Bluefield Sanitarium, Inc.

National Labor Relations Board - Board Decisions

Sep 25, 1974

213 N.L.R.B. 515 (N.L.R.B. 1974)

CLINCH VALLEY CLINIC HOSPITAL
Clinch Valley Clinic Hospital, A Division of Bluefield
Sanitarium , Inc. and Local 1199-W. VA., National
Union of Hospital and Nursing Home Employees,
AFL-CIO, affiliated with Retail , Wholesale De-
partment Store Union , AFL-CIO. Case 5-CA-6266
September 25, 1974
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
On April 10, 1974, Administrative Law Judge Jose-
phine H. Klein issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt her recommended Order.
The Administrative Law Judge found, and we
agree, that Bluefield Sanitarium, Inc., and the part-
nership of doctors constitute a single employer and
that the remedial order issued herein against Bluefield
is binding upon the partnership. However, we do not
adopt her rationale in full.
The single-employer status of the partnership and
corporation are apparent from the interrelationship of
the operations, centralized control of labor relations
in general, common control of the particular employ-
ees involved herein, common management, and com-
mon financial control. As they are a single employer,
notice and service on one is sufficient to satisfy the
requirements as to both.,Cf. Israel Taub d/b/a Dove
Flocking and Screening Co., 145 NLRB 682 (1963);
Esgro, Inc. and Esgro Valley Inc., 135 NLRB 285
(1962). Here, there is no question but that the Corpo-
ration was duly and properly served with the charge
and with the complaint. Further, both the Corpora-
tion and the partnership were fully aware at all times
that, except in minor respects, the unfair labor prac-
tices alleged concerned the conduct of the physician
members of the partnership in refusing to permit the
alleged discriminatees to return to work in their of-
fices, so that there can be no claim of surprise.' Thus,
the complaint alleged that the corporate Respondent
operated both a hospital and a clinic for profit; that
certain employees of the Respondent, "including a
1 Cf. Porter-DeWitte Construction Co., Inc., 134 NLRB 963 , 965 (1961).
515
number of licensed practical nurses employed at the
clinic," ceased work concertedly and engaged in a
strike; that those clinic employees subsequently were
refused reinstatement to their former positions; and
that such conduct constituted unfair labor practices.
Prior to the hearing the partnership was served with
a copy of the complaint and an order postponing the
hearing. At the opening of the hearing, it was added
as a party in interest and was afforded all rights of a
party to appear, participate, and adduce evidence in
defense against the charges. Cf. Consolidated Edison
Company of New York, Inc. v. N. L. R. B., 305 U. S. 197,
231-239 (1938); Darlington Manufacturing Company,
139 NLRB 241, (1962), remanded on other grounds
325 F.2d 682 (C.A. 4, 1963). Under these circum-
stances, the doctors who participated in the unfair
labor practices found cannot be heard to deny that
they are in privity with the Corporation and were
sufficiently apprised of the issues to be bound by our
Decision and Order in this case. See Fed. Rules of
Civ. Proc. 65(d); cf. Golden State Bottling Co., Inc. v.
N. L. R. B., 414 U.S. 168 (1973). Accordingly, we see no
reason why, as our dissenting colleague argues, a fur-
ther hearing is warranted in order to make a determi-
nation which we can now make on the record before
us. For, to grant such a hearing would be to accord
the Respondent an opportunity to relitigate the very
issues which were before the Administrative Law
Judge in the original hearing.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, Clinch Valley Clinic Hospi-
tal, a Division of Bluefield Sanitarium, Inc., Rich-
lands, Virginia, its officers, agents, successors, and
assigns, shall take the action set forth in the said rec-
ommended Order.
MEMBER KENNEDY , dissenting in part:
The Administrative Law Judge issued an order
binding on the partnership of doctors, although the
doctors were not named as party Respondents and
were not afforded the opportunity to litigate their
liability. The majority has adopted her Decision. I
believe that the procedure followed with respect to the
doctors is a violation of elementary principles of due
process. Accordingly, I dissent.
Respondent Corporation owns and operates a hos-
pital and clinic facilities. It has a contract with a part-
nership of doctors whereby the doctors receive office
space, equipment, and nursing, secretarial, and simi-
516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lar services from Respondent in return for a percent-
age of the doctors' gross receipts. Personnel for the
doctors' offices are subject to the approval of the doc-
tors, but the rate of pay, benefits, and working condi-
tions are determined by the Respondent and not by
the doctors.
In December 1972, the Union was certified as bar-
gaining representative of Respondent's licensed prac-
tical nurses (LPN). When the Union and Respondent
were unable to reach agreement on a collective-bar-
gaining contract, some of the LPN's struck, including
seven who worked in doctors' offices at the clinic. On
the termination of the strike, the doctors refused to
accept these LPN's in their offices alleging that they
had acted unprofessionally by striking. Respondent
offered to reinstate the seven LPN's to jobs in the
hospital at the same rate of pay asserting that it was
powerless to compel the doctors to reinstate the nurs-
es who had struck.
The original complaint named only the hospital
corporation as Respondent. At the outset of the hear-
ing, the General Counsel moved to amend the com-
plaint to name the partnership of doctors as a party
in interest. But the General Counsel specifically stated
that the doctor partnership was not being named as
a party Respondent. The motion to amend was grant-
ed. However, no continuance was granted to enable
notification to the doctors of their new status or to
appear and defend their position?
Although the doctor partnership was not named as
a party Respondent, the Administrative Law Judge
nevertheless proceeded to find that the doctors and
the hospital constituted a single employer, and the
partnership was bound by the order against Respon-
dent Corporation. According to the Administrative
Law Judge:
Because of the close relationship between the
partnership and the hospital corporation, the pre-
sent Order would be binding on the doctors even
in the remote eventuality that they were inclined
to ignore the policy of the Federal law and at-
tempt to compel non-compliance by the hospital
corporation.
The Administrative Law Judge thus in effect ren-
dered a judgment against the doctor partnership al-
though it had never been apprised of such possibility.
Due process permits a judgment to bind only one who
"has been duly cited to appear, and has been afforded
an opportunity to be heard." 3 Neither of these condi-
tions has been met in this case. We are not dealing
here with a situation of derivative liability 4 but, as the
Decision makes clear, with a determination of original
responsibility against a party which has never had the
opportunity to defend itself. I think this procedure is
unconstitutional. Accordingly, I would remand the
case to the Administrative Law Judge with instruc-
tions to notify the doctor partnership that it is a Re-
spondent in this proceeding and reopen the hearing to
give it an opportunity to defend itself.
2 The majority opinion overstates the case when it says that when, at the
hearing, the partnership was added as a party in interest, it was afforded all
the rights of a party to appear, participate, and adduce evidence in defense
of the charges. These rights were purely theoretical because the partnership
was never notified of its new status as a party in interest prior to the issuance
of the Administrative Law Judge's Decision and therefore could not, and in
fact did not, avail itself of those rights.
7 Galpin v. Page, 85 U.S. 350 (18 Wall.), 368-369,21 L.Ed. 959 (1874). See
also Restatement of Judgments, § 6, 89 (1942).
