Encino-Tarzana Regional Medical Center

National Labor Relations Board - Board Decisions

Oct 27, 2000

332 N.L.R.B. 914 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 914
AMI/HTI Tarzana-Encino Joint Venture d/b/a En-
cino-Tarzana Regional Medical Center and
American Federation of Nurses, Local 535, Ser-
vice Employees International Union, AFL–CIO.
Case 31–CA–23592
October 27, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND HURTGEN
On September 23, 1999, Administrative Law Judge
Mary Miller Cracraft issued the attached decision. The
General Counsel and the Charging Party filed exceptions
and supporting briefs, and the Respondent filed an an-
swering brief.
The National Labor Relations Board has delegated 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 and
to adopt the recommended Order.
In adopting the judge’s finding that the Respondent did
not violate the Act by unilaterally suspending its “call
off” procedure during the 3 days following the Union’s
1-day economic strike, the Board emphasizes that the
General Counsel’s complaint did not allege that the Re-
spondent was obliged to reinstate the economic strikers
immediately on their unconditional offer to return to
work, notwithstanding its contractual obligation to guar-
antee the temporary replacements from the Staffing
Agency a minimum of 4 day’s pay. Cf. Harvey Mfg.,
309 NLRB 465, 470 (1992) (rejecting private contractual
arrangement as defense to reinstatement obligation to
temporarily replaced economic strikers (who have same
rights as unfair labor practice strikers) but not disturbing
holding in Pacific Mutual Door Co., 278 NLRB 854, 856
(1986), cited by the judge. Accordingly, as the case is
presented to us, it is uncontested that, during the 3 days
at issue, the temporary employees were lawfully on the
job. It is also uncontested, as the judge found, that there
was insufficient work for both the strikers and the so-
called “crossover” employees who had made themselves
available for work during the 1-day strike. The narrow
issue is whether, during that 3-day period, the Respon-
dent was obliged to displace crossovers with returning
strikers whenever the latter had a superior claim under
the Respondent’s “call off” procedure.
We agree with the judge that the foregoing circum-
stances are sufficiently analogous to those presented in
TWA v. Flight Attendants Union, 489 U.S. 426 (1989), to
warrant dismissal of the complaint. In TWA, the Court
held that that the employer was not obligated to displace
crossover employees who worked during the strike in
order to reinstate more senior striking employees. The
absence of immediate vacancies for the returning strikers
was, in the Court’s judgment, attributable solely to law-
ful actions of the employer in hiring permanent replace-
ments and of the crossover employees in choosing not to
participate in the strike, and therefore simply a risk in-
herent in the “gamble” of a strike. As the Court rea-
soned,

Because permanent replacements need not be dis-
charged at the conclusion of a strike in which the union
has been unsuccessful, a certain number of prestrike
employees will find themselves without work. We see
no reason why those employees who chose not to strike
should suffer the consequences when the gamble
proves unsuccessful. Requiring junior crossovers, who
cannot themselves displace the newly hired replace-
ments . . . to be displaced by more senior full-term
strikers is precisely to visit the consequences of the lost
gamble on those who refused to take the risk.

Id. at 438–439.
In the circumstance presented here, the temporary em-
ployees provided by the Staffing Agency are analogous
to the permanent replacements in TWA. That is so be-
cause, for the duration of the 3-day period at issue, the
General Counsel has conceded their right to remain on
the job in preference to the strikers. Thus, here, as in
TWA, the seniority and other factors that form the basis
for returning strikers’ claims would function only to put
strikers back on the job in preference to the crossovers,
while leaving the Staffing Agency temporaries in place.
That is not a permissible result under the principles of
TWA and warrants our dismissal of the complaint.1
ORDER
The complaint is dismissed.

Ann L. Weinman, Esq., for the General Counsel.
Robert J. Kane, Esq. (Stradling, Yocca, Carlson & Rauth), of
Newport Beach, California, for the Respondent.
James Rutkowski, Esq. (Van Bourg, Weinberg, Roger &
Rosenfeld), of Los Angeles, California, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
MARY MILLER CRACRAFT, Administrative Law Judge.
This case was tried in Los Angeles, California, on June 28,

