court held that the admonition could not be accorded such
weight. See American Hospital Assn. v. NLRB, 499 U.S. 606, 616–618
(1991) (rejecting argument that the admonition rendered the Board’s
health care rulemaking invalid). Accord: Electrical Workers Local
474, supra at 712 (emphasizing that the legislative history’s “admoni-
tion against undue proliferation is not part of the Act” and “cannot
serve as an independent statutory source having the force of law”).
(Emphasis omitted.) Likewise here, although the Board may look to
legislative history to clarify nonspecific or ambiguous statutory lan-
guage, neither the Board nor the courts are authorized to “enforce prin-
ciples gleaned solely from legislative history that has no statutory refer-
ence point.” Id. Accord: Beverly Health & Rehabilitation Services,
supra at 321.
4 317 F.3d 316, 321 (D.C. Cir. 2003).
writing by both parties—to extend time or date of the
strike. Id.
As my colleagues note, the Board’s approach in
Greater New Orleans lent itself to uncertainty and in-
creased litigation. Employers could not be sure that a
strike would take place at the time provided in the 8(g)
notice, but could not risk being unprepared. As a result,
employers, like the Respondent here, were forced to ex-
pend time and resources preparing for a strike that could
be rescheduled, late in the day, by a union seeking to
gain a tactical advantage. In contrast, adhering to the
clear statutory language protects employees’ rights to
engage in Section 7 activity, while ensuring that health
care institutions receive sufficient advance notice of any
picketing or work stoppage to enable them to take the
necessary steps to provide for continuity of patient care.
Finally, although we reverse Greater New Orleans
here, and our ultimate finding is that the striking employ-
ees were lawfully discharged, the application of our new
policy to the facts of this case poses no due process prob-
lem. Cf. Epilepsy Foundation of Northeast Ohio v.
NLRB, 268 F.3d 1095, 1102–1105 (D.C. Cir. 2001)
(holding that the Board erred in retroactively applying
the new rule enunciated in the case). Even were we to
apply Greater New Orleans in this case, the result would
be the same: that decision authorized a union’s unilateral
extension of a strike notice on 12 hours’ advance written
notice to the employer. Here the Union intentionally
gave no notice, let alone timely written notice, to the
Respondent.
For these reasons, I agree with my colleagues that the
Employer did not violate Section 8(a)(3) and (1) of the
Act by discharging the striking employees.

MEMBER LIEBMAN and MEMBER WALSH, dissenting.
The 22 discharged nurses in this case went on strike 4
hours after the time specified by their Union in the 10-
day notice required by Section 8(g) of the Act. Alerted
by the notice, their employer, a health clinic, had re-
placement nurses waiting, and patient care was unaf-
fected. The majority acknowledges that Congress in-
tended Section 8(g) “to give . . . health care institutions
sufficient advance notice of a strike or picketing to per-
mit timely arrangements for continuity of patient care.”1
Nevertheless, says that majority, the plain language of
the Act dictates that the employer was privileged to fire
the nurses: because the strike violated Section 8(g), the
nurses lost their status as protected employees, under
1 Member Acosta’s concurring opinion observes similarly that the
purpose of Sec. 8(g) is to ensure that “health care institutions receive
sufficient advance notice of any picketing or work stoppage to enable
them to take the necessary steps to provide for continuity of patient
care.”
ALEXANDRIA CLINIC, P.A. 1269
Section 8(d). Thus, the legislative history of these provi-
sions—which instructs the Board to apply a “rule of rea-
son” in connection with belated strikes, given the poten-
tially harsh consequences for employees—is meaning-
less.
In fact, the relevant statutory language is ambiguous
with respect to the situation presented here. Read to-
gether, Section 8(g) and (d) simply do not compel the
result the majority reaches. Under the Supreme Court’s
Chevron decision,2 then, the Board must interpret the
Act, taking into account not merely the words of Section
8(g) and (d), but also the purpose of these provisions and
of the Act as a whole, as illuminated quite clearly by the
legislative history. Applying a rule of reason derived
from these legitimate guides to Congressional intent—
and not the majority’s mechanical approach—demon-
strates that the discharged nurses did not lose the protec-
tion of the Act and that their employer did indeed violate
Section 8(a)(3) and (1) by discharging them. The con-
trary result reached today would surely appall the Con-
gress that enacted Section 8(g), even if it does not trouble
the majority.
I.
Section 8(g) provides that “a labor organization before
engaging in any strike . . . at any health care institution
shall, not less than ten days prior to such action, notify
the institution in writing . . . of that intention.” 29 U.S.C.
§ 158(g). Here, the Union’s August 30, 1999 notice to
the Alexandria Clinic set September 10, 1999, at 8 a.m.
as the date and time for the strike.
The clinic accordingly prepared for a strike. As the
judge found, it hired replacement nurses, held an orienta-
tion session for them, gave them a tour of the clinic, and
gave the clinic’s physicians an opportunity to meet with
the replacement nurses on September 9. Moreover, the
Respondent had the replacement nurses at the clinic on
September 10 at 8 a.m., the time set forth in the Union’s
notice.
As it turned out, the nurses did not begin their strike
precisely at 8 a.m. on September 10. On about Septem-
ber 7, Union Representative Scott Kleckner and nurses
Joan Radil, Joyce Iverson, and Lynn Tvrdik (also mem-
bers of the Union’s bargaining committee) had decided
to delay the actual start of the strike till about noon. One
reason, as the judge found, was that they believed noon-
time was less busy than the morning at the clinic, and
thus striking later would cause less disruption to the
clinic. There is also evidence that Union Representative
Kleckner may have had another reason, to gain an ele-

2 Chevron USA, Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837 (1984).
ment of surprise. Kleckner shared this potential advan-
tage with nurse Radil in an e-mail message, but it does
not appear that nurses Iverson and Tvrdik were aware of
this consideration. In any case, the Union did not advise
the Respondent, or any nurses beyond Radil, Iverson,
and Tvrdik, of the anticipated 4-hour delay.
If Kleckner intended to somehow disadvantage the
clinic, the delay certainly did not have that effect. When
the strike did not begin at 8 a.m., the clinic evidently
assumed that the strike still was going to occur that day.
There is no evidence that the clinic asked the Union or
any nurse why the strike had not begun. Nor did it send
the replacement nurses home. Rather, it directed the
replacement nurses to stand by in a lounge at the clinic.
The nurses actually began leaving the clinic to go on
strike at approximately 11:45 a.m. At that point, the re-
placement nurses stepped in for the striking nurses.
There was no disruption in patient care.
Three days later, the clinic finally sought an explana-
tion from the Union for the strike delay and for the Un-
ion’s failure to give the clinic advance notice of the de-
lay. The Union responded that its actions were consis-
tent with the Act. The clinic then wrote the striking
nurses, asserting that the strike violated Section 8(g) of
the Act and therefore firing them. There was no conten-
tion—nor could there be—that the nurses’ actions jeop-
ardized patient care.
II.
Under Chevron, supra, the Board must begin by asking
“whether Congress has directly spoken to the precise
question at issue.” Supra at 842–843. If so, that is the
end of the matter. If, in contrast, the Act “is silent or
ambiguous with respect to the specific issue,” then the
Board must fill the gap based on its reasonable interpre-
tation of the statute. Id. In that instance, the Board may
appropriately look to relevant legislative history to guide
its interpretation. This is such a case. Indeed, the Su-
preme Court has pointed out that “labor legislation is
peculiarly the product of legislative compromise of
strongly held views” and thus “legislative history may
not be disregarded merely because it is arguable that a
provision may unambiguously embrace conduct called in
question.” NLRB v. Allis-Chalmers Mfg. Co., 388 U.S.
175, 179 (1967).
The “precise question at issue” here is whether, under
Section 8(d) of the Act, employees of a health care insti-
tution lose their protected status when they engage in a
strike that occurs a very short time after the date and
time specified in the notice required by Section 8(g).
The majority insists that the statutory language clearly
answers this question. It does not.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1270
The clinic was free to discharge the striking nurses
only if they lost their status as employees protected by
the Act. The analysis, then, must begin with Section
8(d), which provides in relevant part that:

Any employee . . . who engages in any strike within the
appropriate period specified in subsection (g) of this
section, shall lose his status as an employee of the em-
ployer engaged in the particular labor dispute, for the
purposes of [S]ection 8, 9, and 10 of this Act . . . .

29 U.S.C. § 158(d). (Emphasis added.) What, in turn, is the
“appropriate period specified in” Section 8(g)? Section 8(g)
requires that the Union give notice “not less than ten days
prior to” a strike. 29 U.S.C. § 158(g). It also provides that
the “notice, once given, may be extended by the written
agreement of both parties.”
How do these provisions apply in a case like this one,
where the strike occurs on the date, but after the time,
specified in the Union’s notice, so that the Union has
provided more than 10 days’ notice? More specifically,
in these circumstances, is a striking employee “engage[d]
in a strike” “within the appropriate period specified in”
Section 8(g)? The better answer, for reasons that follow,
is “no.” But whatever the answer is, it is not supplied (as
the majority contends) by simply looking at the statutory
language.3
If the issue was the protected status of an employee
who struck before the health care institution had had 10
days to prepare, then the answer would be clear. Section
8(g) requires 10 days’ notice, and a strike during the 10-
day period surely triggers Section 8(d). That result fur-
thers the purpose of the provision. The employee’s con-
duct—leaving the job before the employer expected a
walkout—directly implicates the harm Congress sought
to forestall. The health care institution may be caught
unprepared and patient care may suffer.
This case is different. Striking after the institution has
received a full 10 days’ notice raises no concern, at least
when the employer’s strike preparations almost certainly
remain in place. In interpreting the statutory phrase “the
appropriate period specified in” Section 8(g), it would be
irrational not to distinguish between a strike occurring
before 10 days’ notice had been given and a strike occur-
ring after. Nothing in the language of the Act clearly
requires this result.

3 The majority cites several Board decisions to argue that, before
Greater New Orleans Artificial Kidney Center, 240 NLRB 432
(1979)—a 24-year-old precedent, which is overruled today—the Board
had found Sec. 8(g) to be clear and unambiguous. But none of the
decisions cited involved the precise question posed here. Obviously,
statutory language may clearly answer some questions and leave others
open to reasonable argument.
The majority, relying on a recent decision of the
United States Court of Appeals for the District of Co-
lumbia Circuit, points to the sentence in Section 8(g)
which recites that a “notice, once given, may be extended
by the written agreement of both parties.” See Beverly
Health & Rehabilitation v. NLRB, 317 F.3d 316, 321
(D.C. Cir. 2003). But the Supreme Court has instructed
us, in connection with interpreting the loss-of-status pro-
vision in Section 8(d), that “we must not be guided by a
single sentence or member of a sentence, but look to the
provisions of the whole law, and to its object and pol-
icy.” Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 285
(1956). Thus, the Court held that the loss-of-status pro-
vision does not apply to unfair labor practice strikes, al-
though the language of the Act makes no such exception.
The principles of statutory interpretation reflected in
Mastro Plastics remain valid today.4
We certainly must take into account the notice-
extension provision in Section 8(g). The question, how-
ever, is whether it plainly means that the moment the
time specified in the strike notice has passed, a new no-
tice, or a mutual extension of the original notice, is re-
quired by Section 8(g) and that for purposes of the loss-
of-status provision in Section 8(d), any strike before a
new 10-day period has passed necessarily occurs “within
the appropriate period specified in” Section 8(g). On that
view, applied to the facts of this case, the nurses would
have lost the protection of the Act not only by striking at
11:45 a.m., but also by striking at 8:01 a.m. instead of at
8 a.m., as specified in the notice. That result can hardly
be said to further the “object and policy” of the Act.
Indeed, the notice-extension provision of Section 8(g),
considered in isolation, simply does not address whether
every delay in the commencement of a previously-
noticed strike, without regard to the length or the circum-
stances of the delay, requires the union to seek an exten-
sion of its notice and, if so, whether employees lose their
protected status if they strike in the absence of an exten-
sion. Anyone familiar with labor relations surely recog-
nizes that not every strike at a health care institution will
commence at the precise moment identified in the un-
ion’s 10-day notice. And it is absurd to think that Con-
gress intended to put employees’ jobs in peril simply
because their union was not absolutely punctual. “Look-
ing beyond the naked text [of a statute] for guidance is
4 See, e.g., Johnson v. U.S., 529 U.S. 694 710 fn. 10 (2000) (“One
who believes that courts must not look beyond text might well find any
invocation of policy unjustified (even willful), at least when the policy
does not rise unbidden from the words of the statute, but we have never
treated the text as such a jealous guide and have traditionally sought to
construe a statute so as to reach results consistent with what Chief
Justice Taney called ‘its object and policy.’”).
ALEXANDRIA CLINIC, P.A. 1271
perfectly proper when the result it apparently decrees is
difficult to fathom or where it seems inconsistent with
Congress’ intention . . . .” Public Citizen v. U.S. De-
partment of Justice, 491 U.S. 440, 455 (1989).
Even the majority, who repeatedly assure us that the
language of Section 8(g) provides all we need to know
about notice extensions, are unwilling to commit to a
wholly literal reading. They disavow the notion that “it
is a per se violation of Sec. 8(g) if a union fails to obtain
the written consent of an employer before delaying the
start time of its noticed strike.” Instead, they carve out
an exception for delays caused by “an unanticipated
medical emergency.” This is a wise exception, as far as
it goes, but it has no literal basis in the Act’s language. It
illustrates, rather, that interpreting Section 8(g) and (d)
calls for a rule of reason, under which certain minor de-
lays simply do not trigger the notice-extension require-
ment. This rule of reason is just what Congress intended
the Board to apply.
III.
Because the language of the Act does not answer the
precise question posed here, the Board should turn to the
legislative history. And the legislative history of the
1974 health care amendments to the Act could not be
clearer. In identical language, the reports of the House
Committee on Education and Labor and the Senate
Committee on Labor and Public Welfare tell us why
Congress adopted Section 8(g) and what principles
should govern the interpretation of the provision:

The 10-day notice is intended to give health care insti-
tutions sufficient advance notice of a strike or picketing
to permit them to make arrangements for the continuity
of patient care. It is not the intention of the Committee
that a labor organization shall be required to commence
a strike or picketing at the precise time specified in the
notice; on the other hand, it would be inconsistent with
the Committee’s intent if a labor organization failed to
act within a reasonable time after the time specified in
the notice.

S. Rep. 93-766, 93d Cong., 2d Sess. at 4 and H.R. Rep. 93-
1051, 93d Cong., 2d Sess. at 5, as reprinted in Legislative
History of the Coverage of Nonprofit Hospitals under the
National Labor Relations Act, 1974, at 11 & 273 (1974).
See Greater New Orleans Artificial Kidney Center, supra at
434-435 (discussing legislative history).5
In other words, Congress envisioned a rule of reason:
Did the union strike within a reasonable time after the

5 The committee reports examined the same language that was ulti-
mately adopted by Congress. Nothing in the legislative history sug-
gests that the reports are an unreliable indicator of Congressional intent.
time specified in its notice to the health care institution?
If so, then the union was not required to secure the em-
ployer’s extension of the original notice or to provide a
new notice. Reasonableness, in turn, is defined by refer-
ence to the institution’s opportunity to make—and then
to maintain—arrangements for continuity of patient care.
The majority acknowledges the purpose of Section
8(g), which it necessarily gleans from the legislative his-
tory that it otherwise treats as off limits. But the majority
never makes a credible attempt to explain how, in this
case and cases like it, its rejection of a rule of reason
serves any legitimate statutory purpose. Where a union’s
delay in striking is so short that an institution’s arrange-
ments for continuity of patient care are almost certainly
still in place—for example, a strike that occurs on the
same shift as the time specified in the notice—
application of the loss-of-status provision is simply puni-
tive.6
This case falls into that category. The clinic had the
requisite “not less than ten days” advance notice of the
Union’s planned strike, and the clinic made the necessary
arrangements. It had a contingent of replacement nurses
at the facility on the morning of September 10 ready to
step in to fill the nurses’ positions. The Union’s delay in
the commencement of the strike from 8 a.m. to approxi-
mately 11:45 a.m.—during the same shift—could not
have threatened these arrangements. The clinic readily
recognized that the Union’s delay was not an indication
that there would be no strike on September 10 or that it
was safe to abandon its preparations. The clinic, appar-
ently without even seeing a need to check with the Un-
ion, remained prepared after 8 a.m. by having the re-
placement nurses stand by in a lounge area. When the
nurses did walk out, their replacements stepped in. Un-
der these circumstances, can there be any doubt here that
punishing the nurses for supporting the Union, rather
than vindicating the interests of patients, was the clinic’s
motive when it fired the strikers?
The precise contours of the rule of reason need not be
resolved here. Certainly, a union is not free to give no-
tice, let the specified strike time pass, and then either lull
the institution into thinking that no strike will occur or
require it to maintain contingency plans indefinitely.7
6 The “unanticipated medical emergency” exception endorsed by the
majority is clearly much too narrow. Would it serve the purposes of
Sec. 8(g) by exposing employees to discharge for a 30-minute delay
necessitated by employees remaining at work after the appointed strike
time to clean up their work areas or to complete medical procedures?
What about 15, 10, or 5 minutes late due to simple discrepancies be-
tween the institution’s timeclock and employees’ watches?
7 See, e.g., District 1199-E, Hospital & Health Care Employees
(Federal Hill), 243 NLRB 23 (1979) (holding that union violated Sec.
8(g) when it commenced picketing at health care institution 80-1/2
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1272
But neither of these concerns is implicated in this case.
That the Union decided in advance to delay the strike,
but did not disclose its intention to the clinic, is immate-
rial, given the short duration of the delay.8
Finally, following a rule of reason is not, as the major-
ity argues, bad policy. Congress itself intended such a
rule to be applied. It made the policy choice, and we
must honor it. Given the strong deterrent against violat-
ing Section 8(g) created by the loss-of-status provision,
unions are unlikely to test the outer limits of the rule.
Health care workers, moreover, typically are just as
committed to patient care as their employers are. In this
case, of course, the Union believed that the Act permitted
what it did—and that belief represented a reasonable
reading of the Board’s prior case law.
In short, the majority’s approach cannot be squared
with Congressional intent. It is not faithful to the lan-
guage of the Act, which purposely left room for the
Board to follow a case-by-case approach. Nor does it
advance any purpose that Congress endorsed. For all of
these reasons, we dissent.

Timothy B. Kohls, Esq., for the General Counsel.
James M. Dawson, Esq. and Thomas R. Trachsel, Esq. (Fel-
haber, Larson, Fenlon & Vogt, P.A.), of Minneapolis, Min-
nesota, for the Respondent.
Gregg M. Corwin, Esq. and Laura S. Ferster, Esq. (Gregg M.
Corwin & Associates), of St. Louis Park, Minnesota, for the
Charging Party.

