Childrens Orthopedic Hospital

National Labor Relations Board - Board Decisions

Apr 30, 1984

270 N.L.R.B. 257 (N.L.R.B. 1984)

CHILDREN'S ORTHOPEDIC HOSPITAL
Children's Orthopedic Hospital and Medical Center
and Daniel T. Kennedy and Gary A. Markegard
and Scott B. Johnson. Cases 19-CA-14835, 19-
CA-14850, and 19-CA-14877
30 April 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 22 July 1983 Administrative Law Judge
James M. Kennedy issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed an answering
brief and a brief in support of the decision.
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 and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions,2 but to substitute the following Order
for that of the judge.
ORDER
The National Labor Relations Board orders that
the Respondent, Children's Orthopedic Hospital
and Medical Center, Seattle, Washington, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Reducing the working hours of employees or
discharging employees because they are members
of the Seattle Building and Construction Trades
Council, AFL-CIO, or any other labor organiza-
tion.
(b) Refusing to permit union stewards to repre-
sent employees in discussions regarding employees'
terms and conditions of employment.
(c) Issuing disciplinary warnings to employees
because of their activities as union stewards.
'We correct the judge's inadvertent reference, in sec. IV,A, of his de-
cision, to employees Kennedy and Quinn as carpenters rather than paint-
er
' In his Conclusions of Law, the judge found that the Respondent vio-
lated Sec. 8(aXl) of the Act by refusing to permit a union steward to
represent an employee in a discussion regarding terms and conditions of
employment. In the text of his decision, the judge appeared to find that
this action also violated Sec. S(aX3) of the Act. Chairman Dotson adopts
the finding that the Respondent violated Sec. 8(aXl) only, as set forth in
the judge's Conclusions of Law. Member Zimmerman would find that
the refusal to permit the steward to be present was part of the Respond-
ent's effort to undercut the Union's effectiveness as the employees' bar-
gaining representative and therefore violated Sec. 8(aX3) and (1).
Member Hunter agrees that the Respondent did not violate Sec. 8(aX3) in
this instance, and would find no S(aXl) violation because the converas-
tion was not an investigatory nor a disciplinary interview, but concerned
only one employee's personal complaint directed to his supervisor.
3 Our order conforms to the administrative law judge's Conclusions of
Law.
(d) Threatening to discharge employees and
saying that employees have been discharged be-
cause of their union activities.
(e) In any like or related manner restraining or
coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Offer Scott B. Johnson immediate and full
restoration to a 40-hour week as a carpenter, and
make him whole for any earnings lost since his un-
lawful reduction of hours in February 1982, in the
manner set forth in the remedy section of the
judge's decision.
(b) Offer Daniel T. Kennedy immediate and full
reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other
rights or privileges previously enjoyed, and make
him whole for any loss of earnings and other bene-
fits suffered as a result of the discrimination against
him, in the manner set forth in the remedy section
of the decision.
(c) Remove from its files any reference to Ken-
nedy's unlawful discharge, Johnson's unlawful re-
duction in hours, and Markegard's unlawful disci-
plinary warning, and notify the employees in writ-
ing that this has been done and that these unlawful
actions will not be used against them in any way.
(d) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(e) Post at its Seattle, Washington facilities
copies of the attached notice marked "Appendix." 4
Copies of the notice, on forms provided by the Re-
gional Director for Region 19, after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(f) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
4 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
270 NLRB No. 46
257
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT discharge or reduce the working
hours of any employee for exercising such rights.
WE WILL NOT refuse to permit union stewards to
represent employees in discussions regarding em-
ployees' terms and conditions of employment.
WE WILL NOT issue warning notices to employ-
ees because of their activities as union stewards.
WE WILL NOT discipline union stewards because
they seek to assist employees in settling questions
relating to their wages, hours, and terms and condi-
tions of employment.
WE WILL NOT threaten to discharge employees
or say that employees have been discharged be-
cause of their union activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer Scott B. Johnson immediate and
full restoration to a 40-hour week as a carpenter,
and WE WILL make him whole for any loss of earn-
ings, plus interest, resulting from his reduction in
hours.
WE WILL offer Daniel T. Kennedy immediate
and full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any
other rights or privileges previously enjoyed and
WE WILL make him whole for any loss of earnings
and other benefits resulting from his discharge, less
any net interim earnings, plus interest.
WE WILL expunge from our personnel records,
or any other files, any reference to Gary Marke-
gard's warning notice, Johnson's reduction in
hours, and Kennedy's discharge, and WE WILL
notify these employees, in writing, that we have
done so and that we will not use those actions
against them in any way.
CHILDREN'S ORTHOPEDIC HOSPITAL
AND MEDICAL CENTER
DECISION
STATEMENT OF THE CASE
JAMES M. KENNEDY, Administrative Law Judge. This
case was tried before me at Seattle, Washington, on
March 3, 4, and 9, 1983, pursuant to a consolidated com-
plaint issued by the Regional Director for the National
Labor Relations Board for Region 19 on September 10,
1982,1 amended on January 18, 1983, and based on
timely charges filed by the individual Charging Parties in
July and August 1982. The consolidated complaint al-
leged that Children's Orthopedic Hospital and Medical
Center (Respondent) has engaged in certain violations of
Section 8(a)(l) and (3) of the National Labor Relations
Act.
Issues
Whether or not the General Counsel has proven that
Respondent violated Section 8(aX3) and (1) of the Act
by: (1) reducing the hours of work for carpenter Scott
Johnson; (2) issuing a disciplinary warning to electrician
and union steward Gary Markegard; and (3) discharging
painter Daniel Kennedy. In addition, there is the ques-
tion of whether Respondent committed independent vio-
lations of Section 8(aX1) directed at certain employees
because they chose to be represented by the Seattle
Building and Construction Trades Council, AFL-CIO
(the Trades Council). Respondent denies the charges and
asserts that Johnson's reduction of hours and Kennedy's
discharge were for economic reasons and that Marke-
gard was disciplined for good cause. The General Coun-
sel counters that the economic defense is nothing but a
subterfuge, asserting that Respondent simply transferred,
for discriminatory purposes, bargaining unit work from
the employees represented by the Trades Council to
other employees represented by the International Union
of Operating Engineers, Local 286 (called the IUOE),
thereby creating an artificial "lack of work."
