Highlands Regional Medical Center

National Labor Relations Board - Board Decisions

Mar 21, 1986

278 N.L.R.B. 1097 (N.L.R.B. 1986)

HIGHLANDS MEDICAL CENTER 1097
Highlands Hospital Corporation , Inc., d/b/a High-
lands Regional Medical Center and District
1199 WV/KY, National Union of Hospital and
Health Care Employees , Retail, Wholesale and
Department Store Union , AFL-CIO. Cases 9-
CA-17318-3 and 9-CA-17318-4
21 March 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 24 May 1983 Administrative Law Judge Wil-
liam F. Jacobs issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, and the Respondent filed an answering 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 and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions as modified herein , and to adopt the
recommended Order.
As fully set forth in the judge's decision, the
judge found that the Respondent 's discharge of se-
curity guards Allen and Curnutte was lawful be-
cause "[g]uards who ally themselves with strikers
are not protected by Section 7 of the Act." We
find it unnecessary to reach this issue because we
find , as set forth below , that the guards engaged in
an unprotected partial strike.
Before unit employees began a strike, nonunit
guards Allen and Curnutte told the Respondent
they would not perform certain tasks because they
did not believe in crossing picket lines. After the
strike commenced , the Respondent told Curnutte
that, if needed, the guards would be told to cross
the picket line and , if they refused, they would be
permanently replaced . Later, when the Respondent
told Curnutte to clean up debris on the hospital
driveway, Curnutte refused. On two occasions, the
Respondent told Allen to transport individuals
through the picket line. Each time Allen declined,
and the Respondent threatened him with discipline.
The tasks the guards refused-cleaning up nails and
glass left by the strikers on the hospital driveway
and escorting nonstriking employees through the
picket line-are within the scope of job duties gen-
erally required of guards.
' The General Counsel has excepted to some of the judge 's credibility
findings . The Board 's established policy is not to overrule an administra-
tive 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 re-
versing the findings.
278 NLRB No. 160
Thus, at the strike's outset, Allen and Curnutte
stated they would not perform certain duties, and
later they carried out their expressed intention de-
spite threats of discipline. By contrast, the office
clerical and other nonunit employees who joined
the strike ceased working completely and refused
to cross the picket line. Only the guards were dis-
charged for failure to perform their job duties.
It is well established that a partial refusal to
work constitutes unprotected activity . Both the
Board and the courts have repeatedly condemned
employees' refusal to work on the terms lawfully
prescribed by the employer while remaining on
their jobs . As the Board has said , to countenance
such conduct would be to allow employees "to do
what we would not allow any employer to do, that
is to unilaterally determine conditions of employ-
ment." Valley City Furniture Co., 110 NLRB 1589,
1594-1595 (1954), enfd. 230 F.2d 947 (6th Cir.
1956). See also Auto Workers Local 232 v. Wisconsin
Employment Relations Board, 336 U.S. 245, 255-256
(1949); NLRB v. Montgomery Ward & Co., 157 F.2d
486, 496 (8th Cir. 1946); Honolulu Rapid Transit
Co., 110 NLRB 1806, 1809-1810 (1954); Auto Parts
Co., 107 NLRB 242 (1953); Audubon Health Care
Center, 268 NLRB 135, 136-137 (1983).
Accordingly, we find that the Respondent did
not violate Section 8(a)(1) and (3) of the Act by
discharging guards Curnutte and Allen.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
James E. Horner, Esq., for the General Counsel.
Andrew J. Russell, Esq. (Smith & Smith), of Louisville,
Kentucky, for the Respondent.
DECISION
STATEMENT OF THE CASE
WILLIAM F . JACOBS, Administrative Law Judge. This
case was tried before me on November 16, 1981,' at
Prestonsburg , Kentucky . The charge in Case 9-CA-
17318-3 was filed on September 3 and amended on Sep-
tember 8. The charge in Case 9-CA- 17318-4 was filed
on September 9. All charges were filed by District 1199
WV/KY, National Union of Hospital and Health Care
Employees, Retail, Wholesale and Department Store
Union , AFL-CIO (the Union). A consolidated amended
complaint issued March 15, 1982 , alleging that Highlands
Hospital Corporation , Inc., d/d/a Highlands Regional
Medical Center (Respondent), failed and refused to rein-
state employees Geneva Cox and Jenny Hale and dis-
charged employees James Allen and Billy G. Curnutte in
All dates are in 1981 unless otherwise indicated.