hours after the time set forth in its 10-day notice without any explana-
tion for the delay).
8 Our colleagues assert that even if they were to apply Greater New
Orleans they would reach the same result because the Union failed to
provide 12 hours’ advance written notice of the new start time for the
strike. The Board in Greater New Orleans did not hold, however, that
the 12-hour rule was inflexible, and not subject to the rule of reason.
To the contrary, the legislative history that the Board relied on in
Greater New Orleans makes clear that Congress intended the 12-hour
rule to be governed by the rule of reason. The committee reports state
merely that a union should give at least 12 hours’ advance notice of the
actual time for the rescheduled start of the strike (S. Rep. at 4; H. Rep.
at 5). Furthermore, the joint remarks of Congressmen Ashbrook and
Thompson with respect to the House committee report state that in
setting forth the 12-hour rule the House committee “was aware of the
practical application” of this rule, and “realized the need for application
of the rule of reason.” Joint remarks of Congressmen Ashbrook and
Thompson, reprinted in Legislative History of the Coverage of Non-
profit Hospitals Under the National Labor Relations Act, 1974, at 409–
410 (Nov. 1974). As explained above, applying the rule of reason to
the circumstances presented here compels a finding that the Union’s
failure to provide at least 12 hours’ advance notice of the new start time
for the strike did not render the strike violative of Sec. 8(g), and cause
the nurses to lose their status as protected employees under Sec. 8(d).
DECISION
STATEMENT OF THE CASE
JOHN H. WEST, Administrative Law Judge. Upon a charge
filed by the Minnesota Licensed Practical Nurses Association
(the Union), on September 20, 1999,1 against the Alexandria
Clinic, P.A. (Respondent), a complaint was issued on Decem-
ber 16 alleging that the Respondent violated Section 8(a)(1) and
(3) of the National Labor Relations Act (the Act), by unlaw-
fully discharging, by letter dated September 13, 22 named em-
ployees for engaging in a strike and picketing at the Respon-
dent’s Alexandria, Minnesota facility. In its original answer
dated December 29, the Respondent denied violating the Act
and alleged as affirmative defenses that (1) the terminated em-
ployees engaged in unprotected conduct, as the Charging Party
commenced the strike in violation of Section 8(g) of the Act;
(2) after the terminations were effected, the Respondent ac-
quired evidence that the terminated employees engaged in con-
duct for which the Respondent would have lawfully discharged
any employee; and (3) the terminated employees engaged in
misconduct of such character as to render them unfit for further
service. In an amendment to the answer, dated January 19,
2000, the Respondent adds a fourth affirmative defense,
namely, inasmuch as one of the terminated employees, Angie
Mertens, resigned her position with the Respondent on Septem-
ber 7, effective September 20, she is not entitled to reinstate-
ment in any event. In its amended answer dated January 21,
2000, the Respondent points out that all of the terminations,
except nurse Kay Ludwig’s, were effective September 13, and
nurse Ludwig’s was effective September 14.
A hearing was held on January 24–27, 2000, in Alexandria,
and on February 3, 2000, in Minneapolis, Minnesota. Upon the
entire record2 in this case, including my observation of the de-
meanor of the witnesses and consideration of the briefs filed on
March 24, 2000, by the General Counsel, the Charging Party,
and the Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, which is a Minnesota corporation, with an
office and place of business in Alexandria and a satellite facil-
ity at Osakis, Minnesota, has been engaged in the operation of
health care clinics. The complaint alleges, the Respondent
admits, and I find that during the calendar year ending Decem-
ber 31, 1998, the Respondent, in conducting its business opera-
tions, purchased and received at its Alexandria facility materi-
als and services valued in excess of $50,000 directly from
points outside the State of Minnesota and received gross reve-
1 Unless indicated otherwise, all dates are in 1999.
2 The Respondent’s motion to correct the transcript is unopposed. It
is ordered that the motion be, and it is granted as modified below. On
p. 521, that portion of LL. 8 and 9 which read “she did have retain
products conception causing the bleeding” should read “she did not
retain conception products causing the bleeding.” On p. 535, the word
“baling” on L. 24 should be replaced with the word “bailing.” And on
p. 588, the word “chanted” on L. 21 should be replaced with the word
“changed.”
ALEXANDRIA CLINIC, P.A. 1273
nue from all sales or performance of services in excess of $1
million; that at all material times, the Respondent has been an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act; and that at all material times, the
Union has been a labor organization within the meaning of
Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE
The Facts
The parties stipulated that the Respondent is a “health care
institution” as that term is defined in Section 2(14) of the Act.
(Jt. Exh. 1.)
The Respondent’s administrator, Timothy Hunt, testified that
the Respondent is a clinic which specializes in family practice,
pediatrics, OB/GYN, general surgery, podiatry, urology, ENT
(ear nose and throat), and internal medicine; that at the time
involved herein (on or about September 10) there were 27 phy-
sicians, 170 total employees, and 38 bargaining unit members
employed at the clinic; that additional physicians come into the
clinic on an outreach basis; that some of the services the clinic
provides includes mammography, echocardiography, stress
testing, full lab, and X-ray; that the Respondent’s satellite facil-
ity in Osakis is about 10 miles from Alexandria; that the Re-
spondent serves approximately 85,000 people in a geographic
area that is approximately a 40-mile radius out of Alexandria;
and that it is the largest medical clinic in the area.
Doctor Kurt Hansberry, who is a physician and president of
the board of the Respondent, testified that various patients with
different conditions ranging from cancer to pregnancy are
treated at the clinic; that many procedures are performed at the
clinic,3 that narcotics are given to the patients at the clinic; that
medical emergencies can occur with patients who are undergo-
ing stress tests or who have received an injection “to race their
heart”; that at some unspecified time other than the one in-
volved here one of his patients did not mention that he had
chest pain, he walked over to the urgent care area of the clinic
and was given oxygen and placed on a monitor; that there have
been instances at some unspecified time other than the one
involved here where patients have passed out in the hall and
had to be taken to urgent care and then transported to the hospi-
tal by ambulance; that typically the involved nurses are as-
signed to an individual physician in the clinic, they will prepare
the charts for the day, greet and room the patients, obtain vital
signs,4 record medications and allergies, ascertain why the pa-
tient wants to see the physician, either act as a chaperone or
assist the physician with a procedure in the examination room if
necessary, answer telephone calls and take messages from pa-
tients or other departments, gather up labs, schedule tests, give
patients any instructions that they may need, and administer
injections; that a physician wants to be able to rely on their
nurse to “be your right hand person”; that Respondent’s Exhib-
its 17 and 18 are the job descriptions for medical assistants
3 On cross-examination this witness testified that certain of the pro-
cedures he specified on direct are in fact handled by registered nurses
and not licensed practical nurses (LPNs or nurses).
4 These would normally include height, weight, temperature, blood
pressure, and pulse.
(MAs) and LPNs, respectively; that obtaining telephone mes-
sages in a timely fashion can be very important in that a caller
can be at grave risk and not fully appreciate their condition; and
that one of his patients at some unspecified time other than the
one involved here called indicating that her leg hurt and was
swollen, and it was later determined that she had a blood clot.
On cross-examination, Doctor Hansberry testified that at some
unspecified point in time he approached LPN Joan Radil in an
agitated state, accused her of bullying the other nurses into
joining the Union, and told Radil that he “didn’t appreciate
being characterized as greedy, that I was there to take care of
patients, and that for her to make those accusations were unsub-
stantiated and I certainly took offense to it.”
In March 1998, the Union won a representation election held
by the National Labor Relations Board (the Board), and became
the bargaining representative of the Respondent’s LPNs and
MAs.5
The parties then began negotiations with respect to an initial
collective-bargaining agreement. Nurse Radil, who is on the
union bargaining committee, testified that binding arbitration
and just cause held up the agreement. After several meetings
the Respondent submitted its last offer in February 1999. It
was stipulated that the last negotiation session was held on
March 3.
In the spring of 1999, the Union filed two charges with the
Board alleging that the Respondent was not bargaining in good
faith. Scott Kleckner, a labor relations specialist with the Un-
ion, testified that a Regional Office of the Board dismissed the
charges and the Union did not appeal; that the charges were
filed because the Union believed that the clinic engaged in
surface bargaining in that it was insisting on proposals which
were predictably unacceptable to a union, namely, having dis-
cipline be at will without a just cause requirement, not allowing
nurses to file a grievance and have it reviewed by a neutral
arbitrator, and reducing the level of benefits by requiring em-
ployees to work more hours to maintain their current level of
benefits; and that during negotiations counsel for the Respon-
dent said (1) LPNs were not highly skilled and you could get
people off the street to perform their functions, and (2) that it
should not be a problem for nurses to have a lunch break be-
cause there were not life threatening things that happened at the
clinic.
In July 1999, bargaining unit members met to discuss the
Respondent’s last offer. The offer was voted down by the
membership.
In August 1999, the Respondent announced that it was going
to implement its last best offer.
On August 25, members of the bargaining unit met and voted
to strike. No union representative attended this meeting. LPN
Joyce Iverson, who was on the negotiating committee and a
union steward, testified that the unit members decided that they
could not live with the Respondent’s last best offer because
people could be fired without reason or cause and they believed
5 Hunt testified that there was a second election in March 1998 re-
garding the representation of all employees (excluding physicians and
professional employees), at the clinic other than the LPNs and MAs,
and the Union lost that election.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1274
that if the Respondent implemented its last best offer they
would all be gone. When called by the Respondent, nurse Iver-
son testified that at the last meeting she attended, which appears
to have been held on August 25, the nurses joked about chang-
ing voice mail access codes.
By letter dated August 30, the Union informed the Respon-
dent that the Union would commence a strike on September 10
at 8 a.m., Respondent’s Exhibit 4 and attachment to Joint Ex-
hibit 3. The parties stipulated that this letter was received by
the Respondent no later than August 31. (Jt. Exh. 3.)
Hunt testified that he first became aware of the faxed notice
from the Union, Respondent’s Exhibit 4, on the morning of
August 31; and that the notice indicates that it was faxed on
August 30 at 5:16 p.m. and the office at the clinic generally
closes at 5 p.m. Joyce Crowe, the Respondent’s clinical direc-
tor, who is a registered nurse and supervises nursing, X-ray and
lab, testified that she first became aware of the strike notice
from the Union on August 31.
Nurse Radil testified that she saw a memorandum posted by
the Respondent on the bulletin board downstairs in the lunch-
room which indicated that the nurses were going on strike on
September 10 at 8 a.m.; and that she did not understand where
the Respondent had gotten 8 a.m. from but she did not remem-
ber if she talked to Kleckner about it. Hunt sponsored Respon-
dent’s Exhibit 5 which is the notice posted by the Respondent
in the employee lounge by the timeclock. It is dated August 31,
it is addressed to the Respondent’s employees and, as here per-
tinent, it reads as follows: “We received notice this AM, that
the Minnesota Licensed Practical Nurses Association will en-
gage in a strike, picketing and leafleting, commencing at 8:00
AM on Friday, September 10, 1999.”6 Crowe testified that she
saw the posted memorandum with the strike date and time dur-
ing the period from August 31 to September 10. Gloria Otte,
who is the nursing supervisor at the Alexandria Clinic, testified
that she saw the memorandum giving the date and time of the
strike posted on the bulletin board by the downstairs timeclock.
Nurse Joleen Elbert testified that she saw the memorandum by
the timeclock but she did not know if that meant that 8 a.m. was
the time they were going on strike. LPN Francis Aga testified
that she saw the memorandum on or after September 7. LPN
Janet Getz testified that she saw the clinic’s memorandum
about the date and time of the strike within a day or two of
August 31.

6 Hunt also sponsored R. Exh. 7, which—as here pertinent—is the
same as the above-described posted notice and which was distributed to
the Respondent’s physicians, and R. Exh. 6, which was mailed to the
Respondent’s employees’ homes and which gives the date and time of
the strike, and indicates that the clinic intends to remain open. Nurse
Dawn Juntunen, who went out on strike, testified that while she did not
see the memorandum posted at the Alexandria clinic since she worked
at Osakis, she received a letter from the clinic advising that it had re-
ceived a strike notice, R. Exh. 6, prior to September 10; that the letter
refers to a strike at 8 a.m.; that after she received this letter from the
Respondent she questioned nurse leader, Tammy Porwoll, about the
date and time of the strike that appeared in the letter, asking who indi-
cated 8 a.m.; and that nurse Porwoll told her that she did not know who
said 8 a.m.
Nurse Radil also testified that she, Kleckner and her co-
workers nurses Iverson and Lynn Tvrdik planned how the strike
would be initiated and that the strike should commence at noon
because at 8 a.m. there are a lot of preparations at the clinic for
the day and the LPNs and MAs start at different times; that she
could not remember exactly when the decision to strike at noon
was made but she, Kleckner, and nurses Iverson and Tvrdik
talked about it after the 10-day notice was given; that they dis-
cussed the fact that mornings are very busy at the clinic and
noon is a less busy time; that the only nurses who discussed the
time the strike was to take place were her, and nurses Iverson
and Tvrdik, and such discussions occurred after the notice; that
she discussed with Kleckner that it was the intention of the
nurses to strike at noon; that she, Kleckner, and nurses Iverson
and Tvrdik decided to go on strike at noon; and that they
thought that it would be far more disrupting to go out at 8 a.m.
than at noon.
Nurse Tvrdik testified that she did not know who made the
decision to strike at noon; that she did not recall ever communi-
cating with the nurses what time they were going to strike; that
she was in favor of striking at noon because it is a quieter part
of the day, it is a down time, usually the patients are not sched-
uled between noon and 1 p.m.; and that at 8 a.m. it is very busy
in that the phones are ringing, there are people waiting, and
there are preparations which have to be made before the doctors
arrive at the clinic.
Crowe testified that on September 7 LPN Mertens gave her
resignation (R. Exh. 16), which indicates that nurse Mertens
would be resigning effective September 20; and that she, with
Otte present, told nurse Mertens that she accepted her resigna-
tion. On September 7, the bargaining unit members met and
discussed the strike and how many nurses would participate.
Verna Netjes, who was the executive director of the Union at
the time, was present at this meeting. Nurse Radil testified that
the involved employees needed to go out as a unit and they
wanted to know if the majority was going to go; that the in-
volved employees were told that they should go to work as
usual and nurses Iverson and Tvrdik would go around and tell
everyone when it was time to go “at noon or thereabouts”; that
on September 7 the nurses knew what the plan was but they did
not know the time of the strike; that she, and nurses Iverson and
Tvrdik told the nurses not to leave patients in a procedure of
any type and they would have to finish their duty before walk-
ing away from it; and that other than the people she discussed
the time of the strike with, she did not tell anybody that the
strike would begin at noon. Nurse Elbert testified that she at-
tended this meeting (she missed a portion of the meeting); that
she had “never been involved with a union before so I didn’t
know procedure as strikes or anything like that. I just took
them at their word. We were very clearly told not to leave in
the middle of a procedure . . . .”; and that it was her understand-
ing that she was to go on strike even if she had patients waiting
or in an examination room as long as she was not in the middle
of a procedure. Nurse Aga testified that she did not remember
any nurse questioning Netjes or the nurse leadership about what
time the strike was going to start; that she heard all of the ques-
tions the nurses asked Netjes and the nurse leaders; that there
was no discussion of what the nurses might do to make the job
ALEXANDRIA CLINIC, P.A. 1275
of the replacement nurses potentially more difficult; that she
did not recall whether any nurse at the September 7 meeting
raised any concerns about the secretiveness with respect to
when the strike was actually going to start on September 10;
that such a concern was not raised at that meeting; that 8 to 10
people, including Netjes, attended this meeting; that she did not
remember any nurse asking Netjes why she would not discuss
the time of the strike; that nurse Radil said that it was important
to go out together; and that neither Netjes nor the nurse leader-
ship explained why they did not tell the nurses what time the
strike was going to start. Nurse Juntunen testified that at this
meeting the nurse leadership told the nurses that only the lead-
ership would know what time the strike was going to occur;
that being told the time was not a huge concern to any of the
nurses but they were concerned whether they should strike or
not; that she worked in Osakis and after the meeting nurse Por-
woll told her in private when to walk out, namely noon; that
nurse Porwoll asked her if she was okay about walking out of
the Osakis clinic by herself, and nurse Porwoll told her that she
would meet her on the street; that nurse Porwoll told her that
she was not to tell anyone else about the time of the strike and
they would be notified at Alexandria by nurse Iverson and
Tvrdik; that since she was the only unit member in Osakis she
was being notified at that time; that nurse Porwoll said that it
was important for her not to tell the other nurses about the time
because the nurse leadership “didn’t want everyone being wor-
ried about a specific time. They didn’t want them [to] keep
looking at their watches and just being distracted by waiting for
. . . a specific time to walk out” and this was discussed in gen-
eral at the September 7 meeting; that one of the nurse leaders
said something like this during the meeting with the unit mem-
bers present; and that she did not remember that any of the
nurse leaders at this or any other union meeting told the nurses
that they were not being told the time of the strike because
there was a leak. Nurse Getz testified that at the September 7
meeting Netjes said that the strike could actually commence
anytime within a period of 72 hours after 8 a.m. on September
10; that at one of the meetings she attended someone was con-
cerned about not discussing the time because of leaks but she
was not sure who mentioned this; that she could not remember
if it was Netjes or someone else who discussed that the strike
could be 72 hours after September 10 at 8 a.m.; and that one of
the stewards indicated that someone would come around and
tell the unit members when it was time to strike. When called
by the Respondent, nurse Vickie Jo Bevill, who had worked for
the Respondent for 17 years, testified that at the September 7
meeting the nurse leadership said something to the effect of
wanting everybody to be as relaxed as they could be so they
would be able to do what they needed to do for their patients;
and that there was a newspaper article informing the general
public that there would be a strike at the Alexandria clinic
sometime after 8 a.m. on Friday, September 10. In response to
questions of counsel for the General Counsel, nurse Bevill testi-
fied that at the September 7 meeting the nurses were told that
they should not leave any patients compromised in any way and
if they were in the middle of a procedure they should finish it.
When called by the Respondent, nurse Pamela Sherman, who
did not join the strike, testified that the nurses were told at the
September 7 union meeting by either nurse Radil or nurse
Tvrdik that they were not going to be privy to the time of day
the strike was actually going to occur, things were being leaked
to administration and nurses Radil and Tvrdik wanted to be
able to keep the time of the strike quiet; that other than poten-
tial leaks no other reason was given as to why the start time of
the strike was not being revealed; that no statement was made
to the effect that the starting time of the strike was not being
revealed in order to prevent the strikers from looking at the
clock on September 10; and that she came to this meeting late
and she left the meeting early.7 In response to questions of
counsel for General Counsel, nurse Sherman testified that she
did not report back to management about the meetings she at-
tended; that she attributed certain of the above-described state-
ments to nurses Radil or Tvrdik because they were sitting at the
table to her left and that is where she thought the statements
came from; that there were other people sitting at that table to
her left and she did not know exactly who was speaking; that at
times during this meeting little groups or pairs of people would
be talking to one and another; that the nurses were instructed
clearly not to disrupt a patient’s care;8 and that based on her
knowledge of the individuals who went on strike, she did not
believe that any of them would deliberately disrupt patient care
or cause harm to a patient. In response to questions of the
Charging Party, nurse Sherman testified that she told the clinic
attorneys that she did not know of any plan or policy or proce-
dure to disrupt clinic operations; that she told the clinic attor-
neys that she did not see any or notice any changing of the
voice mail access codes or the removing of materials from the
clinic; and that she did not have any information that any nurse
interfered at all with the doctors’ DEA numbers and she told
the Clinic attorneys that she did not witness any such conduct
on the part of any of the involved nurses.
Nurse Iverson testified that on the Wednesday before the
strike she was advised by nurses Radil and Tvrdik that it was
decided that the strike would occur at noon; that she agreed that
this was a good time because it is a down time at the clinic in
that while doctors start at different times, all of the doctors take
lunch and do not have patients scheduled over noon, and every-
one who was going on strike would be there;9 that she, and
nurses Radil and Tvrdik decided that if people did not know the
time the strike was to commence they would not be watching
their clocks; that it was decided that when it was noon on Sep-

7 Nurse Sherman also testified that during the portion of the meeting
that she attended there was some discussion of the fact that the nurses
did not necessarily have to make it easy for the replacements to take
over their jobs; that she did not recall who made the statement; and that
it was mentioned that the nurses could replace DEA numbers or doctor
licensure numbers. The Respondent has not alleged that any of the
involved nurses replaced DEA numbers or doctor licensure numbers.
8 Subsequently, in response to counsel for the Respondent’s ques-
tion, Nurse Sherman testified as follows:
We were told that when the person or persons walk through
to tell us it was time to join them outside, that we were not to
leave patients unattended or to stop what we were doing. We
were to finish our procedures, finish with out patients, and we
could join them outside at any time.
9 Subsequently, Nurse Iverson testified that most doctors take a noon
lunchbreak and they do not start seeing patients again until 1 p.m.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1276
tember 10 nurse Tvrdik would go to the upper floor, she would
go to the lower floor and they would go past the nurses desks
and tell them that it was time to go out on strike; and that she
never told the other nurses what time the strike would begin.
Crowe testified that during the evening on September 9 she
and her nursing supervisor, Gloria Otte, met with the replace-
ment nurses at the Holiday Inn in Alexandria; that Otte re-
viewed a packet of the various forms, Respondent’s Exhibit 13,
used in the clinic with the replacement nurses; that such forms
contain patient information and are a medical record which is
placed in the patient’s file and therefore speaks to the continu-
ity of care; that the replacement nurses were told that the packet
of forms would be available in the middle of the counter at the
stations in the clinic on September 10; that the replacement
nurses were then given a tour of the clinic and they met with
some of the physicians that they were going to work with be-
ginning on September 10; that at 9:30 p.m. on September 9 she
and Otte distributed the packets to the stations in the clinic; that
she left the packets she distributed on the counter top at stations
5, 6, and 7; and that Otte went to stations 2, 3, and 4. On cross-
examination, Crowe testified that the forms in the packet can
normally be found in different folders in cubicles on the station;
and that prior to the strike she did not explain to the bargaining
unit members that these packets would be on the station, and it
would be unusual for unit LPNs and MAs to find such a packet
left at the station.10 Otte testified that she left the packets of
forms, Respondent’s Exhibit 13, in the middle of the counter
top at stations 2, 3, and 4 at about 9:30 p.m. on September 9.
On redirect Otte testified that while she did not give the “red
manual” to the replacement nurses on September 9 she did tell
the replacement nurses about what the “red manuals” contained
generally and that they were located on each of the stations.
(The “red manual,” which is something other than the packet of
forms, is described below.) Subsequently, Otte testified that
the clinic has a cleaning staff which comes in at 7:30 p.m. and
leaves around 9 or 9:30 p.m. but she was not absolutely certain.
Otte also testified that the cleaning staff is not supposed to pick
things up off the counter and throw them away; and that it is
part of the responsibility of the rest of the staff to keep stations
neat and clean.
At the beginning of the hearing the parties entered into the
following stipulation, Joint Exhibit 2:

On September 10, 1999, the Charging Party, by and
through certain employees represented for purposes of col-
lective bargaining by the Charging Party, commenced an
economic strike against Respondent and began picketing

10 The packets were placed at the stations after the nurses left on
September 9 and, according to the union notice, the nurses were not
coming to work on September 10. In these circumstances it is not clear
why there would have been any need to tell the unit members about the
packets of forms. Otte was also asked if she told the unit members
about the packet of forms. The same observation would apply. Techni-
cally, it might be argued that unit nurses do arrive at the facility a little
before 8 a.m. and, therefore, they could have entered the facility and
walked out at 8 a.m. In my opinion, the Respondent’s apparent inter-
pretation of the notice is a reasonable interpretation, namely, that the
nurses were not going to be in the facility working on September 10.
Respondent’s facility located at 610-30th Avenue West,
Alexandria, Minnesota (the Alexandria facility).
Thirteen of the bargaining unit employees who were
working at Respondent’s Alexandria facility and one of
the bargaining unit employees who was working at Re-
spondent’s Osakis satellite facility on the morning of Sep-
tember 10, 1999 walked off the job, thereby commencing
the strike. Immediately upon commencing the strike, the
strikers began to picket Respondent’s Alexandria facility.
The fourteen employees who were working on September
10 and walked off the job are:1

Fran Aga (7:31 a.m.–11:47 a.m.)
Vickie Bevill (7:30 a.m.–1:47 a.m. [apparently 11:47])
Joleen Elbert (7:53 a.m.–11:47 a.m.)
Marcy Faris (7:46 a.m.–11:47 a.m.)
Janet Getz (7:34 a.m.–11:48 a.m,)
Carol Holten (9:29 a.m.–11:49 a.m.)
Joyce Iverson (7:32 a.m.–11:48 a.m.)
Shirley Jeppesen (9:47 a.m.–11:50 a.m.)
Loretta Lundy (7:51 a.m.–11;48 a.m.)
Angie Mertens (8:07 a.m.–11:47 a.m.)
Louann Peterson (7:38 a.m.–11:46 a.m.)
Lynn Tvrdik (7:51 a.m.–11:48 a.m.)
Leah Watson (7:57 a.m.–11:47 a.m.)
Dawn Junt . . . [u]nen2 (9:46 a.m.–12:00 noon)

The remaining eight terminated bargaining unit em-
ployees were not working when the strike and picketing
commenced. However, after the strike began, each of
these employees failed to report for work at the next time
scheduled, instead joining and participating in the strike.
(That is, each of the remaining terminated employees
failed to report for work at her next scheduled date and
time because she was on strike.) Two employees—Cindy
Bradley and Renae Haugen—were scheduled to begin
work at 1:00 p.m. on September 10 but did not show, in-
stead joining and participating in the strike. Five employ-
ees were scheduled to work on Monday, September 13 but
did not show, instead joining and participating in the
strike:3

Norma Lais (12:30 p.m.)
Alison Olson (7:30 a.m.)
Joan Radil (8:30 a.m.)
Margaret Swanstrom (1 p.m.)
Kathy Van Vickle (8 a.m.)

One employee—Kay Ludwig—was not scheduled to
work until Tuesday, September 14 (at 8 a.m.); she joined
and participated in the strike rather than showing up for
work that day.

1 The times that the respective employees punched in and
punched out on September 10 appear, respectively, in parentheses
after her name.
2 Ms. Junt . . . [u]nen is the employee who was working at the
Osakis satellite facility when she walked off the job.
3 The time that the respective employee was scheduled to be-
gin work appears in parentheses after her name.