4 Cf. Golden State Bottling Co. v. N.L.R.B., 414 U.S. 168 (1973).
DECISION
STATEMENT OF THE CASE
JOSEPHINE H. KLEIN , Administrative Law Judge : Pursuant
to a charge filed on August 20, 1973,' by Local 1199-W. Va.,
National Union of Hospital and Nursing Home Employees,
AFL-CIO, affiliated with Retail , Wholesale Department
Store Union, AFL-CIO (the Union), against Clinch Valley
Clinic Hospital , a division of Bluefield Sanitarium , Inc., a
complaint was issued on November 6,2 alleging that Re-
spondent violated Section 8(a)(1), (3), and (5) of the Act by
"reinstating" seven economic strikers to positions other
than they had before going on strike and by refusing to
arbitrate the propriety of the reassignments . Additionally,
the complaint alleges that Respondent discriminatorily sus-
pended one of the strikers for a week . Respondent 's answer
to the complaint raised the following three affirmative de-
fenses : (1) the strike was "unprotected" and therefore the
seven employees had no right to reinstatement to their for-
mer jobs ; (2) the Union, as the certified collective -bargain-
ing agent , had waived the seven employees ' right to rein-
statement to their former jobs; and (3) Respondent's
transfer or reassignment of the seven employees was not
discriminatory but rather required or demanded by per-
sons over whom Respondent had no authority or control.
Pursuant to due notice , a trial was conducted before me
in Tazwell , Virginia , on December 12 and 13. Before the
hearing and again at the beginning of the hearing , Respon-
dent applied for the taking of the deposition of a witness
then in Anchorage, Alaska . I reserved ruling on the applica-
tion for deposition until receipt of legal memoranda after
hearing all the evidence other than the requested deposition.
On January 15, 1974, after receipt of memoranda on behalf
of the General Counsel and Respondent , I issued an order
denying the application for deposition , closing the record,
and setting a date for the filing of briefs. Briefs have since
been filed by Respondent and the General Counsel.
Upon the entire record, together with careful observation
of the witnesses and consideration of the briefs, I make the
following:
Except where otherwise stated, all dates herein are in 1973.
2 National Labor Relations Act, as amended (61 Stat . 136, 73 Stat. 519, 29
U.S.C. J 151 , et seq.).
CLINCH VALLEY CLINIC HOSPITAL 517
FINDINGS OF FACT
1. PRELIMINARY FINDINGS
A. Respondent, a West Virginia corporation, is engaged
in the business of operating for profit, a general hospital and
outpatient clinic in Richlands, Virginia. During the past 12
months , a representative period , Respondent had gross rev-
enues exceeding $500,000 and received materials and sup-
plies valued in excess of $50,000 in interstate commerce
from points outside Virginia. Respondent is now and has
been at all times material herein an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
B. The Union is now and has been at all times material
herein a labor organization within the meaning of Section
2(5) of the Act.
It. THE UNFAIR LABOR PRACTICES
A. The Issues
Respondent owns and operates three hospital and associ-
ated outpatient clinics, the one here involved being located
in Richlands, Virginia.
During negotiations for collective -bargaining agreements
an economic strike was conducted by the service and main-
tenance employees and the licensed practical nurses
(LPN's), who, in two separate bargaining units, are repre-
sented by the same Union. Eventually collective-bargaining
agreements were reached and the strike ended. With some
exceptions not here involved, all the strikers were offered
reinstatement. Seven striking LPN's, however, were as-
signed to the hospital nursing service rather than to the
offices of individual doctors in the outpatient clinic where
they had previously worked.
Respondent contended that the Union had contracted
away any right the nurses may have had to reinstatement to
their positions in the doctors' offices and that they had no
such right because the nurses' strike was illegal and unpro-
tected. As briefly discussed below, these two defensive con-
tentions were rejected in the prior order issued in this case.
The major remaining issue is whether Respondent's
transferring the seven striking clinic nurses from the clinic
to the hospital nursing service was unlawfully discriminato-
ry in view of the refusal of the clinic doctors to have the
nurses reassigned to the clinic offices.
Additionally, there is a question, essentially factual and
based purely on credibility, whether nurse Ruth Arnold was
discriminatorily suspended from employment for a week.
Finally, the complaint alleges that the striking employees
were unlawfully threatened with discharge if they continued
their strike.
B. The Facts
Bluefield Sanitarium, Inc., owns and operates three hos-
pitals and associated outpatient clinics , including one in
Richlands, Virginia, the facility involved in this case. The
hospital corporation was organized some 20 years ago by
practicing physicians, who apparently owned all the stock.
At present, the stock of the corporation is apparently owned
by the original owners, some of whom have retired from the
active practice of medicine , and by the relatives of deceased
doctors.
The corporation is governed by a board of directors con-
sisting of two doctors each from the Richlands and Welch,
clinic-hospitals and four from the Bluefield, West Virginia,
facility. Of the eight members of the board , two are retired
doctors and the rest are active practitioners . The two Rich-
lands doctors on the corporation's board are Drs. Richard
E. Bower, chief of staff, and D.A. Cunningham.
The doctors are associated in a partnership, under the
name Fox , St. Clair, Rogers , et al. When a doctor retires
from practice he leaves the partnership , which thus has
varying membership consisting of doctors in active prac-
tice 4 Of the present 52 or 53 partners , 18 are at the Clinch
Valley (Richlands) location . The three clinic hospitals oper-
ate semiautonomously , each being governed by its own ex-
ecutive committee . The Richlands executive committee
consists of Drs . Bower, H.C. Scott, R.A. Abernathy and
W.T. Henderson , and Homer E. Allen, administrator, as an
"ex officio" member.
Each doctor has an office in the clinic building.' Together
the doctors constitute the closed staff of the hospital.6
Although Dr. Bower and assistant administrator Joseph
S. Serreno were apparently unaware of its existence, there
is a written contract between the hospital corporation and
the partnership of doctors. In its most recent form, dated
January 1, 1972, it provides that the corporation, which
owns all the physical assets , is to furnish to the doctors
office space , equipment , bookkeeping , accounting, and of-
fice services , and all personnel . For this , the partnership
pays to the corporation a sum determined and agreed on
twice a year. In practice there has never been "negotiation"
or disagreement between the "corporation " and the "part-
nership." All fees for medical, hospital, laboratory, and sim-
ilar ancillary services are paid to and received by the
hospital. Gross income is divided 60 percent to the hospital
and 40 percent to the doctors?
On October 19, 1972, the Union was certified as the bar-
gaining representative of the Clinch Valley service and
maintenance employees (Case 5-RC-8187). It was then cer-
tified as the representative of the LPN's on December 20,
1972 (Case 5-RC-8208).
Contract negotiations began on November 16, 1972, be-
fore the certification of the Union LPN's. In the negotia-
tions, Respondent was represented by its counsel, Paul S.
Hudgins, Esquire , who served as chief spokesman ; Serreno,
assistant administrator and director of personnel; and
3 No specific details as to the present stock ownership were introduced.
Respondent's brief says that "the active doctors who are practicing ... do
not own a controlling interest in the corporation , which in fact is owned by
retired doctors and persons who are not doctors-primarily children or
relatives of deceased doctors who once owned some interest in the corpora-
tion."
4 Retired members receive pensions.
S The doctors' offices were in the hospital building until 1963, when a
separate clinic building was erected.
It appears that in a very few instances people have been admitted to the
hospital who were not patients of a staff doctor.
Dr. Bower testified that the actual rate of division often varies a few
percentage points from the 60-40 ratio.
518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Banks Warden, an assistant to the administrator. In addi-
tion, Lawrence E. Morhous, Esquire, participated with Mr.
Hudgins in some of the negotiations.
The Union was represented principally by Robert L.