1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
violation of Section 8(a)(1) and (3) of the Act because
they supported the Union during a recent strike. Re-
spondent , in its answer denied the commission of any
unfair labor practices.
All parties were represented at the hearing and were
afforded full opportunity to be heard and to present evi-
dence and argument . The General Counsel and Respond-
ent filed briefs. On the entire record, my observation of
the demeanor of the witnesses , and after giving due con-
sideration to the briefs , I make the following
FINDINGS OF FACT
Respondent admits jurisdiction and the status of the
Union as a labor organization . I so find.
The Alleged Unfair Labor Practices
Respondent is, and has been , at all times relevant, en-
gaged in the operation of a health care institution in
Prestonsburg , Kentucky. The Union has, during this
period of time, represented units of Respondent's service
and maintenance employees . At midnight March 23/24
certain unit employees of Respondent ceased work con-
certedly, engaged in a strike , and established picket lines
at the entrances to the hospital . Certain nonunit employ-
ees, in sympathy with the strikers , also ceased working
and refused to go through the picket line.
About March 22, just prior to the strike, a meeting
was called by Respondent 's management during which
certain nonunit employees were asked whether or not
they intended to cross the picket line and work during
the forthcoming strike . It was explained to these employ-
ees that if they chose to honor the picket line and not
work during the strike , they could be permanently re-
placed. Two employees, Geneva Cox and Virginia Anne
Hale, gave notice that they would not work during the
strike and subsequently they did not . Both these individ-
uals were classified as admissions interviewers.
On March 22 a meeting also was called by Director of
Security Mason Setton2 during which the forthcoming
strike was discussed with the security guards . Setton told
the guards that negotiations with the Union had broken
down, that there apparently would be a strike , and that
among their various duties the guards would be needed
to transport nonstriking personnel through the picket line
to and from the hospital .3 The guards, however, agreed
among themselves and advised Sexton that they would
not go through the picket line but would remain on the
premises throughout the strike , performing only duties
inside the hospital. Faced with the position taken by the
guards, Setton advised them that he would have to take
the matter up with his superior and get back to the
guards later.
Subsequently , Sexton checked with upper management
and was advised that the security guards would be re-
quired to provide transportation in the hospital van for
nonstriking employees . He then informed each guard
separately of this decision . Two of the guards, James
Allen and Billy Curnutte Jr., told Sexton that they
would not perform this duty as they did not believe in
crossing picket lines.
On March 23, between 9:30 and 10 :30 a,m ., Sexton
again reminded Curnutte of management 's decision.
More specifically , Sexton told Curnutte that in the event
that additional people were needed to run the medical
center, the guards would not be asked to cross the picket
line but would be told to cross the picket line to trans-
port these people, and if they refused to perform these
duties, they would be permanently replaced.
At midnight March 23/24 , the strike began and Sexton
undertook the transporting of nonstriking employees to
and from the hospital through the picket line. Initially
there were between 150 and 300 pickets on the line, pri-
marily service , maintenance , and technical employees in
the two units represented by the Union, among these,
Curnutte's wife . Sympathizers from other hospitals and
other unions were also present on the line but despite the
numbers there was no violence.
On the evening of March 25 ,4 a supervisor, Cindy
Kidd , contacted Allen and told him to take a nonunit
employee from the hospital through the picket line to
her car somewhere in Prestonsburg . Allen told Kidd that
he would not cross the picket line. According to Allen,
he did not want to cross the picket line because "it vio-
lated my rights . . . endangered my life . . . and I had
my wife out on the picket line ." Kidd reported the inci-
dent.
On the evening of March 26, Sexton asked Allen if he
had refused to take the employee to her car and Allen
admitted that he had done so. Sexton then advised Allen
that he would have to take the matter up with Russell
Dean , the assistant administrator . When he did so, Dear
told Sexton that Respondent 's attorney had advised hire
that any security guard who refused to go through the
picket line to protect nonstriking personnel could be per.
manently replaced.