ALEXANDRIA CLINIC, P.A. 1277
Nurse Radil testified that although she was not scheduled to
work on September 10 since her doctor took the day off, if her
doctor had a patient in the room in a procedure, she would not
have left irregardless of what time of day it was; that it would
have caused a disruption to patient service if someone who had
no experience with her physician were to arrive on the scene at
8 a.m. and had to deal with the issues that she normally dealt
with at 8 a.m.; that knowledge of how a particular doctor does
things, the other available doctors in the clinic, and the other
services available in the clinic is required; that life threatening
situations occur in the clinic, and in her areas, OB/GYN,
women have come in hemorrhaging; that it would have been a
disruption of patient care at the clinic for the replacement
workers to have started at 8 a.m. became there is a lot of prepa-
ration involving phone messages, charts for the day, making
sure that the secretaries have the lab slips ready and they are
correct, calling insurance companies to get precertification
numbers for surgeries, and deciding what kind of lab work a
patient needs so that she can discuss it with the doctor; that
some people who should have gone to the hospital come to the
clinic with emergency problems because they believe that it
would be faster; that the decision to strike at noon was not an
attempt to make it more difficult for the clinic to provide good
service, to disrupt the clinic’s business or to enhance the Un-
ion’s bargaining position; and that “our patients have always
come first. Always. We have missed many noon hours because
of our patients. We have come in early and stayed late because
of our patients.”
Nurse Iverson testified that she arrived at work on September
10 at about 7:45 a.m.; that she went through her normal routine
and there were a couple of patients for blood pressure or vita-
min B12 shots, and she thought a man showed up to discuss
some labs he felt were urgent; that when nurse Tvrdik was
ready she told her that she would have to wait a couple of min-
utes because the doctor she was working with, Doctor Telste,
had a patient for a dressing change and a patient for a blood
pressure check; that she had done all of the vitals on the latter
patient and this patient was just waiting for Doctor Telste to
discuss her blood pressure; that she was waiting for Doctor
Telste to tell her if he wanted her to put on a new dressing (she
had already unwrapped the old dressing) or if he was going to
put the new dressing on himself as he sometimes does; that
when Doctor Telste came out of the examination room she
asked him if he wanted her to change the dressing and Doctor
Telste said, “[N]o I’ve got it, go ahead”; that she had done all
of the work that she could have done up to that point; and that
she then went to the lower floor and told the nurses that it was
time to go out on strike.
Nurse Tvrdik testified that she arrived at the clinic at about
7:55 a.m. on September 10; that she punched in, went upstairs
to her desk, prepared charts, took any messages off her voice
mail, prepared her rooms, stocked them and cleaned them; that
just prior to noon she and her doctor, Doctor Johnson, had seen
their last patient and Doctor Johnson was standing by her, nurse
Tvrdik’s, desk reviewing her mail; that she told nurse Iverson
that it was time to go and nurse Iverson said that she had to
check with Doctor Telste; that she heard nurse Iverson ask
Doctor Telste if she could leave and Doctor Telste said that it
was fine; that she went down the hall to station 6 and told the
nurses that it was time to go out on strike, she told nurse Aga
and Medical Assistant Marcy Faris that it was time to leave and
in answer to nurse Jeppesen’s question, who was in the allergy
room drawing up an allergy shot, she told nurse Jeppesen that
she should finish giving the allergy shot before going out on
strike; and that prior to telling nurse Iverson that it was time to
go, she had finished all of her work for the morning.
Hunt testified that on September 10 he arrived at the clinic at
approximately 7:15 a.m.; that the replacement nurses arrived at
the clinic on September 10 between 7 and 8 a.m.; that he ob-
served nurses that the Respondent had assumed would be strik-
ing starting to come into work that morning; that the 13 tempo-
rary nurses who were going to staff the clinic were put in the
physicians’ lounge to avoid any type of confrontation between
the temporary nurses and the regular nurses; that he spent most
of the morning trying to decide what to do with the temporary
nurses since the regular nurses showed up; that it was decided
to keep the temporary nurses in the lounge in case the strike
would occur later; that no one from the Union ever contacted
the Respondent to indicate that the involved employees were
not going to be striking at 8 a.m. on September 10; that he first
became aware that the nurses were walking out at about 11:50
a.m. on September 10 when Doctor Deborah Dittberner came
into the administrative offices to indicate that her nurse had
walked out; that he Crowe and Otte went to the units to deter-
mine where replacement nurses were needed; that 455 patients
were seen at the clinic on September 10; that historically the
clinic is busier in terms of the number of patients on Mondays
and Fridays; that 11:30 a.m. to 12 noon is a busy time of the
day and it is busier than it would be at 8 a.m.; that the busiest
stations at the clinic are stations 5, 6, and 7 which are the fam-
ily practice, pediatrics and OB/GYN stations, Respondent’s
Exhibit 3; that 11 of the 13 nurses who walked out that day
were from stations 5, 6, and 7; that Respondent’s Exhibit 8 are
the time records for the 13 nurses who walked out on Septem-
ber 10 and they show that the 13 nurses punched out between
11:46 a.m. and 11:50 a.m.; that he was made aware of a prob-
lem regarding the access codes for the physician’s voice mail
between 1 p.m. and 2 p.m. on September 10, and the problem
was corrected and a memorandum was disseminated to the
nursing staff shortly after 2 p.m. on September 10 indicating
“TO ACCESS VOICE MAIL FROM YOUR EXTENSION:
Dial 278 to access voice mail. Enter your password. All pass-
words are 0000 for all nursing stations,” Respondent’s Exhibit
12; that he was advised during the afternoon of September 10
that certain of the materials which were distributed to the vari-
ous nursing stations on September 9 to assist the temporary
nurses in providing patient care, provide information regarding
various forms that needed to be filled out for various proce-
dures and to explain the appropriate procedure to refer patients
were missing after the 13 nurses walked out on strike; that there
are more patients being seen at the clinic at 11:45 a.m. than at 8
a.m. On cross- examination Hunt testified that 455 patients on
September 10 is busier than normal; that in the affidavit he
gave to the Board on October 15 he indicated that “455 patients
. . . is an average day for the clinic”; that the afternoon is busier
with respect to the number of patients seen at the clinic than the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1278
morning; that LPNs have certain responsibilities in the morning
prior to the physicians arriving at the clinic that are extra from
just assisting the physician, including responding to voice mail,
reviewing lab results from the prior day, and taking beginning
of the day calls from patients who got sick during the night, and
that is why the LPNs come in early; that the replacement nurses
arrived in Alexandria on September 9; that General Counsel’s
Exhibit 4, which consists of two pages namely a page with
instructions on how to change the voice mail message and how
to retrieve a message and a page listing the voice mail codes,
comes from the red manual which has been located at the vari-
ous stations throughout the clinic well before September 10;
that there are instructions available to employees in a different
manual on how to change the voice mail access code; that no
one witnessed any LPN change voice mail codes on September
10; that Tammy Kluver, the Respondent’s data processing per-
son told him about the problem with the voice mail codes be-
tween 1 and 2 p.m. on September 10; that by 1 p.m. the re-
placement employees were in place; that he did not know of
any eye witness who saw the LPNs take or destroy manuals on
September 10 but he concluded that they were responsible be-
cause the manuals were at the stations before the LPNs came in
on September 10 and they were gone when the LPNs walked
out on September 10; that he recalled that he was told that the
red manuals and the replacement manuals, forms and proce-
dures were missing on stations 5, 6, and 7 but he did not believe
that these were the only stations referred to; that he was told
that four voice mail access codes were changed and he told
Tammy Kluver not to spend any additional time determining
which codes had been changed but rather to override the system
and change them all for accessibility; that the information on
how to change the voice mail access code was contained in a
book other than the red manual and that book was handed out
years before the strike; and that the lunch hour did not auto-
matically start for every nurse at noon every work day and the
nurse’s lunch time depended on where the doctor was with
respect to seeing the patients scheduled.
Crowe testified that the “red book” is a combination of what
each physician wanted to have used as they did a procedure,
specifying such things as the size of glove they wear, whether
they wanted a patient undressed for a physical, and giving de-
tails about various procedures or protocols; that on September
10 she and Otte let the replacement nurses in at the back door
of the clinic beginning at 7:15 a.m.; that she took the first group
of three replacement nurses to the different positions on the
stations 7, 6, and 2 where they were expected to work; that
when she saw nurses Aga and Bevill come to work at about
7:45 a.m. she “guess[ed] [that] they’re not striking today”; that
she then took the rest of the replacement nurses to the physi-
cian’s lounge; that later she saw other unit members in the
clinic and somewhere between 8 and 8:30 a.m. she observed
that nurses who had been scheduled that day were all there; that
shortly before noon she was in the administration offices and
Doctor Deborah Dittberner came into the office and said that
the nurses have gone out, her nurse—Faris—went with them
and she still had patients in the examination rooms; that she
took a replacement nurse to Doctor Dittberner; that she and
Otte then assessed how many nurses left and she took the re-
placement nurses to the stations; that she prepared Respon-
dent’s Exhibit 15 which is a list of when certain unit members
went on strike, their stations, and their assigned physicians; that
with respect to nurses not scheduled to work on September 10
before the strike began, she saw nurses Radil, Lais, Olson,
Bradley, Van Vickle, Swanstrom, and Ludwig on the nurses’
picket line collectively on September 10, 13, and 14; that
shortly after the replacement nurses were in place one of them,
who was placed on station 6, told her between 1 and 1:30 p.m.
that she could not get into the voice mail; that she telephoned
Kluver, who works with the telephones, and asked her to check
it out; that the delivery of patient care was disrupted by the
strike because the Respondent did not have continuity of care, it
did not know if phone messages were returned, each physician
had to be assessed to see if they had patients left, and the Re-
spondent did not know when the nurses walked off the job what
had been done and what had not been done, what had been
followed up on and what had not been followed up on; that in
her opinion the disruption was more than what would have
occurred had the strike occurred at 8 a.m. because as the day
progresses more patients are added to the schedule, the sched-
ules become busier, there is more of a possibility of the physi-
cian running behind, and there are more things going on closer
to noon; that the switchboard typically closes at 5 p.m., there is
a recording that if it is an emergency, the caller should dial 911
or call the hospital, and if a patient tries to call in after 5 p.m.,
they cannot leave a message for a physician on the nurses voice
mail; that the switchboard opens at 7:30 a.m.; and that at the
end of the day nurses can get their charts ready for the next day.
On cross-examination, Crowe testified that she could not iden-
tify anyone who took any of the packet of forms off a station;
that while some of the unit members were not scheduled to be
working when the strike began and, therefore, they could not be
held responsible for any disruption of care, they were neverthe-
less discharged also; that she did not know if any of the unit
members who went out on strike did not have their charts pre-
pared for the whole day; that General Counsel’s Exhibit 5 is a
schedule of appointments for September 10 for the various
physicians; that she did not know whether any of the unit mem-
bers asked their physicians if it was okay to leave; that the
clinic’s phone is answered until 7 p.m. at station 3, which is
urgent care, and a caller can be transferred to a nurse’s voice
mail; that if a call involves an emergency it is triaged and does
not go into voice mail; that she was aware that some of the
nurses had been using their birth dates instead of the doctors’
numbers for the access code to the voice mail; that the birth
date was on the piece of paper with the codes; and that Hunt
was mistaken when he testified that all of the voice mail access
codes were the doctors’ codes. Subsequently, Crowe testified
that on the first day of the strike the nurses picketed in front of
the clinic by the patient entrance and the fact that the strike was
going to occur at the clinic was a major news item in the media
prior to the strike; and that she did not have any personal
knowledge of any patient submitting to the clinic a written
complaint that service to them was disrupted on September 10.
Otte testified that shortly after 1 p.m. on September 10 one
of the temporary nurses asked her about a form in that the tem-
porary nurse could not find the packet of forms; that she went
ALEXANDRIA CLINIC, P.A. 1279
to the involved station, station 7, and she could not find the
packet of forms; that she then went to stations 6 and 5 and
could not find the packets of forms there either; that she then
went downstairs and could not find the packets of forms at
stations 4 and 3 although she did find the packet on station 2
where no one went on strike; that on stations 3 though 7, where
at least one of the nurses went on strike on each of these sta-
tions, she looked in the back counter area and in the cubicle
space; that a temporary nurse from station 6 told her on Sep-
tember 10 that she could not access her voice mail; that she
went to the phone, which was nurse Iverson’s, and tried unsuc-
cessfully to access any messages using three different numbers
including 0390;11 that she then notified Crowe; that generally
the voice mail access code is the doctor’s computer number
with a 0 in front of it; that there are exceptions in that Doctor
Bergstrand’s nurse, Jeppesen, uses her birth date, which is
posted on the access code sheet, ENT uses the nurse’s phone
extension because the physicians have different computer num-
bers, Doctor Connie Gratis did not have a nurse when the voice
mail was put on the phone and the code subsequently assigned
was thought to be easily remembered, Doctor Johnson’s access
code number specified on the sheet is an error, and Doctor
Salo’s number is different because his nurse moved to a differ-
ent desk and that was the number of the extension at that desk;
and that in the year or two before September 10 it was common
for physicians to get backed up seeing patients in the morning.
On cross-examination, Otte testified that she had no idea what
time of the day the packets of forms disappeared and they could
have disappeared at 12:45 p.m.; that she learned of the voice
mail code problem after 1 p.m.; that she tried three different
numbers in her attempt to access nurse Iverson’s/Doctor Tel-
ste’s voice mail messages because “[w]ell, I thought in case it
would be—for instance this one I believe is 0405 [sic. It is
noted that moments before this testimony she was shown the
correct number by counsel for the Respondent while testifying
on direct at the hearing herein] so I just gave it a try and
thought, well let’s try 405 or let’s try the nurse’s extension
because I didn’t have this piece of paper [the sheet of access
code numbers which was given to her while she testified on
direct herein] in front of me. So I tried where I thought [it]
might possibly be”;12 that she did not know how many, if any,
doctors were behind on their schedules on September 10; that
she did not believe that Friday afternoons are historically less
busy than Friday mornings; that according to General Coun-
sel’s Exhibit 5, on September 10 Doctor Elliott did not have a
scheduled appointment from 1 p.m. until the end of the day at 5
p.m., except for a 20 minute appointment at 2 p.m. and a 10

11 Nurse Iverson works for Doctor Telste whose physician computer
number is 390, GC Exh. 4. The voice mail code number for Doctor
Telste on GC Exh. 4 is “0390.” Otte testified on direct that she tried
“0390” only after looking at GC Exh. 4, which contains the voice mail
codes, while testifying.
12 Looking at the access code sheet Otte testified on direct at tran-
script page 237 that she tried “0390.” On cross-examination at Tr. 244
Otte erroneously testified that the number was “0405.” If Otte did not
have the access code sheet when she allegedly tried the number, is it
reasonable to conclude that the replacement nurse in question was using
the access code sheet when she supposedly encountered the problem?
minute appointment beginning at 3:30 p.m.;13 that Doctor Kurt
Hansberry did not begin seeing patients until 1 p.m. on Sep-
tember 10 and so his morning was not busier than his after-
noon;14 that she did not believe that, according to General
Counsel’s Exhibit 5, Nurse Practitioner Jennifer Janke had any
scheduled appointments from 11:15 a.m. until the end of the
day (5 p.m.), except for a 15-minute appointment at 1 p.m. and
another 15-minute appointment at 1:15 p.m., and if she were
scheduled to see patients she would not have either an MA or
LPN;15 that according to General Counsel’s Exhibit 5 Doctor
Odland did not even work the afternoon of September 10;16 that
according to General Counsel’s Exhibit 5, Doctor Daniella
Ouzounova had a flexible sigmoidoscopy procedure at 11:20
a.m. and she did not have an appointment in the afternoon until
2 p.m., and that is her usual schedule;17 that according to Gen-
eral Counsel’s Exhibit 5, Doctor Susan Paulson did not see
patients the afternoon of September 10;18 that she did not re-
member at exactly 1 p.m. on September 10 telling nurse Peggy
Erickson, who did not join the strike and works on station 3, to
go to a different station to answer the phones; that they started
taking the replacement nurses to the stations shortly before
noon; that she is not aware of any patient complaints about their
care or service on the first day of the strike; and that September
10 was an average day in terms of the number of patients seen.
On redirect Otte testified that Nurse Practitioner Connie Gratis
did not have an afternoon schedule on September 10 because
she works in urgent care on Friday afternoon; and that while
she testified on cross-examination that you could change the
voice mail access code by just listening to the prompts on the
telephone, she did not know one way or the other how you
would do that.
Nurse Erickson testified that she resigned from the Union be-
fore the strike for personal and health reasons; that she worked
during the strike; that on September 10 she was on station 3
which is urgent care and is located on the main level; that you
can change the access code for the voice mail by dialing 278
and following the prompts; that the walkout occurred about
11:45 to 11:50 a.m.; that around 1 p.m. Crowe came down the
hall with a number of temporary people, Crowe told her to go
to station 4 and Crowe filled her spot and the other nurse’s spot
on station 3 apparently with temporaries; that at about 1:30
p.m. when she went back to station 3 (to get her purse), she saw
her message light flashing which indicates that there is voice
mail; that when she tried to retrieve the voice mail message
13 Doctor Elliott’s nurse, Jodie Dalton, did not join the strike, R.
Exh. 15.
14 According to R. Exh. 15, his nurse, Carol Holten, walked off the
job at 11:49 a.m. on September 10.
15 According to R. Exh. 15, Nurse Cindy Bradley was the employee
assigned to Nurse Practitioner Janke and Nurse Bradley “[f]ailed to
show for work on 9/10 as scheduled (1:00 p.m.) because on strike.”
16 According to R. Exh. 15, his nurse, Jeannie Zavadil, did not join
the strike.
17 According to R. Exh. 15, Doctor Ouzounova’s nurse, Katie Bloe-
dorn, never joined the strike.
18 On redirect Otte testified that Doctor Susan Paulson had patients
scheduled at 12, 12:10, and 12:20 p.m. According to R. Exh. 15, Doc-
tor Susan Paulson’s nurse, Mary Baker, never joined the strike.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1280
with her access code it did not work; that she then telephoned
Crowe who told her that the access codes were all changed to
four zeroes; that she had no problem using the voice mail sys-
tem between 8 a.m. and 1 p.m.; that she saw Respondent’s Ex-
hibit 13, which is the packet of forms, on the counter when she
came to work on September 10; that she did not see the Re-
spondent’s Exhibit 13 on station 4; that on September 10 she
did not receive any complaints from patients, patients were
seen at the proper time, and she did not observe any disruptions
in patient care; that she did not observe any difference in the
operation of the clinic between the morning and the afternoon
with respect to the stations she was working on; and that it was
an average day for a Friday at the clinic. On cross-
examination, nurse Erickson testified that she probably would
have gone out on strike but for the fact that she needed health
insurance because of her medical condition; that changing the
access code for the voice mail is not something that can be
done accidentally; that nurse Iverson was the one who came
around and said that it was time to leave on September 10 and
the other nurse on station 3, Carol Holten, walked out; that
Crowe had 10 or 12 temporary nurses with her when she came
down the hall at 1 p.m.; that she did not know for a fact that
between 11:50 a.m. and 1 p.m. she sought to access voice mail
messages on her phone; and that she went to lunch for about 15
minutes on September 10 and she did not check whether each
patient was seen by the doctor at the time they were scheduled
for. Subsequently nurse Erickson testified that she has worked
at all of the stations in the clinic and historically the average
delay on any day in a doctor seeing a patient beyond the sched-
uled time is 10 to 15 minutes, and sometimes longer depending
on the doctor and what is happening with the doctor.
Nurse Mertens testified that on September 10 she was work-
ing on station 5; that she did not remember but she assumes that
it was nurse Tvrdik who came around and said that it was time
to leave and she did not recall the time; that her doctor, Doctor
Lussenhop came out of the room and was standing by her desk
when he said either “[i]ts time for lunch” or [y]ou can leave for
the morning”; that she was then approached and told that it was
time to go; that she handed Doctor Lussenhop a letter and told
him that she was leaving; that the night before the strike she
believed that she was the last employee to leave the clinic at
about 8:10 p.m. and she did not see any packets on any nurses
station;19 that she came to work between 8 and 8:15 a.m. on
September 10 and she did not see any packets and she did not
remove any packets or any other material; that she did not even
know how to attempt to change the voice mail codes or disable
the voice mail system; and that the red book had not been at
station 5 for at least 2 months before the strike began.
Nurse Elbert testified that when nurse Tvrdik came around
on September 10 she, Elbert, did not tell her physician, Doctor
Ross Anderson, that she was going on strike and she did not
give him an update as to what had been happening that morn-
ing; that she did not change her voice mail access code and she
did not take or destroy any clinic manuals or property on Sep-
tember 10; that between 8 and 9 a.m. on September 10 she