Muehlenkamp and Larry Harless, organizers. Elliott Go-
doff, executive vice president and national director of orga-
nization attended meetings of February 27 and 28 .1 In
addition, employee representatives participated. At one or
two of the early meetings, one LPN as an observer. Begin-
ning with the fourth meeting, three LPN's attended and
participated in the discussions. On numerous occasions
Hudgins said that the LPN's were present only as observers
and that only the service and maintenance unit contract was
being negotiated. There is some conflict of testimony as to
whether the union representatives stated their rejection of
Hudgins' negotiating conditions. However, there is no
credible evidence that they ever expressly accepted or
agreed with Respondent 's position that negotiation of the
LPN contract was not to begin until final agreement had
been reached as to the service and maintenance unit. Ac-
cording to Serreno and Hudgins, Muehlenkamp first ex-
pressed disagreement with this position on February 21, at
a negotiating session attended by union counsel.
The evidence is undisputed that the parties consistently
assumed that the two contracts would be identical except
for the wage provisions. At no time was there any suggestion
or discussion of possible variation between the two con-
tracts in any nonwage provisions.
According to Muehlenkamp, shortly after negotiations
began, Hudgins stated that a strike would be illegal under
a Virginia statute prohibiting strikes in hospitals. Respon-
dent apparently so advised employees and copies of the
state statute were posted on the premises. However, no
agreement having been reached, the Union called a strike,
which began on February 13. Some 100 service and mainte-
nance employees went out. In addition, 29 of the approxi-
mately 80 LPN's joined the strike. Included among the
striking LPNs were the seven with whom the present case
is concerned. Each of the seven worked in a doctor's office
in the outpatient clinic.'0
On February 14 Ruth Arnold returned to work, reporting
to Dr. Robinson's office, where she had worked since 1961.
During the day, Serreno informed her that, as of the next
day, she was being transferred to the hospital nursing ser-
vice because Dr. Robinson considered her unsuitable be-
cause she was unreliable. She was told that during the
existing unusual situation her shift hours in the hospital
would be flexibly adjusted to accommodate her domestic
obligations. The transfer order stood despite appeals to Drs.
Robinson and Bower. She credibly quoted Dr. Bower as
saying that on February 12 the executive committee had
decided that "anybody that didn't come in to work was
8 Serreno , Hudgins, and Morhous testified . Respondent's application to
submit Warden 's evidence by deposition was denied.
9 Muehlenkamp and Godoff testified.
10 Ruth Arnold worked in the office of Dr. J.A. Robinson, internal medi-
cine ; Betty Osborne , for Dr. W. Tillou Henderson, orthopedics ; Louis Silcox,
for Dr . Y.S. Murthy, obstetrics and gynecology; Ella Ringstaff, for Dr. David
P. Olinger, obstetrics and gynecology; Gaynelle Hale , for Dr. G. Schrader,
surgery; Gloria Regon and Carolyn Newberry, for Dr. Frank A. McCue,
pediatrics.
going to be transferred to the hospital." In the evening
Arnold reconsidered her acceptance of the transfer and on
the morning of February 15 she telephoned the hospital to
report that she was then on strike.
At a negotiating meeting held on February 21
Respondent's representatives contended that, in addition to
being in violation of state law, the strike was illegal as to the
LPN's because the parties had not bargained to impasse.
Although the evidence does not so establish, Respondent
apparently believed an impasse had been reached as to the
service and maintenance unit by February 13. Despite the
assistance of a Federal mediator , no agreement was reached
on February 21 and the strike continued.
On February 23 Respondent wrote to the LPN's as fol-
lows:
You have failed to report for work since Tuesday,
February 13, 1973 even though there has been work
available for you.
You are hereby notified that unless you report to
work on or before 7 a.m. on Friday, March 2, 1973
(Nursing Office) you will be replaced and it will be
considered that you have voluntarily terminated your
employment.
Similar letters were sent to all striking employees.
On February 27, Godoff, the Union's national director of
organization, joined the negotiations. Among the substan-
tive questions then unresolved were the checkoff of union
dues, vacation pay, and the seniority clause. These issues
were resolved by compromise and general agreement was
reached as to across-the-board wage increases of 25 cents
per hour for service and maintenance employees. It is not
entirely clear whether the 30-cent-per-hour increase for
LPN's was agreed to at that time or on the next day. In any
event, actual distribution of the LPN increase was not de-
termined on February 27 because Respondent wanted to
reduce the number of wage rates (classifications) among the
nurses and in part at least some of the LPN wages would
be subject to regulations of the Cost-of-Living Council.
With general agreement having been reached, Muehlen-
kamp raised the question of the reinstatement of the seven
clinic nurses. Since probably as early as the beginning of the
strike, or at least by February 14, when Arnold was not
allowed to continue working in Dr. Robinson's office, it had
been rumored that the clinic nurses would not be reinstated
to their former jobs. When Muehlenkamp raised the ques-
tion on February 27, Respondent's representatives said they
could not guarantee such reinstatement because the doctors
were opposed and the doctors had the final say. At
Muehlenkamp's request, Respondent's representatives ap-
parently checked with Dr. Bower and repeated that they
could not guarantee the seven striking LPN's return to the
clinic. Serreno testified that he, to whom the doctors had
spoken, never attempted to persuade the doctors to take the
nurses back in their offices. Nor is there any evidence that
Hudgins or any other negotiator or lawyer for Respondent
ever took such action.
Godoff, having just entered the negotiations, did not un-
derstand the specific problem concerning the clinic nurses.
As a veteran organizer and negotiator, he insisted that there
could be no reprisals or recriminations against any employ-
ees for union activities. The Respondent's representatives
CLINCH VALLEY CLINIC HOSPITAL
gave assurance that they would not, and could not legally,
discriminate against any employees because of union activi-
ties . With that, further discussion of the clinic nurse prob-
lem was dropped. Muehlenkamp testified that Hudgins said
that, although the doctors were creating problems, Respon-
dent understood its legal obligation and "the clinic LPNs
would return to their jobs just like everyone else." However,
Muehlenkamp further testified that Hudgins never gave
such assurance in express words. On all the evidence, it is
found that Hudgins, as Respondent's spokesman, never ex-
pressly retracted or retreated from prior statements that he
could not guarantee that the clinic nurses would be reinstat-
ed to the clinic offices. The meeting ended about 11 p.m.,
with the parties to meet the next day for finalization of their
agreement.
On February 28 Respondent's representatives demanded
that the Union sign the service and maintenance agreement
and forthwith end the strike.[ 1 Respondent's representatives
took the position that the LPN contract had not as yet been
negotiated, since the distribution of the wage increase and
the precise classifications had not been determined. Ac-
cording to Respondent's representatives, it was understood
that the LPN contract was not to be negotiated until the
service and maintenance contract had been executed. With-
in the Union it had always been agreed and understood that
the two units would stick together and neither group would
return to work without the other. Thus, on February 28 the
union representatives did not execute the service and main-
tenance agreement as requested by Respondent. Negotia-
tions had broken down again.
A subsequent negotiating session was held on March 5.
Respondent's proposal for reduction of the LPN wage clas-
sifications from around 15 to 12 and the method of granting
LPN wage increases within the Cost-of-Living Council re-
gulations were agreed to, apparently with no problems or
difficulty. The parties also agreed to submit to expedited
arbitration the reinstatement of two service and mainte-
nance employees who Respondent asserted were not enti-
tled to reinstatement because of picket line misconduct.12 It
was further agreed that Respondent would put on a prefer-
ential hiring list some six striking service and maintenance
employees who had been replaced on March 5. Finally, it
was agreed that Respondent would provide a "side-letter"
statement of policy concerning employee assignments, sub-
contracting and union dues collections.