On the morning of March 27 , Sexton asked Allen tc
pick up some nurses in the van and bring them througl
the picket line back to the hospital. Allen refused to do
so. Sexton told Allen that if he was refusing to follow hi
instructions , it. would be necessary to permanently re
place him. When Allen still refused to follow Sexton';
order, Sexton took Allen's badge and ID card, told hin
that he was permanently replaced and had him escortec
from the hospital grounds.5
The day before the above-described incident, on tht
morning of March 26, Sexton became aware of an accu
mulation of debris-glass , nails, and tacks-in the stree
near the picket line, at the entranceway to the hospital
In order to permit traffic to pass through , to, and fron
the hospital, the trash had to be removed . Sexton got ;
broom, contacted guards Dollarhide and Curnutte ant
told them to come with him to sweep up the trash. Cur
nutte refused the order., Sexton said , ``Billy, I'm no
2 The parties stipulated at the hearing that Sexton was and is a supervi-
sor within the meaning of the Act.
8 Based on the credited testimony of Setton. Testimony of the General
Counsel's witnesses on this point, inconsistent with that of Sexton, is not
credited.
4 Allen testified the incident occurred on March 24. Records indicat
that it probably occurred on March 25.
S Based on Sexton's testimony. Where Allen's testimony is inconsister
with that of Sexton, it is not credited.
HIGHLANDS MEDICAL CENTER
asking. I'm ordering you to go." The conversation was
then interrupted by a phone call for Sexton. After an-
swering the phone call, Sexton -noticed Curnutte coming
up the hallway with his timecard in his hand. Curnutte
stated that before going out and sweeping up the debris,
he would go home . Sexton replied , "If that's the case
Billy, you go ahead and go home. You're through." He
then told ' Curnutte to turn in his badge and ID card.
Curnutte did so and left. Thereafter, Sexton and Dollar-
hide went out to sweep up the debris. Pickets nearby,
however, volunteered to sweep up the trash, admitting
that since they "had made the mess," they would clean it
up. Dollarhide and Sexton remained on the scene while
the pickets cleaned' up the trash.
Curnutte testified that he had refused to sweep up the
trash near the picket line because he was afraid of get-
ting hurt. He stated that there were 20 to 25 people near
the picket line, about 7 of them actually picketing. He
said that they were already "heated up and mad because
of the strike and I felt that if I went out there on that
picket line among those people and swept up the glass, I
would just be asking for trouble, and that I would get
hurt." Curnutte testified further that, earlier that day
when he came through the picket line, several pickets
rushed toward his truck, one threw something under his
truck while others made catcalls and obscene gestures.
Sexton testified that at the time of this incident and for
several weeks thereafter, it was one of the security
guard's duties to clean up debris from the roadway.
Sexton participated on several occasions in these cleanup
operations and stated that at no time were he or the
guards ever physically harmed in any way while per-
forming these duties.
Negotiations toward a labor agreement continued
throughout the strike'and the subject of reinstatement of
strikers and sympathizers including business office em-
ployees and guards was early made a part of these nego-
tiations. In late May or early June, the Union sent to- the
Respondent a proposal for settling the strike which pro-
vided, among other things, for the return to work of the
above employees. With regard to the business office em-
I ployees and guards, the Respondent stated that these in-
dividuals had been permanently replaced and would
have all the rights and privileges provided by law. There
was no discussion, before -the end of the strike about re-
turning Cox, Hale; Curnutte, or Allen, or any other indi-
vidual for that matter, to any position of employment,
other than to their regular positions which they held
before the strike.
At the negotiation sessions of June 30 and July 1, most
of the issues holding up settlement were resolved. Tom
Woodruff, the Union's chief negotiator specifically raised
the question of whether the security guards had been
fired or permanently replaced and what Respondent's in-
tention was with' regard to their situations. The chief
,spokesman for Respondent replied that the guards had
been permanently replaced and would be recalled ac-
cording to their rights under the law.
On July 1 a tentative agreement was reached and pre-
sented to the membership for ratification. Reinstatement
of employees was of concern to the membership and 90
percent 'of the time was spent at this meeting on the rein-
1099
statement issue including the subject of reinstatement of
Cox, Hale, Allen6 and Curnutte. Woodruff assured the
membership that these four had been permanently re-
placed, not fired, and would be returned to work the
same as the members.
On July 3 Woodruff again met with Respondent's rep-
resentatives to discuss the remaining unresolved issues in-
cluding the status of the business office employees and
guards . He was told once again that there would be no
problem with their eventual reinstatement. Woodruff re-
ceived similar assurances from Personnel Director Nun-
nery during a phone call made the same day.