19 As noted above, Crowe testified that the packets were distributed
at 9:30 p.m.
prepared charts for the whole day, made sure that she had all of
the charts that were needed for the day, got medical records,
pulled lab sheets that were needed that day, answered calls,
checked voice mail, stocked the rooms for the whole day, and
things like that; that on September 10 she did not see Respon-
dent’s Exhibit 13 (the packet of forms) at her station, station 7,
and she never saw it; that she had seen a red book at her station
in the past but she did not look for it on September 10; that just
before she went out Doctor Anderson had one patient in the
waiting room and he was with a patient in the ultrasound room;
that Doctor Anderson and she (“we”) had finished the ultra-
sound, they left the room so the lady could get dressed and he
went back in to visit with the patient as he often does after an
ultrasound; that she was about to get her last scheduled morn-
ing patient when nurse Tvrdik told her it was time to go, and
she left while Doctor Anderson was in the ultrasound room
with a patient; that she did not inform Doctor Anderson that she
was leaving because he was in the ultrasound room; that the
patient in the waiting room was a 2-week postpartum check,
Doctor Anderson generally just visits with those patients, and
normally there is not a procedure or anything done with that
particular type of appointment; that she was not aware that
there was anything else for her to do at the time she went out on
strike; that typically at that point she would go on her lunch
break; that there are times when Doctor Anderson does an ab-
dominal ultrasound and then decides that there is a reason to do
a vaginal ultrasound; that Doctor Anderson always wants her
present with him when he does a vaginal ultrasound; that they
had just completed a vaginal ultrasound on the lady who was
the next to last scheduled morning patient; and that she was
positive that Doctor Anderson did a vaginal ultrasound and not
an abdominal ultrasound. Subsequently, nurse Elbert testified
that it would not be normal procedure to leave the room to al-
low the woman to get dressed if in fact Doctor Anderson had
made up his mind that he was going to have another ultrasound.
Doctor Hansberry testified that he could not think of any pa-
tient complaints as a result of the strike that occurred on Sep-
tember 10; that his nurse went on strike on September 10; that
he worked with a replacement nurse in the afternoon; and that
his orientation of the replacement nurse was not made easier by
the fact that he did not have the packet of forms, Respondent’s
Exhibit 13, on September 10 and the standard operating proce-
dures (the red book) were not available.
Nurse Aga testified that on September 10 she worked on sta-
tion 7 with Doctor Brian Carlsen; that although she did not
know the exact time of the strike when she went to work on
September 10, she was not concerned that the strike could oc-
cur at a time during the day that could potentially disrupt pa-
tient care because she “knew the union would not advise me of
that” and she knew this “[b]ecause I trusted them” and the Un-
ion would not go on strike at a time that might hurt patient care;
that at 11:50 a.m. nurse Tvrdik came by and told her that it was
time to leave; that she did not talk to her physician and tell him
that she was leaving because he was in a room with a patient;
that the first time she heard that there was a problem with the
voice mail access code was at the hearing herein; that she did
not do anything to change her voice mail code on September 10
and if her code was changed, she did not have an explanation as
ALEXANDRIA CLINIC, P.A. 1281
to how that would have happened or why; that she arrived at
work about 7:30 a.m. and she did not see any packet of materi-
als, Respondent’s Exhibit 13, on the counter top at station 7;
that she did not hear any nurse or nurses talk about removing
orientation materials from the station and she did not remove
the packet; that the forms and information contained in Re-
spondent’s Exhibit 13, which she reviewed while on the wit-
ness stand, would have been used by the replacement nurses in
providing patient care information; that her voice mail code
was one of the few that did not have a zero in front of it be-
cause when they started the phone system she did not put a zero
as the first number; that she did not know how to change the
voice mail code; and that she had just finished giving vaccina-
tions when nurse Tvrdik told her that it was time to go.
Nurse Juntunen testified that before she walked out on strike
at Osakis she did not tell her physician that she was leaving
because he was with a patient in an examination room and she
told the other nurse who was working at Osakis that day “I
have to leave”; that she left a note on the physician’s phone
which just indicated “Sorry”; that she was a roster nurse and
she did not have a voice mail code;20 that she was not con-
cerned when she left that the other nurse would not be able to
handle things because the other nurse had been doing the work
for the past 13 or so years;21 that she had been working at
Osakis for the most part for 3 years; that before the strike she
was working in Alexandria on station 6 for Doctor Susan Paul-
son and she, and nurses Tvrdik and Norma Woods could not
find the red book; that she did not change voice mail codes, or
remove clinic property from the clinic; and that she did not see
Respondent’s Exhibit 13 in Osakis.
Doctor Ross Anderson testified that he received a memoran-
dum from the clinic indicating that the involved nurses were
going out on strike on September 10; that at approximately
11:45 a.m. he left the ultra sound room, where he had been with
a patient who had received an abdominal ultra sound, and dis-
covered that the nurses, including his nurse—Elbert, went out
on strike; that nurse Elbert did not give him a patient care up-
date before she left to go on strike; that he had one remaining
patient on his schedule that morning, an 11:40 a.m. appoint-
ment, and she was in the waiting room; that the 11:40 a.m.
patient checked in at 11:25 a.m.; that the 11:40 a.m. patient was
placed in an examination room at 12:10 p.m.; that the 11:40
a.m. patient was not there for a routine 2-week postpartum
check but rather the patient was 4 weeks postpartum and came
in for a nonscheduled examination because of bleeding; that he
did not know this before he saw the patient; that he examined
the patient on or shortly after 12:10 p.m.; that the 11:40 a.m.
patient was not placed in an examination room until 12:10 p.m.
because he did not have a nurse to room the patient; that it was
common for his nurse to interrupt him in the examination room
to ask to speak to him; and that prior to the noon break and

20 The witness explained that a roster nurse fills in with the various
doctors when the regular nurses are on vacation or sick.
21 When she was first sent to Osakis, Crowe and Otte explained to
her that one of the doctors left that clinic and the remaining doctor was
exceptionally busy so they were assigning a second nurse to the Osakis
clinic to room patients so the more experienced nurse could handle the
phone and do the paperwork.
prior to the end of the day it has been his practice to take care
of anything that needs to be addressed before he leaves. On
cross-examination, Doctor Anderson testified that nurse Elbert
would have found out that the 11:40 a.m. patient was bleeding
when Elbert took the patient to an examination room; that he
did not know that the 11:40 a.m. patient ever told nurse Elbert
that she was bleeding; that he did not give the 11:40 a.m. pa-
tient a blood transfusion, or perform an operative procedure on
her or prescribe any medication;22 that he examined the 11:40
a.m. patient, gave her an ultra sound and sent her home; that it
is not unusual for a patient not to be placed in an examination
room right at the scheduled appointment time; that the replace-
ment nurse, who arrived shortly before 12:10 p.m., roomed the
11:40 a.m. patient; that he was available to see the patient at
approximately 11:45 a.m. and he could have escorted the 11:40
a.m. patient into an examination room; that he could not say at
the time that he was aware that there was a patient in the wait-
ing room at 11:45 a.m. to 12:10 p.m. on September 10; that he
did not make an attempt to place the patient in the examination
room and it is not his practice to place patients in the examina-
tion room; that he does not have any problem with personally
placing a patient in an examination room rather than having a
nurse perform this task; that he has performed this task in the
past; that he can take vital signs and a patient’s history and he
could find out what their condition is but filling out the neces-
sary forms “would be very difficult for me”; that he did not
know whether any forms were filled out for the 11:40 a.m.
patient; that he would not perform a pelvic examination without
either a nurse in the room or very close to the room; that he
would not do a vaginal ultra sound, as was given to the 11:40
a.m. patient, without a nurse in the room; that at 11:45 a.m.
when he realized that his nurse went on strike he did not tele-
phone Crowe; and that he never telephoned Crowe to tell her
that his nurse went on strike but rather he waited for about 15
minutes until Crowe came around with the replacement
nurses.23 When asked if nurse Elbert could not room the 11:40
a.m. patient because Elbert was in the ultra sound room with
him, Doctor Anderson testified that that was not true and when
asked if Elbert was with him in the ultra sound room when he
did the abdominal ultra sound on the patient scheduled before
the 11:40 a.m. patient, Doctor Anderson testified twice “[w]hen
I came out of the ultra sound room, the nurse was not with me
in the ultra sound room, the nurse was not present at that time.”
Doctor Anderson further testified that the next to last morning
patient had an abdominal ultra sound; that he is sure that he
talks to patients after the ultra sound; and that the 11:40 a.m.
patient did not suffer any medical exacerbation of her condition
as a result of the fact that she was not roomed on time. Subse-
22 Doctor Anderson testified that it was not his practice to prescribe
medication for postpartum bleeding.
23 Doctor Anderson did not come to the clinic to meet with his re-
placement nurse the night before the strike because he “was naively
hoping that . . . [his] nurse was not going out on strike.” Also Doctor
Anderson testified that he knew that the replacement nurses were going
to be at the clinic on the morning of September 10 and he made no
attempt to come in early and meet with the replacement nurse to ex-
plain how he practiced and how he wanted things done in his particular
area.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1282
quently it was determined, after a review of Doctor Anderson’s
schedule by the parties, that the 11:40 a.m. patient’s condition
was not described in any fashion on the schedule because she
was added to the schedule at approximately 10:11 a.m. on Sep-
tember 10, and consequently there was nothing on the schedule
that Doctor Anderson would have seen that would have indi-
cated what the patient’s condition was. Nurse Getz testified
that on September 10 when nurse Iverson came around to tell
her that it was time to go out on strike she filled out a lab slip
for Doctor Pederson, who just came out of a room, had him
sign it, gathered up her things, brought the lab culture or speci-
men to the lab and left; that she and Doctor Pederson had just
come out of the examination room together and she assumed
that her work was done in that room; that Doctor Pederson
never said to her that she was finished for the morning; that she
did not discuss the status of any patients or any messages with
Doctor Pederson because she did not have any messages for
him and they had just come out of the same room together; that
she just remembers saying hello to Tonya Covel and speaking
with her on the morning of September 10 when Covel came to
the station to get the charge tickets for the previous day; that
she did not remember seeing any orientation manuals at her
station that morning; that she changed her voice mail code on
the morning of September 10 and she was not sure why she did
it; that she did not tell anyone that she had changed her voice
mail access code; that she did not remember having a conversa-
tion with any nurse about changing voice mail access codes;
that she did not see Respondent’s Exhibit 13, the orientation
packet, on the counter top at her station; that Doctor Pederson
has a procedural manual that had been prepared by one of his
former nurses and on September 10 she removed papers which
were hers from the manual; that the documents which she re-
moved from the manual had been prepared on her own time at
home; that she had taken certain pages of the manual that the
previous nurse had left her and she rewrote them; that when she
took her pages out of the manual she did not put back in the
manual the pages of the former nurse which she had previously
removed because she had thrown the former pages away; that
she did think that the more disruption that occurred at the
clinic, the sooner the strike might be over;24 that the instru-
ments that Doctor Pederson uses are in see through sterile
packets each of which is labeled; that about one week before
the strike she made manila folder dividers at home with the
name of the instruments for the see through, labeled packets of
instruments; that on September 10 she removed the dividers she
had made because she was in the process of making sturdier
dividers and the dividers were hers; that on the morning of
September 10 Doctor Pederson asked her where the dividers
were and she told him that that morning she was cleaning the
area where they were located and a couple of them had gotten
wet; that as a roster nurse she worked in several areas of the
clinic and, based on her experience, noon is not a disruptive
time to the clinic to start a strike because there are not many

24 Nurse Getz testified that she did not remember that this was dis-
cussed at one or more of the meetings she attended but it was some-
thing that could have happened and she just did not recall when she
testified herein.
physicians who schedule patients at noon, which is the lunch
hour; that with respect to the last patient that she was with be-
fore she went out on strike, Doctor Pederson had removed anti-
biotic beads from the patients foot, cleaned the wound and took
a wound culture, she labeled the culture and the lab sheets and
had Doctor Pederson sign it and she took it down to the lab;
that in her experience after Doctor Pederson tells her to fill out
a lab slip, there is usually no more work for her to do with that
patient; that with this particular patient she had not been in-
structed to do any more work for him and it was her under-
standing that her duties were done for this patient; that she did
not believe that 8 a.m. is more or less disruptive than 12 noon
or 11:45 a.m.; that she changed her voice mail password to
“0000” which is the default code but she did not know that; that
to her knowledge she was the only nurse who changed the
password and took materials home with her; that she choose
“0000” for the access code “out of the blue”; and that in her
affidavit to the Board she indicated that she reset the password
to four zeros because that was the password when she started.
Doctor Terrance Pederson testified that when he arrived at
the clinic on September 10 around 7 a.m. nurse Getz was at her
station; that about 10 days before September 10 he had received
a memorandum from the clinic, Respondent’s Exhibit 7, which
notified him that the nurses were going to strike; that at ap-
proximately 11:45 a.m. on September 10 he was treating a dia-
betic patient who had been in the hospital for three weeks and
had a foot wound; that he took cultures of the patients foot to
see how the wound was progressing and to make sure there
were no other infections; that nurse Getz was in the examina-
tion room when he took the cultures and she left the examina-
tion room before he was finished with the patient; that “[f]rom
that point until she walked out the door . . . Ms. Getz [did not]
identify to . . . [me] that she had in fact taken the culture and
sent it down to the lab”; that he did not remember when he
signed the form for the culture but he did fill out the medical
part of the form when the culture was taken, what the area was
and what he was looking for; that he did sign the form but he
did not know when he signed the form; that he signs such a
form before the nurse does anything with respect to getting it to
the lab; that he then left the examination room and went to his
office to get something he needed “[s]omething connected with
patient care, phone number for referral or some material that
wasn’t in the [examination room] . . . .”; that he was by his
office door when nurse Iverson came up and said “Janet let’s
go,” and nurse Getz just walked away; that nurse Getz did not
say anything to him and she did not “[g]ive [him] any status on
any patient care issues that . . . [he] needed to be aware of”; and
that with respect to what nurse Getz still needed to do,

Well we still had to attend to the patient, make sure the
referrals were done, make sure the patient was okay to
leave on his own, make sure the cultures were done, and
check with me to see what else had to be done for that day,
if there was any other business that we had to attend to and
none of that was done.

Doctor Pederson also testified that the aforementioned diabetic
patient was given a referral for continuing treatment and “sec-
ond opinions”; that the information that needs to be provided to
ALEXANDRIA CLINIC, P.A. 1283
the patient in connection with a referral can be done by either
the physician or the nurse; that he was going to have nurse Getz
be responsible for providing the patient with the information in
connection with the referral because he still had not dressed or
packed the wound; that he has a practice of meeting with his
nurse at the end of the morning to make sure that everything is
done so that they can go and eat; that he saw the orientation
packet of forms, Respondent’s Exhibit 13, on the station 4
counter top on the evening of September 9 but when he came to
work on September 10 he did not see the packet; that he first
realized the that packet was not at the station after the replace-
ment nurse started working; that he also discovered that a com-
puter chart which was posted right above the computer was
missing after the strike commenced on September 10; that a
manual with instructions on how to run the office was there on
September 9 but he discovered that it was missing after the
strike commenced on September 10; that he did not recall ever
seeing any of nurse Getz’ notes in the manual; that his instru-
ments are packaged in a sterile pack which is see through on
one side and paper on the other side; that each package has the
name of the instrument on it; that the dividers with the names
of the instruments on them facilitated providing expedient pa-
tient care; that sometime between 8 and 10 a.m. on September
10 he noticed that the dividers were missing and he asked nurse
Getz where they were; that nurse Getz told him that the dividers
got wet; that on September 10 after the strike began he discov-
ered that the voice mail code and been changed when his re-
placement nurse tried to retrieve a telephone message; that the
replacement nurse had the sheet that had the codes on it; that he
got the replacement nurse on September 10 sometime after 12
noon but he did not know whether it was closer to 1 p.m.; and
that nurse Getz left in the midst of providing patient care. On
cross-examination, Doctor Pederson testified that it would not
be usual for nurse Getz, after she took a specimen down to the
lab, to come back and tell him that she took the specimen to the
lab; that in this instance nurse Getz did take the specimen to the
lab and he did not tell nurse Getz that he wanted her to do the
referral; that the fact that he did the referral instead of nurse
Getz did not have any effect on the patient’s health; that he did
not see nurse Getz or anyone else take the orientation packet of
forms or the computer chart or the procedure manual; that it is
possible that he missed seeing something in nurse Getz’ hand-
writing in the procedure manual; that he did not remember why
he left the examination room when he was with the diabetic
patient; that he did not say anything to nurse Getz when she
was leaving; that patient care was not adversely affected in any
way because the station did not have dividers before nurse Getz
installed them; that it is his decision on whether to make a re-
ferral; that a lot of people could be in the clinic before 8 a.m.;
that as a result of nurse Getz going on strike at about 11:45 a.m.
on September 10 he took care of the treatment of the patient he
was treating and there were no problems, the patient did not
suffer any adverse result or medical problem; and that on Sep-
tember 10, after he had finished with the diabetic patient he
went down to the lab to verify that the cultures had been deliv-
ered on the diabetic patient.
Tonya Covel testified that as a coding specialist she takes
copies of the physician’s reports she receives from the hospital
up to the nurses’ desks to be reviewed, signed and returned to
medical records to be filed in the patient’s chart; that she had
seen the above-described memorandum regarding the nurses’
strike, Respondent’s Exhibit 5, and when she saw nurse Getz at
station 4 at about 8:30 a.m. on September 10 she asked nurse
Getz why she and the other nurses were still there working; that
nurse Getz said that the clinic had replacement nurses and, as
long as they continued to work, the clinic would have to pay
both groups; that nurse Getz told her that the nurses would go
out on strike when they received a call from the union represen-
tative; that nurse Getz asked her if she knew how to change the
voice mail access code because she and some of the other
nurses were trying to figure out how to do it; that nurse Getz
did not say why they wanted to do that; that nurse Getz did say
that if they were to change the code, the replacement workers
would have no knowledge of what code they changed them to;
that nurse Getz, while laughing, said that the handbook which
was on her station was gone; and that she then went back to her
office and told Kluver, who is in charge of the phone system,
that it was possible that the voice mail access codes might be
changed. Kluver testified that she is a computer system opera-
tor and she is responsible for the technical part of the clinic’s
phone system; that when a patient calls the clinic and wants to
contact a physician the switchboard routes the call to the ap-
propriate nurse for that physician, and if the nurse did not pick
up the telephone, the call would go to the nurses’ voice mail;
that the nurses are supposed to change the message they leave
on their voice mail daily to reflect the proper date and whether
they are in or not;25 that she had seen General Counsel’s Ex-
hibit 4, which are the voice mail access codes that were in ef-
fect on the morning of September 10; that the codes are public
information within the clinic; that there would be no reason for
a nurse to change the voice mail access code, there are eight
steps or prompts for changing the voice mail access code, and
you could not accidentally change a voice mail access code;
that on August 31 she saw the clinic’s memorandum, Respon-
dent’s Exhibit 5, which indicated that the nurses were going to
strike at 8 a.m. on September 10; that she was aware that the
clinic was going to use temporary nurses; that in “mid-
morning,” at about 9 a.m. on September 10 Covel told her that
nurse Getz said that “the nurses were going to change their
voice mail messages so they—the replacements would not be
able to access the messages . . . they were going to change the
passwords so they couldn’t access the messages”; that she did
not think they would do it so she did not report this to manage-
ment; that at approximately 1 p.m. Crowe called her and told
her that Doctor Brian Carlsen’s replacement nurse could not
retrieve the messages and Crowe asked her to come to the sta-
tion and help; that Doctor Carlsen’s regular nurse was nurse
Aga; that she went to Doctor Carlsen’s station 7, where Crowe
and the replacement nurse were and when she pressed numbers
“0465” password invalid was indicated; that looking at the
voice mail access code sheet, General Counsel’s Exhibit 4,
which she was shown by counsel for the Respondent at this
point in her direct testimony, “0465” is the number that is pub-

25 All of the nurses’ messages are supposed to inform the caller (pa-
tient) to press zero if they need any immediate assistance.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1284
lished on that document;26 that as indicated by General Coun-
sel’s Exhibit 4 the correct access code for the involved phone
was “465” and, therefore, she used the wrong number in her
attempt to access the voice mail message; that she then went to
the first nurse’s phone on station 7, nurse Radil who is the
nurse for Doctor Engebretson, and pressed “0010” and that also
indicated “invalid password”; that as indicated on the voice
mail access code sheet the correct voice mail code for Doctor
Engebretson’s phone was “010”; that when she was checking
the voice mail codes she was not using the voice mail code
access sheet, General Counsel’s Exhibit 4; that in looking at the
voice mail access code sheet again she “guess[ed]” that for the
second time she dialed the wrong access code; that she then
checked Doctor Dittberner’s extension, whose nurse is Faris, on
station 7 and by pressing “0310” and it was indicated that was
invalid; that “0310” is voice mail access code on the sheet that
she was looking at while she testified; that she then went
around the corner to station 6 and checked the very first one
there which would have been Doctor Johnson’s (this was the
extension of nurse Tvrdik);27 that she pressed “0220 which is
Dr. Johnson’s number”; that the correct number, as indicated on
the voice mail access sheet was “0020” (as noted above, Otte
testified that this number on the access sheet is not correct); that
“again it’s different, which I was unaware of”; that she thought
all the voice mail access codes were the involved doctor’s num-
ber with a “0” in front of it;28 that of the four voice mail access

