Browning Manor Convalescent Hospital

National Labor Relations Board - Board Decisions

May 29, 1986

279 N.L.R.B. 1176 (N.L.R.B. 1986)

1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brookhurst Professional Building, Inc., Number
Three d/b/a Browning Manor Convalescent
Hospital and Hospital and Institutional Work-
ers Union , Local 250, Service Employees Inter-
national Union , AFL-CIO. Case 31-CA-11262
29 May 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND STEPHENS
On 9 November 1982 Administrative Law Judge
David G. Heilbrun issued the attached decision.
The General Counsel and the Charging Party filed
exceptions and supporting briefs, and the Respond-
ent filed cross-exceptions and a brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions, cross-exceptions,
and briefs' and has decided to affirm the judge's
rulings , findings,2 and conclusions3 and to adopt
the recommended Order.
' We deny the Respondent 's motion to reject as untimely the Charging
Party's exceptions and brief inasmuch as the exceptions and brief were
timely filed prior to the due date as extended by the Board on 30 No-
vember 1982
2 The General Counsel and the Charging Party have excepted to some
of the judge's credibility findings The Board's established policy is not to
overrule an administrative law judge 's credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd
188 F 2d 362 (3d Cir 1951) We have carefully examined the record and
find no basis for reversing the findings
2 We agree with the judge that the General Counsel' s postheanng con-
tention that the Respondent falsely advised striking employees of their
permanent replacement in early April 1981 is not properly before the
Board for consideration The record discloses that following the receipt
of subpoenaed documents at the hearing , the General Counsel amended
the complaint to allege that the Respondent discharged striking employ-
ees in violation of the Act As represented by the General Counsel at the
hearing , this amendment was directed toward certain entries on subpoe-
naed intramanagement personnel and payroll records allegedly establish-
ing that, unbeknown to the employees, the Respondent had effectively
discharged them prior to their purported offer to return to work The
General Counsel made no contention at the hearing that the Respondent
discharged striking employees by the wholly independent act of expressly
and falsely informing striking employees of their permanent replacement
Indeed , although the General Counsel introduced voluminous documents
into evidence to support the amended complaint allegation pursuant to
her subpoena , the General Counsel did not seek to introduce the docu-
ment purportedly showing that the Respondent falsely informed striking
employees of their permanent replacement in early April 1981 That doc-
ument was introduced by the other parties to this proceeding regarding
issues that were expressly raised and litigated at the hearing In these cir-
cumstances , we find that the amended complaint did not encompass the
General Counsel's posthearing contention that the Respondent falsely ad-
vised striking employees of their permanent replacement in early April
1981, and that the Respondent was not apprised of any need to defend
itself against this belated contention Accordingly, we conclude that the
issue was not fully litigated at the hearing and that dismissal of the com-
plaint in its entirety is warranted
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
Doreen R. Braverman, Esq, for the General Counsel.
Harry Finkle and Stephen Thomas Davenport, Jr, of
Fresno, California, for the Respondent
Paul Supton, of San Francisco, California, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
DAVID G. HEILBRUN, Administrative Law Judge This
case was heard at Bakersfield, California, over a course
of 5 trial days spanning June 29-August 4, 1982. The
amended complaint on which hearing opened alleges that
Brookhurst Professional Building , Inc., Number Three
d/b/a Browning Manor Convalescent Hospital (Re-
spondent) violated Section 8(a)(1) and (3) of the Act by
failing and refusing about April 27 and 28, 1981, and
continuously thereafter, to offer reinstatement to numer-
ous striking employees on their unconditional return-to-
work offer. The amended complaint, as then framed, fur-
ther alleges that such conduct by Respondent was en-
gaged in because the striking employees joined or assist-
ed Hospital and Institutional Workers Union, Local 250,
Service Employees International Union, AFL-CIO (the
Union) or engaged in other protected concerted activi-
ties for the purposes of collective bargaining or other
mutal aid or protection, and by such acts and conduct
Respondent did discriminate against employees thereby
discouraging their membership in a labor organization
and derivatively interfering with, restraining, and coerc-
ing them in the exercise of their statutory rights Finally,
the amended complaint also alleges that the strike of em-
ployees had been prolonged by Respondent's commission
of unfair labor practices.
On June 30, 1982, the General Counsel's oral amend-
ment to the once-amended complaint was granted, in
consequence of which the litigation expanded to include
allegations that during the period from about April 6,
1981, through about April 10, 1981, Respondent had dis-
charged numerous striking employees and thereafter
failed and refused to reinstate them.'
On the entire record,2 my observation of witnesses,
and consideration of posthearing briefs, I make the fol-
lowing
FINDINGS OF FACT AND RESULTANT CONCLUSION
OF LAW
A corporation headquartered in Garden Grove, Cali-
fornia, operates four San Joaquin Valley convalescent
' This successful oral amendment was coupled with a further allega-
tion at the time , later to be withdrawn , that such alleged acts of early
Apirl 1981 had served to prolong the strike of employees
2 The transcript is corrected in 29 particulars as jointly requested by
the General Counsel and Respondent I also confirm the substitution of
corrected Tr 732
279 NLRB No. 172
BROWNING MANOR HOSPITAL 1177
hospitals, one of which is called Browning Manor and is
the facility here involved. Of the other three hospitals
one is located in Visalia and two are in Tulare. Lonnie
Divine is executive vice president in charge of all such
facilities with Lillian Brookins having been administrator
at Browning Manor at all material times until March
1982. During 1981 Rebecca Pace, RN, was director of
nursing and assistant to the administrator . Browning
Manor accommodates 53 patients and operates around
the clock with 3 shifts that overlap at 7 through 7:30
a.m. and 3 through 3:30 p.m. each day. The facility is de-
partmentalized into nurses aides and kitchen , housekeep-
ing, and laundry employees, these also constituting a bar-
gaining unit for which the Union was certified as exclu-
sive representative on September 8, 1980. Registered
nurses were expressly excluded from the unit, along with
other predictable occupations. This certification culmi-
nated an organizing drive that was originated in April
1980 by Union Business Representative Juan Garza, who
then participated in negotiations for an initial contract.