On July 7 the contract was signed and ratified by the
membership after further discussion concerning the rein-
statement of all of employees still at issue. The strike
ended that day and Barry Smith, national staff represent-
ative of the Union, took over the administration of the
contract which Woodruff had negotiated. Thereafter Re-
spondent began recalling employees.
From the beginning , according to Smith, there were
problems with Respondent's recall procedure. Whereas
the Union insisted that all employees , unit or nonunit, be
recalled in accordance with strict ' seniority and to the
same jobs, shifts; and floors where they had worked
before the strike, Respondent did not always follow this
procedure . The recall of bargaining unit employees ex-
tended over a period of several months during which
Smith discussed in person and by phone the various
problems which arose concerning reinstatement.
During the week of July 13, Smith met with Nunnery
to discuss the recall of employees . Smith insisted that all
employees be returned to the same jobs , the same shifts,
and to the same floors that they left when they went out
on strike and that RNs be recalled by strict seniority. He
complained that this procedure was not being followed,
that both RNs (nonunion employees) and union members
were being recalled to the wrong shifts andto the wrong
floors. Nunnery agreed that he would try to remedy
these problems. Smith then asked about the recall of Cox
and Hale. Nunnery stated that he would be recalling
them but that at the time the hospital was not ready , for
full staffing, and that this was the reason that certain em-
ployees were not being recalled. Smith did not pursue
the subject. Finally, Smith asked Nunnery about Allen
and Curnutte, pointing out that during negotiations the
hospital had agreed to reinstate them after the strike.
Nunnery replied that there had been no agreement with
regard to recalling the guards after the strike was over
but did not commit himself on a position concerning
their recall, one way or the other.
In early August, Nunnery had occasion, while out of
town, to phone 'Russell Dean , the assistant administrator
of the hospital. Dean is Nunnery's superior, Sexton's lim-
mediate supervisor, and is, among other things , in charge
of security. During the telephone conversation, Dean; ad-
vised Nunnery, that a decision to change the Respond-
ent's position about the security guards' status was ^ un-
dergoing consideration , that management was consider-
6 Allen had called Personnel Director Nunnery sometime in June to
determine the possibility of his being recalled but received a noncommital
response.
1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing the possibility of changing their status from one of
permanently replaced to that of discharged employees.
Dean explained that he felt that Allen and Curnutte had
lost their effectiveness as security guards because it was
their job to protect the employees and patients and they
had refused to perform these duties during the strike. He
said that in the future, if the hospital had any other labor
problems, the same thing would occur; that Allen and
Curnutte would again refuse to work. Nunnery agreed
with Dean and the decision to convert their status to dis-
charged employees was made.
Sometime after the decision to convert Curnutte's
status to that of a discharged employee, Curnutte visited
the hospital and talked with Nunnery briefly. He asked
Nunnery if he could ever get his old job back. Nunnery
replied negatively. There' was no discussion during this
meeting of Curnutte making application for the store-
room clerk's job or any job other than guard.7
On August 15, Cox called the hospital and spoke with
Helen Smith, the assistant personnel director, and told
her that she had heard that there was going to be a va-
cancy in her department and asked her if she were not in
line for the position. Smith replied that she was not
aware of any opening. Cox explained further that she un-
derstood that Joan Stanley was quitting that very day.
Stanley and Marsha McKenzie, part-time admissions
interviewers, had been made full-time admissions inter-
viewers on May 10, permanently replacing Cox and Hale
respectively. Smith promised to check into the matter
adding that she understood that nonunion employees
were to be called back by seniority and she would have
to talk to Nunnery about Cox's request and get back 'to
her. She never did. Cox called a second time, a day or
two later, at which time Smith told her that her case was
in the hands of a labor lawyer and that she could not dis-
cuss it.
