Kaplolani Hospital

National Labor Relations Board - Board Decisions

Jul 29, 1977

231 N.L.R.B. 34 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kapiolani Hospital and Christine Kiyohara. Case 37-
CA-1239
July 29, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On March 29, 1977, Administrative Law Judge
James T. Barker issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief, and the General
Counsel filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,
findings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified below.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Kapiolani
Hospital, Honolulu,' Hawaii, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order as so modified:
1. In paragraph 1(b), substitute the phrase "In
any other manner" for "In any like or related
manner."
2. Substitute the attached notice for that of the
Administrative Law Judge.
I The Respondent's motion to supplement and correct its brief in support
of exceptions is hereby granted.
2 In par. I(b) of his recommended Order, the Administrative Law Judge
uses the narrow cease-and-desist language, "in any like or related manner,"
rather than the broad injunctive language, "in any other manner," which the
Board traditionally provides in cases involving serious 8(aX3) discriminato-
ry conduct. See N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4,
1941); Electrical Fitting Corporation, a subsidiary of I-T-E Imperial
Corporation, 216 NLRB 1076 (1975). Accordingly, we shall modify the
Administrative Law Judge's recommended Order and no-ice.
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT terminate the employment of
Christine Kiyohara, or any other employee,
because he or she engages in union or other
protected concerted activities, including refusal to
work behind a lawful picket line established by
Hawaii Nurses Association.
WE WILL NOT discourage employees in their
right to engage in union or protected concerted
activities, including their right to observe a lawful
picket line, by terminating our employees because
they engage in union or other concerted activities,
or in any other manner discriminate against any
of our employees in regard to hire or tenure of
employment, or any term or condition of employ-
ment, except as permitted by the proviso to
Section 8(a)(3) of the Act.
WE WILL offer Christine Kiyohara immediate
and full reinstatement to her former position, or,
if that position is no longer available, to a
substantially equivalent position of employment,
without prejudice to her seniority or other rights
and privileges, and make her whole for any loss of
pay she may have suffered by reason of the
discrimination against her.
KAPIOLANI HOSPITAL
DECISION
STATEMENT OF THE CASE
JAMES T. BARKER, Administrative Law Judge: This case
was heard before me at Honolulu, Hawaii, on October 21,
22, and 23, 1976, pursuant to a complaint and notice of
hearing issued by the Regional Director of the National
Labor Relations Board for Region 20 on July 2, 1976.' The
complaint is based upon a charge filed by Christine
Kiyohara, an individual, on March 29, and alleges
violations of Section 8(aXI) and (3) of the National Labor
Relations Act, as amended, hereinafter called the Act.
Respondent concedes the timely filing of the charge herein.
Counsel for the General Counsel and counsel for Respon-
dent timely filed briefs with me.
Upon the entire record in this case, the briefs of the
parties and my observations of the witnesses, I make the
following:
' All dates refer to the calendar year 1976. unless specifically noted
otherwise.
231 NLRB No. 10
34
KAPIOLANI HOSPITAL
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent is a corporation organized under the laws of
the State of Hawaii and is engaged in the operation of a
hospital facility located in Honolulu, Hawaii. During the
calendar year immediately preceding the issuance of the
complaint herein, Respondent, in the course and conduct
of its business operations, received gross revenues in excess
of $250,000. During the same period of time, Respondent,
in the course and conduct of its business operations,
purchased goods, materials, and supplies valued in excess
of $50,000 directly from suppliers located outside the State
of Hawaii.
Upon these facts, which are not in dispute, I find that
Respondent is, and has been at all times material herein, an
employer engaged in commerce and in operations affecting
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent concedes, and I find, that the Hawaii Nurses
Association, herein called the Union or HNA, is, and has
been at all material times, a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The principal issue in this proceeding is whether
Respondent terminated Christine Kiyohara because she
engaged in protected concerted activities, or whether
Kiyohara was terminated because she failed to comply
with Respondent's legitimate employment regulation re-
quiring employees to give timely notice of their intended
absence from duty. The complaint, as amended at the
hearing, alleges, and Respondent concedes, that at material
times Kiyohara was an employee within the meaning of the
Act. A threshold issue is raised whether Kiyohara, an
unrepresented employee, engaged in protected activity
when she honored a picket line legally established at
Respondent's facility by the Union, or whether she lost the
protection of the Act by failing to give the notices required
by Section 8(g) and 8(d) of the Act.2 Moreover, an issue
was raised whether the strike of the Union against
Respondent's acute care medical facility was, by its nature,
unlawful thereby rendering unprotected Kiyohara's con-
duct in withholding her services in support of the nurses'
strike.
2 Sec. 8(g) provides:
A labor organization before engaging in any strike. picketing, or
other concerted refusal to work at any health care institution shall, not
less than ten days prior to such action, notify the institution in writing
and the Federal Mediation and Conciliation Service of that intention,
except that in the case of bargaining for an initial agreement following
the certification or recognition the notice required by this section shall
not be given until the expiration of the period specified in Clause (B) of
the last sentence of sentence 8(d) of this Act. The notice shall state the
date and time that such action will commence. The notice, once given.
may be extended by the written agreement of both parties.
B. Pertinent Facts
1. Background facts
a. The setting
Kapiolani Hospital is an acute care hospital facility
situated in Honolulu, Hawaii, and is engaged in providing
maternity, obstetrical, and gynecological care. It is the
principal obstetrical care facility situated on the island of
Oahu. In the maternity section of the hospital is labor and
delivery; the special care unit, also known as first
postpartum unit; the nursery; and the second postpartum
unit.
Respondent's facility operates on a 24-hour basis. The
nursing services department is under the direction of
Richard Davi, executive director. June Nakashima is the
director of patient services. Reporting directly to Nakashi-
ma at relevant times were Patricia Okano, the shift
coordinator, and Pauline Meheula, the unit manager.
Under the unit manager work the charge nurse; staff
nurses; licensed practical nurses, herein called LPNs
technicians; nurses aides; attendants; and transporters.
Employed also in the nursing services department are ward
clerks and two secretaries to the director of patient services.
At all relevant times, the registered nurses, herein called
RNs, were classified either as charge nurses or staff nurses
and were represented by the Union. Excluded from the
unit of nurses are the supervisory, administrative, and
managerial registered nurses, including the unit managers,
shift coordinators, and the nursing educators.
At all times pertinent herein, the LPNs were represented
by the United Public Workers, herein called UPW. Under
a separate collective-bargaining agreement, UPW at all
pertinent times has represented all nonmanagerial and
nonsupervisory personnel employed in the nursing services
department, other than RNs and the ward clerks and the
secretaries to the director of patient services. The ward
clerks and the two secretaries are unrepresented. Christine
Kiyohara was employed at relevant times as a ward clerk
on the second postpartum unit and was not a member of
any labor organization.
b. The strike commences
During times pertinent to this proceeding, Respondent
and the Union were parties to a collective-bargaining
agreement effective by its terms from July 15, 1974,
through November 30, 1976. For a substantial period of
time the Union has engaged in joint bargaining with
Respondent, Children's Hospital, Kaiser Foundation,
Sec. 8(d) of the Act provides, in pertinent part, that:
Any employee who engages in a strike within any notice period
specified in this section, or who engages in any stnke within the
appropriate period specified in subsection (g) of this subsection shall
lose his status as an employee of the employer engaged in the particular
labor dispute, for the purposes of section 8, 9 and 10 of this Act, as
amended. ....