The bargainers for Respondent were chiefly David
Miller, president of Tulare-Kings Employer Consultants,
and Vernon Ribeiro, who Miller styled as his "partner."
In the course of approximately 10 negotiating sessions,
the parties fell short of reaching complete agreement and
Garza, in conjunction with higher officials of the Union,
determined that impasse was present : 3 On this basis,
written notice of intent to strike pursuant to Section 8(g)
of the Act was given on March 23, 1981, following
which Miller, accompanied by Divine and Brookins, met
at the facility with a group of approximately 20 employ-
ees. Miller testified to advising this group how Respond-
ent was happy with its present work complement, but
that the advent of a strike would occasion its right to
make permanent replacements that could leave Respond-
ent "without a job if they attempted to come back to
work at the facility." He recalled adding to this that in
such an event the strikers affected could be "put on a
preferential rehire list if they made an unconditional
offer to return to work." Contemporaneously Divine fur-
nished each of the 40 employees in the bargaining unit
with a letter dated March 27, 1981. It read:
We have been advised by the Union that repre-
sents you in negotiations that they intend to strike
our facility on or about 6:00 a.m. April 6, 1981
No employee has any requirement placed upon
them by the election results of August 28, 1980 that
would require them to participate in a strike called
by Local 250
Employees who choose to leave their work and
participate in a strike may be replaced. If the re-
placement desires to accept permanently the posi-
3 Respondent has its principal place of business in Delano, California,
where its previously described function is also termed the operation of a
nursing home, in the course and conduct of which it annually derives
gross revenues in excess of $250,000 while purchasing and receiving
goods or services valued in excess of $5000 directly from suppliers locat-
ed outside California On these admitted facts I find Repsondent to be an
employer engaged in commerce within the meaning of Sec 2(6) and (7)
of the Act, and a health care institution within the meaning of Sec 2
(14) As further admitted , i find the Union to be a labor organization
within the meaning of Sec 2(5) of the Act
tion into which he has been placed the Employer
has the right to accept his offer of permanent em-
ployment. The new Employee would permanently
replace the striking Employee.
When the replaced striking Employee makes an
unconditional offer to return to work he may be re-
turned to work in any available position for which
he or she is suited, or if no position is available, the
returning strike will be put on a re-hire list
The Employer respects your right to strike but
inasmuch as he is satisfied with his present staff, the
Employer requests that you continue to perform for
Browning Manor even in the face of Union solicita-
tions and threats to the contrary
If you have any questions regarding this matter
please do not hesitate to contact myself, Mrs Broo-
kins or Mrs. Pace.
The strike started at 6 a.m. on April 6, 1981, with 26
employees, including licensed vocational nurse Lois
Young,4 actually involved in the immediate withholding
of services.5 In the course of several weeks thereafter
typical strike dynamics were present, with Respondent
striving to maintain patient services and the Union press-
ing picket line objectives. Ultimately Garza consulted
again with superiors, and a determination was reached to
terminate the strike because of an unexpectedly high
measure of success achieved by Respondent in securing
replacement employees and maintaining operations. On
this basis Garza notified striking members that an impor-
tant meeting would take place at the site of picketing in
late afternoon on April 27. Gaza had been at the scene
off and on that day, but returned around 5 p m. for dis-
cussion with the approximately 27 persons present pre-
paratory to setting in motion an attempted end of the
strike. This was initiated by a dismantling of the picket
line and a putting away of all picket signs.
Garza testified that the strikers proceeded with him to
the facility 's entrance about 5.30 p.m. Security guard Bill
(Castro) Warner met them, along with shift RN Ramos,
who disclaimed having any authority for dealing with
the situation. Garza testified that he had introduced him-
self to both persons, announcing, too, that the "unfair
labor practice strike" was ending and on behalf of all
strikers an "unconditional offer to return to work" was
being made. Garza had suggested that matters be relayed
to higher management , and to this he was asked to wait
Garza recalled the next occurrence was when Warner
reappeared to say that Divine had instructed him to say
persons present should "come back the next morning
during normal business hours individually to make appli-
cations to be put on a preferntial hiring list " About this
time Delano police officer James Richard Hardie arrived
in response to a "disturbance " call from his dispatcher,
4 In the course of administratively closed proceedings Young was
found to be a supervisor within the meaning of the Act, and her admitted
discharge by Respondent was held not to be unlawful Respondent had
further requested a state licensing authority to investigate the circum-
stances of Young 's departure as the strike commenced , in terms of wheth-
er some professionally disqualifying dereliction had occurred
5 All dates and named months hereafter are in 1981, unless shown oth-
erwise
1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Garza expressed to him that matters could be settled
by direct contract through to Divine Hardie then went
inside with Warner and Ramos, returning soon to say
that Divine was on a telephone waiting to speak with
Garza.