On August 19, Barry Smith met again with Nunnery
to discuss the recall of employees and several grievances
which had been filed by employees in connection with
their recall. Once again Smith complained that nurses
were being recalled to the wrong shift and to the wrong
floor. Nunnery explained that the hospital had lost so
many RNs, LPNs, and "techs" that it was impossible to
recall all of the employees to their old positions but as-
sured Smith that he would continue to try to do so. He
' Although Curnutte testified that on this occasion he placed an appli-
cation with the hospital for employment for the position of general stores
clerk and asked Nunnery about it, Nunnery denied that application for
the clerk's job was made by Curnutte and denied further that the subject
was discussed at this time Curnutte also testified that he filled out an ap-
plication form for the clerk's job supplied to him by Nunnery's secretary,
Rosella Pennington , while at the hospital on this occasion in August
Pennington , however, could not recall Curnutte coming into her office
and filling out an application for the clerk's job in August, and a search of
the files uncovered no such application Curnutte supplied an affidavit to
the Board agent investigating the instant case subsequent to his August
visit to the hospital . The affidavit did not mention anything about the
general store clerk's job or about filling out an application for that posi-
tion
I conclude that the conversation between Nunnery and Curnutte in
August occurred as Nunnery described it and that there was no discus-
sion about any application to fill the general store clerk 's position at that
time A March 16 application filed by Curnutte is the Only application in
evidence
offered to let recalled employees trade floors and shifts
so that they got the positions they wanted.
Smith then asked about the recall of Allen and Cur-
nutte and said that the Union wanted them back to work.
Nunnery replied that Respondent was not going to recall
them; that the Labor Board would have to put them
back to work. Smith objected that during negotiations
Respondent had said that they would be recalled. Nun-
nery denied that agreement had ever been reached on
this point. Smith got angry and called Nunnery a liar. He
emphasized that the guards needed their jobs. The sub-
ject of recalling Cox and Hale was then discussed. Nun-
nery reiterated his intention of recalling these business
office employees and the subject was dropped.
After his discussion with Nunnery, Smith called
Woodruff in order to tell him of Respondent's change in
position with regard to Allen and Curnutte. Woodruff, in
turn, called the hospital and was told by Respondent's
management that , although there was no problem con-
cerning Allen, Curnutte would not be recalled. Thus,
Respondent confirmed with Woodruff what it had al-
ready told Smith about Curnutte not being recalled but
there still remained 'some question at this time about its
intention with regard to recalling Allen.
After August 19, Barry Smith called Nunnery on sev-
eral occasions in order to get the union members, busi-
ness office workers, and security guards back to work.
According to the credited testimony of Nunnery, and
contrary to the testimony of Smith,8 the subject matter
of the PBX operator's job, and Cox's and Hale's qualifi-
cations to perform ' this work was never brought up.
Smith expressed no desire to Nunnery that either Cox or
Hale should be considered for any job other than that of
admissions interviewer, the job they had held prior to
the strike. Indeed,,to have done so would have been in-
consistent with Smith's position that all employees, unit
and nonunit alike, had to be returned to the same jobs,
shifts, and floors that they had held prior to the strike.
Similarly, neither Cox nor Hale requested work in any
position other than admissions interviewer.
On August 24, an opening occurred for admissions
interviewer , the position to be, filled on an occasional'
basis, i.e., 16 or less hours per week; or less than 32
hours per 2-week period.9 The slot was filled by a new
employee, Janice Webb. Between August 24 and Decem-
ber 9, the date of her resignation, Webb worked only on
an occasional basis.10
On August 26 Doris Flannery was hired as an infor-
mation clerk and PBX operator, and on September 1,
Cynthia Wells was hired to fill an identical position. Ac-
cording to the credited testimony of Russell Dean, super-
visor over this position, he was unaware when Flannery
8 Smith testified that during one of these discussions he brought up the
subject of the PBX operator 's job and told Nunnery that both Cox anc
Hale could do this work , noting that both had the experience , and addm^
that both were qualified to perform jobs other than the ones that the}
had held before the strike.
s An occasional employee receives no life or health insurance, retire
ment, or other benefits
10 Webb's income as an occasional employee was less than that re
ceived by a full-time employee in' layoff status drawing unemploymen
benefits.
HIGHLANDS MEDICAL CENTER
and Wells were hired that Cox and Hale -wanted to be
considered for this position.
On September 3 Cox was sent a notice to return to
work at her original position effective Setember 8. Hale
was recalled as of December 7.
The General Counsel 's Position .
The General Counsel contends that the Union made
valid , unconditional offers to return to work on behalf of
the admissions interviewers and the security guards and
that they are therefore entitled to reinstatement to their
former jobs or to substantially equivalent jobs . The Gen-
eral Counsel further argues that the four alleged discri-
minatees had rights to be reinstated to any job "for
which they were qualified " and that there were numer-
ous vacant , entry-level positions which Cox and Hale
could easily have performed. In particular , the General
Counsel argues that both Cox and Hale were qualified to
fill the position of PBX/Information clerk because they
had had experience on the PBX on a part-time basis in
the past and because their duties as admissions interview-
ers were similar to the duties required of and made them
qualified for the job of information clerk.