The contractual no-discrimination clause reads:
Neither the Employer nor the Union shall discrimi-
nate against or in favor of any Employee on account
of race, color, creed, national origin, political belief, sex
or age.
The accompanying "policy statement" says, in part:
As stated in the contract, management has to control
the operation of the hospital and expects to do so.
Nevertheless, it has been the policy of the hospital and
will continue to be the policy of the hospital that work-
ing assignments including weekend shift and holiday
11 So far as the record shows, it does not appear that a final contract was
ph7sically in existence ready for signature
i Through arbitration , these employees were subsequently reinstated with
backpay
519
assignments will take into account the desires of the
employee and the hospital will not make arbitrary as-
signments in order to discriminate against any employ-
ee.
On the evening of March 5 the employees ratified the con-
tracts and voted to return to work. The contracts and policy
statement are dated and effective as of March 6, but they
were not actually signed until sometime in April.
On March 6 the strikers returned to work. Some service
and maintenance employees had been replaced on March
5. But it is conceded that the doctors had been working
under temporary arrangements in their offices and no LPN
replacements had been hired.
When they reported to work, the clinic nurses found that
their timecards were missing. Pursuant to instructions, they
went to the hospital nursing service office.
Nurse Arnold testified she was first called into Serreno's
office alone. She was informed that she was being suspend-
ed for a week for not having reported to work in the hospital
on February 15 pursuant to the assignment made on Febru-
ary 14. Upon leaving Serreno's office, Arnold told the other
clinic nurses of her suspension and then waited downstairs
in the building while they were interviewed as a group in
Serreno's office. The other clinic nurses corroborated
Arnold's testimony. Respondent denies that Arnold was
suspended. Nursing Administrator Reba Staton, Supervisor
Hazel Wyatt, Service Manager William Staton, and Manag-
er of Plant Operations Norman Desrosier all testified that
they were with Serreno when the stnking clinic nurses were
called in. The supervisors all testified that Ruth Arnold was
in the group and, indeed, acted as the spokesman. However,
there were conflicts in the testimony as to her location and
note-taking. In a pretrial affidavit Serreno had said that he
could not recall if Arnold had been called into his office
alone or with the rest. All the supervisors acknowledged that
they were quite distraught over the problems created by the
simultaneous, unexpected return of over 100 employees.
Under the circumstances, the employees' memories as to the
events were likely to be the more accurate. Ms. Staton testi-
fied that she could not recall Arnold's "being suspended for
any period of time" and there were no notations on the time
records and schedules substantiating any suspension. How-
ever, no records were produced. Further, as noted below,
Arnold did not go back to work until March 13, a week after
the strike ended, whereas the six other nurses here involved
were all recalled by March 10, 4 days after they requested
reinstatement. On all the evidence, I credit the employees'
testimony and find that Arnold was suspended for 1 week.
The six other striking LPN's were then called into
Serreno's office. They were informed that they would not be
restored to their positions in the doctors' offices but would
be assigned to the hospital nursing service as soon as they
could be scheduled in. They could not be immediately
scheduled because, as a result of the strike, the patient cen-
sus was low and the simultaneous return of over 100 strikers
caused administrative problems.
Gaynelle Hale did not accept the hospital position be-
cause with school-age children, she could not report to work
at 7 a.m., the beginning of the hospital day shift, as distin-
guished from the 8:30 starting time at the clinic. Although
Serreno first indicated that three of the seven had declined
520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the hospital positions, he later said he believed that all but
Hale had gone to work. Betty Osborne, however, worked
only until around March 27, when she quit. The record
contains no indication of the reason for her leaving.
A grievance was filed on behalf of the seven clinic nurses.
Serreno denied the grievance, saying, in a letter to Arnold,
that Respondent's executive committee had reviewed the
matter and : "It is the unanimous decision of this governing
board that your grievance is denied, inasmuch as Manage-
ment maintains the right to assign duties to all personnel
where the need exists."
The Union thereafter demanded arbitration. Respondent
refused to arbitrate, saying: "We do not feel that this is a
matter for arbitration, because we consider this matter as
being settled during the bargaining session prior to the sign-
ing of the contract." A second request for arbitration was
rejected by Respondent's counsel, who added a reference to
the management -rights clause in the collective -bargaining
agreement.
Respondent's evidence establishes that in the past doc-
tors' requests for the assignment or reassignment of person-
nel have always been honored. As director of personnel,
Serreno testified: "I don't know if you've ever worked
around a group of doctors or not, but it's been my expen-
ence in 19 years that you don't argue with them. If he says,
'I don't want this person,' then that's it." Serreno conceded
that employees would also be transferred pursuant to pa-
tients' complaints. The evidence also establishes that even
before the strike began the doctors decided that no nurse
who went on strike would be permitted to work in the clinic.
During the strike both Serreno and Hudgins were in fre-
quent communication with the doctors, who consistently
maintained that they would not permit any clinic nurse on
strike to return to work in their offices. The evidence also
indicates that at no time did Serreno, Hudgins, or any other
administrative or legal representative of Respondent ever
advise the doctors, either individually or as members of the
executive committee or board of directors, of the provisions
and requirements of the National Labor Relations Act, al-
though the doctors do appear to have been informed con-
cerning a state law prohibiting strikes in hospitals. No
attempt was made to persuade the doctors to take the strik-
ing nurses back into their offices. On the contrary, Serreno
urged the doctors to reduce their repeated oral objections to
writing for the record. Between March 15 and 20 six doctors
did so in letters addressed to Serreno, the executive commit-
tee, or "whom it may concern."
These letters, together with the testimony of Drs. Bower,
Robinson and McCue, clearly establish that the nurses hav-
ing gone out on strike on February 13 was the reason for
the doctors' refusal to have them back in the clinic. For
example, Dr. Henderson wrote concerning Betty Osborne:
Please be advised that I do not desire to have Betty
Osborne return to my office as an office nurse.
This employee conducted herself in an unprofessional
way which was not in keeping with the conduct expect-
ed of a nurse when she left my office without notice to
me and without nursing coverage.
I do not believe that it is in the best interest of my
practice to have this nurse return to my office.
Dr. Schrader, in whose office Hale had worked, wrote:
Having been through the experience and hardship of
the illegal strike of the LPNs at the Clinic, I have decid-
ed to regroup my office, and to continue to take care
of my patients the way I did during the strike.
I should appreciate it if you see that Mrs. Debbie Rob-
erts continues to be assigned [sic] to my office as secre-
tary, for the time being.
And Dr. McCue, who also testified , wrote:
Please be advised that I do not desire to have either
Mrs. Gloria Regon, or Mrs Carolyn Newberry return
to my office as office nurses.
As both well know, I was carrying the entire load of the
pediatric department . . . I consider the abandoning of
patients by a nurse as most unethical and an insult to
their profession. I do not believe that it is in the best
interest of all concerned for either of them to return to
their former positions or to a similar position in the
Out-Patient Department. I do not desire to have any of
the others that left working in my office either.
Similarly, Dr. Robinson wrote that Arnold, who had served
"well and faithfully as [his] nurse for approximately ten
years," was no longer acceptable because she was not pre-
sent to perform her duties "while she was on the picket line
and striking (allegedly illegally) and encouraging [his] pa-
tients and others to seek treatment elsewhere." At the hear-
ing, no evidence was adduced to support this latter
accusation and there was no claim or evidence that any of
the seven nurses had been disloyal or had engaged in any
misconduct other than walking out without notice, which
the doctors believed was a violation of their professional
obligations.