Garza, Divine, and Hardie each testified concerning
what was said in the telephone conversation that fol-
lowed. Garza recalled first introducing himself, then
termed the employees' unfair labor practice strike at an
end and coupled this with making an unconditional offer
to return to work. Garza testified that Divine's first reac-
tion was to say that strikers should be informed to come
back individually and make application during normal
business hours the next day to be placed on a preferential
hiring list. Garza then recalled speaking more pointedly
to ask whether Divine comprehended the legality of
what he was being told, and whether he realized that
strikers were even then grouped outside the facility.
Garza continued by expressing his belief of a responsibil-
ity having been created for the Employer to prepare a
preferential hiring list, and that the individual strikers
should not be thought of as having to "reapply." Garza
testified that the conversation ended with Divine reiter-
ating his position of having people instructed to come
back during normal business hours to make application
for the preferential hiring list.
Divine's version is that soon after arriving home that
evening he had received messages to call the facility. On
doing so he learned that his guard was alarmed about
circumstances outside the building, and he then spoke on
the telephone to a police officer asking why the group of
strikers had not been removed At this point the officer
in fact suggested that Divine talk with Garza. Divine re-
called hearing Garza introduce himself and say the unfair
labor practice strike was over, but beyond this there is a
critical disparity in their respective versions. Divine testi-
fied that Garza insisted all former strikers must be rein-
stated to work, and this included the discharged Young
Further, Divine attributed to Garza the statement that
strikers would not wait for the next day's business hours
because "everybody" was there and wanting "to go back
to work." Divine believed that the conversation ended
inconclusively on his insistence that nothing could even-
tuate until at least 7:30 the next morning when place-
ments on a preferential hiring list could commence.
Hardie had taken an extension telephone when the
conversation began, and recalled hearing Garza identify
himself and then state a "conditional termination of the
strike" with picketers returning free of loss in pay or se-
niority, and exempt from disciplinary action. He testified
to hearing Divine say he had no reason to return people
to work because the positions were filled, and those still
desiring to do so could submit applications the next day.
Hardie recalled Garza next terming his request an "un-
conditional" one for all employees to be brought back to
work as he wished to terminate the strike. This was
again declined with Divine referring to an efficient level
of operations having been reached, and on this Garza
said that the strike would be resumed. Gaza then hung
up and Hardie spoke further with Divine, confirming
briefly that strikers were to leave the property in context
of the strike being resumed. Hardie denied that at any
point during the Divine-Garza conversation the latter
had insisted on all strikers coming back, had refused to
wait 24 hours for appropriate steps to unfold, had voiced
an "all . . or none" ultimatum , or had conditioned his
request on the reemployment of Young or the employ-
ment of any picketer who was not a former employee of
Respondent as of April 6. Hardie soon went outside, and
although experiencing some "grumbling and shuffling"
did see the group of strikers uneventfully withdraw from
the property.
Regarding this facet, Garza testified that he spoke to
the waiting group on emerging from the telephone con-
versation, and informed them of his belief they need do
nothing because the Employer had taken an erroneous
legal position. He advised the strikers not to go in the
next day and caused the picket line to be "resumed."
Mary Williams, a striking nurses aide, testified to the epi-
sode so far as she experienced it, recalling that Garza's
statement to Ramos when first appearing at the facility
was that the group offered to come back on "uncondi-
tional terms ." Williams recalled too that Garza quoted
Divine as having said they must come in during office
hours to put in an application for a preferential hiring
list. Frances Zapiam, another striking nurses assistant
called as a witness by the General Counsel, testified that
the strikers had been marshaled about 5 15 p in. on April
27 with the object of trying to get their jobs back. She
was not part of the group that had proceeded to the fa-
cility's front door, where she heard Garza say to Ramos
that the strike was ended and an unconditional return-to-
work offer was being extended. Zapiain corroborated
Williams in recalling that on Garza's emergence after
talking by telephone with Divine, he said there was a re-
fusal to take people back to work, but that instead "ap-
plication" needed to be put in during office hours for
entry on a preferential list.
Respondent also called two witnesses to this phase of
the case. Helen Padilla, a striking nurses aide at the time,
testified that it was around 6 p.m on April 27 when
Garza addressed the group of all strikers assembled at
the picket line for the "important" meeting. She recalled
Garza saying that the strike was over and the next step
was to all go in ready to report to duty which the Em-
ployer "had to accept us all." She believed he termed
this approach as an "all . . together . . or none at all"
strategy, which Garza soon voiced to a security guard
who actually opened the door to him when the group
reached that point Padilla testified that Garza soon en-
tered the facility and was inside 10 to 15 minutes, after
which he returned explaining that Divine had said they
should come back the next morning during business
hours to be put on a preferential list for hiring as there
were future openings. To Padilla's recollection, Garza
had expressed disdain for such a course of action, term-
ing it a "lot of bull" because it did not allow an "all to-
gether or none at all" return . She testified that Garza's
final operative remarks were to announce a "step two"
of immediately filing for unemployment compensation.