35
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kuakini Hospital, and St. Francis Hospital, all situated on
the island of Oahu.3 Each hospital was a party to an
individual contract with the Union. In the latter part of
1975, pursuant to bargaining requests by the Union,
collective-bargaining negotiations were commenced. Chris
Taylor, associate director of the Union, participated in the
negotiations. Nurses Mary Maas and Deborah Tullier,
employees of Respondent, were chosen by unit employees
to represent them on the negotiating committee. Several
meetings were held but the parties were unable to reach a
collective-bargaining agreement. The services of the Feder-
al Conciliation and Mediation Service were invoked and in
December a one-man board of inquiry was convened. On
December 29, 1975, the board of inquiry issued its report,
together with recommendations. However, the parties did
not achieve a meeting of the minds with respect to the
terms of a collective-bargaining agreement and a strike
resulted. By letter of January 15, the Union, through Chris
Taylor, its associate director, had advised Respondent of
its intention to engage in a strike commencing at 12:01 a.m.
on January 26. Subsequently, by letter dated January 26,
Respondent was advised that the Union would commence
its strike at 12:01 a.m. on January 28. The strike
commenced, as scheduled, on January 28 and ended on
February 15. On March 1, the parties executed a memoran-
dum of agreement modifying certain terms of the basic
collective-bargaining agreement.
c. The ward clerk position
Christine Kiyohara was employed in November 1974 in
the position of ward clerk in the second postpartum unit.
Kiyohara's last day of work was January 27, 1976.
During the term of her employment, she was employed
in the maternity section of the hospital and she served on
the evening shift from 3 to 11 p.m. Kiyohara worked 5
days, 40 hours per week. In second postpartum, a ward
clerk also served on the day shift which hours were 7 a.m.
to 3 p.m. There was no ward clerk employed in second
postpartum on the night shift which ran from 11 p.m. to 7
a.m. No individual substituted for Kiyohara on her days
off.
By contrast, three ward clerks were employed in the
special care unit of the maternity section and each shift was
covered. Kiyohara substituted in the special care unit and,
as matters evolved, she performed duties in the unit on the
average of twice each week.
On duty with Kiyohara in second postpartum were an
RN and a nurses aide. There was a variance of approxi-
mately 45 minutes in the starting and quitting time of the
ward clerks and that of the RN and the nurses aides.
Kiyohara worked from a desk at the junction of two
corridors. Located near or on the desk were a telephone, a
chart rack, shelving, and a supply cabinet. Immediately
behind the desk was a medicine room. A call bell system
was available to patients on second postpartum for use in
signaling their desire or need for medication or attention.
Thus, patients in rooms located on one of the two
:' A sixth hospital, Queens, coordinated its bargaining with the group.
The foregoing is based primarily upon the credited testimony of
Christine Kiyohara. She testified credibly concerning the applicability of the
ward clerk job description to the duties which she actually performed during
postpartum corridors could activate a signaling device
which would be heard by the ward clerk at her station, and
which would permit the patient to converse by intercom
with the ward clerk. The four or five patients rooms
situated on the other and older corridor of second
postpartum were equipped with a bell which would activate
a light at the ward clerk's desk. Upon observing the light, it
was the ward clerk's duty either to notify the nurse or to go
herself to the patient's room in order to determine the
nature of the patient's needs. This she was required to do
frequently. It was also the duty of the ward clerk to serve
certain clerical and receptionist functions. Thus, Kiyohara
would often assist doctors and nurses by accompanying
them on their rounds and carrying medical charts. She
charted temperatures and pulses and filed laboratory
reports. She maintained in current status the medical charts
of the patients and attended the nurses' station in order to
maximize the time available to nurses to care for patients.
Kiyohara answered telephones, ran errands to the labora-
tory, assisted visitors to the second postpartum in locating
the rooms of patients, and, upon request, assisted nurses in
a variety of tasks.4
d. The call-in rule
At all relevant times herein, a house rule was in effect
which provided for the suspension or discharge of any
employee for:
Absence from work without giving notice (unless the
giving of notice is not possible), irregular attendance at
work or habitual tardiness in reporting for work.
Kiyohara was aware of the existence of that rule and was
first informed of its content during an orientation period
which transpired at the commencement of her employ-
ment. It was established procedure on the part of
employees generally to give 2 hours' notice of any intended
absence or tardiness, but this practice was not invariably
followed. Termination would not result if the failure to call
in was for a reason deemed valid to management.
e. The prelude to the strike
As found, on January 15, the Union, over the signature
of its associate director, Chris Taylor, dispatched a letter to
Respondent advising Respondent of the Union's intention
to strike on January 26. On January 15, also, Chris Taylor
was featured on a television news segment wherein, in
response to a question posed by a television reporter,
Taylor announced that the Union was not going to provide
emergency services in the event of a strike. On January 18,
Richard Davi dispatched a letter to the Union requesting
the Union to "reconsider its decision not to provide
emergency care at the six hospitals [Kapiolani, Kaiser,
Children's, Kuakini, Queen's, and St. Francis], in the event
of a strike." The following day, January 19, the Union
dispatched a letter to Honolulu physicians advising them
that a strike notice had been served on the hospitals,
her employment tenure. The content of the job description which Kiyohara
adopted as actually applicable to her performance of ward clerk duties is set
forth at Appendix A lomitted from publication 1, and is specifically adopted
as a factual finding herein.
36
KAPIOLANI HOSPITAL
including Respondent, and stating further "[d]isruption of
normal services by Registered Nurses at all hospitals, in
addition to LPNs at Children's will occur on January 26,
1976, at 12:01 a.m. if the negotiations dispute has not been
resolved."
On January 22, Union Representatives Mau and Tullier
met with top staff personnel of Respondent. During the
course of the meeting, representatives of Respondent
defined nondeferrable medical emergencies requiring the
services of the RNs. Dr. Ralph Hale, Respondent's chief of
medical staff, defined "obstetrical deliveries" as falling
within this category. Further, during the meeting, in the
context of a discussion of RN coverage of "high risk"
babies or the "intensive care" babies needing one-to-one
type of care, consideration was given to utilizing nurses
from other hospitals. The Union's representatives at the
meeting refrained from giving any assurances either with
respect to staffing all obstetrics cases or providing coverage
for the intensive care unit. The union representatives
agreed to render a report of the meeting to the Nurses
Association and to advise the hospitals of any decision
reached with respect to the Union's willingness to provide
emergency coverage at the hospitals. The Union did not
thereafter directly communicate any response in this regard
to Respondent. In point of fact, the Union refused to
accept responsibility for defining a medical "emergency,"
taking the position that this was one of medical judgment.
The Union refused during the course of the strike to
provide coverage for medical emergencies. No coverage
was provided by bargaining unit RNs for the nursing
service department, including maternity, or for the subsid-
iary units, including second postpartum.
In the meantime, the hospitals, in a joint statement which
gained widespread public notoriety, declared:
We are dismayed and shocked at the nurses' frighten-
ing pronouncement last night that they will not provide
emergency care in any of the six hospitals. Some of the
critical areas which concern us are those children in the
Pediatric, Pulmonary Center of Children's Hospital,
those patients who must receive kidney dialysis treat-
ments three times per week and all patients who must
receive life support services through the cardiac and
intensive care units of all of these institutions.
In an open letter to the community, the Union declared the
following:
The decision to withhold emergency care services
during this strike was a difficult one. However, we took
into account the needs and resources of each hospital.
There are various types of health care personnel
working in each hospital. Adequate care under supervi-
sion can be provided given the current reduction in
patient load.
During the strike, unit RNs for a period of time refused
to provide the services of RNs qualified in renal dialysis
I Under prestrike arrangements, one registered nurse came on duty in
the capacity of charge nurse at 2:45 p.m. and worked until 11:15 p.m. She
was assisted in second postpartum by a nurses aide who worked shift hours
coextensive with hers and by a ward clerk - Kiyohara who came on
care at the hemodialysis center of St. Francis Hospital, but
agreed to do so alter injunctive relief had been sought and
a temporary restraining order was issued by the court.
After issuance of the injunction, a "respectful agreement"
was achieved and requisite services were thereafter provid-
ed.
In preparation for the strike, meantime, Respondent had
taken steps to provide coverage in the various units and
departments which were to remain operative during the
course of the strike. Thus, a projected staffing schedule was
prepared, contemplating substitution of the 12 available
supervisory and management RN personnel for the
approximately 60 RNs on strike, and the readjustment of
normal shift hours. Pursuant to the schedule, the substitute
RN personnel were scheduled to work 12-hour shifts. One
shift was to commence at 6:45 a.m. and run to 7 p.m. and
the other shift was to commence at 7 p.m. and run to 7 a.m.
Support personnel such as LPNs, nurses aides, and ward
clerks were scheduled for each shift, and their normal shift
hours were slightly modified.
Under staffing arrangements contemplated for imple-
mentation during the strike in second postpartum on the
afternoon shift, from 2:45 to 11:15 p.m., one nurses aide
and one ward clerk were also scheduled to work from 11:45
p.m. to 7:15 a.m. in second postpartum.5
In preparing for coverage during the strike, reliance was
placed by Respondent upon a system of transfers within
the hospital of nonstriking personnel from positions of low
priority need to positions of higher priority need. Further,
appeals were made for volunteer help and plans were
formulated to facilitate the use of this type of assistance, on
an as-available basis. However, because of professional
standards of privacy and confidentiality, as well as
considerations relating to the training of such volunteers,
the use of this type of assistance was circumscribed.
On January 26, a meeting was held in the postpartum
unit and the unit manager, Meheula, informed a staff
meeting that during the strike the gynecology department
staff would assist in providing coverage in the maternity
wing of the hospital, and she asserted that there would be
no layoffs or leaves of absence because of the workload.
Kiyohara devoted a portion of her shift time on January 26
to familiarizing Anne Kakaumi, a ward clerk from the
gynecology department, with the ward clerk job in second
postpartum. In context of the January 26 staff meeting,
Kiyohara spoke with Meheula concerning her longstanding
desire to have the hours of her shift adjusted in order to
permit an earlier arrival and earlier departure time. No
assurances were given in this regard.
Kiyohara was not scheduled to work on January 28 or
January 29, her normal days off. She was not requested by
Respondent to report for duty. She was scheduled to return
to duty at 3:30 p.m. on January 30. Kiyohara did not do so.
Some 5 weeks earlier, Kiyohara had solicited Tullier's
opinion as to Kiyohara's vulnerability to malpractice
charges in the event she were called upon to provide care
or bedside assistance to a patient during the course of a
duty from 3:30 p.m. to 12 midnight. Thereafter, at 10:45 p.m.. an RN came
on duty as charge nurse and worked until 7:15 a.m. She was assisted
throughout her entire shifl by one nurses aide.
37
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
potential RN strike. Kiyohara expressed concern over
being called upon to perform this variety of service in the
event of a strike. Tullier stated that she could give her no
assurances as to the duties Kiyohara would be expected to
perform during the strike, but proffered the notion that any
person providing care to a patient would incur potential
personal liability. Tullier advised Kiyohara that she should
perform only those duties required by her job description.
Approximately I month later, and nearly 2 weeks prior
to the strike, Kiyohara spoke again with Tullier and raised
the question of her right to withhold her services and
support the strike by honoring the picket line. Tullier
ventured the opinion that Kiyohara would have the rights
of all strikers. Tullier disclosed to Kiyohara that she was
not totally certain of the correctness of her opinion.
Thereafter, on January 29, after the strike had com-
menced, Kiyohara made several efforts to contact Tullier
by telephone. When she finally spoke with Tullier, she
disclosed that she was scheduled to work the following day
and desired to obtain some authoritative information
concerning her employment rights should she decide to
honor the picket line. Tullier assured Kiyohara that she
would obtain an answer for her.
At approximately the noon hour on January 30, Tullier
contacted Kiyohara and stated that she had consulted with
legal counsel for the Union and had been advised that
Kiyohara had the right to honor the picket line, and would
be subject to losing her job only if she were replaced during
the strike. Tullier further advised Kiyohara that it was not
necessary for Kiyohara to give Respondent notice of her
intention to honor the picket line. Tullier also advised that,
if the hospital contacted Kiyohara, she should actually
inform the caller that she had decided to honor the picket
line.
2. The alleged unlawful conduct
a. The events of January 30
After speaking with Tullier, Kiyohara decided to honor
the picket line. She spent the afternoon at the home of her
neighbor, Pamela Courtney, then a staff nurse in the
postpartum unit and a member of the employee negotiating
committee. During the course of the afternoon, Kiyohara
made some telephone calls to coworkers and friends and at
approximately 2:45 p.m. placed a telephone call to the
hospital. The call was successfully completed through the
switchboard but was disconnected by the PBX operator.
Kiyohara expressed her disgust at being cut off and
immediately made a further effort to contact the hospital.
She spoke to a secretary who could not reach the shift
coordinator by page. Kiyohara left no message and made
no further effort to call the hospital. Kiyohara and
Courtney spent the balance of the afternoon until approxi-
mately 7:15 p.m. in conversation and playing cribbage.
Kiyohara received two phone calls during the afternoon,
but neither of these were from hospital supervision or
management.6 Kiyohara returned to her own home at
approximately 7:15 p.m.
"Kiyohara had doubtless left a number at which she could be reached by
these callers.
In the meantime, at approximately 4 p.m., Wilma
Schiner, an RN serving as the nurse in charge of a segment
of the operation, including second postpartum, met
Nakashima in the corridor and inquired into the wherea-
bouts of the ward clerk. Nakashima observed that she was
not aware that the ward clerk was not on duty and would
check into the matter. She assured Schiner that the ward
clerk was scheduled for that shift. After speaking with
Schiner, Nakashima went to the nursing office and verified
that Kiyohara was scheduled to work in the ward clerk
capacity that afternoon. Nakashima placed three separate
telephone calls to Kiyohara's home telephone number
during the ensuing 45-minute period. Thereafter, she
requested Aurelia Asasaki, the clerk-typist in the nursing
office, to attempt to reach Kiyohara by telephone.
Commencing soon after 4 p.m., and continuing until soon
after 7 p.m., Asasaki placed 8 or 10 telephone calls to
Kiyohara's home phone number. Asasaki received no
answers to the telephone calls placed by her and she did
not speak with Kiyohara during the afternoon or early
evening of January 30.
In the meantime, soon after 6:30 p.m., Patricia Okano,
the shift coordinator, came on duty. Nakashima informed
Okano that Kiyohara had not yet reported for work.
Nakashima asked Okano to continue efforts to contact
Kiyohara by telephone and find out what had happened.
Nakashima made a notation of the latter instruction on the
shift coordinator's report used in the nursing office as a log
reflecting significant occurrences or the shift.
When Okano entered on duty, she commenced her
rounds and met Pauline Meheula, the unit manager of
postpartum. Okano told Meheula that Kiyohara had not
reported to work and requested Meheula to continue
efforts to reach Kiyohara by telephone. Okano noted that
she had been unsuccessful in her endeavors to reach
Kiyohara. Meheula agreed to undertake the effort to
contact Kiyohara. Meheula proceeded to the nursing office
after contacting labor and delivery to report her presence
in the hospital, and to convey the information that she
could be reached in the office. In the 45 minutes which
followed, Meheula made repeated unsuccessful efforts to
contact Kiyohara by phone at Kiyohara's residence. She
placed approximately 15 telephone calls and finally was
successful in reaching Kiyohara at approximately 7:15 p.m.
When Kiyohara answered the telephone, Meheula
identified herself by name and noted that Kiyohara had
been scheduled to commence her shift at 3:30 p.m. that
day. Meheula further noted that it was now 7:15 p.m. and
asked Kiyohara why she was not on duty. There was a
pause in the conversation and Kiyohara did not immedi-
ately respond. Meheula asked if Kiyohara had heard her
remarks and Kiyohara answered in the affirmative.
Thereupon, Kiyohara stated that she had decided against
working behind the picket line and, because she was
sympathetic with the strikers, she could not in good
conscience report to work. In an aside to Okano, who was
standing near Meheula as she spoke to Kiyohara from the
telephone in the nursing office at the hospital, Meheula
stated that Kiyohara was not coming to work. At Okano's
38
KAPIOLANI HOSPITAL
prompting, Meheula thereupon stated, in substance, to
Kiyohara, that Kiyohara was still considered to be on duty
status and that, if she would come in, she would still be
considered as having reported for duty. Kiyohara then
reiterated her intention to honor the picket line and
Meheula asked if she had given the hospital any notice of
this decision. Kiyohara answered that she had not and
stated that she had not reached the decision in advance but
had made the determination after obtaining advice that
notice was not necessary. Meheula asked the source of her
advice and Kiyohara answered that it had come from
representatives of the HNA. Thereupon, Meheula asked
Kiyohara whether she understood that if she did not come
to work she would not have a job. Kiyohara expressed her
understanding and the conversation terminated. 7
b. The termination
On February 27, Kiyohara received through the mail a
personnel action form entitled "Report of Personnel
Activity" dated January 30. The form noted Kiyohara's
termination and recorded the reason therefor as "Did not
show up for work as scheduled." Receipt of this form was
Kiyohara's first notice from Respondent that her termina-
tion had been effectuated.
Meheula testified that she made the decision to terminate
Kiyohara during the course of the January 30 telephone
conversation. After completing her conversation with
Kiyohara on the evening of January 30, she contacted
Nakashima by telephone at her home and informed
7 The foregoing findings with respect to the occurrences during the
afternoon and early evening of January 30 are based upon a consideration
of the testimony of June Nakashima, Aurelia Asasaki, Patricia Okano,
Pauline Meheula. Wilma Schiner, Christine Kiyohara. Pamela Courtney,
and Deborah Tullier. I credit the testimony of the latter three witnesses only
to the extent that it is consistent with the findings above made Initially. I do
not credit the testimony of Kiyohara and Courtney to the effect that their
afternoon was spent at Kiyohara's home instead of Courtney's. The
rejection of this testimony is necessitated by the composite testimony of
Asasaki. Nakashima, Okano, and Meheula revealing that numerous
unanswered telephone calls were placed by them to Kiyohara's residence
during the afternoon and early evening of January 30. For whatever reason,
perhaps because Kiyohara was ambivalent about addressing the matter of
intended absence directly with supervision, abandoning such a notion
following two abbreviated and abortive attempts to make telephonic
contact, or merely because she had learned that it was unnecessary for her
to report her decision to honor the picket line directly to management,
Kiyohara remained unavailable to telephonic contact for the entire
afternoon and early evening. It is noteworthy in this regard that Tullier. who
counseled Kiyohara, did not suggest to Kiyohara that she inform the
hospital of her intentions, but, significantly, advised her merely to truthfully
disclose her plans if she were contacred by the hospital. I am unwilling, in light
of the record before me, to indulge the presumption urged by the General
Counsel to the effect that Courtney's testimony should be given special
credence by reason of the fact that at the time of the hearing she was a
supervisor in Respondent's employ and would be unlikely to place herself in
a vulnerable position by testifying adversely to her employer's interests or
those of her management superiors. The legal proposition cited by the
General Counsel loses its persuasive impact when it is measured against the
relationship of Courtney to Kiyohara as a friend and a neighbor. and when
it is considered, as well, against her former activist role in the Union, which
presumably acquainted her with the protective rights of Sec. 8(aX4) of the
Act. See Better Monkey Grip Company, 115 NLRB 1170 (1956), enfd. 243
F.2d 836 (C.A. 5. 1957): Carter Lumber. Inc., 207 NLRB 391, 393 (1973).
In close relationship to the foregoing credibility resolution is the further
rejection of the testimony of Kiyohara and Courtney to the effect that
Kiyohara spoke in late afternoon with Asasaki and soon thereafter with
Meheula. Reasons of friendship as well as their prior mutual interest in the
union cause may well have led to this corroborating rationalization of
Nakashima that she had terminated Kiyohara. Meheula
testified that she terminated Kiyohara because of the "total
conversation, because there was a unit to run ... " on the
evening of January 30.
On two separate occasions during the term of her
employment, Kiyohara failed to report to duty as sched-
uled and called in late to report her intended absence. Each
of the two occasions had arisen from an unforeseeable
emergency and, on each of the two occasions, Kiyohara
contacted supervision within 90 minutes to 2 hours of the
beginning of her shift. Each time Kiyohara was granted
leave without pay.
Kiyohara testified that she decided to honor the picket
line as a matter of individual conscience and supported the
RNs in their strike objective because she harbored an
interest in a nursing career, and because she believed that
nonunion employees would benefit derivatively from any
benefits achieved by the RNs as a consequence of their
strike action. At the time of the hearing herein, Kiyohara
was enrolled as a part-time student in prenursing.
c. The adverse impact of the strike
During the strike, as found, Respondent's management
and supervisory personnel in the maternity section,
including second postpartum, worked extended hours and
assumed duties, including patient care responsibilities,
which under normal operating conditions were not theirs.
However, as found above, Kapiolani Hospital is a principal
health care facility for maternity, obstetrical, and gyneco-
sequence and chronology. More likely, because of their common interest in
the outcome of this litigation favorable to Kiyohara, they tailored their
testimony to an inaccuracy contained in Meheula's pretrial affidavit which
inaccuracy was convincingly explained by Meheula when she testified at the
hearing. Considering the composite of the testimony of Nakashima,
Asasaki, Meheula. Okano. and Schiner, as well as documentary evidence of
record as disclosed in the shift coordinator's report of January 30. the
finding is required that Kiyohara was not successfully contacted by
telephone, or otherwise, until 7:15 p.m., and at the initiative of Meheula.
Finally. I am convinced upon the basis of the testimony of Meheula and
Okano that, contrary to the testimony of Kiyohara and Courtney, Kiyohara
was not told by Meheula that she could retain her position if she reported to
work ihefollowing day. I am convinced that the leeway given Kiyohara in
reporting to work was limited in the manner and extent above found. I place
no reliance on the hearsay testimony of Tullier concerning the rendition
given her by Kiyohara of the parameters of Meheula's instructions with
respect to reporting for duty. On the other hand, in contrast to the defined
willingness of Kiyohara and Tullier to shape their testimony to Kiyohara's
advantage, Meheula impressed me as a singularly sensitive and truthful
witness who strived diligently to factually describe the events as she
remembered them. Her testimony, considered in light of the supporting
testimony of other witnesses testifying on behalf of Respondent, presents
not only a more logical chronology but is more consistent with the
probabilities associated with the burdens which were at the time in question
being shouldered by the various witnesses who testified in support of
Respondent's case. In this specific regard, there is no reason to believe that
Meheula, contrary to her record testimony, reported to duty 75 to 90
minutes early on January 30, the third day of the strike, as was inferred by
certain questions posed to her. Nor is there any reason to challenge the
entries made by Nakashima and Okano on the shift coordinator's report for
January 30. Finally, Asasaki clearly did not impress this trier of fact, who
observed her testify, as a vindictive witness willing to shape her testimony in
a manner adverse to Kiyohara merely to gain favor with her supenors. As I
observed Asasaki testify, she clearly had no recollection of a conversation
with Kiyohara on the afternoon of January 30. and there is no basis in logic
or reason for assuming that, had one occurred, she would have stood mutely
by on January 30 while she and others continued to place telephone calls to
Kiyohara's residence.
39
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
logical acute care, and obstetrics care is, by its nature,
nondeferrable. s Throughout the strike, Respondent contin-
ued to provide obstetrical care but endeavored to the
extent medically feasible to curtail admissions. However,
on January 28 there were 24 obstetrical admissions and the
midnight patient census revealed 17 newborns. On January
29, there were 28 admissions and 17 newborns; on January
30, there were 24 admissions and 18 newborns; and on
January 31, 19 admissions and 11 newborns were recorded.
Immediately following delivery of a newborn, nursing and
related patient care are provided in the postpartum unit. In
the puerperium stage which begins with the completion of
the third stage of labor and ends when the generative
organs have returned essentially to normal, the new mother
experiences physical and emotional changes which require
ongoing monitoring and support care on the part of
obstetric nurses whose duties one authority 9 states as
follows:
1. To secure mental complacency and comfort for
the patient.
2. To secure physical rest and comfort for the
patient.
3. To guard against pelvic and breast infections.
4. To see that the patient receives an adequate diet.
5. To help the mother maintain body functions,
including elimination by the bowels, kidneys, skin and
lungs.
6. To demonstrate techniques and equipment for
infant care.
7. To leave the mother confident of her own ability
to care for herself and for her baby before she is
discharged.
8. To foster the maintenance of family ties and
assist both parents in adjusting to their new roles.
During the puerperium, the new mother experiences pain,
weight and blood loss, and emotional variances which
require the attention of an obstetrical nurse. Thus, it is the
duty of the obstetrical nurse to carry out a variety of
bedside procedures to assist the new mother in achieving
physical and emotional well-being. 0
As found, it became part of Kiyohara's prestrike duties
to fill in in the special care unit, herein called SCU, the unit
to which the patient is transferred very soon after delivery.
Under normal operating procedures, and depending upon
the time of day and the patient load, the patient would
remain in the SCU for approximately 12 hours. However,
the time spent by a patient in special care under normal
operating conditions could be as brief as 2 or 3 hours,
depending on the patient load. A "very sick patient" could
remain in SCU for as long as 4 days. From SCU situated
on the first floor of the hospital, patients are transferred to
second postpartum, situated on the second floor.
8 The other two principal civilian facilities on the island of Oahu offering
obstetrics care were also subject to the strike.
9 Bookmiller and Bowen. Textbook of Obstetric Nursing (5th ed., W. B.
Saunders Co.)
"' In a related context, the evidence establishes that one infant boy
expired on January 31 at 12 a.m. and another infant expired on February I
at 8:17 p.m. The record suggests that nursing care includes providing
bedside emotional support to bereaved parents.
" The foregoing is based upon the credited testimony of Dr. Ralph W.
The 2-hour period immediately following delivery, when
patients are cared for in SCU, is the postdelivery period
when the patient is undergoing the greatest amount of
changes in her body status. It is a "very critical time for the
patient" and the patient experiences blood loss, contraction
of the uterus, changes in blood pressure, and a diminution
in the total amount of circulating fluid within the body.
Complications arising during the patient's confinement in
SCU could include convulsions, abnormal blood pressure,
infections, and hemorrhaging.t
On January 30, Wilma Schiner, normally employed by
Respondent as director of training and education, worked
in the position of charge nurse in second postpartum on the
shift commencing at 7 a.m. Schiner had last performed
bedside nursing duties in 1955. During the morning hours,
time was spent discharging patients from second postpar-
tum and in cleaning and preparing rooms. In the after-
noon, commencing at approximately I p.m., transfers from
SCU arrived. Two of the patients transferred had intrave-
nous infusions and at least one patient had undergone a
cesarian section. Some of the patients had not voided a
second time upon arrival at second postpartum. Schiner
was assisted during this period of time by a ward clerk,
Blanch Butler, normally assigned as a ward clerk on the
GYN unit. Schiner was also assisted on the day shift prior
to 3 p.m. by more than one nurses aide.12 At 3 p.m. the
patient census stood at approximately 33.
Soon after 3 p.m. on January 30, Schiner commenced
making her rounds of the ward. It was while she was
engaged in this duty that she met Nakashima and inquired
into the whereabouts of the ward clerk for the evening
shift. Near the completion of her rounds, Schiner reached
the room of a post-cesarian section patient who, 2 days
earlier, had entered second postpartum with flu-like
symptoms. Schiner noted her condition and requested the
nurses aide to check her vital signs. The nurses aide was
distributing ice water at the other end of the ward and
Schiner found it necessary to summon her to take the
patient's temperature. It was noted that the temperature
was elevated and Schiner endeavored to locate the patient's
physician. At approximately 4 p.m. the nurses aide took
her dinner break. From the time Schiner learned that the
post-cesarian section patient had an elevated temperature,
through the duration of the dinner break of the nurses aide,
Schiner was endeavoring to answer telephones, respond to
patient signal lights, and pour medications for distribution
to the various patients on the ward. Moreover, between 3
and 5:30 p.m. when Schiner again returned to the room of
the post-cesarian section patient, she handled two or three
new admissions. Additionally, with the assistance of the
nurses aide, she catheterized the post-cesarian section
patient. This process required 15 or 20 minutes. The nurses
station went unattended because Schiner was assisted
Hale. Dr. Hale testified that one quarter of all convulsions at pregnancy
occur after the baby has been delivered, and that 75 percent of postdelivery
convulsions occur within 2 hours after delivery. However, Dr. Hale further
testified that the remaining 25 percent will occur later in the postpartum
period.
12 The documentary evidence of record suggests that on January 30
during the day shift, in the SCU second postpartum unit, two LPNs, five
nurses aides, and two ward clerks performed duties on the day shift.
40
KAPIOLANI HOSPITAL
during the time period in question only by a single nurses
aide.' 3 In due course, Schiner distributed medication to the
patients later than it is normally distributed under
prescribed procedures.
Schiner credibly testified that by reason of the absence of
the scheduled ward clerk, Christine Kiyohara, between the
hours of 3:30 and 7 p.m., the amount of patient care she
was able to give was decreased. Schiner further credibly
testified that this diminution in patient care arose from the
necessity for her to perform certain duties normally
performed by the ward clerk, including telephone-answer-
ing duties, which interrupted and delayed the successful
completion of the distribution of medication to patients;
and by the requirement visited upon her in the absence of a
ward clerk to deal with certain order forms and charts to
assure that all physician directives pertaining to medication
and diet were accurately carried out. Schiner credibly
described the routines and protective practices which
prevailed and which rendered it essential for her to traverse
substantial distances from patient rooms to the nurses'
station in order to answer telephone calls and facilitate
proper dissemination of information.
Kiyohara testified that in her opinion the effect of the
absence of the ward clerk on the ability of an RN to deliver
services required of her would be "some loss of time as far
as the RN's ability to see the patients .... " Kiyohara
testified, however, that this would depend on the census at
the time and the number of aides working with the RNs.
Kiyohara further testified that in providing the communi-
cations which her job duties required her to provide and in
completing the various forms which she was expected to
complete she was a link between the personnel providing
patient care. However, Kiyohara testified that second
postpartum involved "minimal care"; that there was "very
seldom any great emergency as far as pain"; that there was
not "usually an immediate need of anybody"; and that the
patients "weren't that sick on the second floor." She noted
that her own workload during the evening shift in the
prestrike period of her employment was "minimal."
However, Dr. Ralph Hale credibly testified that compli-
cations involving the physical well-being of the patients
may and often do develop during the postpartum. He
testified further that, while many complications are
handled in SCU, some predictably do emerge in second
postpartum and require attention involving a trained
registered nurse. The emergence of physical symptoms
requiring attention is, according to the credited testimony
of Dr. Hale, first noted by the patient herself who would
summon the nurse. In certain units in second postpartum,
as found above, the light or buzzing device activated in the
patient's room is situated at the ward clerk's desk.
Nakashima characterized the ward clerk as "the hub of
activity." Her service is "almost like a logistical officer on
the unit .... " Nakashima testified that the ward clerk
answered the telephones and sees that the operations of the
unit "go very smoothly." The role of the ward clerk was
characterized by Nakashima as "a very important function
on each nursing unit." Nakashima credibly and succinctly
testified that the absence of Kiyohara on the evening shift
13 The record does not disclose the precise duties being performed in the
combined SCU unit on the first floor and the second floor postpartum unit
by the L PNs and the ward clerk assigned to the special care unit.
on January 30 meant that "someone else would need to do
the duties she is normally assigned to do. That means
taking that person away from the bedside and direct
patient care." Nakashima further credibly testified that she
did not transfer another individual to substitute for
Kiyohara on the evening shift on January 30 because
scrutiny of her staffing schedule indicated to her that she
did not have any available personnel to transfer. Nakashi-
ma testified that all personnel were being utilized in other
areas of the hospital and that, although she considered
making such a transfer of personnel on the evening shift on
January 30, she rejected the notion. Schiner credibly
testified that she permitted the nurses aide to take her
normal dinner break on the evening of January 30 because,
in substance, she was unable to project the possible
occurrences later in the shift and believed that the total
proficiency of the unit and of the nurses aide would be
enhanced by the revitalization that would be achieved from
the off-duty respite accorded by the dinner break.
Conclusion
I find that Respondent violated the Act by terminating
Christine Kiyohara because she refused to report for work
behind the Union's picket line on January 30. Basic to this
finding are the further findings that, in refusing to work
behind the Union's picket line, Kiyohara was engaging in
protected concerted activity, and was not excluded from
the protection of the Act by her failure to give 10 days
notice of her intention to honor the picket line. Subsumed
within these foundational findings is the further prefatory
conclusion that, upon the instant record, no basis exists for
concluding that the Union's strike with which Kiyohara
associated herself was unlawful.
In its recent decision in Walker Methodist Residence and
Health Care Center, Inc., 227 NLRB 1630, 1631-32 (1977),
the Board held that the provisions of Section 8(g) are
applicable only to strikes or picketing involving a labor
organization. In Walker, the Board held that two nurses
aides at a health care institution who, without the aid or
assistance of a labor organization, engaged in a brief work
stoppage for the purpose of presenting a grievance, were
engaged in protected concerted activity and were not
required to assume the advanced warning obligation
imposed by Section 8(g). The Board also reasoned that the
loss of status sanction of Section 8(d) did not apply to these
employees. In its decision, the Board reasoned:
In enacting Section 8(g), Congress did not make a
legislative finding of fact that all work stoppages
against health care institutions are so harmful that they
must be forbidden. Rather, it found that strikes or
picketing by labor organizations against health care
institutions are so potentially disruptive as to require
that advance notice be given. Nothing in the 1974
Health Care Amendments restricts concerted activity
by nonorganized employees, and the legislative history
does not indicate an intent to alter the scope of
protection granted them under Section 7. In fact, the
purpose of the 1974 amendments was to extend the
41
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
protection of the Act to employees of nonprofit health
care institutions who were excluded from coverage by
the 1947 Taft-Hartley Amendment. The amendments
should therefore not be read to reduce the preexisting
rights of health care employees unless explicit language
mandates that result. [Footnote omitted.]
I find on the basis of Walker that Section 8(g) may not be
read as requiring advance notice by an individual unrepre-
sented employee who entirely of her own volition and
without being proselytized decides, as here, to withhold her
services and thereby lend support to an otherwise lawful
strike action of a labor organization which itselfhas complied
with Section 8(g). This conclusion appears wholly conso-
nant with the emphasis placed by the Board in Walker,
upon the literal interpretation to be accorded the provi-
sions of Section 8(g). Nor is Walker to be distinguished
from the case at bar merely because the employee strike
action in Walker, in contrast to that undertaken by
Kiyohara herein, was not union-related. Thus, in its
Walker decision, the Board noted at 1631:
The legislative history stresses that the purpose of the
notice provision is to allow a health care institution to
make arrangements for the continuity of patient care in
the event of a strike or picketing by a labor organiza-
tion. Placing the duty of advance warning on labor
organizations is warranted because a strike involving a
labor organization is likely to last longer and involve a
greater number of employees than a work stoppage by
unorganized employees. Further, a strike by a labor
organization is of greater concern because the presence
of a picket line has the potential for interfering with
receipt of supplies and making both replacements and
nonstriking employees unwilling to work.
Here, by virtue of the Union's proper notice, Respondent
had been accorded the opportunity for preparation and
staffing envisaged by Section 8(g). Thus, Respondent's
interests were protected to the extent intended by the
statute. In joining the strike called by the Union, Kiyohara
visited no quantum or variety of detriment upon Respon-
dent's operations not previously foreseen by Congress as
likely to arise from work stoppages involving health care
institutions. That Congress intended to condone this
foreseeable detriment is readily inferable from its refusal to
forbid work stoppages against such facilities. To be certain,
the record manifestly demonstrates that there was adverse
impact visited upon Respondent's operation in second
postpartum by virtue of Kiyohara's decision to honor the
Union's picket line on January 30. Nevertheless, the
record, carefully analyzed, fails to disclose an erosive
1' The Board's reference in fn. 15 of Walker to its previous decision in
The Masonic and Eastern Star Home of the District of Columbia, 206 NLRB
789 (1973), does not warrant a different result. The 8(g) obligation devolving
on a readily definable group of employees who strike in derogation of their
union need not be here decided. Compare the statement of Senator Robert
A. Taft, Jr., during the floor debates at p. 115 of the Legislative History of
the Coverage of Nonprofit Hospitals under the National Labor Relations
Act. 1974.
1S Senator Harrison A. Williams, Jr., chairman of the Senate Labor
Committee, admonished during the Senate debates on the health care
amendment:
impact upon the quality of patient care of a magnitude
sufficient to render Kiyohara's conduct indefensible when
measured against patient rights and interests. Cf. N.L.R.B.
v. Fansteel Metallurgical Corporation, 306 U.S. 240, 252
(1939); N.LR.B. v. Washington Aluminum Co., 370 U.S. 9,
16-17 (1962); International Union, U.A. W.A., A.F. of L.,
Local 232 v. Wisconsin Employment Relations Board, 336
U.S. 245, 255-257 (1948). The thrust of Walker is
consistent with this conclusion and with the notion that
Kiyohara, being supportive of the Union's strike objec-
tives, was free to join the strike and could, without
jeopardizing her rights under the Act, trade on, as it were,
the 10-day notice of the Union, even though she was
neither a member of nor represented by the Union, and
had herself given no notice." Recent Board decisions in
District 1199, National Union of Hospital & Healthcare
Employees, R WDSU, AFL-CIO, (First Healthcare Corpora-
tion, d/b/a Parkway Pavillion Healthcare), 222 NLRB 212
(1976); Casey & Glass, Inc., 219 NLRB 698 (1975), and
United Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States and
Canada, Local 630, AFL-CIO (Lein-Steenberg), 219 NLRB
837 (1975), are not to the contrary. Rather, these recent
decisions are consistent with the observation of the Board
in Walker at 1631:, "Congress was concerned that sudden,
massive strikes could endanger the lives and health of
patients in health care institutions. In voicing this concern
and in considering the solution being proposed by Section
8(g), the legislators again and again spoke of placing the
duty on labor organizations to give notice before striking."
Thus, the implication of Board precedent to this point in
time, in my view, suggests that employees who strike in
support of a labor organization's objectives are subrogated,
in a sense, to that labor organization's proper compliance
with the requirements of Section 8(g).
But, in any event, narrowing the rationale of this
Decision to the precise facts at bar, it would lead to a
singularly anomalous result to hold that Congress intended
to exclude from the protection of the Act a single employee
who, of her own volition and without the intercession or
entreaty of any employee group or labor organization,
decided to lend her support to an otherwise lawful strike
action. Walker suggests no such inroad into employee
Section 7 rights and to impose a limitation here would be to
embark upon the very amendatory process against which
Senator Williams cautioned. In sum, I find that Kiyohara
did not lose the protection of the Act, or her status as an
employee, under the operation of Section 8(d), by reason of
her failure to give Respondent a 10-day notice of her
intention to join the work stoppage.
Well established is the principle that an employee who
honors a lawful picket line is engaged in protected activity
This legislation is the product of compromise and the National Labor
Relations Board in administering the Act should understand specifical-
ly that this committee understood the issues confronting it, and went as
far as it decided to go and no further and the Labor Board should use
extreme caution not to read into this act by implication - or general
logical reasoning - something that is not contained in the bill, its
report and the explanation thereof [1120 Cong. Rec. S12104 (daily ed.,
July 10, 1974.)1
42
KAPIOLANI HOSPITAL
and this principle applies without regard to whether or not
the employee honoring the picket line is a member of the
picketing labor organization or is merely sympathetic with
the objectives of the picket line. E.g., Gary Hobart Water
Corporation, 210 NLRB 742 (1974), enfd. 511 F.2d 284
(C.A. 7, (1975)); Keller-Crescent Company, a Division of
Mosler, 217 NLRB 685, 687 (1975). The instant record
discloses that Kiyohara sympathized with the objectives of
the RNs in seeking, by virtue of their strike and related
picketing, to improve their wages and terms and conditions
of employment. Moreover, Kiyohara discerned as well that
the Union's efforts would likely redound to the benefit of
nonprofessional hospital personnel who, like herself,
performed work duties in support positions to the profes-
sional nurses. Clearly, under established principles of
Board law, Kiyohara's actions in making common cause
with the strikers and refusing to work behind the picket line
were concerted in nature and were not motivated by fear
that her abstention would jeopardize her future nursing
career or compromise the future civility of her work
relationship with professional nurses. Gary Hobart Water
Corporation, supra; Shelly & Anderson Furniture Manufac-
turing Co., Inc. v. N.L.R.B., 497 F.2d 1200 (C.A. 9, 1974).
Cf. N.L.R.B. v. Union Carbide Corp., 440 F.2d 54 (C.A. 4,
1971).
Nor were Kiyohara's rights as a participant in the strike
affected by her failure to give Respondent advance
warning of her intention to honor the picket line. E.g.,
Kelco Corporation, 79 NLRB 759 (1948). Rather, Kiyohara
possessed the status on January 30, the day of her
termination, of an economic striker, with all attendant
protections and risks to job tenure, neither enhanced nor
diminished by virtue of her employment in the health care
industry. Walker Methodist Residence and Health Care
Center, Inc., supra.
Finally, I conclude, contrary to Respondent, that the
instant record does not warrant a determination that the
strike called by the Union and participated in by Kiyohara
was rendered unlawful by reason of the asserted refusal of
the Union to provide emergency services during the course
of the strike. Respondent is clearly correct in its contention
that the right to strike is not absolute and may be declared
unlawful and outside the protection of Section 7 of the Act
by reason of the unlawful manner in which they are
conducted.' 6 Moreover, Respondent properly asserts that
property rights may not be equated with the right to life. It
is, of course, true the record in the instant matter
establishes that prior to the strike the Union in public
pronouncements refused to commit itself and its members
to the performance of emergency services. But, in so doing,
it alluded, as found, to resources available to the hospitals
to provide adequate patient care. It also reached the
determination that matters of special need would be
resolved on the basis of professional judgments reached by
striking nurses on a case-by-case basis, as the need for
ministration of professional care did, in fact, arise. The
salient consideration before me is the fact that, in
'i See N L. R. B. v. Fansteel Metallurgical Corp.. supra, Southern Steamship
Companre v. N. L.R. B., 316 U.S. 31 (1942); N. L. R.B. v. Local Union No. 1229,
IBEW, A.F.L. [Jefferson Standard Broadcasting Company] 346 U.S. 464
(1953): United.4utoworkers v. W iconsin Employment Relations Board, supra;
compliance with the mandate of Section 8(g), the Union
served the requisite notice. As previously discussed, the
Union thus provided Respondent, and the other hospitals
with which it was engaging in collective bargaining, the
opportunity to staff and take emergency precautions which
was envisaged by the statute. Cf. Walker Methodist
Residence and Health Care Center, Inc., supra. In enacting
Section 8(g), Congress did not differentiate between health
care institutions on the basis of the type of services
rendered and there is no warrant for assuming that
Congress was unaware and insensitive to impact upon the
quality of patient care as would result from a strike, such as
here, against an acute care hospital facility. I am unwilling
to indulge such a distinction.
Turning to Kiyohara's termination, it is, of course,
settled law that an employer violates Section 8(aX I) and (3)
of the Act by terminating an employee because the
employee has participated in a lawful sympathy strike.
Upon a careful analysis of the evidence pertaining to the
decision of Meheula to terminate Kiyohara, it must be
determined that the motivation for her action emanated, at
least in part, from the decision of Kiyohara to withhold her
services in order to manifest her support for the strike
effort of the Union. The record evidence clearly establishes
a willingness on the part of Respondent, prior to the events
of January 30, to waive the call-in provision of its house
rules when the failure to abide by the rules' provisions was,
in the mind of management, an excusable or justifiable
one. Moreover, it is significant that on the evening of
January 30, during the course of her conversation with
Kiyohara, Meheula manifested a clear willingness to waive
the application of the call-in rule, despite Kiyohara's clear
breach of the provision, if she would report to duty for the
balance of her shift. This suggests rather strongly that the
breach of the rule was not the cardinal consideration in
Meheula's mind justifying Kiyohara's termination. Rather,
the clear implication of record, including the testimony of
Meheula herself, is that Meheula reached the decision
during the course of her January 30 telephone conversation
with Kiyohara to terminate Kiyohara because Kiyohara
had signaled her support of the union strike effort and had
announced her intention to join in that effort on an
ongoing and continuing basis. It is clearly inconsistent with
the entire thrust of Meheula's explanation, as well as past
policy of the Respondent applied to Kiyohara's two
previous absences, to contend, as Respondent does, that
Kiyohara's termination resulted solely from her "inexcus-
able failure to comply with [its] legitimate rule." I am
convinced that, had Kiyohara reported to duty on January
30 after her conversation with Meheula, no disciplinary
action of any kind would have resulted. It was her
declaration, in terms, that she was supporting the strike's
objectives and casting her lot with the strikers for the
duration of the strike that brought about her termination.
It is apparent from the record evidence that, in contrast to
previous absences involving waiver of the house rule,
management gave disparate treatment to Kiyohara when
N.LR.B. v. Rockaway News Supply Company, Inc. 345 U.S. 71 (1953);
Marshall Car Wheel and Foundry Co. of Marshall, Texas. Inc., 107 NLRB
314(1953).
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her absence was occasioned by her observance of a picket
line. In all the circumstances, it must be found that
Kiyohara's termination resulted from her involvement in
protected activity, concerted in nature and related to the
strike objectives of the Union. It is no defense that
Respondent may have been additionally motivated by
reason of its disenchantment with Kiyohara's apparent
indifference to the disruptive effects of her absence upon
hospital routine and patient care.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations de-
scribed in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) and
(3) of the Act, I shall order that Respondent cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that, on January 30, Respondent discrimi-
natorily terminated the employment of Christine Kiyohara,
I shall recommend that Respondent offer her immediate
and full reinstatement to her former position or, if that
position is no longer available, to a substantially equivalent
position of employment without prejudice to her seniority
or other rights and privileges, and make her whole for any
loss of earnings she may have suffered by reason of the
discrimination against her. Backpay shall be computed in
the manner prescribed in F. W. Woolworth Company, 90
NLRB 289 (1950), together with interest in accordance
with the policy of the Board as set forth in Isis Plumbing &
Heating Co., 138 NLRB 716 (1962).
Upon the foregoing findings of fact, and upon the entire
record in this case, I make the following:
CONCLUSIONS OF LAW
1. Kapiolani Hospital is an acute care hospital and is
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. Hawaii Nurses Association is a labor organization
within the meaning of Section 2(5) of the Act.
3. By letter dated January 15, Hawaii Nurses Associa-
tion notified Respondent and the Federal Mediation and
Conciliation Service of its intention to engage in a strike
against Kapiolani Hospital on January 26, and said notice
complied with the requirements of Section 8(g) of the Act.
,7 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
4. At all relevant times, Christine Kiyohara has been an
employee within the meaning of Section 2(3) of the Act,
and has not been a member of or represented by a labor
organization.
5. On January 30, Respondent unlawfully terminated
the employment of Christine Kiyohara because she had
engaged in protected concerted activities in support of the
Union's strike effort, and in so doing it violated Section
8(a)(1) and (3) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 17
The Respondent, Kapiolani Hospital, Honolulu, Hawaii,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging employees in their right to engage in
union or protected concerted activities, by unlawfully
terminating the employment of its employees or discrimi-
nating in any like or related manner with respect to the hire
or tenure of employment of employees or any term or
condition of employment in violation of Section 8(a)(1)
and (3) of the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
right to engage in self-organization, to bargain collectively
through representatives of their own choosing, to act
together for collective bargaining or mutual aid or
protection, or to refrain from any or all such activities.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Offer Christine Kiyohara immediate and full rein-
statement to her former position or, if that position is no
longer available, to a substantially equivalent position
without prejudice to her seniority or other rights and
privileges, and make her whole for any loss of wages which
she may have suffered by reason of the discrimination
against her, in accordance with the recommendations set
forth in the section of this Decision entitled "The
Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security records, timecards, person-
nel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this
recommended Order.
(c) Post at its Honolulu, Hawaii, facilities copies of the
attached notice marked "Appendix B." 8 Copies of said
notice, on forms provided by the Regional Director for
Region 20, after being duly signed by Respondent's
representative, shall be posted by it immediately upon
ni In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
44
KAPIOLANI HOSPITAL
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
45