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. Both
the General Counsel and Respondent have filed briefs
and they have been carefully considered.
From the entire record of the case, and from my ob-
servation of the witnesses and their demeanor, I make
the following
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS
Respondent admits that it is a nonprofit State of Wash-
ington corporation operating a hospital in Seattle. It fur-
All dates herein refer to 1982 unless otherwise indicated.
258
CHILDREN'S ORTHOPEDIC HOSPITAL
ther admits that during the past year its gross sales of
goods and service exceeded $250,000 and that it pur-
chased goods and material valued in excess of $50,000
from sources outside the State. Accordingly, it admits
and I find it to be an employer engaged in commerce
within the meaning of Section 2(6) and (7), as well as a
health care institution within the meaning of Section
2(14) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, the Trades Council to
be a labor organization within the meaning of Section
2(5) of the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Participants
Respondent operates a large medical center for chil-
dren. Its principal nonmedical support group is the build-
ing and engineering department which provides mainte-
nance service throughout the hospital. For a number of
years the IUOE has represented a bargaining unit of 12
or 13 workmen known as "steam engineers." Each is li-
censed by the city of Seattle to operate the heating
system. They also perform a variety of mechanical work
throughout the hospital. In addition to the engineers the
building and engineering department also employs one
carpenter, three to four electricians, and two or three
painters. Until mid-1981 these individuals were unrepre-
sented. In 1981 the Trades Council filed an NLRB repre-
sentation petition, won an election, and was certified as
their exclusive representative. On January 29, 1982, a 1-
year collective-bargaining contract was signed covering
these craftsmen.
Until mid-May, when he retired, the building and engi-
neering department director was Lon Redwine; his as-
sistant was Steve Scheibe. On Redwine's retirement,
Scheibe assumed the directorship of the department. Be-
neath those individuals were at least three others who
are admitted to be statutory supervisors. These include
lead electrician David Lord and two lead engineers.
The Charging Parties in this case are, or were, crafts-
men employed in the Trades Council's bargaining unit.
Johnson is the carpenter, Kennedy a painter, and Marke-
gard an electrician. Markegard was designated by the
Trades Council to be its steward.
Although their duties are not exactly clear from the
record, and apparently have some overlap, two associate
administrators of the hospital were involved in these
transactions at various stages. These are William Hall
and Philip Gustafson. The latter became an associate ad-
ministrator sometime in late 1980 or early 1981. They in
turn reported to the hospital's executive director, Treu-
man Katz.
B. Preelection Evidence of Union Animus
Despite the fact that Respondent negotiated a collec-
tive-bargaining contract approximately 6 months after
the Trades Council was certified, the General Counsel
relies on, among other things, some preelection conduct
as evidence of Respondent's animus against the Trades
Council. In the summer of 1980 Respondent had imple-
mented a progressive wage structure for various classifi-
cations throughout the hospital. The craftsmen, familiar
with construction rates of pay, were dissatisfied and
wanted to obtain a percentage of the prevailing construc-
tion rate, rather than to be governed by the wage sched-
ule.
Sometime in late 1980 or early 1981, they actually
began "to organize," although the steps they took are
not clear in the record. In January or February 1981, as-
sociate administrator Hall, together with some assistants
including Redwine, held a meeting with the craftsmen
regarding the wage structure. According to painter Ken-
nedy, Hall told the employees that he preferred that they
did not go union, saying the hospital "could do better"
for them if they stayed out of it. Hall also suggested they
go to the IUOE if the employees wished to unionize.
Carpenter Johnson testified that the employees told
Hall they were interested in a percentage of the con-
struction rate but Hall responded the hospital would not
grant that. Markegard testified Hall nonetheless told
them the hospital would take the craftsmen off the 7-step
system.2
In early February 1981, apparently February 4, John-
son asked Redwine to reclassify him from carpenter to
lead carpenter. Redwine denied the request saying that
to be a "lead" an employee had to have authority over
other employees and since Johnson was the sole carpen-
ter he did not qualify. Johnson thereupon filed a written
request to the same effect with Katz. His request was re-
viewed by Personnel Director Linda Pederson. During
the course of Pederson's review Redwine informed her
by memo that the carpenter's job "has evolved from a
part-time position to the present job and the possibility is
very real that once renovation of the building is com-
plete, and all owner furnished equipment, installed and
mounted, the position could again become part-time."s
She affirmed Redwine's analysis. A month later associate
administrator Gustafson affirmed Pederson.
Whatever the merits of Johnson's concern, it is appar-
ent that management recognized it as part of the crafts-
men's dissatisfaction with the current system. Manage-
ment no doubt viewed Johnson's unhappiness as at least
one of the reasons the craftsmen sought representation
by the Trades Council.
Lord recalls that at one point (he believes it was in
May, but in view of the substance, must have been some-
time prior to the representation case hearing of April 14)
if the employees joined the Trades Council, especially
the electricians, Redwine told him Respondent might
well eliminate the electricians and hire biomedical engi-
neers instead. Moreover, he recalls Redwine saying that
if Lord had to join they would probably eliminate his
I Markegard also testified that when he was hired in 1977 Redwine
had told him to "stay away from" the people who belonged to the
IUOE. Similarly, lead electrician Lord testified that when he waa hired
in 1974 Redwine told him if he joined the IUOE he would be paid $5.115
an hour, but if he did not join he would receive $5.356 an hour. Lord
chose not to join the IUOE.
3 The renovation to which Redwine referred was the pending comple-
tion of Phase I1, a large remodeling project which was then in its lat
year.