As previously noted, Dr. Bower is a member of the Clinch
Valley executive committee and a member of the hospital
corporation's board of directors, as well as chief of the
obstetrical and gynecological service, to which two of the
striking nurses were assigned. He testified that on about the
second day of the strike he "made a flash statement" to
Serreno "that I would just never have them come back,
leaving us in the mess we were in , with some thousand
appointments and one nurse and one receptionist to do the
job that we had three to four. I just said this was, as far as
I was concerned, leaving me in a lurch and that was it." He
did not reduce his opinion to writing because: "I didn't
become aware of the need of this until we got to the deep
end of the strike and began to understand that we had to
have things documented, so I figured the best thing to do
was to get it on paper and get it in the folder of these girls."
The evidence was undisputed that service in the hospital
is considered more arduous and less desirable than service
in a doctor's office in the clinic. First, the clinic hours are
8:30 a.m. to 5 p.m. Monday through Friday and Saturday
CLINCH VALLEY CLINIC HOSPITAL 521
morning. In the hospital, the shifts are 7 a.m. to 3 p.m., 3
to 11 p.m., and 11 p.m. to 7 a.m. Since the hospital service,
of course, runs around the clock, 7 days a week, individual
nurses' schedules are erratic and require weekend work. As
Arnold testified, clinic nurses "were allowed to sit down and
maybe even read a book or something in between patients
if [they] weren't busy," whereas hospital nurses "aren't al-
lowed to sit down" except on scheduled breaks, which they
frequently could not find time to take. Clinic nurses' duties
generally are lighter, consisting of "just assist[ing] the doctor
with putting the patient on the examining table and examin-
ing them and help[ing] the patient get dressed," escorting
them to X-ray, giving injections and oral medications, etc.
Clinic nurses also perform such sedentary activities as sche-
duling appointments and handling the telephone. They also
keep the offices supplied and in order. The physical burdens
of hospital nursing, which include such chores as giving bed
baths, administering medications, etc., are well known.
Clinic nurses work 40 hours a week, whereas hospital nurses
work only 37-1/2 hours, resulting in a somewhat higher
hourly rate. However, as Arnold testified, hospital nurses
"are even called on [their] days off to see if [they] can come
in to work, double back or work over."
C. Discussion and Conclusions
1. Reassignment of the nurses
As previously noted, in its answer to the complaint and
at the hearing Respondent raised three affirmative defenses
to the complaint. Because Respondent's brief reargues the
two defenses disposed of in a prior order, they will be briefly
discussed herein.
a. Respondent contends that the LPN strike was unpro-
tected ab initio because "the LPNs had not negotiated to
impasse" and the entire strike was unlawful after the Union
failed to execute the service and maintenance agreement on
February 28.13
Negotiation is not a condition precedent to a lawful eco-
nomic strike. See N.L.R.B. v. Washington Aluminum Co.,
370 U.S. 9. Neither Publishers'Association of New York City
v. N.L.R.B., 364 F.2d 293 (C.A. 2, 1966), nor Westchester
County etc., 142 NLRB 126, cited by Respondent, suggests
the contrary
Respondent argues that an employer may not lock his
employees out before a bargaining impasse and therefore
employees may not strike before impasse. But it is not clear
that a lockout is necessarily unlawful before impasse. See
American Ship Building Co. v. N L.R.B., 380 U.S. 300, con-
curring opinion of Justice White (p. 324): "If the Court
means what it says today, an employer may not only lock
out after impasse . . . but also lock out long before an
impasse is reached." Unlike the employer lockout weapon,
the employee right to strike is expressly preserved by the
Act. Even the 8(d) restriction on striking for renewal con-
tracts does not make impasse a condition to a lawful strike.
13 In its brief Respondent concedes that it is "relatively unimportant" that
no impasse had been reached in the negotiations and that it is "not impor-
tant" whether the Union's failure to execute the service and maintenance
contract on February 28 constituted an unfair labor practice
The LPN's had a vital stake in expediting the service and
maintenance contract if it were to precede the LPN agree-
ment. Further, the first contract was to set the pattern for
all nonwage terms of both. And the LPN's were obviously
concerned with their Union's strength vis-a-vis the employ-
er.
Even if it is assumed that on February 28 there was a
service and maintenance contract available for execution,
the Union could lawfully withhold execution until agree-
ment was reached on the wage provision of the LPN con-
tract. See Joint Negotiating Committee (Phelps Dodge Corp.)
v. N.L.R.B, 459 F.2d 374 (C.A. 3). The present situation is
different from that in Standard Oil Co. v. N L.R.B., 322 F.2d
40 (C.A. 6, 1963), cited by Respondent. There the union
refused to execute a contract until negotiations were con-
cluded by a different local union at a different plant, here
the union, the employer, and the location involved were all
the same in both contracts.
Even if it be assumed that the service and maintenance
employees violated the no-strike provision of their contract
after February 28, the strike of the LPN's would meet no
such impediment. Thus, there is no basis for holding that the
nurses here involved were engaged in unprotected activity.
The evidence shows that at the time of the events here
involved, Respondent maintained that the strike was illegal
under a Virginia statute, a copy of which it apparently post-
ed on the premises. This was apparently the major, if not
sole, reason given by Dr. Bower for his claim that the nurses
were guilty of unlawful conduct. Respondent does not press
this contention in the present proceeding. In any event, it
is clear that a state statute restricting employees' right to
strike could not prevail over an inconsistent Federal law.
b. The second defense which was ruled upon in the order
denying Respondent's application for deposition was the
contention that the clinic nurses' right to reinstatement to
their former positions had been disposed of in the course of
the negotiations leading to the final contract and the termi-
nation of the strike. Respondent's position is that during the
negotiations, and through March 5, when final agreement
was reached, Respondent's representatives repeatedly said
that they could not guarantee that the clinic nurses would
be returned to the clinic offices because the doctors refused
to have them and the doctors had the final say. According
to Respondent, by executing the collective-bargaining
agreement in the face of Respondent's statements, the
Union in effect agreed that the clinic nurses need not be
reinstated to their former positions.
Muehlenkamp testified that when Respondent's repre-
sentative said that it could not provide the requested assur-
ance because of the doctors' opposition, Muehlenkamp
forcefully expressed the opinion that Respondent was le-
gally obligated to have the clinic nurses reinstated to their
clinic positions and it was Respondent's, not the Union's,
problem to see that such was done. He also testified that he
said that, if necessary, resort could be had to an unfair
labor practice charge and/or a grievance carried through
arbitration. The matter was dropped, with no further dis-
cussion, when Respondent's representatives acknowledged
its legal obligation not to discriminate and assured the
union representatives that there would be "no recrimina-
tions and no reprisals" for union activity.
522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent does not contend that the Union ever ex-
pressly accepted or agreed to Respondent's reserving the
possibility that the nurses would not be returned to the
clinic. On the other hand, it has been found that Respon-
dent never gave express assurance, either written or oral,
that they would be reinstated to their clinic jobs. Both the
no-discrimination clause in the contract and Respondent's
side-letter statement of policy, quoted above, are at best
ambiguous.14
In the prior order herein, it was held that Respondent's
evidence did not establish that the Union had waived the
nurses' rights to reinstatement to their former positions.
That holding is here reaffirmed.