With regard to the guards, the General Counsel con-
tends that Allen refused to cross the picket line and
allied himself with the strikers and that this was his pro-
tected right for which he could not be discharged but
merely permanently replaced . As a permanently , replaced
strike sympathizer , Allen, according to the General
Counsel , had the same rights of recall that any other pro-
tected employee would have.
With regard to Curnutte , the General Counsel argues
that his refusal to sweep the driveway was a protest of
unsafe working conditions which constituted concerted,
protected activity . He should therefore have the same
rights of recall that other employees had, particularly to
the job of general stores clerk , a position he sought prior
to the strike.
Analysis and Conclusion
With the end of the strike , the Union immediately de-
clared that it desired all employees recalled to the jobs
which they had before the strike-to the same duties,
same shift , same floor . When, because of the exigencies
of the stituation Respondent sometimes placed recalled
employees on the wrong shift or floor, the Union filed
grievances . Clearly, the Union gave notice that the status
quo ante was what it sought , not a broad recall whereby
recalled employees were to fill vacancies wherever they
occurred, in accordance with overall seniority , or some
other indicium not made apparent.
The Union , during the period immediately following
the strike , gave no indication that it desired nonunit em-
ployees to be treated differently than its own member-
ship . Indeed , it could not demand such a requirement
and if it had done so , how could Respondent comply
with such a request? How could Respondent offer broad
recall rights to nonunit employees while restricting the
frights of unit members to reinstatement to their old jobs.
The General Counsel would even have Cox and Hale of-
fered unit jobs though restricting unit employees ' rights
to recall in conformity with the narrow demands of the
Union to the jobs they held before the strike . Moreover,
there has been no showing that Cox and Hale had a
more justifiable demand to these jobs than unit employ-
ees. •
Finally , the General Counsel 's position that Cox and
Hale should have been returned to any job for which
they were qualified does not reflect the requirements of
case law as it stands because the vacant positions for
which Cox and Hale may or may not have been qualified
were not jobs which were substantially equivalent to
their former jobs so that Respondent had no obligation
to offer these jobs to them . Thus, although Cox and Hale
had indeed worked approximately 3-1/2 hours per week
on the PBX and were apparently capable of performing
this duty, there is no showing that they could perform
the duties of the information clerk , the other part of the
PBX/Information clerk 11 job which the General Coun-
sel asserts they were qualified to perform . But granted,
arguendo , that Cox and Hale could perform the informa-
tion clerk 's duties as well or better than the new employ-
ees chosen by Respondent to perform them , the fact re-
mains that the PBX/Information clerk's job is not sub-
stantially equivalent to the job of admissions interviewer,
their former job. The • admissions interviewer admits pa-
tients, fills out and types emergency room charts and
out-patient charts, calls the floor to make arrangements
for beds for the patients to be admitted , and sees to it
that all charts and insurance papers are signed and cards
copied . Speed and accuracy are both essential . The infor-
mation clerk sorts the daily mail and pigeonholes it for
its proper destination , controls the flow of visitors , issues
passes to friends and relatives visiting patients , and di-
rects visitors or salespeople to their destinations . She also
operates the switchboard . Whereas the admissions inter-
viewer must be capable of reacting properly under de-
manding emergency situations , the information clerk's
job is more public relations oriented . Reflective of the
greater demands on the admissions interviewer vis-a-vis
those on the information clerk is the fact that the former
classification is rated two grades higher than the latter
with a consequently higher wage scale . Because the
duties of the admissions interviewer and the information
clerk are different as is the wage scale , the two jobs are
not substantially equivalent . Inasmuch as neither the
Union rior the alleged discriminatees , Cox and Hale, ever
demanded that these two employees be recalled to the
PBX/Information clerks position, and in any case that
position is not a substantially quivalent position to their
former position , Respondent was not obligated to offer
them employment in the PBX/Information clerk job.12
The Respondent consistently held to the position that
when openings occurred in the admissions interviewer
classification , Cox and Hale would be recalled to fill
them . Indeed , when this circumstance finally occurred
they were recalled, true to Respondent 's word.