259
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
job. According to Lord, nearly 2 years later, about 2
weeks before the instant hearing began, Scheibe essential-
ly repeated the same thing. Lord says Scheibe told him if
Lord had been put in the bargaining unit he would have
been "busted back down to an electrician and they
would eliminate an electrician, one of the electricians
that already works there, which would probably have
been Mr. Markegard." Neither Redwine nor Scheibe
denied those two statements.
In late May, shortly before the representation election,
management conducted another meeting. Kennedy testi-
fied Hall repeated that management did not want the
craftsmen "to go union" and again suggested they join
the IUOE. He also recalls Hall saying the hospital was in
the process of making a wage study for each construc-
tion trade and would try to get them comparable wages.
Kennedy recalls both Markegard and Johnson replied
they mistrusted the hospital to some extent, because of
changes in management as well as because of a perceived
lack of clarity. They asserted they needed a representa-
tive to assist them. Markegard corroborated Kennedy re-
calling that Hall wanted to know how the craftsmen felt
about the Trades Council, asking if there was anything
the hospital could do to change their minds. Markegard,
too, recalls Hall suggesting the craftsmen join the IUOE.
He remembers Johnson told Hall that he was a carpenter
and wanted to be represented by someone who under-
stood carpenters. Lord recalls that during the meeting
associate administrator Gustafson said the hospital had
treated its employees fairly in the past and intended to
continue doing so but asserted it would be hard with a
"third party" representing them. Lord recalls Gustafson
suggesting the craftsmen join the IUOE. Hall then re-
peated what Gustafson had said.
Gustafson admitted that during the meeting Hall asked
why the employees, after getting a "satisfactory agree-
ment" on wages, had nonetheless caused an election peti-
tion to be filed. He asked what had happened to precipi-
tate it. He denied only that Hall had made reference to
"a third party."
Shortly after the meeting, Kennedy had a conversation
with Redwine expressing fear that Respondent would re-
taliate against the craftsmen for seeking union representa-
tion. He says Redwine assured him he should not worry
about it, "there would always be a need for three paint-
ers." Kennedy recalls Redwine going on to say, howev-
er, that if he had anything to do with it he would get rid
of Johnson and the two electricians who he believed had
"started it." Redwine did not deny that conversation.
Markegard testified that after the May meeting was
over he spoke privately with Gustafson who said he
could not tell Markegard what to do regarding joining
or not joining the Union, but Markegard should be
aware that the hospital had "tough people working for
it, too." He said they could make it "rough" on the
craftsmen. Gustafson testified that during his conversa-
tion with Markegard he observed the Trades Council
was a "fairly tough union" and although the hospital was
ready to deal with it, "negotiations would be tough." In
any event, the Trades Council won the election and was
certified.'
Sometime thereafter, described only as "during the
Fall" of 1981, Kennedy participated in a conversation
with Scheibe and lead painter Shane Quinn. Because of
the tenor of the conversation, it seems more likely to
have occurred after the contract was signed in Decem-
ber. Kennedy recalls Quinn complaining aloud that, al-
though he had helped the others get more money, union-
ization had done nothing for him-he had not gotten a
raise. Scheibe observed that, since they had all signed
union cards and had all gone union, they would have to
suffer the consequences.
In January, after Johnson's hours were reduced and
two others laid off, Kennedy again sought reassurance
from Redwine. Redwine told him there would always be
a need for three painters and the terminations would not
affect him. Redwine then repeated that if he had his way
he would terminate the electricians who were causing
the trouble. If he had to, he would phase out their jobs
and get outside help. About half an hour later, Scheibe
told Kennedy he had heard Kennedy was concerned.
Scheibe told him not to worry, he would always have a
job as a painter due to the increased workload.
C. Respondent's Work Assignment Practices
The General Counsel contends that, until the collec-
tive-bargaining contract was signed in December 1981, it
was Respondent's practice and announced policy of as-
signing work to the craftsmen in accordance with tradi-
tional craft lines. In support of that contention is the tes-
timony of lead electrician Lord, as well as some admis-
sions by Redwine. Respondent contends, however, that
work assignments were fluid and that the engineers and
craftsmen often did each other's work. I have carefully
considered the conflicting evidence and conclude that
the General Counsel's contention has been proven, with
two exceptions. These both involve the work of the
night engineer. In general it had been the carpenter's re-
sponsibility to replace broken ceiling tiles. However,
years before, Redwine had issued a standing order to the
night engineer to replace broken ceiling tiles as neces-
sary. Second, it appears that, although most of the paint-
ing was done by the painters, on occasion engineers
would spray-paint minor repair work and would also
paint boiler room equipment which they used or worked
on. Painters, of course, did that as well. Except for these
two areas it appears to me that the General Counsel has
proven that it was Respondent's policy prior to the be-
ginning of 1982 to assign work along craft lines.
In reaching this conclusion I specifically note the job
classification descriptions which are in evidence. In the
case of the carpenter there are two such descriptions.
While there are minor differences between the old and
the new job descriptions, clearly the carpenter had re-
sponsibility for constructing and repairing furniture,
4Neither the date of the election nor the date of the certification ap-
pears in the record, although it is probable that the election did not actu-
ally take place until June or July as Respondent filed with the Board a
request for review of the Regional Director's Decision and Direction of
Election. That request was denied on June 24, 1981.
260
CHILDREN'S ORTHOPEDIC HOSPITAL
doing minor remodeling and millwork, building and in-
stalling cabinetry and similar equipment, as well as in-
stalling the ceiling tile framework and the tiles them-
selves. In addition there is Lord's testimony that craft
lines had been followed since 1974 when the department
was first divided. Several employees testified that on a
number of occasions Redwine had remarked aloud in
making work assignments: "If it has wires running to it,
it's the electricians'; if it's wood, it's the carpenters'; and
if it needs to be painted, it's the painters'." Redwine testi-
fied that he did not recall making that statement, but
conceded, "It sounds good." In addition, at the represen-
tation case hearing Redwine testified that he attempted
to run his department on a craft basis saying, however,
that he had not had any engineers shift into the electri-
cian, painter, or carpenter classifications. Later in his tes-
timony he stated that the carpenter normally worked in
the carpenter shop although he did occasionally mount
equipment on walls, depending on its weight and type. If
the equipment was quite big the engineer would take
over. When he was asked if the carpenter ever worked
with the engineer on mounting such equipment, Redwine
responded, "He could, but the two trades don't really
cross that often."
Accordingly, I conclude that, except for the two mat-
ters mentioned above, night ceiling tile work and equip-
ment painting, it was at all times Respondent's policy to
assign work to its employees on the basis of craft lines,
modified only to the extent that the job classification de-
scriptions may have altered them.
D. Scott Johnson's Reduction in Hours
1. Statements to Johnson
Carpenter Scott Johnson was hired as a full-time car-
penter in November 1978. Prior to his hire, the hospital
had employed a carpenter on a part-time basis for several
years. The first was a retired carpenter who only worked
part time in order to maintain retirement benefits. He
was succeeded by others who also worked part time.
According to Johnson, when he was hired the Phase II
remodeling job was 30 to 40 percent complete.'
Johnson was interviewed by both Redwine and
Scheibe. He states that during the interview they dis-
cussed the length of his tenure. He recalls the conversa-
tion because his then employer did not provide for re-
tirement. He said he was keen on obtaining a position
with retirement and during the interview was told that
he "could retire in this position." He also said the com-
* Phase 11 involved the renovation of the old hospital building, upgrad-
ing it to be consistent with the new wing which had earlier been com-
pleted, known as Phase I. The addition of Phase I had doubled the size
of the hospital. Both Phase I and II were performed by an independent
construction company, Baugh Construction, a general contractor. Phase
I, as a new building, appears to have been constructed without impeding
the hospital's operation. Phase II, however, was completed on a "rolling
basis" or stage by stage. Thus, when the general contractor or any of its
subcontractors occupied a portion of the existing building to perform
their work, hospital personnel were ousted. When the contractor was fmn-
ished and the particular stage completed, hospital personnel would
resume their occupancy and the hospital's maintenance personnel would
once again assume responsibility for maintaining it.
pletion of Phase II as it might affect his tenure was not
discussed.
Johnson also testified, regarding his workload during
the Phase II period, that to the extent Phase II involved
hospital installed furniture or equipment, such installation
was principally handled either by the contractor or by
the IUOE-represented engineers. Until January 1982, his
position was that of a regular full-time employee. Thus,
from his viewpoint, there was sufficient carpentry work
to justify a full-time employee even with portions of the
hospital under construction. As he viewed it, the com-
pletion of Phase II ultimately expanded the opportunity
for carpentry work.
On January 19, 1982, however, Johnson was notified
by Redwine and Scheibe that the completion of Phase II
had reduced the amount of work available in the build-
ing and engineering department and Respondent had de-
termined it could justify a carpenter for only 24 hours
per week. Redwine gave Johnson a letter advising him
the change would be effective on February 12.
Johnson says during the discussion they told him they
were basing their decision on "joint knowledge" from
Scheibe and Redwine. Scheibe told him they were
making projections from the work Johnson had turned in
and they had contracted with a computer firm to take
the material to give them a continuous feedback of the
functions of the department, as well as projecting work-
loads. Johnson observed to Redwine that the only time
he had been requested to turn in work orders was when
he was first hired and since that time he had not done so;
neither had anybody requested him to do so except for a
specific work order which Scheibe had given him which
had taken several months to complete. That project had
occurred a year and a half before. Neither Scheibe nor
Redwine disagreed with Johnson's characterization of
the meeting. s
However, Johnson says he had noticed during the 3 to
4 weeks before the meeting that his work had been re-
duced to "menial type of tasks." He also says he had
become aware that work was being withheld from him.
Accordingly, shortly thereafter, probably February, he
had another meeting with Scheibe and Redwine to de-
scribe his concern that carpentry work as described in
his job description was being performed on days he was
absent. This principally took the form of replacing
broken ceiling tiles. Shop steward Markegard also at-
tended at Johnson's request. During the course of the
meeting Johnson contended that carpentry work was
being done in his absence and he believed it to be con-
trary to a statement made to him on January 19. They
' Contemporaneous with Johnson's hours reduction were the involun-
tary departures of electrician David Woodland and an engineer. Electri-
cians Lord and Markegard testified, in corroboration of Johnson, that
neither had the electricians installed any owner-furnished equipment.
Moreover, Lord believed that Woodland was still needed to accomplish
the electrical work. Redwine did not consult him regarding the continued
need for Woodland's services. Redwine told him only that Woodland's
layoff was the result of a "work order count." Lord replied that, if work
orders were the criteria, the hospital could not justify even one electri-
cian, but Redwine did not reply. Lord also accused Redwine of laying
Woodland off because of his union activity. Redwine did not reply to
that assertion either. Later, Lord told employees that Woodland had been
laid off for union activity.
261
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
went over the carpenter's job description and Scheibe
agreed that all the work he had done since he had been
hired would continue to be performed by him and that it
would not be done on his days off by anybody else. Spe-
cifically, Scheibe told him that he would be the only one
to replace damaged ceiling tiles. Indeed, Redwine assert-
ed Johnson was the only one qualified and who had the
tools; he did not want engineers working on the ceilings.
About a month later, still perturbed by the loss of
hours, Johnson had another meeting with Scheibe. He
told Scheibe that he was "really having problems dealing
with" the part-time situation. He told Scheibe he be-
lieved the workload justified a full-time job and said the
consequences were "hitting home" and his family situa-
tion had become "very strained." As Johnson explained
his circumstances, his eyes began to tear. He asked
Scheibe to explain the situation "off the record." John-
son states Scheibe softened and said, "I'm going to tell
you something so that you can better understand and
deal with this situation, and if you ever ask me to repeat
it I'll deny saying it." Scheibe told him, "I don't know
how to put this. If you had never joined the Union, none
of this would have ever happened to you." Johnson re-
sponded he did not understand how that was supposed
to help him; if anything he was more frustrated than he
had been before. Scheibe did not deny the conversation.
A few days later, Johnson had a conversation with
Redwine in which he attempted to explain that he had
joined the Union not to stir up trouble but to seek repre-
sentation at contract time. He told Redwine he wanted a
professional and that was his reason for choosing union-
ization. Redwine replied he "understood all that" and
was not concerned with Johnson, but it was the electri-
cians who were "always stirring up trouble and if he had
his way he'd get rid of a few more of those troublemak-
ers."7
2. Markegard attempts to assist Johnson
In late June shop steward Gary Markegard had ob-
served, on one of the Johnson's days off, an engineer
working with a cartload of ceiling tiles. He called John-
son to report it. Johnson, concerned with a breach of
Scheibe's earlier promise regarding ceiling tiles being re-
served exclusively for him, decided to confront Scheibe. 8
They had a conversation in the boiler room/workshop
area on June 30. Johnson asked Markegard, as the shop
steward, to be present during the conversation.
' This appears to be a reference to the discharge of electrician David
Woodland who had been terminated on February 12, 1982, and referred
to above in fn. 6. A letter dated January 15 had advised Woodland that
his job was being eliminated due to the end of Phase II and the comple-
tion of installation of "owner furnished equipment." Woodland's termina.
tion slip dated February 5 cites "reduction in force-junior man" as the
reason for his layoff.
7 During this period a large amount of work normally done by the car-
epenter, and described in his job description, was given to the engineers.
Some of it was small maintenance work such as hinge and hasp replace-
ments, i.e., miscellaneous "drill and screw" jobs. A large amount dealt
with furniture and cabinet repair. In particular, there was a large waiting
room furniture job which Johnson had begun, but which had been taken
from him. This involved furniture for waiting rooms on four floors on
two wings.
According to Johnson, when he arrived at the shop he
observed Scheibe standing near the telephone. He told
Markegard he was going to go ahead and talk with
Scheibe. Markegard was momentarily busy at his work-
bench but said, "Fine, I'll be right there." The conversa-
tion began without Markegard.
Johnson asked Scheibe if he was aware that the engi-
neers were doing "my" ceiling tiles, and suggested
Scheibe might not be aware of it; perhaps their supervi-
sors were performing the work without Scheibe's knowl-
edge. Markegard joined them at that moment and heard
Scheibe's answer. Scheibe replied he was not aware that
they were doing "your job, your ceiling tiles, but I am
aware that they are doing ceiling tiles." Johnson said he
thought they had earlier reached the agreement that he
would do ceiling tiles. Scheibe said he did not think
Johnson wanted to do the ceiling tiles in question as the
engineers had been working in a room and had damaged
many tiles and he did not want to ask Johnson to clean
up after their mess. Johnson replied that he thought that
had been laid out in the previous agreement, that he
would repair all damaged ceiling tiles; it did not matter
who had damaged them.
Johnson says at that point Markegard asked, "How are
we supposed to believe you people; we have been over
that territory. What do you mean you didn't know
[Johnson] wanted ceiling tiles?" As that point Scheibe
looked at Markegard and asked what he was doing
there, saying the meeting was between Johnson and him.
Markegard said Johnson had asked him to be there and
he was present as the union shop steward. Scheibe re-
plied he did not have to recognize the Union and did not
have to recognize Markegard's status as shop steward.
He told Markegard to leave. Johnson intervened saying,
"Wait a minute. I did ask Gary to be here as my repre-
sentative. In the past it has been proven to me that I do
need witnesses in these situations and Gary is here in the
capacity as my shop steward."
At that point Scheibe turned away from Markegard.
About the same time Johnson asked Scheibe if he would
give him a "redefinition of who does ceiling tiles and
when?" Scheibe said "he" would replace the damaged
ceiling tiles and that only Johnson would do it "except
under other than normal situations." That was a new
phrase to Johnson for in past meetings the exception had
been "under emeregency situations." Since he was not
certain of the distinction. Johnson asked Scheibe to ex-
plain what "other than normal conditions" meant.
Scheibe replied he did not feel the need to. Johnson then
described two hypotheticals, one where a ceiling tile was
missing over a patient's head and another where one was
missing in a hallway. In each case Johnson was off work.
Johnson asked whether Scheibe would replace those
tiles. To each Scheibe replied, "I might." At that point
Johnson told Scheibe that he needed to discuss it with
Markegard some more, particularly as a grievance might
be necessary.
Markegard testified that when he entered the conver-
sation Scheibe and Johnson were already talking, John-
son was "pleading his case" asking why he should be-
lieve Scheibe when Scheibe had earlier agreed with him
262
CHILDREN'S ORTHOPEDIC HOSPITAL
and Markegard that Johnson was to work on the tiles.
Markegard's recollection of the agreement was that
"under no conditions" was anyone other than Johnson to
work on the ceiling tiles. He remembers Johnson telling
Scheibe that they were doing him a "grave injustice" as
the hospital had cut him down to 24 hours per week
saying there was not enough work for him while none-
theless assigning his work to other people. Markegard
testified Scheibe gave Johnson "basically no response."
At that point Markegard told Scheibe that he had heard
the agreement, that Scheibe had promised them both that
Johnson would do the ceiling tiles. Markegard told
Scheibe that he felt Scheibe was betraying them and
"was a liar to us," that Markegard had trusted Scheibe in
the past but was now very upset.
Markegard said Scheibe told him the conversation had
nothing to do with him, that it was between Johnson and
himself and Markegard had no business being there.
Markegard replied he had been asked to the meeting by
Johnson and was present as the union representative, as
the shop steward, and had every right to be there. At
that point Scheibe told him to "get out," that he had
nothing more to say to Markegard, the conversation had
nothing to do with him. Scheibe then turned his back
and shut Markegard out of the conversation. Scheibe and
Johnson continued to talk for a while. When they fin-
ished Markegard heard Johnson say they were "getting
nowhere" and apparently Scheibe's "agreement about
the ceiling tiles would not hold true" and that "we"
have to pursue it by other means, "through the Union or
whatever."
Scheibe's testimony is quite different. He testified that
he had been talking to Johnson in the boiler room re-
garding an incident where the engineers had done a poor
job of replacing ceiling tiles and he had instructed their
supervisor to have them do it correctly. At that point,
Markegard "walked up [and] butted into the conversa-
tion." He denies Markegard ever identified himself as the
shop steward during the conversation. Furthermore, he
says Markegard spoke in a voice loud enough to be
heard 30 feet away on the other side of the boiler room
and shook his finger under Scheibe's nose. Scheibe took
offense and told him he would not be spoken to in that
manner and then continued his conversation with John-
son.
Electrician Robert Sarff was also at work in the boiler
room that day. He was some 50 to 60 feet away. Al-
though he could not hear their conversation he did ob-
serve them talking. He said they were not yelling at each
other and if they had been he would have heard it. Sarff
said that because the boiler room is often noisy people
commonly shout across it for various reasons and that
ordinary shouts can be heard above the machinery.
Both Johnson and Markegard deny that they raised
their voices. Furthermore Markegard denies physically
threatening Scheibe and says he neither touched him,
pushed him, or made as if he was about to do so.
3. Scheibe disciplines Markegard
On the following day, July 1, at 9:30 a.m. pursuant to
Scheibe's request, Markegard went to Scheibe's office.
Scheibe says during that meeting he told Markegard that
his manner would not be accepted and that he would not
stand there and let anybody yell at him or shake his
finger under his nose. If Markegard wanted to discuss
something he was to do it in a civil manner and Scheibe
would be more than happy to sit down and discuss the
problem with him. In addition, Scheibe gave Markegard
a work performance evaluation saying that although he
was an acceptable electrician his troubleshooting ability
was poor. At the conclusion of the meeting, Scheibe
issued Markegard a written warning which stated, "This
is to document the counseling you received this morning
concerning your rude behavior. Your yelling, and abu-
sive and demanding attitude will not be tolerated. Any
problems you have will be discussed in a civil manner on
an appointment basis." Markegard refused to initial the
slip.
Markegard says Scheibe, very upset, said, "I don't
know who you think you are. This deal about shop stew-
ard means nothing to me and nothing to the hospital."
He said neither he nor the hospital recognized the posi-
tion of shop steward. When Markegard did not reply,
Scheibe accused Markegard of being a troublemaker and
told him to keep his mouth shut in the future. Markegard
told him there was no "need for this type of stuff," that
the only thing the craftsmen wanted was to do their
work, following the trades lines as they had before the
organizing. He said the employees had signed a contract
and now wanted things "to get back to normal." Scheibe
told him, "You guys will never get things back to
normal. You have taken care of that. You will never get
things back to normal." Markegard says it was not until
later that afternoon that he was given the warning slip.?
E. Daniel Kennedy
Much of the evidence involving Kennedy's situation is
recited above in subsection B, above. In essence, Kenne-
dy had been told on various occasions that there would
"always be a need" for three painters. When on occasion
he had expressed some fear that he might be subject to
layoff, either Redwine or someone else from manage-
ment had assured him that his job was not in jeopardy.
On July 19, Scheibe told Kennedy he would be termi-
nated effective October 1. Kennedy became upset. He
said he had asked about it before and had been constant-
ly assured that his job was not in jeopardy. Kennedy
then asserted he was being laid off because of the union
activity. Kennedy quotes Scheibe as replying, "Correct,"
but would not repeat it. Kennedy then argued that the
inside painting was "piling up," and Scheibe replied the
matter was "out of his hands." He did not deny there
was work available. Scheibe does not deny any of Ken-
nedy's testimony.
Kennedy had originally worked in Respondent's pur-
chasing and receiving department and had experience in
that field. Between July and October while his painter's
job was being eliminated, two openings occurred in that
department. The first occurred while Kennedy was on a
scheduled vacation. It involved a transfer from the ware-
* He refused to sign it as inaccurate. He later asked for a copy. He was
given G.C. Exh. 35, but says it is not the slip he was originally shown.
263
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
house to the purchasing department. It reopened after
Kennedy returned from his vacation when the newly
transferred employee decided he did not want the job.
Kennedy then spoke to the head of that department and
found there was still an opening. He said he was interest-
ed. Even so, no offer was made.
Kennedy testified that prior to the election Respond-
ent had made work assignments according to craft and
there was no intermingling of jobs. Nonetheless after the
election he observed that engineers were beginning to do
painting as well as the work normally reserved to other
crafts. In early August, Kennedy asked Scheibe about his
layoff, questioning it, saying that there still seemed to be
work to do. Kennedy produced a list of needed painting
work which he had found, saying he could not under-
stand why he was being laid off. He said Scheibe did not
reply, but only looked at him and grinned.
Kennedy's layoff was not rescinded and took effect as
scheduled.
IV. ANALYSIS AND CONCLUSIONS
A. The Personnel Actions
The General Counsel's theory is that Respondent, uti-
lizing a sophisticated, delayed action tactic, artificially
created a work shortage to justify two otherwise unlaw-
fully motivated personnel actions. He argues that the re-
duction in carpentry work, as well as the reduction in
painting work, were simply shams as the work was in
fact performed by IUOE personnel. In support of this
theory, he points to numerous statements made by Red-
wine and Schiebe, as well as one made by Lord, consti-
tuting admissions or, at the very least, expressions of
union animus. Respondent failed to adduce any sort of
denials with respect to the statements themselves, relying
instead on factual circumstances surrounding Johnson's
hours reduction and Kennedy's layoff.
Thus, I find that Respondent has harbored union
animus since the craftsmen began to organize in early
1981. Indeed, its animus against the Trades Council was
expressed in the very beginning when its responsible offi-
cials first attempted to adjust a wage program in direct
response to the expressed concern of the involved em-
ployees. That was a clear and simple attempt to "buy
them off." Failing that it sought to divert them to the
IUOE, a known quantity. It is apparent to me that Re-
spondent was principally concerned with the perceived
risk of being "whipsawed" by two labor organizations,
each seeking to top the other. It did not wish to be in
that position, constantly bargaining with one or the
other, and trying to keep wages under control. However,
when it failed to persuade the employees to forgo repre-
sentation by the Trades Council and further saw that at
least some of the more visible union adherents, such as
Johnson, insisted on Trades Council representation rather
than the IUOE, it concluded that the only way to avoid
the whipsaw effect was to undermine the Trades Coun-
cil's strength. Thus, although there does not appear to be
a great difference between the wage packages of the col-
lective-bargaining agreements in evidence, Respondent
nonetheless had a significant motive to "do in" one union
or the other. The weakest of the two appeared to be the
Trades Council for it had fewer members. Moreover, its
people favored seeking more restrictive work practices
than the IUOE.
It is true, however, that Respondent has consistently
argued that each of the personnel actions that it took
which have been scrutinized in this hearing were taken
because of the completion of Phase II in late 1981. Elec-
trician David Woodland and engineer Richard Strahm
were terminated contemporaneously with the reduction
in Johnson's hours. Both Woodland and Strahm were
told by letters dated January 15 that their jobs were
being eliminated due to the completion of Phase II.
Strangely, however, the termination slip maintained in
Strahm's file (G.C. Exh. 12) shows that he was dis-
charged because of "poor work performances and at-
tendance." In addition several counseling slips are in his
file, each of which refers to his lack of reliability.1 0 The
termination notice states Strahm is not to be rehired even
though the letter written to him says his layoff was "an
involuntary termination without prejudice." Why has
Respondent said one thing to Strahm while saying the
exact opposite to itself?
Moreover, why on several occasions did both Red-
wine and Schiebe make remarks regarding Woodland's
discharge, asserting that the electrician had been consid-
ered a troublemaker? Once prior to Woodland's dis-
charge, Redwine referred to him as one he would like to
get rid of; he made a similar remark afterwards. Again,
however, the documentation shows Woodland was laid
off because of the completion of Phase II.
It seems likely, therefore, that Respondent had other
reasons and other motivations for discharging those two.
No doubt it wished to get rid of Strahm because he was
a poor employee. While Woodland's discharge is not the
subject of this complaint, as no charges was filed on his
behalf, there is nonetheless curious evidence surrounding
it. Redwine considered him to be one of the individuals
who was responsible for the unionization of the crafts-
men. Indeed, Johnson was considered in the same light.
In the abstract, Respondent's reasons advanced for
these three personnel actions is credible. The completion
of Phase II might well have resulted in the reduction of
maintenance work. After all, new equipment had been
installed and, although an initial surge of work might
have occurred while the occupants in the remodeled fa-
cility adjusted themselves, it would have been short-
lived. Thus, the advanced reason appears facially credi-
ble. Yet, the craftsmen's observation, that although they
had been unable to work in the areas under construction
while the contractors' employees were present yet none-
theless remained employed, is a salient one. Once the
contractors had left, not only would the craftsmen's full
employment continue, but the additional square footage
which had become accessible to them would have cre-
ated additional work. That observation, when coupled
with the Respondent's strange treatment of Strahm and
Woodland, strongly undermines Respondent's credibility
on the point.
10 An engineering supervisor told Lord that Strahm had been fired for
intoxication and sleeping on the job.
264
CHILDREN'S ORTHOPEDIC HOSPITAL
First, Respondent adduced no evidence whatsoever to
rebut the employees' observation with respect to the ad-
ditional area of work, and second, the deliberately decep-
tive treatment of Straham's file suggests that Respondent
is fully capable of deceit in other areas. This becomes
even more apparent when one looks to the amount of
available carpentry work as shown on work requests
(G.C. Exhs. 26-31) and the reassigned work. Similarly,
contrary to Scheibe's statement to Johnson that his hours
reduction was based on a study of his work orders which
had been turned over to a computer company to make
projections, no such evidence was ever adduced. It ap-
pears that work orders were not a reliable means of de-
termining the amount of work actually done. I conclude,
therefore, that Scheibe lied to Johnson on the point.
Scheibe further appears to have been deceitful in dealing
with Johnson with respect to his reneging on his and
Redwine's promise to give Johnson all the ceiling tile
repair work. In addition, Respondent assigned a large
amount of furniture repair work to the engineers, work
clearly falling within Johnson's job description. Thus
even Redwine's 1981 prediction that the carpenters
might be reduced to a part time had only minimal value
when weighed against the other evidence.
Moreover, I have already concluded that it was Re-
spondent's practice, prior to the election, to assign work
along craft lines, leaving the so-called mechanical work
to IUOE employees. Respondent argues that craft lines
were not always followed. But, curiously, even to the
extent that they may not have been followed the work
which both groups historically were supposed to have
done seems to have benefited only the IUOE group. In
other words, on every occasion where there was a so-
called misassignment the work was taken from the crafts-
men and given to the IUOE group. Whenever the IUOE
group was seen to be doing work also historically done
by the craftsmen, it was deemed to be a correct assign-
ment. I find that to be further evidence of a sophisticated
effort to undermine the Trades Council's unit.
Accordingly, I conclude that Respondent's defense
does not rebut the General Counsel's evidence. Indeed, I
find that the General Counsel has proven that Respond-
ent engaged in a sophisticated effort to undermine the
Trades Council by reducing the work of the carpenter.
Similarly, although it took place 7-1/2 months later,
the Kennedy discharge must be seen in the same light.
The evidence with respect to Kennedy is not quite as
strong but the policy remains clear. It may well have
been that Kennedy was not the most visible Trades
Council adherent but in a sense that would be one of the
reasons to choose him for layoff. Curiously, Respondent
did not discuss his layoff with the lead carpenter, Shane
Quinn, or even talk to Quinn regarding the ability of the
remaining two painters to perform the traditional paint-
ing work.
Furthermore, I find it significant that, on every occa-
sion where Kennedy had an opportunity to discuss his
tenure with either Redwine or Scheibe, they invariably
told him he had nothing to fear and that the hospital
would "always" have work for three carpenters. While I
do not regard those promises as a contract between Ken-
nedy and Respondent, nonetheless it appears to be an ac-
curate assessment of the amount of work regularly avail-
able to the painting crew. Moreover, their treatment of
him at the end seems quite strange. Kennedy had come
from the purchasing department and could easily have
been bumped into that job without affecting anyone
else's employment had Respondent truly wished to keep
him. After all he was supposedly being laid off without
prejudice. Why not simply move him back to his old
job? Did they choose not to do so because he had voted
in favor of union representation? That seems to be a
likely explanation.
These observations, coupled with the admissions made
by Scheibe to Johnson and Kennedy, compel me to con-
clude that those two men were the victims of a sophisti-
cated plot to undermine the Trades Council's bargaining
unit. Such a motivation violates Section 8(aX3) and (1) of
the Act, and I so find.
With respect to the June 30-July I conversation in-
volving Scheibe, Johnson, and Markegard, I also find
that Respondent violated Section 8(aX3) and (1) of the
Act. Scheibe has already been found deceitful, and is not
a credible witness. Moreover, Johnson's and Markegard's
version of the conversation was visually corroborated by
Sarff who heard nothing of the shouts and finger-point-
ing reported by Scheibe. Instead he saw what appears to
have been a civil conversation. Moreover, Scheibe was
well aware Markegard was the shop steward whether he
was contractually obligated to recognize him or not.
Indeed, he had given Markegard's stewardship a certain
recognition by permitting Markegard to be present and
to participate during the February discussions regarding
Johnson's ceiling tile work. Thus, even without any con-
tract, there had been a tacit recognition. Finally, Marke-
gard does not appear to have left his work inappropriate-
ly to participate in that conversation; Respondent has
never claimed that he did. The disciplinary warning
issued to him on July I appears to have been, once again,
part of Respondent's effort to undercut the Trades Coun-
cil's effectiveness as a bargaining representative. What
better way to undermine that representation than to pre-
vent its steward from assisting employees?
Accordingly, Scheibe's version of the conversation is
discredited and Johnson's and Markegard's versions spe-
cifically believed. I therefore conclude that Respondent,
in issuing the disciplinary warning to Markegard, violat-
ed Section 8(aXl) and (3).
B. Threats, Restraints, and Coercion
The complaint alleges that Respondent committed sev-
eral acts which separately violated Section 8(a)(1). Some
of these involve statements which are simply admissions
of the unlawfully motivated personnel actions discussed
above. I do not deem it necessary to provide a separate
remedy for them. Another involves a statement made by
lead electrician Lord to the effect that Woodland had
been laid off in retaliation against the union organizing.
Earlier, Lord had accused Redwine of having that moti-
vation and Redwine had avoided answering. Thus Lord
believed his accusation to be accurate. His later remark
to that effect did not, therefore, have the intent of re-
straining future union activity. Even so, it must have had
-
265
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that result. As Lord was not at any time a participant in
Respondent's antiunion scheme, his statement is not inde-
pendent evidence of Respondent's actual motive. He is,
to some extent, an unwitting participant. Nonetheless, I
must find his remark unlawful, for his intent is irrelevant.
The only remaining allegation is that Redwine unlaw-
fully threatened to get rid of union activists-a remark
made to Kennedy in February. It is undenied and clearly
violates Section 8(a)(1).
V. THE REMEDY
Having found that Respondent has engaged in viola-
tions of both Section 8(a)(3) and (1) of the Act by reduc-
ing the hours of carpenter Scott Johnson, discharging
painter Daniel Kennedy, and disciplining union
steward/electrician Gary Markegard in order to under-
mine the status of the Seattle Building and Construction
Trades Council as the exclusive representative of such
employees, and by other acts, I shall recommend that it
be ordered to cease and desist therefrom and to take cer-
tain affirmative action designed to effectuate the policies
of the Act. The affirmative action shall include an order
requiring Respondent immediately to restore Johnson to
a 40-hour workweek, to reinstate Kennedy to his former
job, and to make each whole for any loss in pay he may
have suffered by reason of the discrimination against
him. Backpay for Kennedy shall be computed on a quar-
terly basis in the manner prescribed by the Board in F.
W. Woolworth Co., 90 NLRB 289 (1950). Interest for
both Kennedy and Johnson shall be governed by Florida
Steel Corp., 231 NLRB 651 (1977), and Isis Plumbing Co.,
138 NLRB 716 (1962). In addition, Respondent shall be
required to expunge from its records any reference to
Johnson's hours reduction, Kennedy's discharge, and
Markegard's disciplinary warning, and to provide written
notice of such expunction to each of them and to inform
them that its unlawful conduct will not be used as a basis
for further personnel actions concerning them.
On the foregoing findings of fact and on the entire
record in the this case, I make the following
CONCLUSIONS OF LAW
I. Respondent, Children's Orthopedic Hospital and
Medical Center, is an employer and health care institu-
tion engaged in commerce within the meaning of Section
2(6), and (7), and (14) of the Act.
2. The Seattle Building and Construction Trades
Council, AFL-CIO is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent violated Section 8(aX3) and (1) of the
Act when on February 15, 1982, it reduced the hours of
employment of carpenter Scott B. Johnson because of his
union membership.
4. Respondent violated Section 8(aX 3) and (1) of the
Act when on October 1, 1982, it discharged Daniel T.
Kennedy because of his union membership.
5. Respondent violated Section 8(aX3) and (1) of the
Act when on July 1, 1982, it issued a disciplinary warn-
ing to its employee Gary A. Markegard because of his
activities as a union steward.
6. Respondent violated Section 8(a)(l) of the Act
when on June 30 and July 1, 1982, it refused to permit a
union steward to represent an employee in a discussion
regarding the employee's terms and conditions of em-
ployment.
7. Respondent violated Section 8(a)(l) of the Act by
threatening employees with discharge and saying em-
ployees had been discharged because of their union ac-
tivity.
[Recommended Order omitted from publication.]
266