Padilla is corroborated by then-strking housekeeping em-
ployee Josephine Martinez, who testified that around
5:30 p in. on April 27 Garza had told the assembled strik-
BROWNING MANOR HOSPITAL
ers that they were about to ask for jobs again and Re-
spondent had "got to take everybody, not just one or
two, but everybody." After proceeding over to the facili-
ty and awaiting Garza's time inside, Martinez recalled his
reappearance to say that "plan one didn't work" so the
next step was to go to the unemployment office. She
added that Garza had then quoted Divine as saying the
strikers should come in the next day to have their names
put on a rehire list.
After the episode at the facility concluded and as the
group of strikers was withdrawing with Garza back to
the established rallying point, Divine was telephoning
Miller to discuss the conversation just experienced
Based on this contact, Miller in turn reached Ribeiro,
and the latter made plans to appear early the next morn-
ing at the site of expected picketing to attempt ascertain-
ment from Garza of his position. Meanwhile Garza had
also dispatched a telegram to Divine late that evening
after reaching his regional director for consultation. The
message read:
This is to confirm our telephone conversation today
where, I as a representative of the strikers at
Browning Manor , made an unconditional offer to
return to work when the strikers at that time decid-
ed to end their unfair labor practice strike. Your of-
ficial response was to instruct the strikers to report
to the facility during normal business hours so they
may be placed on a preferential hiring list
Ribeiro testified that he arrived at the picket line early
on the morning of April 28, and there engaged Garza in
conversation apart from the approximately 10 strikers
present. Ribeiro recalled asking what it was that Divine
had been told, and Garza referred to his position having
been set forth in the telegram. A copy of that document
was not available to either of them, and when Riberio
pressed for comment, Garza termed the unfair labor
practice strike as over and that he wanted all the em-
ployees back to work. Ribeiro disputed the strike's char-
acter and countered further that no positions remained
unfilled at that time but as economic strikers the Em-
ployer would readily put them on a preferential hiring
list. Ribeiro excepted Young from this willingness and,
after some further discussion of respective positions, he
heard Garza say, "We either all have to come back to
work or none of us will be coming back and we'll stay
out here as long as we have to." Ribeiro termed his own
closing remarks as that those willing to return could
"come in and fill out an application if they wanted to
and that would be placed on a preferential hiring list and
that we would call them when the positions were open."
Ribeiro denied telling Garza in the conversation that any
returning strikers would be treated as a new employee or
that any person other than Lois Young had been dis-
charged for participation in the strike. Garza's recollec-
tion of the conversation is that Ribeiro had said no va-
cancies existed but application could be made for future
ones, and he denied telling Ribeiro in any manner that he
was seeking the immediate return to work of all strikers
or none of them. As agreed, Ribeiro immediately dis-
1179
patched his own telegram to the Union which, in cor-
rected form, read:
In response to your request for reemployment in re- 1
gards to economic strikers company has permanent-
ly filled all positions at this time . Striking employees
may fill out applications for employment at Brown-
ing Manor . Such applications will be placed on
preferential for first available openings
On the strike' s original impact of 26 employees out
with 14 remaining, Respondent immediately and urgently
began efforts to cover needed functions It did so with
personnel borrowed from nearby sister facilities, and
with new personnel hired during the balance of April.
Divine testified that even in anticipation of the noticed
strike, he had emphasized to Pace that any individual
hired as a replacement must understand that they were
full time and that they could foresee continued employ-
ment "as long as they did their job " Divine added that
when the strike actually started, he discussed this con-
cept on an intense daily basis with both Brookins and
Pace , reminding them with much frequency that newly
hired replacement personnel should have the permanent
nature of their status highlighted during the entire re-
cruitment process. Divine testified that he personally
hired about 15 persons in April for kitchen and house-
keeping work, telling each of them that they would be
permanent.
As these operational adjustments were taking place,
certain entries were also being made on internal employ-
ment records Respondent engages State Tax Control
Co., a North Hollywood, California based enterprise, as
its agent for unemployment insurance and related claims
procedure. The arrangement includes use of a personnel
form titled "Notice of Change in Employee Status,"
which is facially associated to sections 1085 and 1089 of
the California Unemployment Insurance Code.6 On
April 8 Brookins had prepared 21 of these forms on indi-
vidual strikers, indicating their termination as "dis-
charge[d] for cause" on the basis of not continuing to
work after April 6. Divine prepared an additional group
of four on April 10, again indicating that each person
named was discharged for cause and following this with
a succinct explanation.'
Divine testified that he was telephoned by an official
of the State Tax Control soon after these forms were re-
ceived, and told that it was erroneous to classify striking
employees as being discharged. Divine asserted that he
accepted this guidance as authoritative and, from that
point onward, neither repeated such entries nor took any
action that would overtly treat the strikers as having had
6 These statutory provisions respectively relate to an employer 's obli-
gation to "keep a true and accurate work record of all its workers
and their status ," and of an employer 's further obligation to "immediately
notify each employee of any change in his relationship with said employ-
er "
7 This group was comprised of Pacita Augustin , Rachel Bocanegra,
Latonya Dodd , and Dominga Uclaray, for whom the respective entries
showed , "Did not return to work after days off," "Called in sick 4-9-81
[but) was walking picket line," "Didn't call just didn 't show for work,"
and "Scheduled to work 4-8-81 didn't show for work "
1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their employment terminated. This phase of the case re-
lates to still other documentation, such being payroll
checkwriting input forms as issued from the parent com-
pany's Garden Grove, California office headquarters
These show the prominently printed abbreviation
"TERM" adjacent to strikers' names for a period ending
April 15-24, and accompanying lining through of their
names as routinely done when employees end service.