In addition to her claim that she was qualified to fill
the information clerk 's position, Cox also testified that
11 A nonunit job.
12 New Era Electric Cooperative , 217 NLRB 477 (1975); Cf. Lincoln
Hills Nursing Home , 257 NLRB 1145 (1981).
1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
she was qualified to fill the positions of housekeeping
aid, respiratory technician, ward clerk, data processor,13
lab aide, dietary helper, file clerk in the medical records
department , surgery secretary , nurses aide, and pharma-
cy aide.14 Though Cox claimed to be capable of filling
all of these jobs she admitted that she had had no experi-
ence in any of them. However, none of these jobs re-
quired prior training and were filled with newly hired
personnel.
Hale testified that in addition to being qualified to fill
the position of PBX/Information clerk she could also
perform the duties of housekeeping aide, respiratory
technician, ward clerk, data processor , lab aide, dietary
helper, or file clerk in the medical records department,
orderly, secretary for surgery, pharmacy aide, and EKG
technician . 15 Hale, like Cox, admitted that she had never
performed any of these jobs.
The record indicates that all of these jobs except data
processor are bargaining unit jobs16 ' and the General
Counsel offers no explanation why Cox and Hale had a
superior demand on these vacant positions than did the
numerous bargaining unit employees still awaiting recall.
Relative seniority was not discussed.
All these jobs, according to Nunnery, required the
performance of duties unlike those required of the admis-
sions interviewer. In lengthy testimony Nunnery credibly
described the duties of each classification and likewise
credibly testified that employees in each of these classifi-
cations received a lower wage than the admissions inter-
viewers. Although neither Cox nor Hale ever had experi-
ence in any of these jobs, Respondent conceded that
they were all entry level jobs where no experience was
necessary.
In light of the fact that the Union insisted throughout
negotiations during and following the strike that all em-
ployees be recalled to their old jobs, shifts, and floors,
and obtained agreement from Respondent to follow this
procedure wherever possible; that the various vacancies
listed above and filled by new employees were unit clas-
sifications whereas the classification of admissions inte-
viewer was not in the unit; that all of these classification
required duties unlike those of admissions interviewers,
were paid at a lower wage, and were therefore not sub-
stantially equivalent; and that Respondent agreed to
recall Cox and Hale to their former positions and in fact
did so as soon as they became available, I fmd that Re-
spondent had no obligation to recall Cox and Hale to fill
any of those classifications for',which they claimed to be
qualified but in which they had had no previous experi-
ence.1 °
1s An admissions interviewer works with data processing in that the
charts she fills out contain information which is put into the computer by
the data process clerks . Later, the admissions interviewer corrects the
work of the printout, and makes nightly changes including patient trans-
fers and discharges.
14 New employees were hired after the strike to fill vacancies in these
classifications
15 Ibid.
16 If any of these jobs had been offered to Cox or Hale they would
have had to pay initiation fees and periodic dues.
17 New Era, supra; Lincoln Hills, supra
Finally, the General Counsel notes that a vacancy for
admissions interviewer occurred on August 24 which
was filed by Janet Webb. The General Counsel contends
that though the position was listed as an occasional job
which averaged less than 16 hours per week employ-
ment, and that occasional employees receive no vacation,
holidays, pension, insurance, or other benefits as do full
time employees, the job still should have been offered to
Cox. 18
However, it has been found that a part-time job is not
substantially equivalent to a full-time job,19 particularly
where the differences in remuneration are so extreme.
For this reason, I find that Respondent had no obligation
to recall Cox or Hale to the occasional position of admis-
sions interviewer.
Concerning the guards , I find that the assignments
which Allen and Curnutte refused to perform, namely, to
transport nonstriking employees through the picket line,
in the case of Allen, and to sweep up debris near the
picket line, in the case of Curnutte, were legitimate
orders, standard duties which security guards may fairly
be required to perform in the line of duty. The duties re-
quired of Allen and Curnutte did not, in my estimation,
place them in an overly dangerous situation, or require
them to perform work which any reasonable person, em-
ployed as a security guard, could in good conscience
refuse to do for fear of his own safety. The very nature
of the position, like that of a policeman or fireman,
though to a lesser degree, involves a certain amount of
personal risk and neither Allen nor Curnutte were free to
avoid discharging these assigned , reasonable duties on
grounds that said duties were unsafe. Moreover, I am not
at all convinced that Allen and Curnutte were sincere in
their testimony that they were afraid for their safety
when they refused to perform their assigned duties.
Rather, I am convinced that Allen refused to transmit
employees through the picket line and Curnutte refused
to sweep up trash in the vicinity of the picket line be-
cause of their sympathies for the pickets' cause. Indeed,
the security guards including Allen and Curnutte advised
management before the strike even started and thus long
before any violence occurred20 that they would not
cross the picket line because they simply "did not believe
in crossing picket lines." Though Allen testified that he
did not want to cross the picket line because "it violated
my rights . . . endangered my life . . . and I had my
wife on the picket line," I am satisfied that violence had
little or nothing to do with his refusal but find rather
that his refusal was based on his desire to' ally himself
with the pickets which is understandable in light of the
fact that his wife was one of them. Similarly, I'find that
since Curnutte likewise advised management , long before
the picket line was established and before there ' was any
18 Cox had more seniority than Hale.
19 Certified Corp., 241 NLRB 369 (1979).
ao There were some incidents of violence after the strike began. For,
instance, a driver of a van; annoyed at the actions of certain pickets as he'
drove through the picket line, got out of the van and received a finger
nail scratch in a scuffle . On other occasions, chunks of coal were thrown
at the van and a plastic baseball bat and fists were used to beat upon the
van as it passed through the line. These incidents have been given due
consideration in the rendering of this decision.
HIGHLANDS MEDICAL CENTER
violence, that he would not go through the picket line,
his refusal was based on his sympathy for the pickets not
on fear of violence.2 t
In McDonnell Aircraft Corp., 109 NLRB 967, at 969
(1954), it was stated:
[I]t is apparent from the legislative history of the
Act that, by requiring guards to be isolated from
other employees in collective bargaining , Congress
intended to insure to an employer that during
strikes or labor unrest among his other employees,
he would have a core of plant protection employees
who could enforce the employer's rules for protec-
tion of his property and -persons thereon without
being confronted with a division of loyalty between
the employer and dissatisfied fellow union members.
Senator Robert Taft has said:
Section 9(b)(3) of the Act was inserted because the
conferees were impressed with the reasoning of the
Court of Appeals for the Sixth Circuit in NLRB Y.
Jones and Laughlin Steel Corp., 154 F.2d 932, decid-
ing that guards could not be represented by the
same union as represented the production and main-
tenance emloyees at their plant because otherwise
they would be confronted with conflicting loyalties
during periods of industrial unrest and strikes.22
Thus, if the intent of Congress was to isolate guards
from the rank-and-file during periods of strikes and labor
unrest in order to ensure to an employer that he would
have a core of plant protection employees who could en-
force his rules for protection of his property and persons
thereon without being confronted with a division of loy-
alty between the employer and dissatisfied fellow union
members, the question arises what that employer can do
if his guards decide to side with the strikers leaving the
!employer's property unguarded and his nonstriking em-
Iployees unprotected. Faced with this situation herein,
81 After March 25 Curnutte sat on the picket line and socialized with
the strikers while they and his wife picketed.
22 Remarks of Senator Taft at 93 Cong. Rec. 6444 (1947).
1103
Respondent terminated the guards on grounds of their
not performing their duties and the likelihood of their
not doing so in the future. Is that wrong?
I believe Congress anticipated that strike situations
would arise and that the employer in such situations
should be entitled to undivided loyalty from his guards
should choose to refuse to perform the duties which he
and the Congress expected them to perform, they could
be and should be discharged. Guards who decide to ally
themselves with strikers are not protected by Section 7
of the Act. Congress could not have thought otherwise,
nor do I. Inasmuch as Allen's and Curnutte's decisions to
refuse to perform their legitimately assigned security
duties were not protected by the Act, their 'discharges
were lawful and they have no recall rights23 as do strik-
ers or rank-and-file sympathizers. Having found no viola-
tions in connection with the recall of Cox and Hale or
with the discharge of Allen and Curnutte, I shall recom-
mend that the complaint be dismissed in its entirety.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The Respondent did not, as alleged in the com-
plaint, engage in, conduct violative of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed24
ORDER
The complaint is dismissed in its entirety.
23 Curnutte 's March 16 request for transfer to the position of general
stores clerk was not acted upon prior to his discharge and was not, in
any event, a position substantially equivalent to security guard to which
he would have been entitled , had he been merely permanently replaced.
24 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.