26 This testimony was admittedly not accurate.
27 At this point in her testimony Kluver was directed not to look at
the voice mail access list she had in her possession while she was testi-
fying.
28 Counsel for the Respondent gave Kluver the voice mail access
code sheet on the witness stand after she testified “0465” the number to
access Doctor Carlsen’s messages. As here pertinent the voice mail
access code sheet, GC Exh. 4, has a “Physician’s Computer Number”
column with the physician’s computer numbers. The sheet also has
“Voice Mail Code” column. Doctor Carlsen’s computer number on the
sheet is listed as 465. That is why Kluver testified that the sheet indi-
cates “0465” when in fact in the voice mail column the sheet indicates
“465.” As she testified, she believed that the code number was the
doctor’s computer number with a “0” in front of it. In looking down the
“Physician Computer Number” column which she had in front of her
when she testified about Doctor Dittberner’s access code she would
have seen “310.” And adding a “0” to this would give her the correct
access code number, namely “0310.” But if she continued looking
down the sheet which she had in front of her while she testified, she
would have seen “010” for Doctor Engebretson in the “Physician Com-
puter Number” column. Kluver testified that she pressed “0010.” As
noted above, the correct number was “010” as set forth in the “Voice
Mail Code” column of the voice mail access code sheet. Kluver then
testified that she then checked Doctor Johnson’s code. She was then
directed to not look at the list as she testified. If she had a chance to
look at the list before she was given this directive, she would have seen
“220” in the “Physician’s Computer Number column. Following her
understanding, she would have concluded that the access code was
“0220.” This is exactly what she testified that she pressed on September
10. In other words, in looking only at the “Physician Computer Num-
ber” column on the voice mail access sheet the only number, taking the
approach she did—adding a “0” to the “Physician Computer Num-
ber”—she could get correct was “0310” for that was the only number of
the four she gave which did have a “0” in front of the “Physician Com-
puter Number” column entry of “310.”
access codes she tried she used incorrect access numbers with
respect to three of the four; that Pam Miller, the Respondent’s
operations manager was there and she said that because of the
time element they should default all of the numbers to “0000”;
that she took 45 minutes to change the near 40 access code
numbers; that she did not see the voice mail access code sheet
at Doctor Carlsen’s nurse’s phone; that she did not know what
number the replacement nurse was punching in; that at 6:30
a.m. on the morning of September 10 she taped a printout of the
menus from the computers above the computers at each station
(stations 2 through 7); that the menus (a “cheat sheet”) would
have made it easy for the replacement nurses to access a doc-
tor’s schedules and patient information on the computer; that
about 8:30 a.m. on September 10 she walked back through the
stations and she observed that all of the cheat sheets, except
those on station 2, were not where she had placed them; and
that she did not think that anyone on station 2 went on strike.
On cross-examination, Kluver testified that she did not see
anyone take the “cheat sheets” down.
When called by the Respondent, nurse Iverson, who worked
for the Respondent for 8 years, was on the negotiating commit-
tee and was a Union steward, testified that the strike was de-
layed from 8 to 11:45 a.m. because it would be less disruptive
on patient care; that when the nurses left it was a down time of
the day; that when she went out on strike on September 10 her
physician, Doctor Telste, was working with a patient who
needed a dressing, she asked Doctor Telste if he wanted her to
do the dressing and Doctor Telste said, “[N]o, I’ve got it, you
go ahead”; that at the time there was another patient in an
examination room who just needed to talk to the doctor about
her blood pressure medication; that Doctor Telste knew that
nurse Tvrdik was waiting for her in the hall and Doctor Telste
said, “[Y]ou go ahead”; that with respect to the last patient she
roomed, she indicated on the patient’s chart the relevant infor-
mation she obtained as she roomed the patient; that she did not
orally discuss the last patient with Doctor Telste before she left;
that she did not change her voice mail access code; that she did
not believe that she saw Respondent’s Exhibit 13, the orienta-
tion materials, at station 6 on September 10; that she was not
aware of anyone removing the orientation materials from sta-
tion 6; that if another patient came into the waiting room before
11:30 or 11:35 a.m. she believes that she would have been
aware of that because usually the station clerk would tell her;
and that if there is an open room it is the practice to take the
patient from the waiting room to the examination room as soon
as possible. In response to questions of counsel for the Charg-
ing Party, nurse Iverson testified that normally the busiest time
of the day at the clinic is “[u]sually right away in the morning is
your hustle and bustle time”; that generally most physicians do
not schedule patients over the lunch hour; that on the day of the
strike she did not leave any of her patients in a compromised
position; that on occasion patients call at the last minute for an
appointment and they do not show up on her sheet of patients
for the day because they do not go into the computer until “the
last minute”; and that the purpose of not telling all of the nurses
the time of the strike was so that the nurses would not be dis-
tracted by the clock. When called by the Respondent, nurse
Radil, who worked for the Respondent for 6 years, was on the
ALEXANDRIA CLINIC, P.A. 1285
negotiating committee and was a Union steward, testified that
she believed that Nures Jeppesen was leaking information to
management and the reason she did not tell the nurses the time
the strike was to commence was because she did not want it to
be leaked; that if she had known that the nurses were supposed
to give the clinic notice that they were going to strike at 11:45
a.m. instead of 8 a.m. on September 10, they would have given
the clinic notice; that it was decided that there would be more
nurses in the clinic later in the morning than earlier in the
morning on September 10; that a decision was reached before
the union meeting on the night of September 7 that the strike
would commence at noon on September 10, Union Representa-
tive Kleckner knew the time before the September 7 meeting
and Union Representative Netjes learned of the time at the
September 7 meeting; that Kleckner had informed the nurses
that they had the right to strike at any time within 72 hours after
8 a.m. on September 10;29 and that in her September 30 affida-
vit to the Board she indicated “[n]ot all of the nurses started at
8:00 A.M. so waiting until later in the day would allow the
entire group to be at work and to walk out as a unit.” In re-
sponse to questions of counsel for the General Counsel, nurse
Radil testified that she made the above-described statement to
the Board as part of the following statement:

On about September 6th, 1999, I discussed the starting
time of the strike with Scott Kleckner, he said that we
could start within 72 hours of the time specified in the no-
tice, not all of the nurses started at 8:00 A.M. so waiting
until later in the day would allow the entire group to be at
work and to walk out as a unit. I told him that it was im-
portant for the nurses to walk out as a group to show unity
and strength, I also said, that they should show up for
work as usual to help get the clinic prepared for the day so
the patients could be taken care of.
To my knowledge all of the nurses who were sched-
uled to work showed up on the morning of September
10th, 1999. Most nurses get a noon break and we talked
about not wanting to leave patients so noon was decided as
a time to begin the strike. Most nurses would be on break
at that time and not taking care of patients. I had this con-

29 R. Exh. 26 is an e-mail, dated August 30, that Kleckner sent to
Nurse Radil. As here pertinent, it reads as follows:
I faxed a strike notice to the Clinic today. It is effective at
8:00 a.m. on Friday, September 10th. We have the ability to go
out within 72 hours after we say we will (72 hours after 8:00 am
on 9/10). This means that we can go at 8:00; or just have every-
one go to lunch and not come back; or work as usual on Friday,
but not show up for Urgent Care Saturday - and have them won-
dering about Monday (when no one will come to work)! Think
about what makes the most sense, and then we can firm up some
plans.
In the e-mail Kleckner also indicated “let’s keep them [the Respon-
dent] guessing.” However, this did not deal with the timing of the
strike. Rather, it dealt with whether individual nurses had to tell the
Respondent, if asked, whether they were going to participate in the
strike. This portion of the e- mail reads as follows: “The Clinic has the
right to ask each employee if they will cross the picket line, or if they
plan to strike. The best answer is ‘I don’t know,’ let’s keep them guess-
ing.”
versation with Lynn Tvrdik and Joyce Iverson also and we
all agreed that noon would be that starting time.

Nurse Radil also testified that noon was not chosen as the start-
ing time to lull the clinic into a false sense of security or to in
any way disrupt the operation of the clinic. In response to ques-
tions of counsel for the Charging Party, nurse Radil testified
that she would not have done anything which would have jeop-
ardized her right to continue to work at the clinic; that her deci-
sion to strike was a very difficult decision for her and she no
longer has a home, she can not pay rent and she stays with
friends as a result of going on strike; and that in deciding to
strike she worried about her doctor because he relied on her a
lot, she did a lot for him and she considered him not just a
working partner but a friend.
When called by the Respondent, nurse Tvrdik, who worked
for the Respondent for 19 years and became a steward and a
member of the negotiating committee on September 3, testified
that she did not remember being involved in the planning of the
strike but she was involved in the implementation of the strike;
that she had no involvement in the setting of the date or the
time of the strike; that she did not recall being involved with
nurses Radil and Iverson in deciding to strike at about noon
instead of 8 a.m.; that in her September 30 affidavit to the
Board she indicated “[a]bout one week prior to the strike date,
Iverson, Radil and I decided that noon would be the best time to
start”; that the nurses were not told in advance the time they
would be going out on strike because if the nurses were told,
they would be just thinking about the strike that morning and it
would interfere with how they were going to do their job; that
she did not recall the nurses being told this by the leadership at
either the August 25 or the September 7 meetings; that 8 a.m. is
a very busy time at the clinic, and it is busier than later in the
morning; that it is common at the Clinic for patients to get
backed up later in the morning and that can make things hectic;
that in her September 30 affidavit to the Board she indicated
“Radil, Iverson and I made plans for how to initiate the strike”;
that she did not remember at the August 25 or September 7
meetings, along with the nurse leadership, telling nurses that
when she and nurse Iverson came around each nurse was to
check with their doctor to see if they were needed before they
would leave their work station; that in her September 30 affida-
vit to the Board she indicated “[w]e also instructed the nurses
that when we came around they were to check with their doctor
to see if they were needed, punch out, and meet on the street”;
that she was present on September 10 when nurse Iverson said
words to the effect of “Doctor Telste I’m leaving is there any-
thing else you need for me to do before I leave for the morn-
ing”; that at the meetings of August 25 and September 7 nurse
Radil indicated to the nurses that it was important that they get
as many nurses to go out at the same time to show unity; and
that there are more nurses in the clinic to accomplish this later
in the morning than there are at 8 a.m.. In response to questions
of Counsel for General Counsel, nurse Tvrdik testified that 8
a.m. at the clinic is busier than noon because

phones are ringing, you’re trying to get your messages made,
patients are—they’re stopping in for blood pressure checks, in
my case a lot of times I had mothers stopping with babies for
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1286
just immunizations on their way to daycare, you’re trying to
prepare your rooms, your charts. There’s a lot to do in the
morning.
. . . .
Usually at noon you are finished with your patients,
your morning work, you have a break, there is supposed to
be a scheduled break time between 12 and 1 for you to
take a lunch break and that’s—it’s less busy.

In response to questions of counsel for the Charging Party,
nurse Tvrdik testified that on September 10 she made an effort
to set things up for the entire day; and that because of her ef-
forts it would have been easier for a replacement nurse to take
over for her after noon.
When she was called by the Respondent, Medical Assistant
Faris testified that she worked for Doctor Dittberner on station
7; that she did not change her voice mail access code on Sep-
tember 10, she would not even know how to do it; that she did
not know anything about the alleged change of her voice mail
access code; that on several occasions she had trouble getting
into that voice mail herself; that when she left the clinic on
September 10 she gave her physician a letter and she spoke
with her before she left; and that in the letter she accused the
clinic of lying to her but she was not angry when she went out
on strike. In response to questions of counsel for the General
Counsel, Medical Assistant Faris testified that she started work-
ing for Doctor Dittberner approximately three weeks before
September 10; and that on more than one occasion she could
not get into the voice mail, she had to have a coworker assist
her, they used the correct number and it would work some
times and at other times it would not work. Medical Assistant
Faris testified that at one time nurse Dalton helped her and at
one time nurse Aga helped her; and that they just kept pushing
the correct numbers and eventually if would connect. In re-
sponse to questions of counsel for the Charging Party, Medical
Assistant Faris testified that she was promised a raise by Crowe
from $8.45 an hour to $10.95 an hour but days before the strike
she was told by Crowe or Doctor Dittberner, she could not
remember which one told her, that she would not get the raise
because it would look like she was being paid to stay and work
and not join the Union and walk out on strike, and if the clinic
did that, the Union would have a hay day with it. In response to
further questions of counsel for the Respondent, Medical Assis-
tant Faris testified that she recalled that she had a problem with
the voice mail access code her first day working for Doctor
Dittberner but she could not recall the specific dates of the
other occasions when she had problems with the voice mail
access code; and that she did not report the problem to a super-
visor or Kluver or Doctor Dittberner because it was much faster
to get coworkers to help her, and by continuously pressing the
access code she eventually she was able to access the voice
mail messages. Subsequently Medical Assistant Faris testified
that nurses Aga and Dalton helped her on her first day and they
were able to get into the system before they had to contact the
nurse who previously worked at that station.
When called by the Respondent, nurse Bevill testified that
nurse Leah Watson came and told her that it was time to leave
and she did not tell her physician that she was leaving. In re-
sponse to questions of counsel for the General Counsel, nurse
Bevill testified that when she walked out on strike the last pa-
tient was in an examination room and she said to Doctor Wy-
more before he went into the examination room “[w]ell, the last
one’s in”; that the last patient, a man in his 30s or 40s, had an
upper respiratory infection, and he was in the company of her
physician when she left; that there were no other patients in the
other examination rooms; that she had done all of her nursing
responsibilities for the last patient in that she weighed him,
checked his blood pressure, pulse rate, temperature, went
through his medication and allergy lists, and wrote a one liner
about his reason for being there that day. In response to ques-
tions of the Charging Party, nurse Bevill testified that she did
not change her access code for her voice mail, she did not re-
move any material from the clinic, and she had no knowledge
of any other nurse engaging in such conduct.
When called by the Respondent, Kleckner testified that it is
his understanding that unions are required to give health care
facilities a 10-day strike notice before they engage in a strike;
that, as a lay person, it is his understanding that the Union had a
72-hour period that it could strike within any point of that 72
hours after the original date and time of the strike notice, and it
was not necessary to give any additional notice to the employer
in that 72-hour window; that it is his understanding that if the
Union struck outside the 72-hour window period the strike
would be unlawful unless there was a mutual written agreement
that would extend the time;30 that he only recalls discussing
with nurse Radil striking at a time other that 8 a.m. on Septem-
ber 10; and that such discussions occurred after he faxed the
notice to the Respondent.
Doctor Robert Telste testified that on September 10 he was
seeing patients on station 6 and nurse Iverson was his nurse;
that at approximately 11:40 a.m. on September 10 he was in an
examination room with a patient for a dressing change and
there were two more patients to be seen; that it is common as
the morning goes on to fall behind the scheduled times for see-
ing patients and it is common for a nurse to interrupt him while
he is seeing a patient if it involves an important matter; that on
September 10 nurse Iverson did not speak to him about being
able to leave work and he did not tell her that she could leave
work; that he was with the patient with the dressing change
when nurse Iverson walked off the job on September 10; that he
discovered that nurse Iverson was gone when he walked out of
the examination room looking for some materials for doing the
dressing change; that nurse Iverson would normally assist him
in getting these materials; that the other patient in an examina-
tion room had an eye infection; that he roomed the last patient,
who had an ear infection; that he would not have told nurse
Iverson that she was free to leave work at about 11:40 a.m. on
September 10; and that nurse Iverson did not give him a status
report about patient care activity when she walked out on Sep-
tember 10. On cross-examination, Doctor Telste testified that

30 Documents turned over to the Respondent by the Union pursuant
to a subpoena, namely a document titled “PRESS RELEASE” and a
union newsletter, were received as R. Exhs. 27 and 28, respectively.
Both refer to the involved strike and the Union’s position regarding the
involved notice requirement.
ALEXANDRIA CLINIC, P.A. 1287
from 8:15 to 11:45 a.m. he saw patients every 15 minutes, ex-
cept for 8:30 to 8:45 a.m. and 10 to 10:15 a.m.. In response to
questions of the Charging Party, Doctor Telste testified that
“[t]here was no harm done” to the patient who needed a dress-
ing and the other two patients who were waiting to see him
when nurse Iverson went out on strike; that he finished at 12:20
p.m., had lunch and then started up again; that he did not call
anyone to get someone to help; that he was aware that after the
strike began there were nurses in the building and that there
were replacement nurses in the building; that he got his re-
placement nurse at 1 p.m.; that the dressing change patient was
scheduled for 11 a.m., the eye infection patient for 11:30 a.m.,
and the ear infection patient for 11:45 a.m.; that he did not re-
call whether nurse Iverson asked him if he needed her to
change the dressing on the patient he was with at 11:40 a.m.;
that usually he looks at the wound and changes the dressing and
if he needs something he will come out and get it; that he did
not recall nurse Iverson asking if he needed her to change the
dressing and him responding by saying, “[n]o, go ahead”; and
that he would have wanted to do the dressing or at least look at
it before it is changed. On redirect Doctor Telste testified that
nurse Iverson’s work was not finished at the time he walked in
to attend to the patient with the dressing. Subsequently, Doctor
Telste testified that after he finished with the last morning pa-
tient he left the station to get lunch and when he returned to the
station he did some dictation; that he did not specifically re-
member seeing Crowe and Otte coming through the station
trying to determine who had gone out on strike; that when he
went to get a basin for the patient for whom he was changing
the dressing, he saw a nurse but he did not ask her for assis-
tance; and that the nurse he saw while getting the basin was
assigned to another doctor.
Doctor Dittberner testified that she had received a notice
from the clinic, Respondent’s Exhibit 7, which indicated that
the Union had sent notice that it was going to strike on Septem-
ber 10; that she thought her medical assistant, Faris, was going
to work during the strike because Medical Assistant Faris had
resigned from the Union on September 1, and Medical Assis-
tant Faris had submitted a carbon copy of the resignation to the
clinic, Respondent’s Exhibit 29; that her practice on station 7 is
busier later in the morning after 11:30 then 8 to 8:30 a.m.; that
she typically begins seeing patients at 8:30 a.m. and her first
scheduled patient on September 10 was at 8:30 a.m.; that she
normally finished seeing patients between 12 noon and 12:30
p.m., and it is her practice to schedule her last morning patient
at 11:45 a.m.; that at approximately 11:50 a.m. on September
10 she had three patients in examination rooms and she was
coming out from a physical exam on one of the three; that as
she left the examination room she met with Medical Assistant
Faris and nurse Tvrdik, who was standing in the hallway; that
Medical Assistant Faris handed her a letter and indicated that
the letter, Respondent’s Exhibit 30, would explain why she was
going out on strike;31 that she did not give Medical Assistant

31 The letter reads as follows:
September 10, 1999
Dr. Dittberner,
I had to let you know how I feel, so here it is . . . .
Faris any indication that she would no longer be needed that
morning or that she was free to leave that morning; that she
then went to administration and told them that her nurse left
and she still had two patients to see; that Respondent’s Exhibit
17 is the job description for a medical assistant; that she had a
practice of always making sure with her nurse that all loose end
were taken care of at the end of the morning; that Medical As-
sistant Faris did not advise her of the status of patients or pa-
tient care issues before she went out on strike; that this was a
problem for her because she had no idea what phone calls had
come in, and what things had been triaged where; that one of
the medical assistant’s duties was keeping the exam rooms
stocked with supplies; that her 4 p.m. patient was scheduled for
a procedure including a pap smear; that at this point in the day
she had a replacement nurse; that with the 4 p.m. patient she
took the pap smear and then she reached for a pap smear jar to
discover that there was none in that examination room; that she
discovered that there were no jars in two of her three examina-
tion rooms; that she found a jar and she put the sample in the
jar; that the jar contains alcohol which protects the specimen;
that subsequently she was advised that the sample was not a

I have been made promises by the administration that they
have no intention of keeping. I have been looked in the eye and
lied to, that is not acceptable to me. I have now experienced for
myself what my co-workers have de[a]lt with for years, broken
promises and words just to keep stringing you along. I want to
make sure you know some facts. I have 16 years clinical experi-
ence with outstanding recommendations. I take pride in my
medical career and the recognition it has given me. I am ashamed
to be a part of the Alex. Clinic, as my standards and reputation are
being compromised, and I will not allow that. Do you realize that
I make $8.45 per hour, do the math, x 36 hours per week, now
take out medical insurance @$396.00 per month, take taxes out,
and see what I have to try to survive on, buy groceries, etc. This
is the lowest wage and the worst benefits I have encountered over
my entire career. I have never heard of such a high insurance
premium, I question what we are really paying? Do you realize
that most of the nurses working at the clinic qualify for Minnesota
Care, and do you realize that this wage puts most of us at poverty
level or below according to the State on Minnesota guidelines.
Doesn’t it send a red flag up for you by the extreme amount of
people that have left the clinic, including doctors, nurses, and
support staff, don’t you question that? Do you know that cleaning
people can start at @$8.50 per hour, what is going on here, we are
in the health care business, why doesn’t anyone care? The clinic
and all it’s decision makers should be embarrassed and ashamed. I
am appalled, and find it difficult to believe that you aren’t. The
paper stated last night that the clinic is offering a 4-11% raise for
all nurses, then why are we all only getting 4%, with pennies
added on for experience, I get .9%, yes that is point nine percent!
Either the statement was not true, or the clinic needs to reevaluate
where they have set everyone’s pay.
I am truly sorry that this had to be pushed to this extreme, we
work very well together, and can accomplish a lot together along
with excellent patient care, I respect you, and I like you, I pray
this can be settled promptly as I want and need to get back to
work, and I do hope that [it] is with you, you will never find a
more loyal, hard working, well seasoned assistant, I just need to
be appropriately compensated for that.
Sincerely,
Marcy
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1288
viable specimen and the patient had to come back for another
pap smear; that normally there are three to five jars in each
examination room and she knows this “[b]ecause I open the
drawers [where the jars are kept] a lot”; that on September 10
she also conducted a pap smear on the 8:30 a.m. patient, on the
9:45 a.m. patient, and on the 3 p.m. patient; that on September
10 between 1:15 and 1:45 p.m. she saw Kluver sitting at her
nurse’s desk using the telephone and she asked Kluver what she
was doing; that Kluver said, “[i]t appears the passwords have
been changed”; that patients have called in emergency situa-
tions; that Mondays and Fridays are her busiest days; that in her
opinion “the health and safety of . . . [her] patients was jeopard-
ized by . . . [her] nurse striking without notice at approximately
11:50 a.m.” on September 10; that in her opinion the risk would
have been reduced if the strike had occurred at 8 a.m. as sched-
uled; and that Medical Assistant Faris had never indicated to
her that there were any problems getting into her voice mail
prior to September 10. On cross-examination, Doctor Ditt-
berner testified that at 11:50 a.m. on September 10 she had
completed her work with the patient to whom she gave a physi-
cal and she had not given Medical Assistant Faris any instruc-
tions to do anything further for this patient; that with respect to
the two remaining morning patients Medical Assistant Faris
had put them in examination rooms, took their vitals, and did a
brief history; that she did not give Medical Assistant Faris any
other instructions to do anything else with these two patients;
that she had not seen these patients yet when Medical Assistant
Faris went out on strike; that no emergencies occurred with
either of the two remaining patients; that she did not know for a
fact that the voice mail code was changed; that she never saw
Medical Assistant Faris change her voice mail code and she did
not know whether it was even changed; that keeping rooms
supplied is an ongoing process throughout the day and if the
nurse realized that some time during the middle of the day that
she needed another pap smear jar it would be an ongoing proc-
ess to keep the room supplied; that Medical Assistant Faris puts
all of her calls and messages in an orange folder that goes di-
rectly to her, Doctor Dittberner, in the middle of the day and at
the end of the day; that at the time Medical Assistant Faris left
she, Doctor Dittberner, did not check that orange folder to see if
she had any calls or messages; that she did not have any pa-
tients complain that there September 10 phone calls were not
returned “but the potential is there”; that she did not meet with
her replacement nurse the night before because she did not
expect to have a replacement nurse; that she got her replace-
ment nurse at 12:45 to 12:50 p.m.; that she was aware that the
replacement nurses were in the physician’s lounge; that she did
not get a replacement nurse for the last two morning patients;
that she never had Medical Assistant Faris in the examination
room with her; that she had no problems in administering care
to the two remaining morning patients after Medical Assistant
Faris left; that the lab supplies pap smear jars but she did not
know if there are not always enough pap smear jars at the lab;
that she was not aware that nurses had trouble keeping pap
smear jars in stock; that she was not aware that Medical Assis-
tant Faris would go down to the lab many times during the day
to see if they had jars available for her to place in the rooms;
that “if I would have had somebody orientated to my station I
would have had one [pap smear jar] out and available or I
wouldn’t have started the physical. I was assuming that the
rooms were stocked or that she [Medical Assistant Faris] would
have left a note that the rooms were not stocked”; that she did
not have her replacement nurse check the examination rooms
by 4 p.m.; that she did not tell her replacement nurse that one of
her jobs was to keep the rooms stocked; that she did not tell her
replacement nurse where to find pap smear jars; that she did not
tell her replacement nurse to check the rooms to see if all of the
pap smear jars had been used up; that she did not know whether
there were more pap smear jars available from the lab;32 that
she was in the clinic over the noon hour she did not know if the
phone was ringing, and she did not hear the phone ringing; that
even though she was there, she did not know whether the last
two morning patients were placed in jeopardy by Medical As-
sistant Faris leaving; that there were three registered nurses in
the clinic and she could have received their assistance in a short
amount of time; that there was one other nurse at station 7 after
Medical Assistant Faris went on strike but she was working
with her doctor; that she was not aware that medical assistant
Faris’ busiest time was her preparation time from 8 to 8:30
a.m.; that she did not know what her nurse did between 8 and
8:30 a.m. on September 10; and that she had “not yet heard”
that any patient had complained that on September 10 they did
not have their prescription called in. On redirect Doctor
Dittberner testified that to her knowledge she had never before
had a pap smear specimen returned dry. On recross Doctor
Dittberner testified that she “looked at it [the involved speci-
men] before I put it in the jar hoping that it was not totally dry
and stuck it in the jar” (emphasis added); and that she could
have taken another specimen at that time “but it appeared like it
was going to be okay and I didn’t want to put the patient
through it again.” Subsequently Doctor Dittberner testified that
to the best of her knowledge Medical Assistant Faris’ Septem-
ber 10 letter, which is set forth above, does not contain any
factual misstatements; that on September 8, Medical Assistant
Faris handed her “a letter that showed her wage increase and
she stated to me that she had been promised a larger wage in-
crease and that she could not work for this”; that she talked
with Crowe and arranged for Medical Assistant Faris to talk
with her; that Medical Assistant Faris told her that she had been
promised a raise to $10.95 per hour and was upset; and that she
did not know if Medical Assistant Faris was upset enough to