Divine testified about this material, asserting that both
types of marking were intended only to discontinue the
appearance of a name on subsequent input sheets He ex-
pressly denied that it signified any end of the employ-
ment relationship, per se.
In the months following, matters were dormant be-
tween the parties as several unfair labor practice charges
followed a course of investigation, disposition, and
appeal During this time several strikers returned to
work at the facility, and it was customary for them to
sign a preemployment orientation checklist on doing so.
This occurred in regard to, among others, Padilla, Marti-
nez,8 and Carmen Piaz, each of whom testified that not-
withstanding this they had no indication of being treated
as new employees for seniority or other purposes s
The essential originating thrust of this case concerns
happenings of April 27. On the crucial conflict of testi-
mony regarding the Garza-Divine telephone conversa-
tion, I credit the latter on demeanor grounds coupled
with other probabilities of the total fact situation . Initial-
ly, I am satisfied that Garza was imbued with the idea
that his members were cloaked in the rights of unfair
labor practice strikers simply because that was the
Union's pending charge against Respondent, and so
much depended on its validation. It is fundamental that a
strike is first and foremost a practical device to attain
bargaining concessions, and the secondary rights and ob-
ligations need not be considered until some assessment of
impact has been made. This is exactly the situation here,
for after initial weeks of skirmishing, the Union con-
sciously concluded that its hoped-for operational pres-
sure had faller. short of their goal. It would be fully nat-
ural for Garza to include all strikers in his dramatic
action of April 27, when his own orientation to the situa-
tion convinced him that mere reversal of course would
lead to a restoration of prestrike status quo A further
probability is that Young would not be abandoned, for
she was not only an important symbol of the Union's
presence at the workplace, but also a person to whom
reinstatement status had not been legally barred at that
time These probabilities are confirmed most persuasively
from the testimony of Padilla, who I find to be, of all
witnesses presented, the most convincing. Her demeanor,
accuracy of recall, and emphatic consistency were strik-
ingly superior to all other witnesses in the case, none of
8 Martinez credibly testified that in 1976 she had signed an identical
form, yet nothing resembling a break in service from employment had
occurred at the time
8 After various individuals had returned to work, Respondent matted
inquiry of availability to numerous ones remaining on strike When news
of this reached the Union, Garza sent Divine a mailgram on October 5
offering him assistance in contacting remaining strikers , who at that point
were all presumed to be "interested in their employment at Browning
Manor "
whom was without some degree of infirmity concerning
what they descnbed. Thus I find that in preparation for
the eventful confrontation of April 27, Garza had verbal-
ized how all the striking employees would be subject to
a collective demand for a near-instant reinstatement, io
and that when the plan was unsuccessful, Garza in-
formed the group only that Divine's response invited
them to appear individually starting the next day. Fur-
ther, I credit Padilla in her testimony of Garza express-
ing angry dismay over Divine's recalcitrance, and I be-
lieve that this reaction has led to much suggestibility and
misconception among witnesses. i i
In this context I further credit Divine on the narrower
point of Garza having undercut his admittedly
"unconditional{ly]" voiced offer that strikers return to
work by attaching actual conditions to it. Thus I here
accept Divine's testimony that in the course of actual
words between the two, Garza had demanded the
prompt reinstatement of all strikers and had included
Young in the group. There is a certain illogicality about
Divine claiming this is what he heard, and yet that he
still invited strikers in the next day. I say this because
Respondent's labor relations advisors had carefully pre-
pared it for the strike eventuality, and the prestrike letter
to employees had pointedly referred to their need of
making an unconditional offer to even be considered for
an available poststrike position i 2 This oddity can only
be treated as a matter of inexperience or flustered reac-
tion to the rather devious circumstances which Garza
had constructed by his early evening crusade to the fa-
cility's door.' a
The related credibility resolution is to disbelieve
Garza's version of the telephone conversation, for I am
satisfied that he has now advanced merely what is tai-
lored to the Union's needs in this case and not a sincere
recollection of the facts. Garza was the opening witness
in this trial, and took the stand on several later occasions.
I have carefully considered his demeanor and the tenor
of his testimony respecting the April 27 telephone con-
10 The General Counsel highlighted the fact that striking employees
were not attired in hospital uniforms when they made this group ap-
proach, and thus it should not be thought that Garza be held to any liter-
alisms of having sought their immediate return I recognize the validity
of this argument and comment only that such actual presence gave Garza
a symbolic talking point
i i Padilla was largely corroborated by Martinez, who also impressed
me as a reliable witness Piaz testified to the same points, however, I do
not rely on her further confirmation for I believe she is merely echoing
the experiences of others
i 2 I have taken into account Divine's glaring error in first dating the
telephone conversation of having occurred on May 27 Such imperfection
of memory gives pause , but in this overall situation not so much as to
nullify other far more important assertions Piaz also dated the critical
episode of this case as being in late May, a circumstance that I believe
only reveals the disqualifying suggestibleness that attached to her role as
a witness
13 The General Counsel has ably argued that the absence of attributing
a conditional character to Garza's proposal in Divine 's investigatory affi-
davit should militate against Divine's testimony I have carefully consid-
ered this intriguing point and am satisfied that as described by both
Miller and Divine (Tr 676, 677, 1124-1127), the circumstances under
which the investigatory affidavit was prepared , and intrinsic realities
under which such administrative document is customarily constructed, do
not lend themselves to concluding that Garza did not express the remarks
even though they were not recorded in earlier version
BROWNING MANOR HOSPITAL 1181
versation with Divine as given on the first day of trial
and then re-traversed 5 weeks later. On comparison of
his offerings, I find inconsistencies of emphasis, and an
appearance of having been educated in theoretical im-
peratives of this litigation Garza's earlier testimony
showed that he had an absolute confidence in being able
to secure resumed employment for his striking members
by the use of "magic words." The words turned out not
to be magic because not soundly premised, in addition to
which the adversarial employer had previously focused
its own legal position. Ironically Garza taunted Divine
about whether he "underst[ood] legally" what was being
presented, when the presentation itself was ill-conceived.