In its brief, Respondent says: "It is not ... a question
of waiver of rights." Apparently Respondent contends that
the Union is equitably estopped to assert the nurses' rights
because, in executing the contract, Respondent relied on the
Union's failure to insist upon a specific written commit-
ment." But even without Respondent's express assurance,
the Union could reasonably rely on an expectation that
Respondent would meet its legal obligation to refrain from
discriminatory action because of union or concerted activi-
ties. Of course, some disagreement might apse as to the
scope and extent of Respondent's legal obligation. But, as
the union representatives stated during the negotiations,
there were available, as a last resort, at least two possible
means of resolving any such disagreement; namely, arbitra-
tion under the contract and an unfair labor practice pro-
ceeding. It can hardly be said that Respondent was imposed
upon by the Union's failure to wrest from Respondent an
express contractual agreement that Respondent would ful-
fill its legal obligations. The onus, if any, would appear to
lie on Respondent to insist on an express commitment by
the Union not to seek adjudication and vindication of the
employees' rights.16
c. As its major defense, not considered in the prior order,
Respondent contends that it was powerless to comply with
the Union's demands since it has no control over the doc-
tors, who had absolute, final authority to refuse to have the
striking nurses returned to their offices. As summarized in
Respondent's brief, its position is that "the doctors are not
willing to take the LPNs back and the Hospital has no legal
14 In the prior order herein it is said that "the contract contains an express
and unqualified anti-discrimination provision " That statement is erroneous,
since the contractual provision does not mention union or concerted activi-
ties The ruling embodied in the prior order, however, is not changed by
deletion of the sentence referring to the contractual no-discrimination clause
15 Respondent 's brief says "Having discussed all the issues and having
advised the Union in clear and complete terms that the Hospital could
not guarantee that the doctors would take the nurses back, the Hospital had
the right to believe that when the workers returned to work on March 6 it
was on the basis of an agreement on all of the terms which had been spelled
out and which were reduced to writing in the contract of March 6, 1973,
and the letter of March 6 , 1973, which were actually written about April 3
or 4 and signed by the Union about April 15 . Otherwise, the Hospital
would not have settled , risking this troublesome and expensive unfair labor
practice charge " It may be noted that before April 3 the Union had filed and
was pursuing a grievance on behalf of the nurses and on April 15 had pending
with Respondent an unanswered formal demand for arbitration of the mat-
ter.
16 No opinion is here expressed as to whether the Union could legally make
any such commitment Cf Alexander v. Gardner-Denver Co, 94 S Ct. 1011
(Feb 19, 1974)
way of forcing them to do so." The record, however, belies
Respondent's claim of independence between the doctors
and the hospital.
In determining whether two or more ostensibly separate
legal entities in reality constitute a single employer, the
Board, with judicial approval, has consistently considered
"the extent of (1) interrelation of operations, (2) centralized
control of labor relations, (3) common management, and (4)
common ownership or financial control, particularly the
first three factors, which show operational integration."
Penco Enterprises, Inc., 201 NLRB 29 (1973), and authori-
ties there cited. Of the four considerations listed, the last-
common ownership or financial control-is the least impor-
tant. Sakrete of Northern California v. N.L.R.B., 332 F.2d
902, 905-908 (C.A. 9, 1964), cert. denied 379 U.S. 961
(1965).
The interrelationship of the operations is clear, with the
clinic doctors constituting the closed staff of the hospital.
The clinic building is on the same grounds as the hospital,
with the doctors' offices having previously been in the hos-
pital building. Centralized control of labor relations is, of
course, indisputable, since the hospital corporation provides
all personnel for both the clinic and the hospital. Common
management is equally clear. The overall corporation is
managed by a board of directors consisting of four practic-
ing members of the medical partnership and two former
members now retired from active practice. The installation
here involved is governed by an executive committee con-
sisting of four active members of the partnership, with a
nonmedical administrator as an additional "ex officio"
member. Similarly, common financial control is established.
All the doctors' medical fees and hospital revenues are
pooled and revenues are divided on a set ratio between the
medical partnership and the hospital corporation. The doc-
tors pay "rent" to the corporation, but the amount of such
rent is apparently computed by the hospital's accountants
and has never been the subject of any "negotiation" or
disagreement. The only objective indicium of possible inde-
pendence of the corporation and the partnership to which
Respondent can point is the alleged fact that "the active
doctors who are practicing . . do not own a controlling
interest in the corporation ." But even this statement is mis-
leading, since the corporation's stock is evidently all owned
by members of the partnership or persons "in privity with"
them.11 Except for administrative personnel, who apparent-
ly have no ownership interest, only present or retired part-
ners play any role in the operation of the hospital-clinic.
Accordingly, to say, as Respondent argues, that the Respon-
dent has no power to direct the doctors' conduct or resist
their improper demands is to say that the doctors as direc-
tors of the corporation have no power to require themselves
as members of the partnership to comply with the law.
Manifestly the law countenances no such conclusion. Em-
ployee rights cannot be nullified by legal fictions or contrac-
tual relationships among other people. Cf. Golden State
Bottling Company v. N.L.R.B., 414 U.S. 168; N.LR.B. v.
Deena Artware, Inc., 361 U.S. 398 (1960).
17 Respondent 's brief says that the controlling interest "in fact is owned by
retired doctors and persons who are not doctors-primarily children or
relatives of deceased doctors who once owned some interest in the corpora-
tion."
CLINCH VALLEY CLINIC HOSPITAL
In addition to governing and controlling the policy and
operations of the hospital-clinic , the doctors ultimately su-
pervise the employees . And, at least with respect to the
clinic nurses , the doctors control and direct the details of the
employees ' work . If it were to be held that the partnership
and the corporation do not constitute a single integrated
employer , the doctors , as supervisors , would have to be
deemed agents of the corporation , the employer . On either
view , Respondent , as an employer , could not avoid respon-
sibility for unfair labor practices by reliance on demands of
the doctors.
Analysis of the practical , as distinguished from the legal,
aspects of the matter does not dictate a different conclusion.
It does not appear that , as Respondent contends , it is pow-
erless to require compliance with the law by the doctors.
Respondent owns the buildings and equipment ; the doctors
are dependent on Respondent for the facilities and services
necessary for their practice . Cf. N.L.R.B. v. Jewell Smoke-
less Coal Corp., 435 F .2d 1270 (C.A. 4, 1970).
The question thus becomes whether the transfer of the
seven nurses here involved from the clinic offices to the
hospital nursing service contravened the Act.
It is well settled that a transfer of an employee may con-
stitute an unfair labor practice as fully as may outright
discharge . N. L. R. B . v. Merchants Police, Inc., 313 F .2d 310,
311-312 (C.A. 7, 1963); N.L.R.B . v. Lowell Sun Publishing
Company, 320 F .2d 835 , 840-841 (C.A. 1, 1963); N.L.R.B.
v. Southern California Associated Newspapers, d/b/a South
Bay Daily Breeze, 299 F .2d 677, 679 (C.A. 9, 1962).
There can be no doubt that nursing service in the hospital
is considerably more arduous than working in the private
offices of doctors in the clinic. The nurses here involved
reasonably objected to losing those positions , which, so far
as the evidence discloses, they had all filled efficiently , faith-
fully, and satisfactorily for long periods of time . Their trans-
fers to the hospital thus clearly constituted adverse action.18
Respondent ultimately contends that the nurses were
transferred not because they went on strike but because the
doctors felt they were "unreliable" ahd "unprofessional." In
its brief , it presents this argument as follows:
... the doctors did not refuse to take back the LPNs
in question because of their Union activities. To the
contrary, they did not want to work with them because
they no longer felt they could be relied upon to carry
out their professional obligations. The doctor's first
concern must be for the patient. To have a nurse that
the doctor feels is unreliable would certainly interfere
with the proper treatment of patients.