32 Doctor Dittberner then gave the following testimony:
JUDGE WEST: For the record you did three pap smears that
day [before the involved one]. Were the jars in each and every of
those three instances out or did you have to go into the drawer and
get the jar yourself?
THE WITNESS: The—the ones [Pap smears]—the one [actu-
ally, according to her earlier testimony there were two pap smears
in the morning] I had done in the morning the jar was out. The
one I did at 3 o’clock the Pap smear bottle was in the drawer.”
JUDGE WEST: So you looked in the drawer?
THE WITNESS: Yes.
JUDGE WEST: How many other bottles were in the drawer at
the time?
THE WITNESS: I don’t remember. I grabbed that one and fin-
ished with the Pap smear.
ALEXANDRIA CLINIC, P.A. 1289
leave her job. On further cross-examination Doctor Dittberner
testified that Medical Assistant Faris spoke with her after
Medical Assistant Faris spoke with Crowe and Medical Assis-
tant Faris told her that Crowe said that she would not get the
$10.95 raise that Medical Assistant Faris said she was prom-
ised; that this occurred just days before the strike; and that it
was her understanding that Crowe told Medical Assistant Faris
that the raise in the circumstances would be viewed as trying to
win her favor.
On rebuttal Medical Assistant Faris testified that she nor-
mally arrived at the clinic at about 7:45 a.m.; that her morning
preparation is her busiest time of the day; that she kept rooms
stocked every morning but the pap smear containers were a
concern, they are hard to come by, she had to constantly go
searching for them, the lab was unable to keep them in stock,
and she would fill those throughout the day as pap smears were
occurring because they generally were not there in the morning
to retrieve; that when she was told that the strike was starting
on September 10 she was coming out of an examination room
after taking vitals, an explanation of why the patient was there,
and the patient’s medications and any allergies; that she told
Doctor Dittberner that she was leaving and she handed Doctor
Dittberner a letter; that after she rooms a patient rarely does she
have other duties to attend to for the patient; that her duties
were 100 percent fulfilled when she went out on strike; that she
had prepared her charts for the entire day; that messages were
returned as current as possible; that Doctor Dittberner did all of
her own lab and X-ray requests; that she had completed all of
her duties that she knew of for that morning; that the orange
folder with calls, messages and prescription requests was cur-
rent when she went out on strike; that Doctor Dittberner had
asked her why she was upset and she showed Doctor Dittberner
Crowe’s letter and told Doctor Dittberner Crowe had promised
her a pay increase of $10.95; that with Doctor Dittberner’s
intervention she spoke to Crowe who told her that she would
not give her the pay raise because it would look like she was
playing favorites and paying her not to strike; and that at the
clinic where she worked immediately preceding the Respondent
she received $13 per hour. On cross-examination, Medical
Assistant Faris testified that she did not change the access code
to her voice mail, and she would not even know how to do it;
that whatever Pap smear jars were available when she stocked
on the morning of September 10 were in the drawers; and that
she received the $13 per hour at a facility in Minneapolis, Min-
nesota.
The parties stipulated that employees Covel and Kluver are
not supervisory employees as that term is defined in Section
2(11) of the Act.
Respondent’s Exhibit 9 was received pursuant to a stipula-
tion. It is a letter dated September 13 from the Respondent’s
counsel, James Dawson, to Kleckner and reads as follows:

On August 31, 1999, the Alexandria Clinic (Clinic) re-
ceived notice of the Union’s intent to strike the Clinic at
8:00 a.m. on September 10, 1999. A copy of that notice is
attached. As you know, the Union did not strike at 8:00
a.m. Instead, employees reported to work and then walked
off their jobs at Noon on September 10.
Please immediately advise me as to why the Union
chose to delay the commencement of the strike and why
the Union did not give the Clinic advance notice of this
change in plan.
I expect a response to this letter by Noon on Tuesday,
September 14, 1999.

Hunt testified that on September 13 a decision was made af-
ter the September 13 letter was sent to the Union to terminate
the striking nurses for participating in an illegal strike but the
decision was dependent on whether the Union provided some
extraordinary excuse as to why the strike occurred at noon in-
stead of 8 a.m.; that during the week following the strike he
became aware that there was a problem with rooms not being
restocked properly the morning of September 10; and that he
would terminate a nurse for changing the voice mail code or for
removing the manuals placed at the stations for the temporary
nurses or for engaging in a concerted effort to withhold restock-
ing patient rooms to disrupt the operation of the clinic. On
cross-examination, Hunt testified that he believed that he be-
came aware of the manuals disappearance sometime on Mon-
day September 13; that he did not know whether the red manu-
als which were missing from stations 5, 6, and 7 were missing
even before the nurses went out on strike; that with the average
length of experience of the nurses in the unit they would not
have occasion to use the red manuals and he did not know if the
red manuals had been missing for months or years before the
strike; and that he had knowledge of the voice mail codes being
changed and the missing manuals before the Respondent sent
out the discharge letters. Doctor Hansberry testified that on
September 13 he heard about problems with the nurses’ voice
mail system and orientation materials; that the orientation mate-
rials would have assisted the temporary nurses in providing
patient care on September 10; and that the termination letters
were not sent out on September 13 because the Respondent
wanted to give the Union an opportunity to indicate whether
there were extenuating circumstances as to why the Union did
not strike at 8 a.m. on September 10.
Kluver testified that on September 13 Crowe telephoned her
and asked her to change the message on extension 1203, which
is nurse Jeppesen’s extension; that nurse Jeppesen’s physician
was Doctor Bergstrand; that she did not go to that phone but
rather “I accessed it from my own, because the codes were still
0000, and I listened to it and I then went upstairs to Caroll [Pol-
lard, who is the administrative secretary] and she listened to it
and she said Tim [Hunt, who as indicated above is the adminis-
trator] should listen to this”; that the message, a tape recording
of which was received herein as Respondent’s Exhibit 21, was
“gibberish,” and it was nurse Jeppesen’s voice; that Pollard put
the message in the speaker phone and they tape recorded it; that
the prompts on the tape recording were part of the message that
was on extension 1203 on September 13; that the prompts
which can be heard on the tape recording are on the voice mail
messaging which are the prompts used to change the nurse’s
voice mail each morning; that at the beginning of the message
there is a reference to Doctor Bergstrand; and that she has
known Jeppesen for 11-1/2 years. On cross-examination,
Kluver testified that the voice mail system is controlled by a
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1290
computer at the clinic; that it is not possible that a malfunction
in the computer system caused the message to get so garbled
because if something went wrong with the system, it would
have been wrong with all the messages, not just one; that the
“gibberish” message was discovered “[s]ometime in the morn-
ing, towards noon maybe”; that for Jeppesen to have recorded
this “gibberish” message to the patients who call her voice mail
number, she would have to done it prior to noon on September
10; and that she was not aware that nurse Sherman’s phone or
any other phone had problems in the past. On redirect, Kluver
testified that at the request of Crowe she checked the messages
of each individual nurse, some were fine, some still gave the
date of September 8, and some had been deleted completely;
and that she did not notice any problems which would suggest
that there was a mechanical malfunction.
On rebuttal nurse Jeppesen testified that she worked for the
Respondent for 11 years and she worked for Doctor Bergstrand;
that on September 14 some patients, on their way out of the
clinic, told her that they heard her voice mail message prior to
them going into the clinic and it was a weird message; that the
message was all garbled; and that she never changed her outgo-
ing message on her voice mail. On cross-examination, after
listening to Respondent’s Exhibit 21, nurse Jeppesen testified
that it was not her voice; and that she did not know how that
message got on her voice mail machine. Subsequently, Jeppe-
sen testified that she knows Kluver, conversed with her on a
frequent basis 4 or 5 years ago, did a lot together, but over the
years it just kind of diminished to saying “hi” and “stuff” in the
hallway; that when she testified that the voice on the recording,
Respondent’s Exhibit 21, was not hers she meant that the voice
sounds like hers but it is nothing that she did.
Respondent’s Exhibit 10 was received pursuant to a stipula-
tion. It is a letter dated September 14 from the executive direc-
tor of the Union, Netjes, to Dawson and it reads as follows:

As Mr. Kleckner is on vacation, I am responding to
your letter received September 13, 1999 regarding the Al-
exandria Clinic strike.
The Alexandria Clinic nurses acted under the advice of
our legal counsel. Under statute, we gave the proper notice
to strike and went out on strike within the allowable time.
If you have any further questions, you may contact our
attorney, Gregg Corwin at . . . .

Hunt testified that after receiving the Union’s letter, the Re-
spondent mailed termination letters on the afternoon of Sep-
tember 14; and that on September 14 the Alexandria Clinic,
P.A. filed a charge with the Board against the Union alleging
that it engaged in an unlawful strike in violation of Section 8(g)
of the Act since the Union did not provide the required advance
notice of its intent to strike, Respondent’s Exhibit 11.
Doctor Hansberry testified that after receiving the letter from
the Union it was decided that there were no extenuating cir-
cumstances as to why the Union could not have went out on
strike at 8 a.m. and the termination letters were sent out.
The 22 involved bargaining unit members were informed of
their discharge with the following letter from the Respondent,
General Counsel’s Exhibit 2(a)–(v) which are dated September
13,:33

Beginning on September 10, 1999, and continuing to
date, the Minnesota Licensed Practical Nurses Association
(Union) has picketed the Alexandria Clinic, P.A. in viola-
tion of the notice provisions of Section 8(g) of the Na-
tional Labor Relations Act. Accordingly, this picketing is
unlawful.
The Clinic views your participation in this unlawful
picketing as a serious violation of the law and unnecessar-
ily disrupted the Clinic’s ability to care for its patients.
Accordingly, your employment with the Alexandria
Clinic, P.A. is terminated effective September 13, 1999.
Your final paycheck, which will include any earned but
unused vacation [,] will be sent to you in the near future.
You will receive a separate letter covering issues relating
to the continuation of medical and life insurance.

Nurses Radil and Tvrdik testified that other than this letter the
Respondent never provided them with any other reason for their
discharges.
Analysis
In my opinion the Respondent violated the Act as alleged in
the above-described complaint.
In Walker Methodist Residence, 227 NLRB 1630, 1630–
1632 (1977), the Board concluded as follows:

The initial issue presented is whether Section 8(g),
added to the Act by the 1974 Health Care Amendments,1
applies to a work stoppage in which no labor organization
is involved. We agree with the Administrative Law Judge
that it does not.
In enacting the 1974 Health Care Amendments, Con-
gress was faced with two conflicting interests. On the one
hand, it was noted that it is unjust to deny to the employ-
ees of nonprofit hospitals the rights granted to employees
in other industries to organize and bargain collectively.
On the other hand, special protection seemed necessary
when dealing with health care institutions in order to as-
sure the continuity of patient care. As a result of a balanc-
ing of these concerns, the Act was amended by extending
coverage to employees of nonprofit hospitals and adding a
new Section 8(g) requiring a labor organization to give 10
days written notice before striking or picketing at a health
care institution.2 Additionally, Section 8(d) was modified
to extend the loss of status sanction to employees who en-
gage in a strike proscribed by Section 8(g).3
Section 8(g) appears on its face to apply only to strik-
ing or picketing by a labor organization. The Respondent,
however, points to the legislative history to support its as-
sertion that the 8(g) notice requirement applies to all
strikes at a health care institution. Although there is lan-
guage in the floor debates to support the Respondent’s po-
sition,4 a reading of the legislative history as a whole leads
to the opposite result. Congress was concerned that sud-

33 The letter to Nurse Ludwig was dated September 14. GC Exh.
2(m).
ALEXANDRIA CLINIC, P.A. 1291
den, massive strikes could endanger the lives and health of
patients in health care institutions. In voicing this concern
and in considering the solution being proposed by Section
8(g), the legislators again and again spoke of placing a
duty on labor organizations to give notice before striking.
A brief work stoppage by a few unorganized employees
simply was not the type of disruption with which Congress
was concerned.
In construing Section 8(g), the Board has examined the
legislative history and found that the section should prop-
erly be interpreted according to its clear language. [Foot-
note omitted.] For example, in a decision holding that a
labor organization violated Section 8(g) by picketing a
subcontractor at a reserved gate of a building project in-
volving a hospital, the Board quoted the remarks of Sena-
tor Harrison Williams, chairman of the Committee on La-
bor and Public Welfare, that:

This legislation is the product of compromise, and the Na-
tional Labor Relations Board in administering the act
should understand specifically that this committee under-
stood the issues confronting it, and went as far as it de-
cided to go and no further and the Labor Board should use
extreme caution not to read into this act by implication—
or general logical reasoning— something that is not con-
tained in the bill, its report and the explanation thereof.
[Citation omitted.] [Footnote omitted.]
____________________
1 Public Law 93-360, 93 Cong., 2d Sess., S.3203.
2 Section 8(g) reads in pertinent part: ‘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 Fed-
eral Mediation and Conciliation Service [FMCS] of that intention
. . . .’ [Section 8(g) also specifies ‘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.’]
3 Sec. 8(d) provides: ‘Any employee who engages in a strike
within any notice period specified in this subsection, or who en-
gages in any strike within the appropriate period specified in sub-
section (g) of this section, shall lose his status as an employee of
the employer engaged in the particular labor dispute, for the pur-
poses of sections 8, 9, and 10 of this Act, as amended, but such
loss of status for such employee shall terminate if and when he is
reemployed by such employer . . . .’
4 See the statement of Senator Taft during the floor debates at
p.115 of the Legislative History of the Coverage of Nonprofit
Hospitals Under the National Labor Relations Act, 1974.

. . . .
Moreover, an examination of policy considera-
tions reinforces a literal interpretation of Section 8(g)
in this situation. The legislative history stresses that
the purpose of the notice provision is to allow a health
care institution to make arrangements for the continu-
ity of patient care in the event of a strike or picketing
by a labor organization. Placing the duty of advance
warning on labor organizations is warranted because a
strike involving a labor organization is likely to last
longer and involve a greater number of employees than
a work stoppage by unorganized employees. Further, a
strike by a labor organization is of a greater concern
because the presence of a picket line has the potential
for interfering with respect . . . [to] supplies and mak-
ing both replacements and nonstriking employees unwill-
ing to work. Thus the legislative history, policy considera-
tions, and Board precedents all point toward an interpretation
of Section 8(g) as applicable only to strikes or picketing in-
volving a labor organization.

The second issue presented is whether the loss of status sanc-
tion of Section 8(d) applies in the absence of an 8(g) violation.
We hold that it does not . . . . In an earlier case involving the loss
of status clause of Section 8(d), the Supreme Court held that the
clause must be read in the context of the entire Act.8 . . . .
. . . the final question presented is whether the work stoppage
was protected concerted activity. We answer in the affirmative.
In enacting Section 8(g), Congress did not make a legislative find-
ing of fact that all work stoppages against health care institutions
are so harmful that they must be forbidden. Rather, it found that
strikes or picketing by labor organizations against health care in-
stitutions are so potentially disruptive as to require that advance
notice be given. Nothing in the 1974 Health Care Amendments
restricts concerted activity by nonorganized employees, and the
legislative history does not indicate an intent to alter the scope of
protection granted them under Section 7. In fact, the purpose of
the 1974 amendments was to extend the protection of the Act to
employees of nonprofit health care institutions who were ex-
cluded from coverage by the 1947 Taft-Hartley Amendment.10
The amendments should therefore not be read to reduce the preex-
isting rights of health care employees unless explicit language
mandates that result.
. . . .
In cases decided to date, the Board has not held work stop-
pages against health care institutions to be outside the protection
of Section 7. Rather, it has determined that it will apply the same
standards of conduct to health care institutions as to other enter-
prises. [Footnote omitted.]

____________________________
8 Mastro Plastics Corp. v. NLRB, 350 U.S. 270 (1956).
. . . .
10 See the remarks of Senator Williams in the forward to the
Legislative History of the Coverage of Nonprofit Hospitals Under
the National Labor Relations Act, 1974.

The Board, in Bethany Medical Center, 328 NLRB 1094
(1999) concluded as follows:

Although they gave notice of their walkout only 15 minutes
prior to the first catheterization procedure scheduled for the
day, the judge correctly found that the special strike notice re-
quirements of Section 8(g) of the Act apply only to labor or-
ganizations, not to groups of employees. Walker Methodist
Residence, 227 NLRB 1630 (1977). The courts, as well as
the Board, have read the clear unambiguous language of Sec-
tion 8(g) to mean what it says: the notice requirements are ap-
plicable only if the strike is by a labor organization. [Citations
omitted.] Since no labor organization was involved in the
walkout, [Footnote omitted] we find, in agreement with the
judge, that the catherization laboratory employees were not
legally required to do anything more than they did to preserve
their rights pursuant to Section 7 of the Act when they walked
off the job on March 9.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1292

. . . . The Act protects the right of employees to engage in
concerted activities, including the right to strike without prior
notice. NLRB v. Erie Resistor Corp., 373 U.S. 221 (1963);
Montefiore Hospital [& Medical Center v. NLRB, 621 F.2d
510 (2d Cir. 1980)] . . . . Both the Board and the courts, how-
ever, recognize that the right to strike is not absolute, and Sec-
tion 7 has been interpreted not to protect concerted activity
that is unlawful, violent, in breach of contract, or otherwise
indefensible.

. . . . In cases involving health care employees, although the
Board has recognized that risk of harm to patients caused by
employees’ concerted activity is a factor in deciding whether
the activity was protected, it has applied the same standards of
conduct to employees of health care institutions as it does to
employees of other enterprises. Phase, Inc., 263 NLRB 1168,
1169 (1982). Accordingly, the test of whether the catheteriza-
tion laboratory employees’ work stoppage lost the protection
of the Act is not whether their action resulted in actual injury
but whether they failed to prevent such imminent damage as
foreseeable would result from their sudden cessation of work.

. . . . Delays of routine procedures were common occurrences
and had resulted in a set policy for ‘bumping.’ . . . .

. . . . They are able to direct patients to several of the nearby
acute care hospitals with similar cardiac catheterization facili-
ties. These facts support a conclusion that the catheterization
laboratory employees did not foreseeable create such a risk of
harm to patients so as to lose the statutory protection of their
walkout.
We further find that the catheterization laboratory em-
ployees’ failure to provide the Respondent with more than
15 minutes notice of their work stoppage did not render
the walkout indefensible. As noted above, both routine and
emergency procedures were often rescheduled or delayed
without endangering patients’ lives, and in fact the Re-
spondent successfully rescheduled or transferred to other
nearby hospitals all of the scheduled procedures and the
one unscheduled emergency procedure that arose during
the walkout.
. . . .
Under these circumstances, we find that the catheteri-
zation laboratory employees’ work stoppage and refusal to
terminate their work stoppage to perform an emergency
catheterization procedure did not foreseeable create such a
risk of harm to patients as to justify depriving these em-
ployees of the Act’s protection. [Footnote omitted.]

The Board’s decisions in Walker Methodist Residence, supra,
and Bethany Medical Center, supra, are quoted extensively
herein to show how the Board approaches strikes by employees
at health care institutions where no labor organization is in-
volved in the walkout.
In this case if there was no union involved, the 22 nurses
could not have been lawfully discharged for any alleged failure
to give the Respondent the 8(g) notice, which is only required
when a union is involved in the strike.
As noted above in Walker Methodist Residence, supra, the
Board indicated “[i]n an earlier case involving the loss of status
clause of Section 8(d), the Supreme Court held that the clause
must be read in the context of the entire Act.” Section 7 of the
Act reads as follows:

RIGHTS OF EMPLOYEES
Sec. 7 Employees shall have the right to self-
organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or
protection, and shall also have the right to refrain from any
or all such activities . . . .