The irony is only compounded by a showing that the
Union's overall tactics had been blessed by officials of
presumably better experience (Tr. 41, 51, 96, 98, 101,
118). Further, Garza came sufficiently close to contra-
dicting himself on the subject of Young being discussed
between him and Ribeiro on April 28 to generate doubt
concerning his veracity on the point (Tr. 57, 95, 129,
1139, 1154, 1155). Finally, the critical matter of whether
a job application, and all that connotes, was mandated by
Respondent is also cast into doubt when it is seen that
Garza was instrumental in introducing this particular
concept to all that was astir (Tr. 121, 122).
I further expressly discredit Hardie, notwithstanding
the nature of his occupation and natural tendency to
repose belief in such a witness. I have earnestly consid-
ered his demeanor and the trial circumstances under
which his testimony arose after he waited into late
evening hours Nevertheless I am convinced that Hardie
was fundamentally mistaken in what he recalled and ex-
hibited a subtle bias favoring the Union which further
undercut his veracity. Regarding physical configuration
of the telephone conversation he was overhearing, he in-
sisted that Garza was always within his view and they
exchanged glances, even though this claim was glaringly
at odds with Garza's own recollection of not even
having seen Hardie at the time Secondly he attributed
an opening remark to Garza about making a conditional
offer for strikers to return to work, a feature not even
hinted at by any other witness. Thirdly Hardie astonish-
ingly attributed to Garza a remark seeking amnesty for
strikers, a notion totally foreign to this fact situation, but
one that is frequently involved in job actions or withheld
service by public employees of which Hardie was one.14
Overall, I conclude that Hardie has jumbled the facts fol-
lowing his periodic appearances at the strike scene, and
has succumbed to a benign favoritism towards employee
organizations in the general realm of labor-management
relations.
In consequence of this, I hold that the union never
made an unconditional offer for its striking members to
return to work, and the essential object of this litigation
as it would flow from a contrary view must fail. The
events of the evening on April 27 and the carryover to
the Garza-Ribeiro conversation next morning amounted
only to a stratagem on the Union's part, an interlude to
14 Herman, Strikes by Public Employees. The Search for "Right Princi-
pies," 53 Chicago Bar Record 57 (1971), Halligan , Enjoining Public Em-
ployees' Strikes, 19 De Paul Law Review 298 (1969-1970)
stnke action that still had many months to run before ul-
timate termination in failure.15 Fundamentally this leaves
no necessity to treat the Employer's reaction in terms of
paragraph nine of the complaint. i s However, the unique-
ness of this fact situation compels an adjudication of Re-
spondent's countering action because of the closely inter-
wined relationship between this and the Union's initiat-
ing.
Concerning this, I hold that Respondent did not sug-
gest or require that strike replacements submit an applica-
tion for their return to active duty as that underlined
term is used and understood in ordinary private sector
personnel administration . I credit Divine's denial of
having expressed this, and specifically discredit Williams
and Zapiain in their supportive hearsay testimony that
Garza had reported such a requirement. In reconstruct-
ing this important facet of the telephone conversation
Divine is better believed when it is seen likely that he
did not erect the necessity of strikers making formal em-
ployment application for a return to their positions, as op-
posed to merely appearing to set in motion a step that
they might each be so unconditionally and then currently
intending . I again allude to Padilla's illuminating testimo-
ny on the point, but also note the compelling evidence
that in Garza's telegram of April 27 he did not recite this
as part of Divine's response. Furthermore, I discredit
former security guard Joe Myers in regard to what is a
mistaken perception that application papers were needed
before strikers could be considered for recall. Myers ac-
tually all but conceded that Divine had never made such
a request, and his final version to the contrary is highly
colored by suggestibleness. Later events only serve to
bear this out as persons choosing to return over the
summer months of 1981 were not shown to have had this
requirement imposed on them. I recognize that Myers
testified that an informative sign was posted by Respond-
ent on April 28, but here emphasize that his more spon-
taneous description of its import was to invite a
"register[ing]" by strikers for reinstatement. For these
reasons I conclude that the Union did not perfect a valid
Laidlaw-type unconditional offer of willingness for its
members to return to work from their capacity as eco-
nomic strikers, and that Respondent made no unlawful
responses during the April 27-28 period.