There is room for skepticism as to the professed concern
for the welfare of patients as the doctors' motivation. None
of the doctors has objected to reinstatement of any of the
striking nurses (including the seven here involved) in the
hospital. Indeed, Dr. Robinson, in a letter to the executive
is Even if the hospital positions , objectively viewed , were "better" fobs, I
should hold the transfers improper if the employees objected Employees are
entitled to be free from any personnel action taken for discriminatory rea-
sons.
523
committee, said: "I trust that you can find duties elsewhere
in the hospital for Mrs. Arnold." Presumably the doctors'
hospitalized patients are the most seriously ill and " reliable"
nursing service would appear to be more crucial for them
than for the ambulatory patients seen in the outpatient clin-
ic. The record leaves little doubt that the doctors' chief
concern was the inconvenience and "embarrassment"
caused them by the strike activity of their office nurses. But
most employers are inconvenienced by their employees' ex-
ercise of their protected right to strike.
And it is probably true, as the doctors maintained, that
a harmonious working relationship between them and their
nurses is desirable. This is equally true of most employment
relationships. Animosity or lack of harmony and mutual
respect is not the inevitable result of strikes if employers and
employees recognize each others' legal rights and legitimate
interests.
The doctors apparently believe that striking is incompati-
ble with the professional responsibilities of nursing. One
may have sympathy for that view as a matter of social and
political philosophy. But the ultimate balance of the rights
and interests of social groups must be struck by the proper
legislative body. Congress has not seen fit to exclude pro-
prietary hospitals and clinics such as Respondent's from the
coverage of the Act. Mayo Clinic, 168 NLRB 557 (1967);
Quain and Ramstad Clinic, 173 NLRB 1185 (1969); Center-
ville Clinics, Inc., 181 NLRB 135 (1970). Nor have nurses
been excluded from the protection of the Act. Indeed,
LPN's are not necessarily classified as "professional em-
ployees" under the Act. New Fern Restorium Co., 175 NLRB
71 (1969). In the present case the doctors cannot escape the
policy and provisions of national legislation by the legal
fiction of separately organizing in a partnership distinct
from the hospital-chmc corporation which they govern and
with which they commingle their earnings and share reve-
nues.19
The record conclusively establishes that the seven LPN's
here involved were transferred to less desirable positions
because they engaged in a strike called by and in support
of the Union. There can be no question that the treatment
afforded them would have a natural tendency to discourage
union membership. Accordingly, on all the evidence, it is
found that Respondent violated Section 8(a)(3) and (1) of
the Act by refusing to reinstate the seven LPN's here in-
volved to their former positions in the clinic.
2. Ruth Arnold
As set forth above, Ruth Arnold, having stayed out of
19 Although Respondent has not cited or relied on S H Lynch & Co, 167
NLRB 554, it is cited in the General Counsel's brief Because of a superficial
similarity between the present situation and that in Lynch, the salient distinc-
tions should be noted . In Lynch the employer and his customer were com-
pletely separate and unrelated . The customer had no control over or power
to direct the employer 's employees . And the Board found that the employer
did not know the reason for the customer 's request that he not be served by
a particular employee Here the doctors and the corporation are so thorough-
ly interrelated as to constitute a single enterprise , the doctors control and
direct the employees ; and Respondent's administrative and governing per-
sonnel knew that the requests for transfer of the nurses were based on their
having gone on strike.
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work on February 13,20 returned on February 14. Although
allowed to work that day at her former position in the clinic,
she was informed that, as of the next day, she was being
transferred to the hospital nursing staff . Instead of returning
to that assignment , she elected to resume striking.
For the reasons set forth above, it would appear that
Arnold's transfer as of February 15 was violative of Section
8(a)(3). However, since the complaint does not allege this
violation , no finding is here made as to it.
As stated above, I credit Arnold's testimony , substantial-
ly corroborated by other employees, that on March 6 she
was suspended for a week for rejoining the strike on Febru-
ary 15. That suspension is found to be violative of Section
8(a)(3) and (1).
3. The letter of February 23
In a letter Respondent advised each striker that if he did
not return to work by a specified date he would be replaced
and then considered as having "voluntarily terminated [his]
employment."
Employees who quit lose their employee status and have
no legal right to reinstatement or reemployment . Strikers,
on the other hand, retain their employee status and have
certain reemployment rights even after they have been re-
placed . The Laidlaw Corporation, 171 NLRB 1366 (1968),
enfd. 414 F.2d 99, cert. denied 397 U.S. 920. Thus, in telling
the employees in effect that they would end their employ-
ment and forfeit their reinstatement rights by failing to
return to work by a specified date, Respondent misstated
the law and violated Section 8(axl). Dayton Food Fair
Stores, Inc. v. N.L.R.B., 399 F.2d 153 (C.A. 6); Hicks-Ponder
Co., 186 NLRB 712, 725 (1970).
4. Refusal to arbitrate
The complaint alleges that Respondent violated Section
8(a)(5) by refusing to submit the transfer of the LPN's to
arbitration. As the General Counsel contends, the refusal to
arbitrate pursuant to a collective -bargaining agreement
constitutes a violation of Section 8(aX5).
Respondent maintains that the LPN grievance is not ar-
bitrable because the LPNs' rights to precise reinstatement
were waived and thus not covered by the contract. General-
ly speaking, the arbitrability of grievances is an issue for the
arbitrator (Urban N. Patman, Inc., 197 NLRB 1222 (1972),
affd. (C.A. 9, Feb 21, 1974), and may not be decided by one
party where the question is reasonably debatable (U.A.W.
v. General Electric Co., 474 F.2d 1172 (C.A. 6) ). However,
a recent decision of the Board apparently holds that where,
as here, the parties have bargained about but have reached
no agreement concerning the reinstatement of strikers, that
issue is not properly one for arbitration under the collective-
bargaining agreement but rather is to be determined by the
Board under the Act. Bio-Science Laboratories, 209 NLRB
No. 106 , fn. 3. Although that case dealt with the application
of Collyer Insulated Wire, 192 NLRB 837 (1971), its ration-
20 She testified that her absence was occasioned by illness as well as reluc-
tance to cross a picket line . It is here assumed that on February l3 she was
a striker.
ale would appear applicable to the present question. Ac-
cordingly , it is here found that Respondent did not violate
Section 8(a)(5).
CONCLUSIONS OF LAW
1. By refusing to reinstate Gaynelle Hale, Betty Osborne,
Gloria Regon , Louise Silcox , Carolyn Newberry, Ruth Ar-
nold, and Ella Ringstaff to their former positions in doctors'
offices within the Clinch Valley outpatient clinic , and trans-
ferring said employees to the hospital nursing service, be-
cause of their having engaged in a strike , Respondent has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(3) and (1) of the Act.
2. By suspending Ruth Arnold for a week because of her
participation in a strike and/or her failure to report for work
in the hospital nursing service on February 15, 1973, pur-
suant to a discriminatory transfer, Respondent has engaged
in an unfair labor practice within the meaning of Section
8(a)(3) and (1) of the Act.
3. By advising its striking employees that their employ-
ment status would be terminated if they did not return to
work before a specified date , when replacements would be
hired , Respondent engaged in unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
4. By refusing to submit to arbitration a grievance filed
on behalf of the seven employees named above , Respondent
has engaged in unfair labor practices within the meaning of
Section 8(aX5) and (1) of the Act.