With respect to whether impact on patient care should be
considered herein, should the work stoppage or strike of the 22
nurses involved herein be analyzed in this regard differently
than the situation of the health care employees in Bethany
Medical Center solely because the employees in the instant
case are represented by a union (and the above-described possi-
ble consequences of being represented by a union) in the strike
involved herein and no union was involved in the walkout in
Bethany Medical Center? In effect, are the employees in the
instant case being treated differently, at least to some extent,
because they engaged in union activity (striking while being
represented by a union) vis-a-vis engaging in concerted pro-
tected activity (striking while not being represented by a un-
ion)?
The Board in Greater New Orleans Artificial Kidney Center,
240 NLRB 432, 433–436 (1979), concluded as follows:

It cannot be disputed that the Union did not comply
with the literal terms of Section 8(g) of the Act in that Re-
spondent did not receive written notice of the Union’s in-
tent to strike Respondent’s facility until September 2, a
month after the commencement of the strike. Contrary to
the Administrative Law Judge, however, we conclude that
the Union, in fact, took reasonable steps to insure compli-
ance with the 8(g) requirements . . . . Thus we find that it
would be inequitable to hold the Union responsible for the
untimely service of the notice when no reason for the de-
lay can be attributed to it. This is particularly true since
the Union struck without knowledge that Respondent had
not received its initial written 10-day notice and since Re-
spondent made no mention of its not having received such
notice at the July 29 negotiation meeting which it knew
was held because of the Union’s notice of intent to strike.
[Footnote omitted.]
In any event, it is clear from the record that Respon-
dent had 10 days’ actual notice of the Union’s intent to
strike on August 2, inasmuch as it was so informed by the
FMCS by telephone on July 23. [Footnote omitted.] Hav-
ing been informed of the Union’s intent to strike, Respon-
dent made contingency plans, i.e., contracted with a secu-
rity service to provide security during the strike, met with
both the employees and patients to advise them of its in-
tent to continue operations and to provide adequate secu-
rity during the strike, contracted for and received an early
shipment of dialysis concentrate, circulated a notice to pa-
tients indicating that the strike was to begin on August 2,
and had security guards in its premises on August 2. Thus,
ALEXANDRIA CLINIC, P.A. 1293
with these preparations having been completed when the
strike began on August 3, Respondent was able to con-
tinue patient care without interruption and without jeop-
ardy to the patients’ health. In passing the health care
amendments to the Act Congress was greatly concerned
with the need for “sufficient notice of any strike or picket-
ing to allow for appropriate arrangements to be made for
the continuance of patient care in the event of a work
stoppage.[”]8 Here it is clear that such congressional con-
cern was satisfied in that Respondent received 10 days’
notice, albeit oral rather than written, and was able to pro-
vide for the continuity of patient care deemed essential by
Congress.
Further we do not agree with the Administrative Law
Judge’s conclusion that the Union, in extending the date
for the commencement of the strike, evidenced a lack of
concern for Section 8(g) by failing to comply with the last
sentence of that section which reads, The notice, once
given, may be extended by the written agreement of both
parties. The Administrative Law Judge construed such
language as requiring a written agreement before an initial
strike date may be extended. We cannot agree with such a
restrictive interpretation of that portion of Section 8(g).
Thus, the cited language does not expressly provide that a
written agreement of the parties is the exclusive manner of
extending an initial strike date. Furthermore, such a re-
strictive interpretation is clearly contrary to the expressed
intent of Congress as revealed in the legislative history of
Section 8(g).9 In this regard, Congress, through the com-
mittee reports of its two bodies, specifically addressed the
manner of extending the time of the strike set forth in the
10-day notice as follows:
The 10-day notice is intended to give health care insti-
tutions sufficient advance notice of a strike or picketing to
permit them to make arrangements for the continuity of
patient care. It is not the intention of the Committee that a
labor organization shall be required to commence a strike
or picketing at the precise time specified in the notice; on
the other hand, it would be inconsistent with the Commit-
tee’s intent if a labor organization failed to act within a
reasonable time after the time specified in the notice.
Thus, it would be unreasonable, in the Committee’s judg-
ment, if a strike or picketing commenced more than 72
hours after the time specified in the notice. In addition,
since the purpose of the notice is to give a health care in-
stitution advance notice of the actual commencement of a
strike or picketing, if a labor organization does not strike
at the time specified in the notice, at least 12 hours notice
should be given of the actual time for commencement of
the action.10 [Emphasis supplied.]

And the joint remarks of Congressmen Ashbrook and
Thompson with respect to the House committee report further
reveals the intent of Congress concerning the manner in
which the initial strike may he extended:
[T]he Committee Report states that at least 12 hours
notice must be given if an 8(g) notice has been filed and
the strike has not occurred immediately after the 10 days.
However, the Committee was aware of the practical appli-
cation of this new legislation, and realized the need for ap-
plication of the rule of reason.
Thus, e.g., where the notice was mailed in a timely
fashion, and the union was not responsible for the delay,
or where under such circumstances, the employer has
been provided with more than twelve hours actual notice,
then the failure to strictly comply with the twelve hour no-
tice seems excuseable [sic].11 [Emphasis added.]
It is thus clear that Congress, as revealed through its
committee reports and the remarks of two of the leading
proponents of the health care amendments, not only con-
templated, but specifically approved, a labor organiza-
tion’s extension of the time set forth in the initial 10-day
notice for the commencement of a strike by unilateral noti-
fication to the employer, at least in the circumstances in
which the postponement of the strike is between 12 and 72
hours of the time set forth in the initial notice and where
there is at least 12 hours advance notice given to the em-
ployer of the postponement. The record establishes that in
this case the Union sent Respondent a telegram which was
received sometime during the afternoon of August 2 and
which informed the latter that the strike would commence
at 7 a.m. on August 3. The Union here extended the time
set forth in its initial 10-day notice for the commencement
of its strike within the 12- to 72-hour period, and, in fact,
gave Respondent at least 12 hours’ advance notice before
the strike actually began. Accordingly, we find that the
manner in which the Union postponed the commencement
of its strike was in accord weigh Section 8(g).
Finally, in concluding that the conduct of the Union
here, both with respect to the initial 10-day notice and to
the postponement of the commencement of the strike, was
not in derogation of Section 8(g), we are mindful of the
congressional admonishment to the Board to apply “the
rule of reason,” as cited above in the remarks of Con-
gressmen Ashbrook and Thompson. While made in the
context of a union’s notice of postponement of the initial
time set for a strike, in our view the following remarks of
these two proponents of the amendments apply to the
provisions of Section 8(g) generally:
The Board, in considering extenuating circum-
stances, is expected to act in a reasonable manner
consistent with the Committee’s intent as stated in its
Report. Furthermore, the status of strikers as “employ-
ees” would also be determined by the decision of the
Board. Section 8(d) of the Act, which has been
amended by this bill, clearly states “employees” will
lose their status as such if they participate in a strike
outside of the notice periods. Should the labor organi-
zation be in violation of Section 8(g), the employees
would then, according to statute, lose their status as
“employees.” Consequently, the reasonableness of the
Board in applying the intent of the Committee to the
facts is of major importance.12 [Emphasis added.]

Therefore, the legislative history of the health care
amendments demonstrates not only Congress’ concern for
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1294
the continuity of patient care, but also its concern that Sec-
tion 8(g) not be rigidly applied in light of serious conse-
quences flowing from noncompliance with its provisions,
i.e., the strikers’ loss of employee status under the Act. We
believe that out decision herein satisfies both of these ex-
pressed concerns of Congress.
In reaching the result herein, however, we wish to make it
clear that we by no means are condoning a union’s disregard
for the provisions of Section 8(g). Thus, we stress that in the
instant case the Union made reasonable efforts to give the
Employer a 10-day written notice of its intent to strike, the
Employer had the actual 10-days’ notice of such intent, the
Employer had the opportunity to and did make arrangements
to insure continuity of patient care during the strike, and the
Union extended the time for the commencement of the strike
set forth in the 10-day notice within the 12- to 72-hour period
and gave the Employer at least 12 hours’ advance notice of
the extension. In these particular circumstances, we conclude
that the Union was in substantial compliance with Section
8(g) and that to apply Section 8(g) here in such a technical
fashion so as to deprive the strikers of their status as employ-
ees would constitute an unwarrantedly harsh result not in-
tended by Congress.
____________________
8 S. Rep. 93-766, 93d Cong., 2d Sess. 4 (hereafter cited as S.
Rep.); H. Rep. 93-1051, 93d Cong. 2d Sess. 3 (hereafter cited as
H. Rep.); see also Id. at 4; Legislative History of the Nonprofit
Hospitals under the National Labor Relations Act, 1974 at 92
(remarks of Senator Cranston); Id. at 97 (remarks of Senator Wil-
liams), (hereafter cited Leg. Hist.) Id. at 327 (remarks of Repre-
sentative Young); Id. 374 (remarks of Senator Taft).
9 We note that, as the Supreme stated in N.L.R.B. v. Fruit and
Vegetable Packers & Warehousemen, Local 760, et al. [Tree
Fruits Labor
Relations Committee, Inc.], 377 U.S. 58, 72 (1964), “[I]t is a
familiar rule that a thing may be within the letter of the statute and
yet not within the statute, because not within its spirit, nor within
the intention of its makers . . . .”
10 S. Rep. at 4; H Rep. at 5.
11 Leg. Hist., at 409–410.
12 Leg. Hist.[,] at 410.

As noted in the above-quoted portion of Greater New Or-
leans Artificial Kidney Center, supra, the Board did consider
impact on patients when the Board concluded “Respondent was
able to continue patient care without interruption and without
jeopardy to the patients’ health” and “Respondent . . . was able
to provide for the continuity of patient care deemed essential by
Congress.” And as noted above, regarding the 12-hour notice,
the Board indicated as follows:

It is thus clear that Congress, as revealed through its
committee reports and the remarks of two of the leading
proponents of the health care amendments, not only con-
templated, but specifically approved, a labor organiza-
tion’s extension of the time set forth in the initial 10-day
notice for the commencement of a strike by unilateral noti-
fication to the employer, at least in the circumstances in
which the postponement of the strike is between 12 and 72
hours of the time set forth in the initial notice and where
there is at least 12 hours advance notice given to the em-
ployer of the postponement.34 [Emphasis added.]

After citing the Board’s language quoted in the next preced-
ing paragraph, namely “at least in the circumstances in which
the postponement of the strike is between 12 and 72 hours of
the time set forth in the initial notice and where there is at least
12 hours advance notice given to the employer of the post-
ponement,” the Charging Party, at pages 10 and 11 of its brief,
contends that “a 12-hour notice of actual commencement does
not apply to delays of a strike of less than 12 hours,” and “the
Union was . . . not required to give notice of the less than four-
hour delay in the commencement of the strike,” and “[g]iven
the current state of the law, the Union’s and the nurses’ under-
standing of Section 8(g) is not patently incorrect.” At page 17
of its brief the Charging Party contends that “the Union sub-
stantially complied with the notice requirements of 8(g) in that
the only deviation from the 10-day notice was a delay of less
than four hours in the strike time.”
The Respondent, on brief, argues that any reliance upon the
facts of Greater New Orleans, supra, to argue that the Union
should be excused from complying with the 12-hour rule is
seriously misplaced because that case is distinguishable in that
here the Union did not notify the Respondent that the strike
would be delayed to noon, the lack of notice of the delay was
entirely the Union’s fault, and the Union knew that the Respon-
dent did not receive notice of the delay.
At page 15 of its brief the Charging Party contends as fol-
lows:

The instant case is closer on the facts to Hospital & Services
Employees Union Local 399 (1976) Case No. 21–CG–4,
1976-77 CCH NLRB para. 20001 . . . . In Hospital & Ser-
vices Employee the NLRB division of advice concluded that
an unfair labor practice charge should be dismissed when the
actual picketing began around 10:45 a.m. in a case where the
notice had specified 7:00 a.m. as the time for picketing to
commence. 43 A.L.R. Fed 449, . . . [subsection] 10 (Supp.
1998). In that case, the NLRB based its decision on the fact
that the employer suffered no adverse effects because of the
delay in picketing. Likewise, the Employer in the instant case
did not suffer adverse effects because of the brief delay. The
Employer should not be allowed to take advantage of the brief

34 As noted above the Board reached this conclusion after indicating
as follows:
Further we do not agree with the Administrative Law Judge’s
conclusion that the Union, in extending the date for the com-
mencement of the strike, evidenced a lack of concern for Section
8(g) by failing to comply with the last sentence of that section
which reads, “The notice, once given, may be extended by the
written agreement of both parties.” The Administrative Law
Judge construed such language as requiring a written agreement
before an initial strike date may be extended. We cannot agree
with such a restrictive interpretation of that portion of Section
8(g). Thus, the cited language does not expressly provide that a
written agreement of the parties is the exclusive manner of ex-
tending an initial strike date. Furthermore, such a restrictive inter-
pretation is clearly contrary to the expressed intent of Congress as
revealed in the legislative history of Section 8(g). [Footnote omit-
ted.]
ALEXANDRIA CLINIC, P.A. 1295
and inconsequential delay in the commencement of the strike
to rid itself of the Union’s presence. [Emphasis added.]

The cited section in 43 ALR 449 reads as follows:

In the following cases the NLRB division of advice
recommended dismissal of unfair labor practice charges
brought under 29 USCS . . . [subsection] 158 (g), as it
found compliance with the statutory notice provisions by
the labor organizations so charged.
The NLRB division of advice concluded that an unfair
labor practice charge concerning a union’s violation of 29
USCS . . . [subsection] 158(g) should be dismissed as the
union apparently began the strike on time and did begin
picketing within a reasonable time from that specified in
the notice filed with the health care institution and the
FMCS, in Hospital Service Employees Union Local 399
(1976) Cas No. 21–CG–4, 1976–77 CCH NLRB . . . [para-
graph] 20001. The Union had written the employer of its
intent to engage in a strike, picketing, and other concerted
activities at or near the employer’s facility at 7 a.m. on a
given day. As at that time one employee scheduled to start
work at that time failed to appear, and actual picketing
commenced around 10:45 a.m., the division of advice
determined that the strike had begun on time and the pick-
eting was considered to have begun within a reasonable
period after the scheduled time. It was also noted that the
employer suffered no adverse effects because of the de-
layed picketing and the delay was apparently not attribut-
able to any intention to mislead the employer by lulling
him into a false sense of security, and the division recom-
mended dismissal of the charge.

The case, as described in CCH, reads as follows:

HOSPITAL AND SERVICE EMPLOYEES UNION LOCAL
399 (Broadway Convalescent Hospital).

Case No. 21–CG August 12 1976

From Harold J. Datz, Associate General Counsel, Division of
Advice.

Strikes-Notice of Strike-Delayed Picketing

A union did not act unlawfully when it did not begin
picketing until nearly four hours after the time scheduled
in its 10-day strike notice. In view of the fact that an em-
ployee’s failure to report to work coincided with the strike
commencement time, and he later joined the picketing the
strike began on schedule and the picketing began within a
reasonable time. After receiving notice of the strike, the
employer hired additional nurses and notified the families
of patients and its suppliers. However, at strike time one
employee scheduled for work did not report and there was
no picketing. Section 8(g).

From Text of Memorandum
The Union was certified on February 6, 1976 and
thereafter bargained with the Employer to impasse. On
June 18, the Union wrote the Employer of its intent to ‘en-
gage in a strike, picketing and/or other concerted activi-
ties’ at or near the Employer’s facility on June 30, at 7
a.m. As a result, the Employer hired eight additional
nurses and also notified its vendors and the relatives of pa-
tients of the pending strike and/or other activity.
On June 30 at 7 a.m. one employee scheduled to start
work at that time failed to appear. Actual picketing did not
commence until 10:45 a.m.1 The picketing has not dis-
rupted patient care or interrupted deliveries and all nonunit
employees apparently are crossing the picket line.

ACTION
It was concluded that the charge should be dismissed
since the Union apparently began the strike on time and
did begin picketing within a reasonable time from that
specified in the 8(g) notice.2
Since one employee who was scheduled for work did not
report and later joined the picketing, he was apparently
withholding his services as a striking employee.3 And
since his failure to report coincided with the strike com-
mencement time set forth in the 8(g) notice, the strike be-
gan on schedule. With respect to the picketing, Union be-
gan picketing only three hours and forty minutes late. In
view of the fact that the strike began on time, the picketing
was considered to be within a reasonable period after the
scheduled time. It was also noted that the Employer has
suffered no adverse affects because of the delayed picket-
ing and the delay was apparently not attributable to any in-
tention to mislead the Employer by lulling him into a false
sense of security. [Emphasis added.]

____________________
1 The employee who failed to report at 7 a.m. subsequently
joined the picket line.
2 See Lutheran Welfare Service of Illinois-Augustana Nurs-
ery, Case 13–CG–4, Advice Memorandum dated December 31,
1975; S. Rep. No. 93-766, 93d Cong., 2d Sess. 4 (1971); H. Rep.
No. 93-1051, 93d Cong., 2d Sess. 5 (1974)).
3 Cf., Bechtel Corp., 200 NLRB 503.

The Respondent, on brief, argues that certain of the nurses
who were in the clinic exhibited great neglect in the manner in
which they walked off the job in that they, collectively, did not
either tell their physicians they were leaving, or ask their physi-
cians if they were needed for anything, or discuss outstanding
patient care issues before leaving;35 that a minimum of three
voice mail access codes were changed, namely those of nurses
Iverson and Getz and Medical Assistant Faris; that information
packets were removed and the evidence supports an inference
that the striking nurses caused the disappearance of these and
the computer cheat sheets since the documents were not re-
moved from station 2 where the Union demonstrably enjoyed
the least support; and that Jeppesen’s unintelligible outgoing
voice mail message was not the product of some sort of mal-
function.
Counsel for General Counsel, on brief, contends that the de-
lay did not cause an adverse impact on patient care and the
continuity of patient care was protected; that the Respondent

35 Nurses Elbert, Iverson, Getz, Aga, Juntunen, and Bevill, and
Medical Assistant Faris.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1296
consistently confused disruption to patient care with mere in-
convenience to the physicians; that the Respondent was unable
to present any evidence that the care provided to any patient
was harmed; that the striking employees delayed the com-
mencement of the strike to lessen its disruption to the Respon-
dent’s operation; that, other than nurse Getz, there is no evi-
dence that the nurses changed their voice mail access codes;
that the Respondent failed to prove that nurse Jeppesen changed
her outgoing voice mail message; that the record does not sub-
stantiate the Respondent’s claim that the striking nurses re-
moved material from their nursing stations; that the record does
not show that Medical Assistant Faris failed to keep her exam
rooms stocked with supplies; that the Respondent’s allegation
that the nurses joined the strike while in the middle of perform-
ing patient care is not only false, but it also insults the character
and integrity of the nurses;36 that rather than proving the Re-
spondent’s misguided allegation that certain nurses walked out
during patient care, the evidence shows that they conscien-
tiously completed their work prior to joining the strike; that
although the Respondent asserts that nurses Elbert, Iverson,
Faris, and Getz joined the strike while in the middle of patient
care, the testimony the Respondent elicited is limited to the
conclusory statements from physicians which are not supported
by the facts, and the facts show that these three nurses had
completed their duties and were not engaged in patient care at
the time they joined the strike; that according to Doctor
Dittberner’s own testimony, Medical Assistant Faris had com-
pleted her duties for the morning; that nurse Iverson was not in
the midst of providing patient care at the time she joined the
strike and there is no evidence that she was even aware that
there was a patient in the waiting room; that rather then demon-
strating that nurse Elbert was engaged in patient care at the time
she joined the strike, the evidence shows that she was at her
desk and she had completed her other work for the morning;
that there is an enormous difference between walking out on a
patient, and joining a strike while patients are in the building;
and that given the Respondent’s failure to adduce any evidence
that the nurses joined the strike while they were engaged in
patient care, the Respondent’s assertion clearly lacks merit.
To the extent that it might be argued that employees engaged
in a concerted effort to disrupt patient care, in my opinion it has
not demonstrated that such was the case.37 The most serious

36 Counsel for General Counsel points out that 8 of the 22 striking
nurses were not even working when the strike commenced; the Re-
spondent presented no evidence regarding the activities of five nurses
who were working at the time the strike commenced (Nurses Lundy,
Mertens, Peterson, Holten, and Watson); two nurses had completed
seeing patients; Nurse Jeppesen was not working with a physician; and
Nurses Bevill, Aga, and Juntunen testified, without contradiction, that
although their physician was seeing a patient at the time they joined the
strike, their duties were complete and the Respondent failed to prove
that any of these three was engaged in patient care at the time they
joined the strike.
37 To the extent that it might be argued that the nurses alleged mis-
conduct warranted termination, it is noted that while the Respondent’s
management assertedly was aware of the alleged misconduct before the
letters of termination were forwarded, no reason other that the delay in
the commencement of the strike was cited in the termination letters. To
allegation is that a minimum of three nurses (Iverson, Faris, and
Getz) changed their voice mail access codes. Nurse Getz ad-
mitted that she changed her voice mail. That matter will be
dealt with below. Regarding the allegation that nurse Iverson
changed her voice mail access code, it is noted that the only
witness to make this allegation was Otte. Her testimony is not
credited. Nurse Iverson testified that she did not change her
voice mail access code. Iverson’s testimony is credited. Otte
testified that she did not look at the voice mail access code
sheet when she allegedly tried to access messages. Otte testi-
fied, after looking at the sheet while testifying on direct, that
she tried the correct number. But then just seven pages later in
the transcript Otte erroneously testified on cross-examination
that the number was other than the one she testified to on direct.
Additionally, Otte testified that she told Crowe about the prob-
lem. Crowe did not specifically corroborate this.38 And when
Crowe allegedly telephoned Kluver to meet her to look into the
problem Kluver did not go to station 6, which is Iverson’s sta-
tion. Crowe testified that she telephoned Kluver about station 6.
Rather, according to her testimony, Kluver went to station 7 to
nurse Aga’s (Doctor Carlsen’s nurse) extension at Crowe’s
behest, did not look at the access code sheet, and they were
unable to access messages. Kluver admitted that she did not
have the sheet with the access codes on it on September 10
when she tried to access the messages. And Kluver admitted
that she was using the wrong codes for three of the four exten-
sions she tried. Did Kluver then go to nurse Iverson’s exten-
sion? No. Kluver then allegedly tried two other extensions on
station 7. One of the extensions allegedly tried was that of
nurse Radil, One of the extensions allegedly tried was Medical
Assistant Faris’ extension. Doctor Dittberner testified that she
saw Kluver on Medical Assistant Faris’ extension. While
Kluver cited the correct number for Medical Assistant Faris’
extension as she was looking at the access code sheet while
testifying on direct, as noted above, taking the approach Kluver
did with the access code numbers this was the only number she
would have had correct while looking at the sheet. According to
her testimony, Kluver then goes to station 6. Does she try nurse
Iverson’s extension at station 6? No. Kluver testified that she
tries nurse Tvrdik’s extension on station 6. Kluver never testi-
fied that she tried nurse Iverson’s extension on station 6. And
Otte did not testify that Crowe told her that she was aware of
the problem when Otte allegedly telephoned Crowe to tell her
about the problem.39 Hunt testifies that he told Kluver not to
spend any additional time determining which codes had been
changed but rather to override the system and change all of
them for accessibility. Kluver testifies that operations manager

the extent any misconduct should be considered in the context of rein-
statement rights, such matter will be treated below.
38 Otte testified that she notified Crowe of the problem on station 6.
Crowe testified that the replacement nurse on station 6 told her of the
problem with retrieving messages and she telephoned Kluver and asked
her to check it out.
39 When Nurse Erickson telephoned Crowe about the voice mail
code, Crowe told Nurse Erickson that the code had been changed to
“0000.” Otte did not testify that Crowe told her that the code had been
changed to “0000” so one must assume that Otte allegedly telephoned
Crowe before the code was changed.
ALEXANDRIA CLINIC, P.A. 1297
Miller said that because of the time element they should default
all of the numbers to “0000.” With respect to the extensions
which allegedly had problems, does a pattern emerge? Nurses
Radil, Tvrdik, and Iverson were the nurse leaders. And Medical
Assistant Faris, as noted above, just a little over an hour before
gave Doctor Dittberner a letter in which she indicated that she
was being paid less than a janitor and was lied to by the Re-
spondent’s management. So with the testimony of Otte, Crowe,
and Kluver, corroborated in part by Doctor Deborah Dittberner,
the Respondent makes a very serious accusation against the
three nurse leaders and the author of a letter which alleges a
member of the management of the Respondent is less than hon-
est.40 Some backpedaling was necessary with respect to nurses
Radil and Tvrdik when Kluver had to admit that she could not
have been using the correct access code numbers. The testi-
mony which the Respondent cites to support its allegation that
more than one nurse changed the voice mail access code is not
reliable. The testimony of Medical Assistant Faris that she did
not change her voice mail access code is credited. The reliable
evidence of record demonstrates that the only nurse or medical
assistant who changed her voice mail access code was nurse
Getz.
As noted above, Respondent requests an inference that the
striking nurses caused the disappearance of the form packets
and the computer cheat sheets. Counsel for the General Coun-
sel, on brief, points out that the Respondent admits that it has
no witness who could testify to what happened to the computer
menus or form packets, and anyone in the clinic could have
removed them, including the replacement nurses. Counsel for
the General Counsel contends that the Respondent has the bur-
den of proving that the nurses took the items, and the evidence
of record only supports a conclusion that they were reported
missing; and that rather than proving the nurses engaged in
misconduct, the Respondent has only proven its desire to blame
the nurses for everything regardless of the evidence. The Re-
spondent has not given any basis warranting the inference it
requests. Its request is denied.41
With respect to nurse Jeppesen’s outgoing message, it is
noted that the recording received in evidence could not be a
recording of the changed outgoing message alone. The re-
cording received has the verbal prompts for changing the out-
going message. Obviously it is not normal for the outgoing
message which a caller hears to have the verbal prompts re-

40 Why was nurse Aga included? Perhaps because her name would
appear first in an alphabetical list of those nurses who went on strike.
More likely, nurse Aga was included because it was believed that it
would have been too obvious to go first to the extension of Nurse
Leader Radil or medical assistant and letter writer Faris. Nurse Aga’s
only fault was that she was also on station 7. As noted above, Covel
testified that after she spoke with Nurse Getz, she told Kluver about
Nurse Getz and the voice mail access codes. In my opinion, Nurse
Getz’ code was the only one that was changed. It would have taken a
couple of minutes to change this one code to be able to retrieve any
messages in that voice mail. Yet Kluver never testified that she even
checked Nurse Getz’ code.
41 The reliable evidence of record indicates that some of the red
manuals, other compilations which some of the Respondent’s witnesses
accused the striking nurses of taking, had been missing for some time
before the strike.
garding changing the outgoing message. It appears that some-
one recorded the prompts and the outgoing message and later
played a recording into the telephone instead of placing the
normal updated outgoing message on the voice mail. The mes-
sage is unintelligible but it is not clear if it is a result of chang-
ing the speed of the original message or something else. As
indicated above, nurse Jeppesen testified that the voice sounds
like hers but she did not record this message. Also, as noted
above, Kluver testified that when Crowe told her about the
message on September 13 she did not go to nurse Jeppesen’s
phone but rather she accessed nurse Jeppesen’s outgoing mes-
sage from her own phone using the default code (“0000”)
which was still in effect. What this means is that anyone could
do the same thing. Anyone could have accessed nurse Jeppe-
sen’s message from any telephone (they did not have to go to
nurse Jeppesen’s extension), if they knew the default code. The
default code was public knowledge in the clinic on September
10. While the Respondent might argue that it was necessary to
go to the default code to retrieve messages as quickly as possi-
ble, there is no reasonable explanation on the record as to why
the codes were not then immediately changed to individual
numbers.42 In my opinion, none of the access codes Kluver
allegedly checked had been changed.43 That Kluver allegedly
checked them without using the voice mail access code sheet
would not be a reasonable approach.44 The fact that Kluver left
the default code in effect for 3 days, notwithstanding the fact
that she wanted to leave early at noon on September 10 because
it was her birthday, is difficult to understand. And since the
default code was still in effect midday Monday, September 13,
obviously Kluver did not change the access codes back to indi-
vidual numbers the first thing Monday morning. As indicated
above, anyone could have accessed and recorded nurse Jeppe-
sen’s outgoing message from any telephone, altered it, and then
played the changed message back into the system. In view of
this, no weight will be given to the recording introduced herein
by the Respondent in support of its allegation that nurse Jeppe-
sen engaged in misconduct. Nurse Jeppesen’s testimony that
she did not record the message received herein as Respondent’s
Exhibit 21 is credited.
With respect to the Respondent’s allegation that nurses El-
bert, Iverson, Getz, Aga, Juntunen, and Bevill, and Medical
Assistant Faris exhibited great neglect in the manner in which
they walked off the job in that they, collectively, did not either
tell their physicians they were leaving, or ask their physicians if
they were needed for anything, or discuss outstanding patient
care issues before leaving, it was not demonstrated that any of
these things actually resulted in a disruption in the continuity of
patient care or that the inconveniences that some of the physi-
cians testified they experienced were part of any concerted
42 The procedure described by Kluver for changing an individual ac-
cess code would apparently not have taken more than a couple of min-
utes for each of the extensions of the 13 nurses who walked out at
Alexandria if the Respondent found that it was necessary to change
them. But there was no need to change any access code other than
Nurse Getz’.
43 Kluver never checked the one code which was changed, Getz’.
44 The same conclusion would apply to Otte who allegedly checked
Iverson’s access code without looking at the access code sheet.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1298
effort to disrupt the continuity of patient care. It was not shown
that there were any patient complaints relating to a disruption in
the continuity of patient care on September 10 at the Alexan-
dria clinic or the Osakis facility.
It has not been demonstrated that the striking nurses engaged
in any concerted effort to disrupt the continuity of patient care
or that the continuity of patient care was actually disrupted.45
Regarding any delay in seeing a patient after the nurses went
out on strike, as nurse Erickson testified herein, she has worked
at all of the stations in the Alexandria clinic and historically the
average delay on any day in a doctor seeing a patient beyond
the scheduled time is 10 to 15 minutes, and sometimes longer
depending on the doctor and what is happening with the doctor.
The Respondent cites a number of cases. In my opinion those
cases dealing strictly with Section 8(g) which do not involve
the question of job losses are not on point. In such cases there
are no conflicting rights. Unlike the “RIGHTS OF
EMPLOYEES,” under Section 7 of the Act, there are no perti-
nent rights of unions in the Act. As noted above the Supreme
Court has held that Section 8(d) must be read in the context of
the entire Act, which obviously would include Section 7 of the
Act. Since there is no conflict in the interests of the unions and
the patients, there is no need to balance these interests. When
only Section 8(g) is involved, compliance with Section 8(g) is
the only real issue; there is no need to consider the impact on
the continuity of patient care.
Those cases in which the 10-day notice was not even given
are not on point.
And finally, cases where the strike was delayed to a date
other than that specified in the 10-day notice are not the same
situation as that at hand herein.
One of the cases cited by the Respondent contains dicta
which the Respondent argues is on point. In NLRB v. Washing-
ton Heights-Mental Health Council, 897 F.2d 1238 (2d Cir.
1990), the employees went on strike one day later than the date
specified in the 10-day notice and while there was some ques-
tion whether the union there gave the employer verbal notice of
the delay, at least with respect to the date, the court concluded
that any extension of notice must be in written form. The court
then concluded that there was no need to get into the legislative
history because the union there did not provide twelve-hour
supplementary notice of the time of day that the strike would
begin. Then the court went on to conclude as follows:

Given that the Center might well have figured out that
the strike was to begin on the morning of September 29,
we might appear unduly parsimonious about compliance
with the notice requirement. We are not, however, at lib-
erty to depart from the straightforward unambiguous lan-
guage of the statute requiring the Union to specify in writ-
ing the date and time it would strike. Furthermore, we are

45 Nurse Getz, who acted in her own, will be covered below. Since
there is no allegation that anyone other than Medical Assistant Faris
failed to stock properly before going out on strike, obviously there is no
allegation that there was a concerted effort on the part of the nurses to
disrupt the continuity of patient care by not stocking properly. In my
opinion, Medical Assistant Faris was not at fault regarding the above-
described specimen jar incident. That matter will be treated below.
convinced that the notice requirement is appropriately read
strictly. At a health care institution, disruption in patient
care of even a few hours may cost lives. “Strict adherence
to notice requirements is essential in the area of health
care institutions, in light of Congress’ concern ‘that sud-
den, massive strikes could endanger the lives and health of
patients . . . .’” NLRB v. Stationary Eng’rs, Local 39, 746
F.2d 530, 533 (9th Cir. 1984) (citation omitted).

The Board had agreed with the administrative law judge that
the September 29, 1982 strike was an unfair labor practice
strike under the doctrine of Mastro Plastics Corp. v. NLRB, 350
U.S. 270 (1956), and, therefore, the Union was excused from
the notice requirement of Section 8(g) of the Act. The Court,
however, indicated that it was somewhat hesitant to give that
portion of the legislative history of Section 8(g) referring to
Mastro Plastics Corp. v. NLRB, supra, effect because it not so
much guides interpretation of ambiguous wording in the statute,
but rather creates a significant exception. As can be seen, while
the language cited by the Respondent, namely “[a]t a health
care institution, disruption in patient care of even a few hours
may cost lives” apparently refers to the potential for disruption,
in the instant case there was no disruption in patient care. This
language is dicta. The language does not refer to a few hours
delay in the commencement of a strike but rather refers to “dis-
ruption in patient care of even a few hours.”
On the one hand, the Respondent takes the position that the
delay in the instant case requires notice in addition to the origi-
nal 10-day notice. On the other hand, both the General Counsel
and the Charging Party take the position that there was no need
for notice in addition to the 10-day notice which was given.
Here the Respondent received the 10-day notice and it made
the necessary preparations and informed those who had to be
informed. The replacement nurses were given orientation,
toured the clinic, and had an opportunity to meet with the phy-
sicians on September 9. The 13 replacement nurses were in the
clinic when the strike began and they took the place of the 13
nurses who went on strike.
Here one of the reasons for the delay was so that the nurses
could complete the necessary preparations for the entire day.
While some of the doctors testified about which part of the day
was busier, they did so in terms of the scheduling of patients.
Doctor Dittberner, who apparently is representative, did not
know that her nurse’s busiest time is between 8 a.m. and 8:30
a.m., and Doctor Dittberner did not know what her nurse did
between 8 and 8:30 a.m. And with respect to scheduling, coun-
sel for the General Counsel, at page 26 of his brief, correctly
indicates: “General Counsel’s Exhibit 5, the doctors’ schedules,
demonstrates that with the exception of Dr. Susan Paulson,
whose nurse did not strike, no physician was scheduled to see
patients at noon . . . . Accordingly, the period between noon
and 1 p.m. was in fact a slow time at the clinic.” The nurses are
busier the first thing in the morning and most of the nurses and
doctors have a lunchbreak at noon. As correctly pointed out by
counsel for the General Counsel on brief, one of the reasons the
nurses delayed the commencement of the strike was to lessen
its disruption to the Respondent’s operation.
ALEXANDRIA CLINIC, P.A. 1299
Here it was not shown that the delay was used in an attempt
to lull the Respondent into a false sense of security so that it
would not be prepared for the strike.
Here the nurses were misled by the Union regarding what is
permissible under the notice requirements. There is no reason
to believe that if they were accurately informed of the require-
ments, they would not have made sure that there was strict
compliance with the requirements. Although there is no re-
quirement of such a showing, I do not believe that the involved
nurses knowingly and intentionally failed or refused to strictly
comply with the notice requirements. In the circumstances of
this case I do not believe that any additional notice was re-
quired.
Here, as noted above, contrary to the Respondent’s asser-
tions, it was not shown that the nurses, except for Nurse Getz,
engaged in misconduct or in any way disrupted the continuity
of patient care when they went on strike.
Here one must consider the Supreme Court’s holding in
Mastro Plastics Corp. v. NLRB, 350 U.S. 270 (1956) that the
loss of status clause must be read in the context of the entire
Act. Obviously this includes Section 7 of the Act. The loss of
status clause alters the scope of protection granted employees
under Section 7 of the Act in that the Act protects the right of
employees, including nonorganized employees who work for
health care institutions, to engage in concerted activities, in-
cluding the right to strike without prior notice. The loss of
status clause involved here alters the scope of protection
granted the involved employees under Section 7 because the
involved employees are represented by a union and they engage
in concerted protected union activity. In these circumstances I
believe that there should be a balancing; a balancing of the
concern for the continuity of patient care and the concern that
the involved employees are being deprived of certain rights
because they are represented by a union and they engage in
concerted protected union activity. Here there was no disrup-
tion of the continuity of patient care. Here there was no written
complaint from any patient that his or her patient care was dis-
rupted by the fact that the strike commenced at noon instead of
at 8 a.m. Doctor Hansberry, the president of the board of the
Respondent could not think of any patient complaints as a re-
sult of the September 10 strike. As the Respondent concedes on
brief, there were no real patient problems (a disruption of the
continuity of patient care) caused by the fact that the strike
commenced at approximately noon instead of at 8 a.m. In my
opinion, the strike and picketing began within a reasonable time
after the scheduled time. In the particular circumstances extant
here, I believe that the Union was in substantial compliance
with Section 8(g). Here the Union did not have to give notice in
addition to that which it did give. To conclude that Section 8(g)
requires that the strike commence exactly at the time specified
(assuming that it does commence on the date specified) in the
circumstances existing here “so as to deprive strikers of their
status of employees would constitute an unwarrantedly harsh
result not intended by Congress.” Greater New Orleans Kidney
Center, supra.
On brief the Respondent argues that assuming arguendo that
it violated Section 8(a)(1) and (3) by terminating the nurses
who commenced the strike, four nurses are not entitled to rein-
statement. More specifically, the Respondent argues that the
following nurses for the following misconduct are not entitled
to reinstatement: (1) Iverson, and (2) Faris for changing their
voice mail access code, (3) Getz for changing her voice mail
code, removing the dividers that separated instruments, remov-
ing Doctor Pederson’s procedure manual, and removing a com-
puter chart adjacent to the computer, and (4) Jeppesen for
changing the outgoing message on her voice mail to incompre-
hensible gibberish. As found above, in my opinion the record
does not support the Respondent’s allegations regarding nurses
Iverson, Faris and Jeppesen.46 With respect to nurse Getz, the
Respondent on brief argues that even where an employer
unlawfully terminates an employee, if the discriminatee en-
gaged in unprotected conduct for which the employer would
have discharged any employee, reinstatement is not ordered and
backpay is terminated on the date that the employer first ac-
quired knowledge of the misconduct; that Hunt testified that a
nurse would be terminated for changing the voice mail access
code under the circumstances present in this case; that by
changing the code nurse Getz placed the clinic’s patients at

46 While the Respondent does not raise the pap smear specimen jar
incident in support of its argument on brief that Medical Assistant Faris
should not be reinstated, that matter should treated. The pap smear jars
were difficult to obtain from the lab and stocking them was an ongoing
process throughout the day. On brief, counsel for the General Counsel
contends that Medical Assistant Faris should not be held accountable
for her replacement’s failure to do the job. And the Charging Party, on
brief, argues that the evidence does not show that Faris intentionally
failed to stock the examination room with supplies. The normal proce-
dure is for the jar to be out when Doctor Dittberner goes into the ex-
amination room to take a pap smear. That was the case for the two pap
smears which were taken during the morning of September 10 while
Faris was working. As noted above, Faris went on strike at approxi-
mately noon on September 10. A pap smear jar was not out when Doc-
tor Dittberner took a pap smear at 3 p.m. She had to go into a drawer to
get a jar. When asked how many jars were in the drawer at the time,
Doctor Dittberner responded: “I don’t remember. I grabbed that one
and finished with the Pap smear.” In view of the fact that normal pro-
cedure was not followed with the 3 p.m. patient in that the jar was not
out and available before the specimen was taken, and in view of the fact
that Doctor Dittberner had to go into the drawer to retrieve a jar, one
would think that it would have been reasonable to make note of how
many jars were in the drawer. If there were none left, and if the 4 p.m.
pap smear was done in this same examination room, it would be ex-
pected that when she opened the drawer again Doctor Dittberner would
not find a jar unless she, the replacement nurse or someone else had put
some jars in the drawer in the interim. If there was at least one other jar,
Doctor Dittberner would have known where to get a jar for the 4 p.m.
patient. But in view of her normal operating procedure, one must won-
der why she began taking the pap smear of the 4 p.m. patient without
having the specimen jar out and available. At one point Doctor
Dittberner testified that she would have a jar out and available or she
would not have started a physical. But she did not have a jar out and
available for the 3 p.m. pap smear. Nonetheless, she allegedly com-
menced the 4 p.m. pap smear without having the jar out and available.
Additionally Doctor Dittberner did not tell her replacement nurse (a) to
check the examination rooms by 4 p.m., (b) that it was her job to keep
the rooms stocked, (c) where to find the jars, or (d) to check to see if all
the jars had been used up, and Doctor Dittberner did not know whether
there were more jars available from the lab. It was not shown that Faris
engaged in any misconduct with respect to the pap smear jar.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1300
risk; and that actions creating the potential for harm to persons
is the type of conduct that warrants depriving employees of
their reinstatement rights. Counsel for General Counsel, on
brief, contends that while nurse Getz admitted that she changed
the access code to her voice mail on September 10, the Re-
spondent must substantiate its assertion that it actually would
have discharged nurse Getz for the stated reasons; that Hunt’s
testimony is not enough; that the Respondent failed to present
any testimony regarding the standard of conduct to which it
holds its nurses or how it has reacted to acts of misconduct in
the past; that at the most, the record merely demonstrates the
existence of what may be a legitimate reason to discharge nurse
Getz; that, however, the Respondent has failed to demonstrate
that it actually would have discharged an employee for such
“trivial conduct”;47 that the Respondent failed to produce any
testimony that nurse Getz acted with an intent to disrupt the
clinic; and that the conduct to which nurse Getz admitted is not
sufficient to deny nurse Getz reinstatement. The Charging
Party, on brief, points out that “[t]he actions of one misguided
individual [, nurse Getz,] cannot be used to convict the whole
group.”48
Contrary to the contention of counsel for the General Coun-
sel, what nurse Getz admittedly did, changed the voice mail
access code, was not “trivial conduct.” Nurse Getz did a tre-
mendous disservice to the patients, she did a tremendous dis-
service to her fellow nurses, and she did a tremendous disser-
vice to herself. While Crowe testified that if a call involves an
emergency it is triaged and does not go into voice mail, Doctor
Hansberry testified and gave an example of a caller who could
be at grave risk and not fully appreciate their risk. In such a
case the caller might tell the receptionist to give her or him the
extension of Doctor Pederson and end up leaving a voice mail
message. To deliberately create a situation where such a person
would needlessly be placed at further risk until the Respondent
is able to retrieve the message is not acceptable conduct. There
was no showing that any patient suffered because of nurse
Getz’ misconduct and there was no testimony regarding any
complaints about messages in nurse Getz’ voice mail. Nonethe-
less, when someone engages in such serious misconduct she or
he loses the protection of the Act. In my opinion, nurse Getz’
act of changing the voice mail access code, which was a delib-
erate act, was serious in its nature, it had the potential for seri-
ous harm, and it renders her unfit for future service with the
clinic. Nurse Getz created an immediate and potentially dan-
gerous situation. The Respondent will not be ordered to rein-
state her and her backpay is terminated on the date that the
Respondent first acquired knowledge of the misconduct. Mar-
shall Durbin Poultry Co., 310 NLRB 68 (1993).49 In my opin-
ion nurse Getz did a tremendous disservice to her fellow nurses
because the Respondent used the information she gave to Covel
to make very serious, unfounded accusations against the three
nurse leaders, namely Iverson, Radil, and Tvrdik, and against
Medical Assistant Faris and nurse Aga. The Respondent also

47 Br. of counsel for General Coounsel, p. 49.
48 Br. of the Charging Party, p. 21.
49 This finding obviates the need to go into the other allegations of
misconduct on the part of Nurse Getz.
generally painted all of the remaining striking nurses with its
unfounded accusation. It would have been so easy for Kluver to
check nurse Getz’s access code and take the couple of minutes
to correct the situation. Instead, the Respondent chose to use
the situation and engage in unfounded accusations. With re-
spect to whether nurse Getz’ conduct reflects on the other
nurses, as the Charging Party so aptly indicated on brief, “[t]he
actions of one misguided individual [, nurse Getz,] cannot be
used to convict the whole group.”
On the basis of the foregoing findings of fact and on the en-
tire record in this proceeding, I make the following
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. By discharging nurses Fran Aga, Vickie Bevill, Cindy
Bradley, Joleen Elbert, Marcy Faris, Janet Getz, Renae Haugen,
Carol Holten, Joyce Iverson, Shirley Jeppesen, Dawn Juntunen,
Norma Lais, Kay Ludwig, Loretta Lundy, Angie Mertens, Al-
ison Olson, Louann Peterson, Joan Radil, Margaret Swanstrom,
Lynn Tvrdik, Kathy Van Vickle, and Leah Watson on or about
September 13, 1999, in retaliation for engaging in a strike and
picketing at its facilities and to discourage employees from
engaging in these activities the Respondent committed unfair
labor practices in violation of Section 8(a)(1) and (3) of the
Act.
4. The aforesaid unfair labor practices are unfair labor prac-
tices affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
REMEDY
Having found that the Respondent engaged in and is engag-
ing in certain unfair labor practices within the meaning of Sec-
tion 8(a)(1) of the Act, I shall recommend that Respondent be
ordered to cease and desist therefrom and take certain affirma-
tive action designed to effectuate the purposes of the Act.
The Respondent having unlawfully discharged nurses Fran
Aga, Vickie Bevill, Cindy Bradley, Joleen Elbert, Marcy Faris,
Janet Getz, Renae Haugen, Carol Holten, Joyce Iverson,
Shirley Jeppesen, Dawn Juntunen, Norma Lais, Kay Ludwig,
Loretta Lundy, Angie Mertens, Alison Olson, Louann Peterson,
Joan Radil, Margaret Swanstrom, Lynn Tvrdik, Kathy Van
Vickle, and Leah Watson, it must offer them reinstatement
(except nurses Janet Getz and Angie Mertens) to their former
positions and make them whole for any loss of earnings and
benefits they may have suffered as a result of the Respondent’s
unlawful conduct, computed on a quarterly basis from date of
discharge to date of proper offer of reinstatement, less any net
ALEXANDRIA CLINIC, P.A. 1301
interim earnings, as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest as computed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).50

50 Nurse Mertens’ backpay period will commence on September 13
[Recommended Order omitted from publication.]

and end on September 20. Nurse Getz’ will not receive any backpay.