15 Aside from the lack of unconditional character to Garza's an-
nounced offer that strikers would return to work , the strike itself was
only interrupted for a relatively fleeting time of no more than I hour (Tr
113, 1181) Regarding dialogue of April 28, 1 credit Ribetro to the extent
that he recalled Garza maintained conditions with regard to any reliable
end of the strike
16 As all parties note , it is established doctine that an employer must
restore economic strikers to available , unreplaced positions on their un-
conditional offer to return to work Laidlaw Corp, 171 NLRB 1366
(1968) On the issue on unconditional offer to return to work the Charg-
ing Party cites Harris-Teeter Super Markets, 242 NLRB 132 (1979), in
support of its suggesting that whatever Garza verbalized was not vitiated
by the Union's resumed and continued picketing Such a point in Harris-
Teeter turned on an intricate holding rooted in extensive exchange of cor-
respondence between parties to a major strike situation , complicated by
questions of how differing fact situations at various picketing sites affect-
ed the issue It is of little value to analogize from such a case , and notable
Harris-Teeter does contain a reference to Respondent 's "erroneous treat-
ment of strikers as merely economic strikers ," which is the obverse of
Garza's basic failing here
1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The second chief branch of this case, one that arose by
substantial amendment to the pleadings made in the
course of trial, concerns the issue of whether Respondent
discharged the striking employees immediately following
April 6 and because they had engaged in this fundamen-
tally protected activity. There was no dispute that per-
sonnel and payroll documents contain the various entries
that have been noted; however, I do not believe the in-
quiry can stop here. The prestrike letter distributed
among employees about March 27 made clear that in its
conscious and significant labor relations planning Re-
spondent realized, as it would be expected to do when
represented by experienced consultants, that the advent
of striking over a bargaining impasse would lead only to
the potential reinstatement rights that attach to such per-
sons when they appropriately seek to end their strike.
This notification even emphasized the Employer's "re-
spect" for the right to strike, and Respondent's near-con-
temporaneous response dated April 10 to a status ques-
tionnaire by the California Employment Development
Department lumped the "walked out" individuals in with
a grand total of 40 employees covered by its report. In a
comparable response made in late May, Respondent indi-
cated that "strikers are still picketing," an implication
consistent with the preservation of employee status.
More significantly, Divine's response to Garza on April
27, under any view of the episode, contained no hint that
the Employer then considered the striking individuals as
other than residual employees about whom an active
return to duty might occur under differing interpretation
of rights.
Arrayed generally against these facts are the plain en-
tries on the change notifications and the more ambiguous
markings on payroll input sheets. I see ample grounds to
accept Divine's credible explanation that the "discharge"
entries represented nothing more than mistaken handling
under extraordinary circumstances in a disruptive strike
situation and the rather anxious, if not urgent, effort
toward keeping an operation going under the many new
pressures. It is true that the Dodd entry shows alternate-
ly a voluntary termination and a discharge as late as
April 10; however, this imprecision cannot sway weight-
ier evidence to the contrary. It is axiomatic that an em-
ployment relationship is contractual in its essence, and
from this it is difficult to reason that one party to the ar-
rangement was oblivious to something as pronounced as
a discharge from employment. On approximately April 7
Bocanegra had worrisomely conveyed to Garza that she
was under the impression of having been fired. Garza
testified that he elicited a clarification from her that the
actual employer communication to her was that of
having been permenantly replaced. It seems evident that
when these two talked out the point on only the "second
day of the strike," that when a simple inquiry could have
verified the point, and that when, late in the month, no
employee (other than Young) was claimed to have been
discharged , the presence of sterile writings within Re-
spondent 's own internal channels of communication is
not a legitimate source of binding revelations . I empha-
size that passage of time from then until June 1982 only
serves to confirm that discharge from employment,
within the meaning of the Act or a matter of general em-
ployment relations expertise has not occurred. Famous
Supply Co., 254 NLRB 768 (1981), cited by the Union in
briefing this point, actually suggests from its facts that
the better analogy would not show a violation in this
regard. Further, I am not willing to reach any inferences
based on claimed noncompliance with statutory provi-
sions of the California Code, for this would involve an
artificial, unrealistic reasoning process. It may be that a
temporary and inexplicable outlook escaped briefly into
the ether of this emotionally charged strike conflict;
however, I cannot agree that overall circumstances
amounted to actionably discharging any of the individ-
uals who had chosen to support the strike. t' Cf. Jimmy
Kilgore Trucking Co., 254 NLRB 935 (1981).
Having found that an unconditional offer to return to
work was not made on behalf of any striker at any mate-
rial time, the subsidiary issue of whether Respondent had
completely replaced all strikers as of April 27 is academ-
ic However, I shall treat the issue because of the extent
to which it was in fact litigated, and notwithstanding
that Respondent has at all times contended it was periph-
eral, insignificant, or irrelevant to the case. The evidence
here does not show that a full complement of replace-
ments was being utilized by Respondent as of April 27.
Clearly a large percentage of striking employees have
been replaced in their jobs by various hirings during the
extraordinary efforts at remaining in continuing, effective
operation. However, Respondent propagandized the
entire subject from the outset, and basically failed to
show that a complete, settled complement of workers
was routinely performing on April 27 as the prestrike
group of 40 had done. I directly allude here to a notice
distributed by Respondent to all strikers with "final"
paychecks as presented to them in early April. t 8 This
notice stated:
In as much as your [sic] had gone on strike, we
have found a permanent replacements for your posi-
tion.