THE REMEDY
Having found that the seven striking clinic nurses were
discriminatorily denied reinstatement to their former posi-
tions in the clinic , I shall recommend that Respondent be
required forthwith to offer them reinstatement to their for-
mer positions , without loss of seniority or other privileges.
At the outset of the hearing, the question was raised whether
effective relief could be granted in the absence of the doc-
tors as parties respondent in view of Respondent 's conten-
tion that the hospital was unable to compel the doctors to
accept assignment of the seven nurses to their offices. This
question may have been rendered academic by the clear
evidence and finding that Respondent and the doctors con-
stitute a single employer . At least in their capacity as mem-
bers of Respondent 's executive committee , representatives
of the doctors are agents of Respondent and thus the part-
nership would be bound by an order against Respondent,
particularly in view of the fact that the partnership has been
named as a party in interest for the purpose of notice, in-
cluding service of this Order.
Because of the close relationship between the partnership
and the hospital corporation, the present Order would be
binding on the doctors even in the remote eventuality that
they were inclined to ignore the policy of the Federal law
and attempt to compel noncompliance by the hospital cor-
poration . See Golden State Bottling Company v. N.L.R.B.,
414 U.S. 168. The absence of the medical partnership as a
respondent is not a barrier to the present proceeding and
Order. Quality Motels of Colorado, Inc., 189 NLRB 332, 334,
enfd . in part 462 F.2d 1375 (C.A. 10). And the partnership's
CLINCH VALLEY CLINIC HOSPITAL
absence as a respondent will not preclude full enforcement
of the present Order if there is not voluntary compliance.
Progressive Cafeterias, Inc., 176 NLRB 83, 86, fn. 7.
Except for Ruth Arnold, all the striking employees here
involved were offered reinstatement, although not to their
original jobs, within 5 days after request. So far as appears,
only employee Hale declined the proffered position in the
hospital. Since the compensations was apparently at least as
good in the hospital as in the clinics, no backpay would
appear due to the five LPN's who went to work by March
11.
Ruth Arnold, however, was "suspended" for a week and
was not offered employment until March 13, 1 week after
the employees' unconditional offer to return to work. Ac-
cordingly, it may be that some backpay is due her. There-
fore, an appropriate backpay provision will be included,
with the possibility of a supplemental proceeding if the
backpay obligation, if any, to Arnold cannot be amicably
disposed of.
Since the nurses were entitled to reinstatement in the
clinic, they were not required to accept jobs in the hospital.
On the other hand, employees are required to mitigate dam-
ages and refrain from wilful loss of earnings. Whether Hale
unreasonably refused the hospital nursing assignment, thus
wilfully incurring a loss of earnings, must be determined on
the basis of all the surrounding circumstances. N.L.R.B. v.
Madison Courier, Inc., 472 F.2d 1307 (C.A.D.C.). Such ques-
tion can best be determined in a supplemental proceeding.
Accordingly, it will be recommended that the order contain
an appropriate provision for backpay to Hale (and to any
other of the nurses here involved who may have refused
assignment to the hospital), with the amount of backpay, if
any, to be determined in a supplemental proceeding unless
it can be decided amicably, with or without resort to the
grievance procedure and/or arbitration. As is customarily
provided, backpay shall be computed in accordance with
the formula prescribed in F.W. Woolworth Company, 90
NLRB 289 (1950), and shall carry 6-percent per annum
interest in accordance with Isis Plumbing & Heating Co., 138
NLRB 716 (1962).
As to all the unfair labor practices found, customary
cease-and-desist and notice-posting requirements will be in-
cluded in the Order.
Upon the basis of the entire record, and pursuant to
Section 10(c) of the Act, I hereby issue the following recom-
mended:
ORDER 21
Respondent, Clinch Valley Clinic Hospital , a Division of
Bluefield Sanitarium , Inc., Richlands , Virginia , its officers,
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in Local 1199-W. Va., Na-
tional Union of Hospital and Nursing Home Employees,
AFL-CIO, affiliated with Retail , Wholesale Department
Store Union , AFL-CIO , or any other labor organization, by
discriminatorily transferring or suspending any employee or
by discriminating in any other manner in regard to hire and
tenure of employment or any term or condition of employ-
ment.
525
(b) Advising or threatening employees that their employ-
ment may be terminated if they engage in a strike.
(c) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which is
deemed necessary to effectuate the policies of the Act:
(a) Offer Gaynelle Hale, Betty Osborne, Gloria Regon,
Louise Silcox, Carolyn Newberry, Ruth Arnold, and Ella
Ringstaff immediate and full reinstatement to their former
positions (or, if any of those positions are no longer in
existence, to substantially equivalent positions in the medi-
cal offices of the Clinch Valley out-patient clinic), without
prejudice to their seniority or other rights and privileges,
and make them whole for any loss of earnings they may
have suffered by reason of the discrimination against them,
in the manner set forth in the section of this Decision enti-
tled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, as well as all other records neces-
sary to analyze and compute the amount of backpay due
under the terms of this Order.
(c) Post at its hospital and clinic in Richlands, Virginia,
copies of the attached notice marked "Appendix." 22 Copies
of said notice, on forms provided by the Regional Director
for Region 5, after being duly signed by Respondent's repre-
sentative, shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for Region 5, in writing,
within 20 days from the date of the receipt of this Order,
what steps Respondent has taken to comply herewith.
21 In the event no exceptions are filed as provided by Sec . 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall , as provided in Sec 102 48
of the Rules and Regulations , be adopted by the Board and become its
findings, conclusions , and Order , and all objections thereto shall be deemed
waived for all purposes
zi In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board " shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a full trial in which the parties had the opportunity to
present their evidence, the National Labor Relations Board
has found that we, Clinch Valley Clinic Hospital, a Division
526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Bluefield Sanitarium, Inc., violated the National Labor
Relations Act and has ordered us to post this notice. We
intend to abide by the following:
The Act gives all employees these rights:
To organize themselves
To form, join, or help unions
To bargain as a group through a representative of
their own choosing
To act together for collective bargaining or other
mutual aid or protection
To refuse to do any or all of these things.
WE WILL NOT discourage membership in Local 1199-
W, VA., National Union of Hospital and Nursing
Home Employees, AFL-CIO, affiliated with Retail,
Wholesale Department Store Union, AFL-CIO, or any
other labor organization, by discriminating against any
of our employees in regard to hire and tenure of em-
ployment or any term or condition of employment.
WE WILL NOT threaten employees with termination of
their employment if they engage in lawful strike activi-
ty.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed in Section 7 of the Act.
WE WILL offer Ruth Arnold, Gaynelle Hale, Betty
Jane Osborne, Caroline Newberry, Gloria Recon, Ella
Ringstaff, and Louise Silcox immediate and full rein-
statement to their former positions as office nurses in
the outpatient clinic (or, if such positions no longer
exist, to substantially equivalent positions in the clinic),
without prejudice to their seniority or other rights or
privileges previously enjoyed by them, and WE WILL
pay them backpay for any loss of earnings they may
have suffered as a result of the strike on March 6, 1973
(and for any loss suffered by Ruth Arnold as a result
of her suspension from employment), together with in-
terest at the rate of 6 percent per annum.
We assure all our employees that we will not do anything
that interferes with these rights.
Dated By
CLINCH VALLEY CLINIC HOSPI-
TAL, A DIVISION OF BLUEFIELD
SANITARIUM, INC.
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material. Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board 's Office , Federal Building , Rm 1019,
Charles Center Baltimore , Maryland 21201, Telephone
301-962-2822.