1 In view of the foregoing, the Board finds it unnecessary to pass on
the judge’s additional finding that animosity of striking employees
towards the replacement employees also provided a substantial business
reason for the Respondent’s refusal to offer immediate reinstatement to
the strikers.
332 NLRB No. 90
ENCINO-TARZANA REGIONAL MEDICAL CENTER 915
1999. The charge was filed October 29, 1998,1 by American
Federation of Nurses, Local 535, Service Employees Interna-
tional Union AFL–CIO (the Union), and the complaint was
issued March 23, 1999. At issue is whether AMI/HTI Tarzana-
Encino Joint Venture d/b/a Encino Tarzana Regional Medical
Center (the Respondent) violated Section 8(a)(1), (3), and (5) of
the Act by suspending its “call-off” procedure to determine
staffing during the 3 days following the Union’s economic
strike.
The parties were afforded full opportunity to appear, to in-
troduce relevant evidence, to examine and cross-examine wit-
nesses, and to argue the merits of their respective positions. On
the entire record, which was stipulated to me, and after consid-
ering the oral argument of counsel for the General Counsel and
the brief filed by counsel for the Respondent, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, with an office and place of busi-
ness in Tarzana, California, has been engaged in the operation
of a hospital providing inpatient and outpatient medical care.
During calendar year 1998, Respondent purchased and received
goods valued in excess of $50,000 directly from points outside
the State of California and derived gross revenues in excess of
$250,000. Respondent admits and I find that it is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the National Labor Relations Act and that it is a
health care institution within the meaning of Section 2(14) of
the Act.
II. LABOR ORGANIZATION STATUS
The parties agree and I find that at all material times the Un-
ion has been a labor organization within the meaning of Section
2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
Since about 1984, based on Section 9(a) of the Act, the Un-
ion has been the designated exclusive collective-bargaining
representative of the unit employees, described below, and
since 1984 the Union has been recognized by Respondent as
the exclusive representative. This recognition has been embod-
ied in successive collective-bargaining agreements. One such
agreement was effective by its terms from September 1, 1996,
through August 31, 1998, and was extended to on or about
September 14, 1998, and thereafter expired. A renewal collec-
tive-bargaining agreement, the most recent agreement, was
entered between the parties on December 11, 1998, with effec-
tive dates of September 1, 1998, to August 31, 2000. The em-
ployees described in article l.l, set forth below, constitute a unit
appropriate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act. The unit is:

All full-time professional employees, regular part-time pro-
fessional employees, and per diem professional employees,
including Registered Nurses, Clinical Nurses I, Clinical
Nurses II, Dieticians, Registered Physical Therapists, Staff

1 All dates are in 1988 unless otherwise indicated.
Occupational Therapists, Utilization Review Nurses, Medical
Technologists I, Medical Technologists II, Epidemiologists,
Social Work Assistants, Discharge Planning Coordinators,
Coordinators of the Home Apnea Monitoring Program, In-
Service Instructors, Employees Health Nurse-Physicians’ As-
sistant, MCH Marketing Liaisons, Assistant Directors of Edu-
cation, Nursing Educators and Pharmacists, employed by the
[Respondent] at its facility located at 18321 Clark Street, Tar-
zana, California, excluding all other employees, including
Diet Technicians, Utilization Review Coordinators, Pharmacy
Interns, Directors of the GI Lab, Guards and Supervisors, as
defined in the Act.

Section 10.10 of the 1998–2000 agreement incorporated by
reference a policy entitled “Calling Off Staff.” This is referred
to as the “Call-Off Policy” (COP). The COP was applicable to
all nursing units except the main operating room. Respondent
followed the COP in all nursing units except the main operating
room.
Jo Lewis is vice president of human resources and education.
Janet Brooks is chief nursing officer. The parties agree that they
are supervisors and agents within the meaning of Section 2(11)
and (13) of the Act.
By letter of October 12, 1998, the Union provided Respon-
dent 10-day notice pursuant to Section 8(g) of the Act that the
Union, “will commence a strike at 6:30 a.m. on Friday, October
23, 1998, ending at 6:30 a.m. on Saturday, October 24, 1998.”
The letter continued, stating that it served, “as notice of the
Union’s unconditional offer and request on behalf of all striking
Bargaining Unit members to return to their positions on Octo-
ber 24, 1998 at 6:30 a.m.”
On receiving the October 12, 1998, 8(g) notice, Respondent
made arrangements with a temporary staffing agency (the Staff-
ing Agency) for a professional staff, the great majority of
whom were registered nurses, to serve as temporary replace-
ments for the strikers. The Staffing Agency required Respon-
dent to provide each temporary replacement a minimum guar-
antee of 48 hours’ work. Such requirement was stated in a writ-
ten contract entered between Respondent and the Staffing
Agency. The temporary replacements worked 12-hour shifts
beginning at 7 a.m. on October 23, 1998, and ending at 6:59
a.m. on October 27, 1998.
Deviation I: Prior to the date and time the strike was noticed
to commence, Respondent established a procedure (the “proce-
dure”) whereby bargaining unit employees who worked their
scheduled shift during the 24 hours for which the strike was
noticed would also be permitted to work any shifts for which
they had previously been scheduled during the 3-day period
following the noticed 1-day strike, which was the remaining
period during which the temporary replacements from the
Staffing Agency would continue to work, i.e., October 24 at 7
a.m. until October 27 at 6:59 a.m. (the 3-day period). Accord-
ing to the procedure, bargaining unit employees who worked
their shift during the 24-hour period for which the strike was
noticed would work their scheduled shifts during the 3-day
period even if employees who had struck and were scheduled
would have worked those shifts if they were willing to do so ad
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 916
were the COP applied. To this extent, Respondent did not apply
the COP during the 3-day period.
Deviation II: In one instance, an employee who was not able
to work during the 24 hours for which the strike was noticed for
reasons unrelated to the strike and who had worked during the
previous strike called by the Union in the bargaining unit com-
mencing on September 15, 1998, was permitted to work a
scheduled shift during the 3-day period even though an em-
ployee who had struck and was scheduled would have worked
that shift were the COP applied and were that employee willing
to so work. To this extent also Respondent did not apply the
COP during the 3-day period.
Deviation III: In certain instances, employees who had
worked during the 24-hour period for which the strike was
noticed were added to the schedule and worked shifts during
the 3-day period even though employees who had struck and
were scheduled for those days were not permitted to work and
would have worked were the COP applied. To this extent also
Respondent did not apply the provisions of the COP during the
3-day period.
Respondent did not bargain with the Union regarding the de-
cision to adopt the procedure and not to apply the COP to the
extent stated in deviations I–III, during the 3-day period.
As a result of Respondent’s decision to adopt the procedure
and not to apply the COP to the extent stated in deviations I–III,
employees worked shifts during the 3-day period that employ-
ees who struck and were scheduled during the 3-day period
would have worked if they were willing to do so as follows:
In labor and delivery on October 24, 1998, on the night shift
RN Georgette El Khoury was scheduled and worked instead of
RN Elina Lerman; and on October 25 on the night shift RNs
Sharon Owings and Christine Goner (the RN referred to in
deviation III) were scheduled and worked instead of RNs Anita
Mauch and Elina Lerman; and on October 26 on the night shift
RNs Georgette El Khory and Christine Goner (the RN referred
to in deviation III) were scheduled and worked instead of RNs
Maria Cananea and Elizabeth Hartman.
In the emergency room on October 25 on the day shift RN
Catherine Wallace was added to the schedule (as referred to in
deviation III) and worked instead of RN Deborah Hall-Patti;
and on October 26 on the day shift RN Catherine Wallace was
scheduled and worked instead of RN Teri Pfeiffer; and on Oc-
tober 26 on the night shift RN Olga Kirunchyk worked instead
of RN Bruce Busse.
In the cardiovascular intensive care unit (CVICU) on Octo-
ber 24 on the night shift RN Alejandro Razo was added to the
schedule (as referred to in deviation III) and worked instead of
RN William Perry; on October 25 on the day shift RN Alejan-
dro Razo was again added to the schedule and worked instead
of RN Yvonne Villegas; and on October 26 on the day shift
Alejandro Razo was again added to the schedule and worked
instead of RN Anacleta Avila.
In the medical surgical unit on October 26 on the night shift
RN Helen Goodwin was scheduled and worked instead of RN
Bolette Arancel; and on October 26 on the day shift RN Earlene
Ends was scheduled and worked instead of RN Thea Lane-
Juarez.
In the postpartum unit on October 24 on the night shift RN
Mojgan Bashiri was scheduled and worked instead of RN Vic-
toria Ballesteros; and on October 26 on the night shift RN El-
eanor Evans was scheduled and worked instead of RN Victoria
Ballesteros.
In the nursery on October 25 on the night shift RN Gene
Hubbard was scheduled and worked instead of RN Allison
Collins.
In the main operating room the COP has not been followed
in the past since there have always been enough volunteers
when someone who has been scheduled is not needed. In that
unit on October 26 on the day shift RNs Risa Bublitz, Laura
Gorocica, and Lynn Miles worked, whereas if seniority had
been used instead of the procedure to decide who would work
and who would be called off on October 26, RNs Lana King-
ham, Anita Allen, and Myly McDivitt would have worked in-
stead.
The identification of specific employees who worked shifts
during the 3-day period and employees who would have
worked those shifts were the COP applied and were those em-
ployees willing to work those shifts, and those employees who
would have worked those shifts in the main operating room
were seniority used instead of the procedure, is subject to an
audit of the schedules for the 24-hour period for which the
strike was noticed and for the 3-day period.
The issue of willingness to work of employees who would
have worked were the COP used instead of the procedure dur-
ing the 3-day period is reserved for litigation in the compliance
hearing, if such proceedings are necessary.
IV. ARGUMENTS
Counsel for the General Counsel asserts that Respondent
suspended its COP for the 3-day period without consulting the
Union. Accordingly, any employee scheduled to work on the
day of the strike who in fact worked on that day, was given
priority to work his or her scheduled shifts for the 3 days after
the strike even if the employee would have been “called off”
had the strike not occurred. Moreover, any employee who hon-
ored the strike was off work for a total of 4 days, even though
the possibility existed that under the COP the employee might
have normally worked.
Counsel does not contend that Respondent’s refusal to rein-
state strikers who had been temporarily replaced was a viola-
tion of the Act. However, counsel does contend that failure to
utilize the COP and instead following a new strike procedure
for nonstriking regular employees, without notice or opportu-
nity to bargain being afforded the Union, violates the Act. Fur-
ther, counsel contends that failure to reinstate the strikers im-
mediately violates the Act. Counsel relies on NLRB v. Fleet-
wood Trailer Co., 389 U.S. 375 (1967); NLRB v. Mackay Radio
& Telegraph Co., 304 U.S. 333 (1938); and Laidlaw Corp., 171
NLRB 1366 (1968), enfd. 414 F.2d 99 (7th Cir. 1969), cert.
denied 397 U.S. 920 (1970).
Counsel argues that by allowing crossover employees to
bump strikers from working shifts that they might have worked,
had the COP been utilized, Respondent discriminated against
the strikers in violation of Section 8(a)(3). Moreover, counsel
asserts that Respondent’s actions were inherently destructive of
ENCINO-TARZANA REGIONAL MEDICAL CENTER 917
protected rights. Alternatively, even if Respondent’s actions
only slightly adversely impacted employees’ Section 7 rights,
counsel asserts that Respondent has not demonstrated a legiti-
mate and substantial business justification for its actions within
the meaning of Caterpillar Tractor Co., 321 NLRB 1130
(1996), and NLRB v. Great Dane Trailers, 388 U.S. 26 (1967).
Finally, counsel notes that Respondent relies on TWA v.
Flight Attendants Union, 489 U.S. 426 (1989). Counsel asserts
that TWA is distinguishable because the employer acted accord-
ing to its own past practices and the strike replacements therein
were permanent rather than temporary. Counsel also notes that
Respondent relies on Lonestar, 279 NLRB 550 (1986) (Lon-
estar I), enfd. mem. in part and remanded in relevant part 813
F.2d 472 (D.C. Cir. 1987); on remand 298 NLRB 1075 (1990)
(Lonestar II), remanded sub nom Teamsters Local 822 & 592;
on further remand 309 NLRB 430 (1992) (Lonestar III). Coun-
sel asserts that the Lonestar series of cases is distinguishable
because the ultimate holding in Lonestar III is that an employer
who breaches a strike settlement agreement to recall employees
in order of seniority violates Section 8(a)(3).
Regarding the issue of nonstrikers working their already
scheduled shifts during the 3-day period, Respondent asserts
that TWA v. Flight Attendants, 489 U.S. 426 (1989), controls
the issue of whether it violated the Act by allowing nonstriking
employees to work their scheduled shifts during the 3-day pe-
riod. Respondent concedes that TWA involved permanent re-
placements while it utilized temporary replacements for a 4-day
period, as required by the Staffing Agency. However, counsel
notes that in both TWA and the instant case, once strikers were
reinstated, there was no loss of seniority.
Counsel asserts that the TWA permanent replacement em-
ployees (including nonstrikers and less that full-term strikers)
are analogous to the temporary replacement employees fur-
nished by the Staffing Agency. All parties concede that Re-
spondent was obligated to retain the temporary replacement
employees for a 4-day period. As a result, there was insufficient
work for other employees during the 3-day period. With this
background in mind, counsel then asserts that the Court’s ra-
tionale with regard to junior crossover (nonstriking or less than
full term strikers) is equally applicable to the nonstriking em-
ployees here. The Court held, “Requiring junior crossovers who
cannot themselves displace the newly hired permanent re-
placements, who “rank lowest in seniority . . . to be displaced
by more senior full-term strikers is precisely to visit the conse-
quences of the lost gamble [of the strike] on whose who refused
to take the risk.”
Counsel reasons that exactly the same result would prevail
here if the General Counsel’s argument is accepted. That is,
counsel notes that the same anomaly of temporary replacements
from a staffing agency being immune from displacement during
the 3-day period, while allowing strikers to displace those who
chose not to strike by utilizing the COP during the 3-day period
visits the consequences of the strike on those who lawfully
decided not to take part in it.
Regarding the four shifts for which nonstrikers were added
to the schedule during the 3-day period, Respondent asserts that
the reason all employees who were scheduled to work during
the 3-day period were not needed was the lawful presence of
temporary replacements. Use of the COP, to the extent it would
result in nonstrikers being called off their scheduled shifts and
strikers working them, would result in temporary replacements
having greater rights than nonstriking employees. Respondent
relies on TWA, noting that this result would once again shift the
consequences of the strike from those who participated to those
who refused to participate.
Finally, Respondent asserts that it had legitimate and sub-
stantial business reasons for denying or delaying reinstatement
of strikers after an unconditional offer to return to work was
made. The first reason was to provide a short learning curve for
the Staffing Agency employees. Respondent notes that the per-
sonnel supplied by the Staffing Agency were unfamiliar with
the hospital. Accordingly, the same crossover employee was
placed in the same department for 4 days rather than moving
crossover and striking employees from department to depart-
ment during the 4-day period while the Staffing Agency per-
sonnel were present. Second, Respondent relies on the obvious
animosity between the temporary replacements and the strikers
in asserting that these individuals should not work side by side.
Third, Respondent avers that the COP was never intended as a
means of recalling strikers.
Alternatively, Respondent notes the opinion of the General
Counsel in Sidney Square Convalescent Center & Personal
Care Residence, Case 6–CA–27897, 1996 NLRB GCM Lexis
37 (Aug. 30, 1996). From this opinion, Respondent argues that
an offer to return to work made prior to the beginning of a 1-
day strike is not an unconditional offer to return to work and
does not become unconditional absent some further communi-
cation by the Union to perfect the offer as unconditional.
V. ANALYSIS
The complaint sets forth two discrete issues. First, did Re-
spondent violate Section 8(a)(1) and (5) of the Act by unilater-
ally establishing the procedure? Second, did Respondent violate
Section 8(a)(1), (3), and (5) by refusing reinstatement to strik-
ing employees during the 3-day period and by replacing the
striking employees during the 3-day period with nonstriking
employees? These issues are interrelated.
Following receipt of the strike notice, Respondent polled its
employees in order to determine who intended to work during
the strike. Based on information obtained from this poll, Re-
spondent entered into a contract with the Staffing Agency to
provide temporary replacements. The Staffing Agency contract
required Respondent to guarantee 48 hours (4 days, 12-hour
shifts) of work to each temporary replacement.
There is no evidence to indicate at what point during the 10-
day notice period Respondent became aware that it would be
necessary to hire replacements for 4 days rather than for the 1
day specified in the strike notice. In any event, Respondent
made this decision as well as the decision to suspend the COP
during the 3-day period as part of its strike replacement strat-
egy. The parties agree that Respondent’s use of the Staffing
Agency employees for the day of the strike plus the 3-day pe-
riod was lawful. This position is consistent with Board author-
ity. Once a contract for temporary replacements has ceased, the
obligation to reinstate strikers who have unconditionally of-
fered to return to work matures. However, until the contract has
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 918
been canceled or satisfied, an employer has a legitimate and
substantial business justification for delaying reinstatement of
strikers.2
Assessment of the complaint allegations herein must be
made in light of the status of the temporary replacements as
legitimate members of the work force during the 3-day period.
In Respondent’s view, use of the COP during the 3-day period
would work an extreme injustice. The only reason that every-
one who was scheduled during the 3-day period was not needed
was the lawful presence of the temporary replacements. Use of
the COP would result in nonstrikers being called off their
scheduled shifts and strikers working those shifts with the con-
tract employees, thus giving contract employees greater rights
than those of the nonstriking employees and shifting the burden
of the strike to nonstriking employees.
In agreement with Respondent, I find that this case presents
facts analogous to those in TWA. In TWA, the Court held that an
employer was not obligated to displace employees who worked
during a strike in order to reinstate striking employees. Al-
though this holding was based on permanent replacement of
striking employees, the facts here are similar. In this case, in
order to meet patient needs, Respondent was forced to hire
temporary replacements for 4 days even though the strike was a
1-day strike. During this 4-day period, Respondent suspended
the COP and treated its entire work force, both contract em-
ployees and crossover employees, as a replacement work force.
The General Counsel contends that this destroyed Section 7
rights because strikers were not immediately reinstated after the
24-hour strike. However, it is conceded that none of the Staff-
ing Agency employees would have been affected by reimple-
mentation of the COP during the 3-day period. Accordingly, it
appears, as in TWA, that had Respondent reinstituted the COP
during the 3-day period, the employees who decided not to
strike would have suffered the consequences of the strike.
Given the contours of the replacement situation, Respondent
had substantial business reasons to require that nonstriking
employees and contract employees work together during the
entire 4-day period. The nonstriking employees were familiar
with the operations and able to provide uniformity and stability
in coordinating Staffing Agency care for the patients. Insertion
of striking employees into the equation during the 4-day period
would have created further learning curves for the replacement
employees. Moreover, there was substantial animosity on be-
half of the striking employees toward the replacement employ-
ees. The October strike was the second 1-day strike in a period
of 45 days. Following the first 1-day strike, the Union pub-
lished a newsletter containing a heading: “Scab nurses render
Questionable Care.” The newsletter explained,

Many members have informed the Union that there
were numerous serious incidents throughout the hospital
because the replacement scab nurses were not adequately
oriented to the hospital.
The hospital’s use of scab agency nurses while they
locked out the highly skilled nurses of [Respondent] jeop-

2 Pacific Mutual Door Co., 278 NLRB 854, 856 (1986).
ardized patient care and wasted over $500,000 that could
have been put towards a wage offer.

In Caterpillar, Inc., 321 NLRB 1130 (1996), the Board held
that the employer violated Section 8(a)(1) and (3) of the Act
when it excluded crossovers from its poststrike, postreinstate-
ment restaffing. The Board emphasized this distinction between
the facts in Caterpillar and the facts in TWA:

There is nothing in TWA that privileged the Respondent to
grant such a preference to the crossovers. In sum, TWA has no
application here because this case does not involved the initial
placement of returning strikers, but rather discrimination
against strikers after their reinstatement. According, we con-
clude that by excluding crossovers from its June restaffing,
the Respondent gave preferential treatment to the crossovers
and discriminated against the reinstated strikers.

On the other hand, the instant case does present facts analo-
gous to TWA. The suspension of the COP was made prior to
reinstatement of strikers. I find that Respondent did not violate
the Act in suspending the COP during the 3-day period. There
was no preference given to crossovers during the 3-day period.
Rather, the entire work force during the 3-day period was for
purposes of striker replacement and was necessitated by the
concededly lawful 4-day duration of the Staffing Agency con-
tract.
It appears that Respondent determined not to utilize the COP
during the 3-day period based on the 4-day requirement of the
Staffing Agency contract as that requirement interfaced with
striking and nonstriking employees. Respondent did not consult
with the Union regarding its decision. Although the obligation
to bargain is not suspended by a strike,3 in these circumstances,
I find there was no duty to bargain regarding implementation of
the rocedure.
I note initially that the procedure was a temporary measure
applied solely during the 3-day period. Implementation of the
procedure in effect suspended the COP for the 3-day period.
However, the COP was not changed and, in fact, remains in
place. Thus, the procedure may be viewed as an isolated depar-
ture from the COP which was utilized solely for striker re-
placement purposes. Moreover, an employer may lawfully
make changes in terms and conditions of employment of re-
placement workers during a strike. It is conceded that the COP
was not utilized with regard to replacement employees. I find
that the employer’s extension of that policy to the nonstriking
employees, who were together with the contract employees,
treated as the replacement work force during the 3-day period,
was not subject to the duty to bargain.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. Respondent has not engaged in unfair labor practices
within the meaning of Section 8(a)(1), (3), and (5) of the Act.
3 See generally General Electric Co., 163 NLRB 198 (1967), enfd.
in relevant part 400 F.2d 713 (5th Cir. 1968), cert. denied 394 U.S. 904
(1969).
ENCINO-TARZANA REGIONAL MEDICAL CENTER 919
ORDER
The compliant is dismissed.