" The issue of whether Respondent violated Sec 8(a)(3) by these al-
legedly effective discharges must be decided on the merits Respondent
has raised the limitations period of Sec 10(b) of the Act as an affirmative
defense , yet I see the situation as one in which the amendment of June
30, 1982, was on a matter so closely related to the original complaint to
warrant its inclusion on timely notice Further there is no prejudice
shown to have arisen from this sequence and the matter has become fully
litigated For these reasons I reject Respondent 's defense that Sec 10(b)
applies to the issue of employee discharges in early April, J M Tanaka
Construction, 249 NLRB 238 (1980), Broadcast Employees NABET Local
531 (Skateboard Productions), 245 NLRB 638 (1979) More recent Board
pronouncements seem to confirm even more this view of what is "relat-
ed" as a matter arising out of original events Gould, Inc, 260 NLRB 54
(1982), Cobb Theatres, 260 NLRB 856 (1982)
18 The General Counsel has contended that ascribing "final[ity]" to
these earnings and the accrued vacation pay that was also included is an-
other indicator supportng assertions that a blanket discharge of strikers
happened during the first full week of April I reject this on the basis that
Divine's explanation of having paid all sums due at the time was based on
legitimately grounded advice of his labor consultant , and it is an ordi-
nary, expectable act under the circumstances I cannot assess this cryptic
notation as a part of severance from employment , for the more compel-
ling truth is that strikers remained in exactly the posture outlined to them
in Respondent's prestrike letter of March 27 The fact of such payments
was evident from the beginning, and it was not challenged until taking on
the character of a make-weight argument advanced in support of en-
larged case theory
BROWNING MANOR HOSPITAL 1183
When you make an unconditional offer to return
to work, your name will be placed on a preferential
re-hire list.
Respondent falsely presented this picture to the strik-
ers,19 for manifestly few, if any, effective replacement
employees were functioning within the early days after
April 6 It is true, as depicted in basic timecard records
of hours worked per Respondent's Exhibits 15(a)
through (ww), that 27 persons were actually hired in
April and still employed as the month ended Respond-
ent has not, however, convincingly shown that these per-
sons were individually or collectively utilized in such a
manner to constitute replacement of all strikers, and Re-
spondent's attempt to merely declare this condition at
the outset of the strike makes its contentions even less
viable Futhermore, Miller made a telling admission in
his testimony to the effect that when conversing with
Divine by telephone the evening of April 27, the latter
had voiced himself "not aware" of whether job openings
were in existence "at the time." Ribeiro displayed a com-
parable lack of conviction on whether a program of
complete replacement of strikers had succeeded, and a
mechanistic analysis of hours worked by kitchen employ-
ees during April shows that it would not be realistic to
conclude that further needs for coverage were not
present in that department. Ramona Zapata worked the
inordinate amount of 40 hours overtime (5 at double time
rate) dunng the pay period ending April 30, and other
kitchen employees Enedine Serra and Maria Cortez did
extra work less only in degree not character. Thus the
kitchen operation is shown to have been woefully under-
staffed and ready to absorb additional needed personnel
for normal operations. Replacement laundry employee
Carol Dennis was also shown to have worked the sub-
stantial number of 11-3/4 hours overtime in that same
18 It is well established that advising persons on strike that they have
been replaced , when in fact this is not so, is tantamount to discharge, and
therefore unlawfully in contravention of Sec 8(a)(3) W C McQuaide,
inc, 237 NLRB 177 (1978), Mark Twain Marine Industries, 254 NLRB
1095 (1981) Yet the very presence of such doctrine compels further rea-
soning that such action , overtly done and extending to all those com-
mencing a strike, is time-barred from being considered because no charge
was filed within 6 months of the occurrence and the matter was not
made the subject of any amendment to the complaint it is true that the
General Counsel has also bnefed the point, citing McQuaide and other
authorities, however, this is done passingly ("Aside from
Respondent ['s] [concealment]"), and without foundation in the complaint
as amended Cf Federal Management Co, 264 NLRB 107 (1982)
final pay period of April. Most significantly, as the Gen-
eral Counsel developed from the record, job applications
were accepted from Ester Tugade and Estella Flores on
April 28 and these two individuals commenced work the
next day as nurses aides. This totally undercuts the idea
that workers were not needed as of April 27 or that
basic operational coverage had reached a state of nor-
malcy.
On this basis I believe that it cannot be said that all
strikers had been replaced by April 27, and set forth this
rationale only in the event of further proceedings on this
matter in which the issue is reached.
The General Counsel has seized on loose verbalisms
and unschooled internal employer recordations in an
effort to extricate the Union here from an unsuccessful
strike. I have considered the several instances in which
the General Counsel points to witnesses not called by
Respondent, to wit Brookins, Page, guard Warner,
Ramos, and Cortez and the associated argument that cer-
tain adverse inferences should be drawn from such fail-
ure to produce. Taken individually or collectively, I do
not believe any adverse inferences are warranted in
terms of the various episodes to which such persons' tes-
timony might relate, and I rely for essential facts of the
case on the actual body of evidence with appropriate
credibility resolutions. Sympathetic as the situation might
be, it is not the Agency's role to undo the leading of em-
ployees into occuptational oblivion, no more than it is to
excuse employers from ill-advised or rebellious acts of
their managerial agents. It is long settled that the Act
permits ample opportunity for parties to the labor-man-
agement process to wage an appropriate economic strug-
gle; however, this latitude does not include entitlement
for a loser to escape the ordinary consequences of its
theoretical or tactical mistakes.
Accordingly, I render a conclusion of law that Re-
spondent has not violated the Act in any regard, and
issue the following recommended20
ORDER
The complaint is dismissed in its entirety.
20 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings, conclusions , and recommended
Order shall , as provided in Sec . 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses