Mercy-Memorial Hospital Corp.

National Labor Relations Board - Board Decisions

Aug 31, 1977

231 N.L.R.B. 1108 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mercy-Memorial Hospital Corporation and Local 79,
Service Employees International Union, AFL-CIO
and Mercy-Memorial Hospital Employees' Griev-
ance Committee, Party in Interest. Cases 7-CA-
12174. 7 CA 12015(1), 7-CA-12015(2), and 7-
CA-12599
August 31, 1977
DECISION AND ORDER
On November 18, 1976, Administrative Law Judge
Paul Bisgyer issued the attached Decision in this
proceeding. Thereafter, General Counsel filed excep-
tions and a supporting brief and Respondent filed a
brief in opposition to General Counsel's exceptions,
and in support of the Administrative Law Judge's
Decision, and also filed cross-exceptions to the
Administrative Law Judge's Decision and a brief in
support thereof.
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, to
modify his Remedy,' and to adopt his recommended
Order.
We fully agree with the Administrative Law
Judge's finding that the instant Employees' Griev-
ance Committee is not a labor organization within
the meaning of Section 2(5) of the Act. The facts
surrounding the establishment and operations of the
Committee are thoroughly described in the Adminis-
trative Law Judge's Decision and need not be
repeated here. Suffice that these findings are amply
supported by the record. Based on the facts, we are
satisfied, as the Administrative Law Judge was, that
the Employees' Grievance Committee does not
qualify as a labor organization under the language of
Section 2(5) even given its broad application under
N. L. R. B. v. Cabot Carbon Company and Cabot Shops,
Inc., 360 U.S. 203 (1959). The Administrative Law
Judge's Decision clearly articulates our reasons for
so finding. Our dissenting colleagues' arguments to
the contrary are not persuasive.
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
' In accordance with our decision in Florida Steel Corporation, 231
NLRB 651 (1977). we shall apply the current 7-percent rate for periods prior
to August 25. 1977. in which the "adjusted prime interest rate" as used by
the Internal Resenue Service in calculating interest on tax payments was at
least 7 percent.
2 In a recent decision, a panel majority (Members Penello and Murphy)
held that an employee council that "performs a purely adjudicatory function
231 NLRB No. 182
hereby orders that the Respondent, Mercy-Memorial
Hospital Corporation, Monroe, Michigan, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
CHAIRMAN FANNING and MEMBER JENKINS, dissent-
ing in part:
Contrary to our majority colleagues, we find that
the Mercy-Memorial Hospital Employees' Grievance
Committee (the committee) is a labor organization
within the meaning of the Act and that Respondent
violated Section 8(a)(2) and (1) by assisting and
interfering with the administration of the committee.
There is no dispute that Respondent assisted and
interfered with the administration of the Committee.
The majority agrees with us that Respondent did.
Our disagreement with the majority, rather, is over
whether the Committee is a labor organization within
the meaning of Section 2(5) which defines "labor
organization" as:
[A]ny organization of any kind, or any
agency or employee representation committee or
plan, in which employees participate and which
exists for the purpose, in whole or in part, of
dealing with employers concerning grievances,
labor disputes, wages, rates of pay, hours of
employment, or conditions of work.
In N.L.R.B. v. Cabot Carbon Company and Cabot
Shops, Inc., 360 U.S. 203 (1959), the U.S. Supreme
Court held that the term "dealing with" is not
synonymous with the more limited term "bargaining
with." It is thus settled that the absence of any
"bargaining" in the usual sense of that word is
immaterial. It is also well settled that the phrasing of
the statutory definition is in the disjunctive. Hence,
"dealing with" an employer concerning one (or
more) of the matters enumerated in Section 2(5)
suffices.
The declared purposes and the actual functions of
the Committee demonstrate that it existed for the
purpose, at least in part, of dealing with Respondent
concerning one or more of the matters enumerated in
Section 2(5). Even assuming, as our colleagues find,
that the Committee was created to give employees a
voice in resolving grievances at stage III of the
grievance procedure, it is clear that the Committee
has not been limited to "rendering a final decision on
a grievance." 2 Rather, the committee function
and does not interact with management for any purpose or in any manner
other than to render a final decision on the grievance" is not a labor
organization within the meaning of the Act. Sparks Nugget, Inc., d b/a John
Ascuaga's Nugget, 230 NLRB 275 (1977) (Chairman Fanning dissenting).
We find no support for Sparks Nugget in Board precedent. Cabot Carbon, or
the Act. However, even were we' inclined to accept the majority's view in
Sparks Nugget, we find factual differences which clearly distinguish the
1108
MERCY-MEMORIAL HOSPITAL
embraces action by management or recommenda-
tions by elected employee representatives.
The declared purposes of the Committee were set
forth in two policy statements issued by Respondent
which reflected the consensus at the employee
meetings concerning the functions of the Committee.
The expanded version of the policy statement issued
in August 1975, immediately following the election of
the permanent Committee, provides that the Com-
mittee has "the right and the obligation to recom-
mend . . . any change in the rules, regulations, and
standards. These recommendations will then be
discussed and acted upon by the administrative head
and the committee members and committee will be
informed of that decision." It is thur as plain as
words can express that the Committee existed, at
least in part, for the purpose of dealing with
Respondent by recommending changes in rules,
regulations, and standards which patently include
"conditions of employment" and other matters
enumerated in Section 2(5).
Moreover, the Committee has recommended man-
agement consideration of changes in terms and
conditions of employment. Within the first month
after the permanent Committee's members were
elected, an employee filed a grievance complaining
about the different methods used to determine
eligibility for longevity service pins. In marked
contrast to stage III of the grievance procedure,: the
service pin "grievance" was handled in the manner
described in the policy statement quoted above.
Thus, Respondent's personnel director and his
designated successor met with the Committee to
discuss the issue after which Respondent's represen-
tatives solicited from the Committee a recommenda-
tion for a single uniform policy. The Committee
made such a recommendation which was adopted by
Respondent sometime later without further discus-
sion or negotiation.
In sum, we find that, whatever role the Committee
was originally conceived to play, the declared
purposes and the actual functions of the Committee
leave no doubt that it was an organization which
existed, in part, for the purpose of dealing with
grievances and conditions of work and, therefore,
that the Committee was a labor organization within
instant case. Moreover, these differences demonstrate, convincingly. that the
(ommnittee has interactled ] with management for [a I] purpose land I in la]
manner iother than to render a final decision on the grievance."
: As fulls set forth in the Administrative Law Judge's Decision. stage III
of the grievance procedure provides that the Committee is to investigate all
aspects of the grievance. meet with the grievant if necessary. and render its
decision within 5 days bh informing the personnel director, who in turn
informs the grievant. It the grievant is not satisfied with the Committee's
decision, he mas proceed to stage IV. a review by the hospital's directors.
4 North American Rockwell Corporation. 191 NLRB 833 (1971): FTS
Corp. (Division of Hilco), 184 NLRB 787 (1970): Pines of .4merica, Inc.. 178
NLRB 376 (1969); Monet Oldsmobile Companl. 201 NLRB 155(1973).
Section 2(5) of the Act.4 It follows that assisting and
interfering with it violated Section 8(a)(2) and (1).
DECISION
STATEMENT OF THE CASE
PAUL BISGYER, Administrative Law Judge: This proceed-
ing, with all parties except the Grievance Committee
represented, was heard on June 1, 2, 14, and 15, 1976, in
Detroit, Michigan, on the consolidated complaint of the
General Counsel issued on January 30, 1976,1 and the
answer of Mercy-Memorial Hospital Corporation, herein
called the Respondent or the Hospital. The litigated
questions to be resolved are whether the Respondent
unreasonably delayed the reinstatement of striking employ-
ees at its Mercy Hospital on their unconditional applica-
tion to return to work, thereby violating Section 8(a)(3) and
(I) of the National Labor Relations Act, as amended;2
whether the Respondent, in violation of the same provi-
sions, discriminatorily required certain returning strikers to
work two weekends out of three, while nonstrikers, strikers
who had abandoned the strike earlier, and strike replace-
ments hired before March 1, 1974, were only required to
work every other weekend; whether the Respondent
dominated and interfered with the formation and adminis-
tration of a so-called Grievance Committee for the
employees at its Mercy and Memorial Hospitals in
violation of Section 8(a)2) and (I) of the Act; and whether
it engaged in preelection misconduct in connection with
the scheduled election at Memorial Hospital (Case 7-RC-
12947) and otherwise interfered with, restrained, and
coerced its employees at Mercy Hospital in the exercise of
their statutory rights, in violation of Section 8(a)( ) of the
Act.3 At the close of the hearing, the parties briefly stated
their positions with respect to some of the difficult issues
presented in this case but otherwise waived oral argument
in favor of submitting comprehensive briefs. However. only
the Respondent availed itself of this opportunity to file a
brief, which proved to be very helpful.
Upon the entire record, and from my observation of the
demeanor of the witnesses, and with due consideration
being given to the arguments advanced by the parties, I
make the following:
The consolidated complaint is based on separate charges filed by Local
79, Service Employees International Union, AFL-CIO. and sersed on the
Respondent by registered mail on the indicated dates: Cases 7 CA 12174.
7 CA 12015(1),7 CA- 12015(2). and7 CA 12599 filed on July 15. Ma3 12.
August 19, and December 17, 1975, respectively. and served on Jul 5 15, MaN
13. August 19, and December 18. 1975. respectively.
2 The allegations of the consolidated complaint relating to the denial of
reinstatement of Herman Mayne, one of the striking emplo' ees. were settled
during the hearing without prejudice to the other litigated issues.
I Sec. 8(a)( I ) of the Act makes it an unfair labor practice for an employ er
"to interfere with, restrain, or coerce employees in the exercise of the rights
guaranteed in section 7." Inscfar as pertinent. Sec. 7 provides that
"le ]mployees shall have the right to self-organization, to form. join. or assist
labor organizations, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection ....
Sec. 8(aX2) makes it an unfair labor practice for an employer "to
dominate or interfere with the formation or administration of any labor
organization or contribute financial or other support to it.
Sec. 8(aK3), with certain qualifications not material herein, prohibits an
(( Contntlled)
1109
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a Michigan corporation, with its
principal office and place of business at 718 North
Macomb Street, Monroe, Michigan, is engaged in the
operation of a health care institution providing general and
acute care for the sick and infirm. For such purposes, the
Respondent operates two facilities-one, Mercy Hospital,
at the above location, and the other, Memorial Hospital,
also located in Monroe about I mile away. In the regular
course and conduct of its business operations, the Respon-
dent annually receives gross revenues in excess of $500,000
for its hospital services and purchases supplies valued in
excess of $50,000, more than $5,000 worth of these supplies
being shipped to it directly from suppliers located outside
the State of Michigan.
The Respondent concedes, and I find, that it is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
11. THE LABOR ORGANIZATIONS INVOLVED
It is undisputed that Local 79, Service Employees
International Union, AFL-CIO, herein called the Union, is
a labor organization within the meaning of Section 2(5) of
the Act. For the reasons subsequently discussed, I further
find that the Mercy-Memorial Hospital Employees' Griev-
ance Committee, herein referred to as the Grievance
Committee, is not a labor organization within the meaning
of Section 2(5) of the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. Alleged Discriminatory Delay in Reinstating
Strikers
1. Background
To put this issue in proper perspective, it may be well to
set forth at the outset the prior state, Board, and court
proceedings as recently summarized by the Board in
Mercy-Memorial Hospital Corporation, 224 NLRB 51, 52
(1976), 4 as follows:
. .. [Plursuant to a consent agreement, an election
was conducted by MERC [Michigan Employment
Relations Commission] on May 20, 1970, which the
Union won. In the absence of objections to the election,
the Union was certified by MERC on May 28, 1970 [as
the exclusive representative of certain employees of
Mercy Hospital in an appropriate unit]. Thereafter,
collective bargaining between the parties commenced,
but no agreement was reached and, on June 30, 1972,
the Respondent announced it would no longer bargain
employer "by discrimination in regard to hire or tenure of employment or
an), term or condition of employment to encourage or discourage
membership in any labor organization .... "
I The parties stipulated that I may take official notice of the Board's
decisions in Mercr-Memorial Hospital Corporation. 224 NLRB 51 (1976).
(Case 7-CA 12474) and 221 NLRB I (1975) (Cases 7 RC 12947 and 7
RM 1010) and that the records in those cases, including the transcripts,
as it did not believe the Union represented a majority
of the employees in the previously certified unit.
On July 10, 1972, the Union filed a refusal-to-
bargain charge with MERC. On May 16, 1973, after
considering a MERC administrative law judge's deci-
sion recommending dismissal of the charge, MERC
found that Respondent's refusal to bargain was an
unfair labor practice and ordered Respondent to
bargain with the Union and take certain other remedial
action. Respondent appealed MERC's decision to the
Michigan Court of Appeals which, on March 15, 1974,
issued its decision affirming MERCs unfair labor
practice determinations On June 12, 1974, the Michi-
gan Supreme Court issued an order denying Respon-
dent's application for leave to appeal, and Respon-
dent's motion for reconsideration of that order was
similarly denied on September 12, 1974.
Thereafter on September 27, 1974, after the August
25, 1974, effective date of the hospital amendments,
Respondent filed with the Board a representation
petition in Case 7-RM-1010 seeking a single unit of all
employees at Mercy and Memorial Hospitals. The
Regional Director concluded that no question concern-
ing representation existed and dismissed the petition.
Thereafter, Respondent filed a timely request for
review of the Regional Director's decision with the
Board. On December 20, 1974, the Board remanded the
case to the Regional Director for a hearing and
reinstated the petition for this purpose. After a hearing,
the case was transferred to the Board for decision.
Respondent contended that an election should be
directed in the requested two-hospital unit because the
circumstances of the case compelled the Board to deny
comity to the certification of MERC and subsequent
decisions of MERC and the Michigan courts finding a
refusal to bargain. In support of its position that comity
should be denied, Respondent argued that (I) MERC's
certification of the Union should not be recognized, as
the hospital amendments to the Act give the Board
exclusive jurisdiction over Respondent; (2) Respondent
was not under an obligation to bargain with the Union
because, at the time of the initial refusal to bargain in
June 1972, Respondent had a good-faith doubt as to
the Union's continued majority status; and (3) the
MERC-certified unit was no longer appropriate be-
cause Mercy and Memorial Hospitals had effected a
merger which so integrated their operations that only a
unit encompassing employees at both locations is
appropriate. On October 23, 1975, the Board issued its
Decision and Order 4 in which it, inter alia, found
' Service Ermployees International Union, Local 79, AFL-CIO v.
Monroe Mercy Hospital, 52 Mich. App. 165, 216 NW 2d 589.
i221 NLRB I (1975).
exhibits. and briefs, be incorporated into the record in the proceedings at
bar. The Respondent also made a written offer of proof relating to issues
previously raised and determined by the Board in the above-cited cases. The
written offer was made part of the record but the proffered evidence, which
was neither newly discovered nor previously unavailable, was rejected as an
attempt to relitigate issues already resolved by the Board.
1110
MERCY-MEMORIAL HOSPITAL
Respondent's contentions to be without merit, stated
that the single Mercy Hospital unit certified was in
close conformity with units found appropriate by the
Board in similar cases, gave comity to the Michigan
certification and proceedings, and dismissed the peti-
tion.
Accordingly, in its Decision issued in 224 NLRB 51 (1976),
the Board, under established law, declined to relitigate
previously raised and resolved issues and found that since
November 3, 1975, the Respondent refused to bargain
collectively with the Union as the exclusive bargaining
representative of the employees in the Mercy Hospital unit
in violation of Section 8(a)(5) and (1) of the Act.
2. The evidence
As indicated above, following the Union's certification
by MERC on May 28, 1970, the Respondent and the
Union undertook contract negotiations.5 No agreement
having been reached, most of the Mercy Hospital unit
employees went out on strike on May 1, 1972, and picketed
the Respondent in support of the Union's economic
demands.6 On June 30, 1972, while the strike was in
progress, the Respondent withdrew recognition from the
Union, stating its reasons in a letter sent to the Union on
that date that
As you know, the strike by your union has made it
necessary for the hospital to hire replacements in order
to continue to provide health care to the community.
Most of the striking employees have been permanently
replaced. It is now our belief that your union no longer
represents the majority of employees at Mercy Hospi-
tal. Accordingly, it would be inappropriate for us to
continue further negotiations.
The strike continued for almost 3 years in somewhat
diminished form until February 20, 1975, when the Union
decided to terminate it and make an unconditional
application on behalf of the strikers for their return to
work. Accordingly, on Friday, February 21, 7 during a late
afternoon recess of the hearing on the Respondent's above-
mentioned petition in Case 7-RM-1010,8 the Union
handed the Respondent's attorney the following letter:
Please be advised that pursuant to Certification of
Michigan Employment Relations Commission, Local
79, Service Employees' International Union, AFL-CIO
was declared the exclusive bargaining representative of
a bargaining unit at your hospital ....
"The bargaining unit in which the Union was certified by MERC as
hargaining agent and which the Board adopted as appropriate in 224 NLRB
51 consists of:
All nurses aides. physical therapy aides. central supply aides.
laborator) aides, pharmacy aides, ward clerks, orderlies, dietary
employees, housekeeping employees. laundry employees, maintenance
employees, and grounds employees at the Respondent's Mercy
Hospital in Monroe, Michigan. but excluding registered nurses, L.PN's.
GPN's, office clerical employees. professional employees. technical
employees. supersisors. and all other employees.
i JI. Exh I is a list of 175 unit employees on Merce lHospital's payroll on
April 30. 1972. the day before the strike. Jt. Exh. 2 lists the names of 92
employees hired between Ma) 1, 1972. when the strike began, and June 30,
1972. the dlas the General Counsel contends the strike became an unfair
Subsequent thereto, on or about May 1, 1972, a
strike was instituted by the bargaining union against
your hospital. Pursuant thereto, numerous employees
within the above-mentioned bargaining unit went on
strike to attain certain economic goals.
Please be advised that we are hereby unconditionally
offering the immediate return to work of all the strikers
who left theirjobs at the hospital.
In accordance with this decision, we are immediately
withdrawing our picket lines.
A brief conversation then ensued among the Union's
Dusan Vorkapich, the assistant to its president, its
attorney, Lee Franklin, the Respondent's administrator,
Richard Hiltz, and its then personnel director, Benjamin
Duckworth, in which the Respondent's officials pointed
out the problems entailed in getting the returning strikers
back to work in view of the strike's duration, the large
number of strikers involved, the pending representation
hearing, the need for physical examinations of the strikers
required by law, as well as by the Hospital, and the
problem of scheduling these examinations and locating
some of the employees. While acknowledging the difficul-
ties presented and the need for the physical examinations,
Franklin asserted the Union's object and concern were to
secure the strikers' return to work. The representation
hearing was then adjourned to March 4.
Most of the next week of February 24 was spent by Hiltz
and Duckworth in the office of the Respondent's counsel
preparing for the testimony they would give at the
scheduled resumption of the representation hearing and
arranging more than 100 exhibits the Respondent planned
to introduce in evidence. However, during this week,
Duckworth instructed his secretary and another personnel
office clerk to assemble the files of all the striking
employees; to compile a list of strikers containing their
addresses, telephone numbers, and blank spaces in which
to note other information; and to prepare envelopes in
which to insert notification to strikers to contact the
personnel office. At this time, the personnel office began
receiving telephone calls from strikers who were advised by
the office to come in, sign up for their availability, update
their addresses and telephone numbers, and furnish other
personnel information. The callers were also informed that
they would be contacted to take a physical examination.
When strikers appeared at the personnel office as a result
labor practice strike as a result of the Respondent's withdrawal of
recognition of the Union which. as indicated above, MERC and the
Michigan courts found constituted an unlawful refusal to bargain. It. Exh. 2
also lists 48 employees who were employed on April 30, 1972, and who
either did not go out on strike or initially struck but abandoned the strike
and returned to work prior to June 30, 1972. The Respondent argues that
the strike at all times was economic and was never converted into an unfair
labor practice strike as it has been under no statutory obligation to bargain
with the Union since June 30. 1972. However, the reasons urged by the
Respondent in justification of its withdrawal of recognition were rejected by
the Board in 224 NLRB 51 and 221 NLRB I.
7 All dates subsequently mentioned. unless otherwise indicated, relate to
1975.
" The hearing on this petition was held on February 20 and 21 and
March 4, 7. and 10.
III1
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of their prior telephone calls or in the first instance, their
appearances were noted on the list, as well as their latest
addresses and telephone numbers and other data. In
addition, they were told that they would be notified when
to report for a physical.
In the early part of the week of February 24, the
Respondent composed a letter for transmittal to the
strikers to report to the personnel office later in the week.
However, this letter was not mailed out because a number
of strikers who had called or visited the personnel office
told Duckworth's secretary that a rumor was circulating
that, if strikers came to work for even I day, they would be
entitled to 3 years' backpay while they were on strike. To
disabuse the strikers of this erroneous impression, the
Respondent gave thought to the idea of including in its
proposed letter to the strikers a requirement of a quit slip
from their current employer. However, the Respondent
decided against it but, instead, determined to have
Assistant Administrator Wasserman directly convey over
the telephone the message quoted below to all the strikers
for whom the Respondent had telephone numbers:
Good morning, this is Mr. Wasserman of Mercy-
Memorial Hospital. You recently indicated to the
Personnel Office that you wished to return to work.
There has been a rumor started that you are going to
receive three years back pay. This is not true. You are
not entitled to any back pay. I am informing you of this.
If you are planning to quit a job and asking to return
just for this reason, reconsider. We do not want you
misled.
For such purpose, Wasserman was given a list of strikers
with their telephone numbers. Either the same week or the
following week of March 3, Wasserman started making
telephone calls to the listed strikers over a period of about
10 working days. Hiltz estimated that Wasserman probably
conveyed the message to half the individuals on the list and
to other strikers who called the personnel office.
In addition to the Wasserman communication, the
Respondent also decided to dissipate the effects of the
misleading rumor by requiring the then employed strikers
to submit quit slips showing that they had terminated their
current employment, at the time when they returned to
work at the Hospital after they had passed their physicals.9
This requirement the Respondent believed would discour-
age strikers from accepting reinstatement to qualify for the
3 years backpay and then quit the Hospital job to return to
their former employment. Accordingly, strikers were
apprised of the quit slip condition when they appeared at
the personnel office or otherwise communicated with it.
Moreover, they were told that they had the right to give
their current employer notice that they were resigning, if
they so desired. It appears that all employed strikers
furnished quit slips upon their reinstatement at the
Hospital. There is no evidence that this requirement
delayed anyone's recall.
During the week of February 24, a new letter dated
February 28 was drafted by the Respondent to replace the
' Quit slips were not required before the strikers took their physical
examination in order to avoid jeopardizing their current employment should
they fail the examination.
first one mentioned above. It was mailed to all the striking
employees, some 90 in number, including, by mistake,
those who had previously abandoned the strike; those who
had quit the Respondent's employ before the strike ended;
and those who had died since the strike began.10 Letters,
which were returned by the post office because of incorrect
address, were remailed upon ascertaining their latest
addresses. The letter in question read:
We have been notified by Local 79, SEIU, that it has
finally abandoned the strike begun on May 1, 1972 and
has unconditionally offered the return to work of the
strikers.
While the hospital does not have a contract with the
union, if you desire to return to work, you must report
to the Personnel Department at the Mercy Unit by
Friday, March 7, 1975. The Personnel Department will
be open between the hours of 10:00 a.m. to 12:00 noon
and from 2:00 p.m. to 4:00 p.m. Tuesday, Wednesday,
Thursday, and Friday, March 4-7, 1975.
It appears that under date of February 27, the Union
also sent out the following letter to striking employees:
Upon the advice of Counsel, we have withdrawn the
picket line at Monroe Mercy Hospital and uncondi-
tionally offered the return to work of all strikers.
We hereby advise all strikers to immediately make
your availability known by going to the Hospital and
accepting any return to work offer made to you by the
Hospital. Please advise the Union as to the results.
We shall keep you informed of developments.
On Tuesday, March 4, before the resumed representation
hearing was opened, Union Attorney Franklin inquired of
Administrator Hiltz and Personnel Director Duckworth
the status of the returning strikers. The Respondent's
officials explained their efforts to assemble the strikers'
names, addresses, and telephone numbers for the purpose
of scheduling physical examinations and the difficulties the
Respondent was experiencing in locating strikers who
"were gone" and in obtaining their current addresses. In
addition, Hiltz and Duckworth told Franklin that the
Respondent was obliged to hire an extra doctor in order to
process the physical examinations; that it was moving as
fast as it could to arrange for the strikers' reinstatement,
which could take a few weeks more; and that the strikers
would be scheduled for physical examinations. Franklin
indicated that she understood the problems of processing
physicals and locating strikers after a 3-year strike,
repeating what she had previously said that the important
thing was getting the strikers back to work. She also voiced
deep concern over the Respondent's requiring quit slips
from the strikers who were then employed. In response, the
Respondent's officials informed her of the unfounded
rumor regarding 3-year backpay, and the Respondent's
fear that some strikers might quit their current jobs they
otherwise might not do only to obtain backpay. The
Respondent's officials also told Franklin that the quit slip
i° The individuals who were erroneously sent the February 28 letter to
report are listed on Appendix A and obviously cannot be regarded as
applicants for reinstatement.
1112
MERCY-MEMORIAL HOSPITAL
requirement was intended to counteract this erroneous
impression of the strikers. On this note the conversation
ended.
It is undisputed that state law requires that employees of
health care institutions who are in contact with patients
take preemployment and periodic physical examinations.
Apparently, consistent with state law, the Respondent has
had a long established policy of requiring preemployment
and less comprehensive annual physical examinations,
including various laboratory tests and chest X-rays. In
addition, under its policy, employees on nonmedical leave
of absence for more than 90 days have been required to
pass a complete preemployment type of physical examina-
tion before returning to work and, if they fail such
examination, they must produce a private doctor's certifi-
cate that their condition of health permits their return to
their duties."
Since the strikers had been absent from work for almost
3 years and had had their last physical examination about
33 to 45 months ago, the Respondent undertook to make
arrangements for a preemployment type of physical
examination for the returning strikers. Such an examina-
tion is normally conducted by the only two doctors in the
Respondent's employ,12 each of whom is regularly assigned
to the emergency rooms at Mercy and Memorial Hospitals.
Because of the large number of strikers seeking reinstate-
ment and in order to free the emergency room doctors so
that they could conduct the employee physical examina-
tions, without disrupting the emergency room services, the
Respondent retained another doctor through the place-
ment office at the University of Michigan Medical Center
who was available for the week of March 10 to relieve the
emergency room doctors. Thereupon, during the week of
March 3 Duckworth's secretary proceeded to call the
strikers on the list to schedule their examinations of one or
one-half hour duration at various times during the
following week convenient to the strikers if the time slots
were open.
Almost all of the examinations were thus processed and
taken during the week of March 10. Upon the completion
of these examinations, the Respondent notified the first
group of strikers to report for work on March 18.
Subsequent notifications were sent to the remaining
strikers on different dates. The initial group of recalled
employees consisted of those who were unemployed at the
time. Duckworth testified that due to the recession the
Respondent felt, and so advised the strikers, that it would
be fair to recall the unemployed strikers first before
reinstating those who still had a job. This sentiment was
also conveyed in a letter to a striker, Mattie Hoye, on
March 21, as follows:
This will advise you that your physical examination
was satisfactory and you are eligible to return to work
" There are other aspects of the Respondent's health policy not material
to the questions here involved.
I:' There are other doctors on the Hospital's staff who are individual
practitioners not in the Respondent's emplos hut have hospital privileges.
J hes do not conduct employee physical examinations for the Respondent.
l Sinct it is clear that the Respondent does not claim that the strikers'
former jobs were not available at the lime of their application for
reinstatemenl. it is unnecessars to determine whether the strikers had rights
at the hospital. However, our records indicate that you
are presently working at the Ford Motor Company.
Our immediate concern has been the return to work of
those strikers who have been unemployed.
Because you are presently employed there will be a
short delay to your return to work at the hospital. We
will notify you two weeks in advance of our resched-
uling you to duty at the hospital. We will then request
that you notify your present employer that you are
resigning.
Duckworth testified that similar letters were sent to other
strikers who were employed at the time of their offer to
return to work at the Hospital. There is no evidence that
this order of reinstatement was objected to by the Union or
any striker. Nor is any contention made that it was
discriminatory.
3. Concluding findings respecting reinstatement
Preliminarily, it should be noted that the question to be
resolved is not whether the striking employees were
discriminatorily denied reinstatement-for they evidently
were not-but whether their reinstatement was unreason-
ably delayed.'3 Although conceding that the requirement
of a physical examination for the strikers before their
reinstatement was not per se improper and that some delay
in reinstating them might be excusable, the General
Counsel and the Union contend that the delay here in
scheduling the physical examinations and recalling the
strikers was unreasonable and unjustifiable and constituted
an infringement of the strikers' statutory rights violative of
Section 8(a)(3) and (1) of the Act. In addition, they urge
that the Respondent's imposition of a quit slip from the
strikers' current employers as a condition of reinstatement
similarly violated the Act. The Respondent, on the other
hand, takes the position that the circumstances related
above plainly demonstrate that it did not unreasonably
delay the scheduling of the physicals or the reinstatement
of the first group of strikers on March 18. It, however,
concedes that, with certain exceptions to be considered
below, the reinstatement of the other strikers beyond that
date may not be justified.' 4 As for the quit slips, the
Respondent argues that it was prompted to request them as
part of its efforts to disabuse the striking employees of their
mistaken belief inspired by rumors that they would collect
some 3 years backpay if they returned to work at the
Hospital, thereby inducing them to give up their present
jobs which they would not otherwise do.
There can be no question that, as a general rule, an
employer is obligated to reinstate without unreasonable
delay striking employees on their unconditional applica-
tion to return to work. Certainly, what is reasonable or
unreasonable depends on all the facts and circumstances of
of unfair labor practice stnkers by reason of the Respondent's withdrawal of
recognition on June 30. 1972, which would entitle them to reinstatement
even if it meant displacing their replacements, as the General Counsel and
the Union contend, or whether they were only econormic strikers with rights
set forth in The Laidloa Corporation, 171 NLRB 1366 (1968). as the
Respondent maintains.
4 For this reason, the Respondent admits its liability for backpas
subsequently to be determined in compliance proceedings
1113
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a particular case and the existence of legitimate and
substantial business reasons for the delay.'S If the rein-
statement is unduly delayed, the employer's conduct
necessarily undermines the employee's statutory right to
engage in protected union and concerted activities in
violation of Section 8(a)(3) and (I) of the Act.
On the basis of the record before me, I find, in agreement
with the Respondent, that the reinstatement of the first
group of striking employees on March 18 was timely and
justified by the circumstances and legitimate and substan-
tial business considerations. As previously discussed, upon
receiving the Union's unanticipated application for the
reinstatement of the strikers at the Board representation
hearing on Friday afternoon, February 21, the Respondent
diligently proceeded to assemble the strikers' files, to
compile their names, addresses, and telephone numbers,
and to take steps to update this information necessitated by
the exceptionally lengthy strike of almost 3 years. Signifi-
cantly, it appears that at this time there was no firm list in
existence identifying the strikers who were interested in
returning to their jobs at the Hospital-at least the Union
did not supply one to the Respondent. Indeed, on
February 27, a week after it made its reinstatement
application, the Union wrote to the striking employees
informing them of its action and advising them to visit the
Hospital to make known their availability to return to
work. The next day, the Respondent also sent letters to the
strikers to report to the personnel department at any time
during the period of March 4 through March 7 if they
desired to be reinstated. A number of these letters never
reached the strikers because they were unknown at the
indicated addresses, requiring further efforts to locate them
to apprise them that applications for reinstatement were
being processed. During this period, the Respondent was
also communicating with strikers to inform them that the
rumors regarding their entitlement to 3 years backpay were
unfounded and not to quit their jobs for that reason alone.
In addition, during the week of March 3 the Respondent
was involved in contacting some 90 strikers to schedule, at
their convenience if possible, physical examinations man-
dated by state law and required by the Respondent's well-
established policy. To expedite these examinations, the
Respondent was obliged to hire a doctor to relieve the only
two doctors on the Respondent's payroll, who were
regularly assigned to service the Mercy and Memorial
emergency rooms, to conduct these physicals. These
examinations were given during the week of March 10
which was the time when the relief doctor was available to
assume his duties. In the meantime, the Respondent's
efforts and problems in recalling the strikers were made
known to the Union which indicated an understanding of
what they were but expressing its desire to see that the
strikers were returned to work.
In sum, I find that, whatever delay there was in not
recalling the first group of strikers until March 18, it was
due to the need for a complete physical examination of the
returning hospital workers and the problems necessarily
occasioned by the sudden termination of a 3-year-old
strike. Accordingly, I find that the reinstatement of the first
I' Cf. N.L.R.B. v. Fleetwood Trailer Co., Inc., 389 U.S. 375 (1967);
N.L. R.B. v. Great Dane Trailers, Inc., 388 U.S. 26(1967).
group of strikers on March 18 was not unreasonably
delayed but, on the contrary, was justified for legitimate
and nondiscriminatory reasons. I therefore conclude that
the Respondent did not violate the statutory rights of these
employees who are listed in Appendix B of this Decision.
This result is not negated by the fact that the Respondent
required of all employed strikers a quit slip from their then
employer as a condition for returning to work at the
Hospital. I find, under the special facts and circumstances
of this case, related above, that the imposition of this
condition was warranted. Moreover, the record is devoid of
any evidence showing that the reinstatement of any striker
was deferred on account of this requirement.
Turning to the strikers who were reinstated after March
18, the Respondent concedes that the reinstatement of the
employees listed in Appendix C attached hereto might
have been unreasonably delayed, thereby entitling them to
backpay for the indicated periods. Since the Respondent
has failed to show any legitimate or justifiable reason for
not returning those strikers to their jobs by March 18,
which I have heretofore found to be a reasonable and
timely date, I find that such delay violated Section 8(a)(3)
and (1) of the Act. Accordingly, as subsequently provided
in "The Remedy" section of this Decision, the Respondent
shall reimburse the employees listed in Appendix C for
their loss in pay from March 18, 1975, to the date of
reinstatement or, in the case of one individual, Ronald
Fountain, to the date he was supposed to report to work.
The Respondent, however, argues that the individuals
separately discussed below were not unlawfully denied
reinstatement and therefore no unfair labor practices were
committed against them. The General Counsel has not
indicated a specific position with respect to any of these
individuals.
Opal Andrews: Upon receipt of the Respondent's letter of
February 28, 1975, she called and wrote the Respondent
from Florida informing it that she would return to the area
by April 1. Although originally scheduled for a physical
examination on March 14, she returned to Michigan on
March 25 on which date she received her physical. She was
reinstated on April I. I find, in agreement with the
Respondent, that the delay beyond March 18 in her
reinstatement was not attributable to the Respondent and
that therefore no violation of the Act was committed.
Alice and Mary Biniecki: Although they received the
Respondent's February 28, 1975, letter, the Respondent
states in its brief that the parties' stipulation read into the
record at the hearing fails to disclose that the Respondent's
records show that they never responded. For this reason, I
shall leave the matter to compliance to determine the facts
with respect to their right to reinstatement and backpay.
Shirley Boden: After reporting and taking her physical
examination on March 10, Boden advised the Respondent
by letter dated March 14 that she wanted to give her
current employer 2 weeks notice that she was leaving.
Apparently, the Respondent agreed and reinstated her on
April 1. I find, as the Respondent urges, that the delay in
Boden's reinstatement was not due to any fault on the
1114
MERCY-MEMORIAL HOSPITAL
Respondent's part and hence the Act was not violated with
respect to her.
Robert Carroll: Although scheduled to take a physical
examination during the week of March 10, it was taken on
March 24. In April, Carroll did not report for work because
of illness until June 23 at which time he was advised that
the watchman's job that he had occupied prior to the strike
had been subsequently eliminated and its functions were
included in the maintenance job classification. He was
accordingly assigned to that classification, worked I day in
that job, and quit on June 24 stating that it was too
physical. It appears that the watchman job was eliminated
prior to June 1973 and that all employees performing those
functions became maintenance helpers.
I find that the delay in Carroll's reinstatement until June
23 was solely on account of his illness. I further find that,
when Carroll returned to work on June 23, he was assigned
to substantially equivalent employment because of the
elimination of his prior job for legitimate business reasons.
In these circumstances, I find that the Respondent fulfilled
its statutory obligation and no violation was committed in
Carroll's reinstatement.
Helen Chickeral: After reporting to the Hospital on
March 7 in response to the Respondent's February 28
letter, she was scheduled to take a physical examination on
March 12 which she never took. She also has not
communicated with the Respondent since then. Clearly,
Chickeral was not unlawfully denied reinstatement.
Kathleen Curtis: She took her physical examination on
March 12 and left Michigan. On June 18 she notified the
Respondent that she had returned to the State. On that
date, the Respondent sent her a letter advising her that she
had failed her physical, to consult her family physician,
and to secure a note indicating her availability to work. On
July I she presented a medical certificate to the Respon-
dent that she would be able to work after July 9.
Subsequent to the latter date in July she was reinstated. I
find that Curtis' return to work was processed in accor-
dance with the Hospital's legitimate procedures and that
the Respondent did not violate the Act with respect to her.
Walter Daniels: He reported to the Respondent on
March 4 after receiving its February 28 letter. On March
24, Daniels underwent his physical examination but left
before its completion. When he failed to report back to the
Hospital, the Respondent on May 3 requested him to
complete his physical. Receiving no response, the Respon-
dent wrote Daniels that he was terminated for not
completing his examination on March 24 and that he could
notify it if such were not the fact. On June 2, the
Respondent again requested Daniels to complete his
physical on June 4, stating that he would be returned to
work on June 16 if he passed the examination. Daniels did
not respond.
In these circumstances, it is clear that the Respondent
satisfied its obligation to offer reinstatement to Daniels.
Carolyn Dixon.' Prior to March 10, she was notified that
she was scheduled to take a physical examination on that
date. She failed to appear for the scheduled examination
and has not communicated with the Respondent since
then. Plainly, the Respondent did not violate the Act in not
reinstating Dixon.
Gerald Dusseau: He took his physical examination on
March 10 and was informed that he had failed it but that
he would be reinstated upon receipt of a doctor's note that
he was available for work. On March 25, the doctor's note
was furnished and Dusseau was returned to work on April
I.
As the Respondent followed its normal, legitimate
procedure in requiring a medical certificate of Dusseau's
ability to work and as I find that the Respondent permitted
Dusseau to return to his job within a reasonable time after
receiving the medical certificate, I find that the Respondent
did not violate the Act with respect to this employee.
Charlotte Goins: She took her physical examination on
March 12 and was advised that she failed it. However, in
accordance with the Hospital's legitimate policy, Goins
was informed that she would be reinstated if she produced
a medical certificate that she could return to work. Such a
certificate was submitted on March 21 and she was
reinstated April 1.
I find the 10-day delay in Goins' reinstatement was
unreasonable and that she should have been recalled by
March 26, allowing 5 days to process the medical
certificate. Accordingly, I find that the delay in reinstate-
ment violated Section 8(aX3) and (I) of the Act.
Angeline Hensley: On March 10, she started her physical
examination by taking the laboratory part and left. She
returned on March 19 when she completed her physical.
Hensley informed the Respondent that she would be
unable to return to work prior to April I for personal
reasons and requested April 8 as her return date. Hensley
resumed work April 8.
I find that Hensley returned to work at her own
convenience and hence the Respondent was not in
violation of the Act with respect to her.
Dale Lajiness: By letter dated May 8, the Respondent
notified Lajiness to report for his physical examination by
May 13 and that if he passed it he would be scheduled to
return to work on May 27. Lajiness took and passed the
examination but did not report to work on May 27. On
May 28; the Respondent sent Lajiness a termination letter
for failing to report to work on May 27 and informed him
that he could dispute its action. On June 4, Lajiness
communicated with the Respondent and was reinstated on
June 9.
I find that the delay in scheduling Lajiness' physical by
May 13, and his reinstatement for May 27, was unreason-
able and an impairment of his rights as a striker, violative
of Section 8(aX3) and (1) of the Act. Accordingly, backpay
is due him for the period from March 18 to May 27, 1975.
However, since Lajiness, as a matter of personal choice,
failed to return to work on May 27 as he was scheduled to
do, no backpay is due for any subsequent period.
Blauma Lang/ford: In response to the Respondent's
February 28 letter, she reported to the personnel depart-
ment during the indicated March 4-7 period. However, she
was scheduled for and took her physical examination on
June 11. Although scheduled for reinstatement on June 23,
Blauma Langford was reinstated on June 30. The Respon-
dent states in its brief that it has no facts to account for the
June 23-30 delay in reinstatement but concedes that
liability might exist for the March 18-June 23 period.
1115
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In view of the foregoing, I find that the record establishes
no justification for delaying Blauma Langford's reinstate-
ment from March 18 to June 30. Accordingly, I find that
the Respondent violated Section 8(a)(3) and (1) of the Act
with respect to this employee, entitling her to backpay for
the March 18-June 30 period.
Grace Langford: She was scheduled and notified for a
March 13 physical examination but failed to appear or
otherwise communicate with the Respondent. I find that
the Respondent is not in violation of the Act with respect
to this individual.
Mack McBride: He was scheduled for a physical
examination on March 13 but failed to appear. By letter
dated May 8, the Respondent notified McBride to report
for processing. In response, McBride on May 16 wrote the
Respondent that he was unavailable to take a physical
examination or return to work until after the early part of
June when he had a doctor's appointment concerning
surgery he had previously undergone. However, since this
letter, McBride has not communicated with the Respon-
dent.
Clearly, no basis exists for a finding of an unfair labor
practice with respect to this individual.
Alice McDonald. She took her physical examination on
March 10 but was informed that she had not passed it
completely and that a medical certificate was required
establishing her availability for work. Such a certificate was
submitted on April I and she was reinstated on May 19.
I find that the delay in returning McDonald to work was
not justified and that the Respondent thereby violated
Section 8(a)(3) and (1) of the Act. Since a reasonable time
for reinstating McDonald under the circumstances would
have been about April 16, after receiving her medical
certificate, I find that she is therefore entitled to backpay
for the period from April 16 until May 19 when she was
actually reinstated.
Effie Mae Miracle: She took her physical during the week
of March 10 and was scheduled to return to work on April
I. However, at her own request and in order to give her
current employer notice of resignation, her reinstatement
was postponed to April 8.
I find that the delay in Miracle's reinstatement from
March 18 to April I was unreasonable and in violation of
Section 8(a)(3) and (1) of the Act. Because the further delay
to April 8 was at Miracle's request, I find that she is
entitled to backpay for the period from March 18 to
April 1.
William Ohr: He received his physical on March 14 and
was scheduled to return on April 8. Instead, Ohr resigned.
As the Respondent has furnished no justifiable reason for
the delay in scheduling Ohr's reinstatement for April 8 and
as there is no evidence of the reason for Ohr's resignation, I
find no basis for inferring, as the Respondent would have
me do, that Ohr never had a real intention to accept
reinstatement. It is just as likely that his resignation was
due to the delayed date of the scheduled reinstatement.
Accordingly, I find that the Respondent violated Section
8(a)(3) and (I) of the Act, entitling Ohr to backpay for the
March 18 to April 8 period.
Juanita Patterson: She was notified to appear for a
physical examination prior to April 30 and that, if she
passed it, she would be scheduled to return to work on
June 23. Patterson did not respond to this notification and
resigned on July 7. As the delay in scheduling of
Patterson's physical and in offering reinstatement on June
23 was not justified by the Respondent, I find that Section
8(a)(3) and (1) was violated and that Patterson is entitled to
backpay for the period of March 18 to June 23.
Elizabeth Phillips: She received the Respondent's Febru-
ary 28 letter but did not respond until March 21 when she
advised the Respondent that she had suffered a stroke and
that she would be unavailable for work for at least 6
months. She was told by the Respondent to notify it when
she could return. However, no such notice has been
received since then.
Clearly, the Respondent has not failed in its statutory
duty to offer her reinstatement.
Bernice Sordini: She took her physical on March 13 and
was scheduled to return to work on April 1. However, she
did not report on the latter date but instead resigned on
April 9. As the Respondent has presented no justification
for delaying Sordini's reinstatement to April 1, I find that
the Respondent violated Section 8(a)(3) and (1) in this
respect. Contrary to the Respondent's contention, I find no
basis for inferring from Sordini's resignation that she never
intended to return to work. For this reason, I find that
Sordini is entitled to backpay for the period from March 18
to April 1.
Alberta Violanti: She took her physical during the week
of March 10 and was advised that, since she had not
completely passed it, she should submit a doctor's
certificate that she was capable of returning to work. On
April 29 such a certificate dated April 10 was submitted
stating that she was able to report for work on May 1.
However, she was reinstated on May 19.
I find that Violanti's reinstatement was unreasonably
delayed to May 19 and that therefore the Respondent
violated Section 8(a)(3) and (I) of the Act. I further find
that Violanti is entitled to backpay for the period beginning
May 4, 5 days after the submission of her medical
certificate, to May 19, the date of her reinstatement.
Dorothy Vogler: She received the Respondent's February
28 letter while she was down South. She thereupon
returned to Michigan, reported at the Hospital on March
19, took her physical examination on October 8, and was
reinstated on October 14. The Respondent does not
attempt to justify the delay but surmises that an adminis-
trative error accounts for it. In view of the foregoing, I find
the Respondent responsible for the unreasonable delay in
Vogler's reinstatement and that it thereby violated Section
8(a)(3) and (I) of the Act. With respect to backpay, the
Respondent concedes, and I find, that its liability should
begin at a reasonable date after March 19, which I find to
be March 24, to the date of reinstatement, October 14.
Otha Wilburn. She took a physical examination on
March 14 and was returned to the on-call status she
enjoyed prior to the strike. As no evidence was adduced
with respect to any delay in Wilburn's reinstatement, no
violation is found.
Pauline Williams: She failed her physical examination,
which was given to her on March 10, and was advised to
submit a doctor's certificate showing that she was able to
1116
MERCY-MEMORIAL HOSPITAL
return to work. Such a certificate was provided, stating that
she could return to work on September 24. However,
Williams did not report to work on September 24 but
requested on October 6 medical leave of absence, which
was granted and subsequently was extended to December
I. On the latter date, Williams returned to work.
I find that her reinstatement was not unreasonably
delayed by the Respondent and that therefore the Act was
not violated.
Harvey Woods: He failed his physical examination on
March 10 and was advised to submit a medical certificate
that he was able to return to work. Although he presented
such a certificate on March 24, he was not reinstated until
April 21.
As I find that no justifiable reason was presented for the
delay in Woods' reinstatement, it is clear that the
Respondent violated Section 8(a)(3) and (1) of the Act. In
agreement with the Respondent, I find that Woods is
entitled to backpay from March 29 (a reasonable time after
March 24) to April 21 when he was reinstated.
Theo Wylie. He took his physical examination on March
17, which he failed, and was advised to produce the
customary doctor's certificate. Such a certificate was
submitted on or about March 26 and Wylie was reinstated
on April 8.
Consistent with my prior holdings, I find that the delay
in reinstating Wylie was unreasonable and in violation of
Section 8(a)(3) and (1) of the Act. I further find that Wylie
is entitled to backpay from March 31 (a reasonable time
after the submission of the medical certificate) to April 8,
the date of reinstatement.
Alice Year)y: She took a physical examination on March
10. Subsequently, on March 18, Yeary informed the
Respondent that she intended taking a nurses aide course
and that therefore she would not be available for work
until May 5, 1976. The Respondent granted her permission
to take the course and she was reinstated on that date.
It is clear that the Respondent satisfied its statutory
obligation and did not violate the Act with respect to Yeary
at whose convenience the delay was occasioned.
Donald Lazette: On February 6, he presented a letter to
the Respondent stating that he was unable to return to
work for medical reasons. Pursuant to the Respondent's
retirement policy Lazette was retired on October 31 when
he reached 65 years of age.
I find that here, too, the Respondent did not deny
Lazette reinstatement in violation of the Act.
In summary, I find that the employees listed in Appendix
D, whose situations were separately considered above,
were discriminated against with respect to their reinstate-
ment and that the Respondent thereby violated Section
8(a)(3) and (1) of the Act. I further find that the employees
listed in Appendix E were not subjects of discrimination
entitled to backpay as they either did not respond to the
Respondent's February 28 letter or, in reply, stated that
they were quitting or the February 28 letters addressed to
them were returned as nondeliverable.
B. Alleged Discriminatory Weekend Work Policy
I. The facts
The facts as stipulated by the parties are briefly these:
Prior to the inception of the strike on May 1, 1972, the
Respondent had a policy whereby nursing and related unit
employees were required to work every other weekend,
being off the intervening weekend. This policy continued
while the strike was in progress and after the strike's
termination on February 20, 1975, only for such employees
who were on the payroll and actively performed their
duties on March 1, 1974, including those who never went
on strike, those who had abandoned the strike prior to
March i, 1974, and employees who were hired as strike
replacements prior to that date. However, the policy was
changed on or about March 1, 1974, to require the nursing
and related unit employees who subsequently came on the
active payroll and actually resumed work to be on duty two
weekends with the third weekend off. This meant that
strikers who abandoned the strike and returned to work
after March 1, 1974, and those reinstated after the strike
ended on February 20, 1975, as well as employees who
returned from a leave of absence which had commenced
before March 1, 1974, and new hires after this date, were
allowed to be off only one weekend in three while the
others previously mentioned were given every other
weekend off. It appears that on March 1, 1974, approxi-
mately 64 employees enjoyed alternate weekends off and
that as of the time of the hearing in this case only about 10
to 12 employees remained in the Respondent's employ who
enjoyed this benefit.
2. Concluding findings
The General Counsel contends that the discriminatory
treatment thus accorded the returning strikers violated
Section 8(a)(3) and (1) of the Act. The Respondent, on the
other hand, maintains that its weekend work policy is not
discriminatory as striker status is not the determinative
factor in the weekend work requirement, only the date of
active performance of duty on March I, 1974, is.
I find the Respondent's contention entirely without
merit. In my opinion, resolution of this issue is governed by
the Supreme Court's decision in N.L.R.B. v. Great Dane
Trailers, Inc. 16 where a majority of the Court held that an
employer violated Section 8(a)(3) and (I) of the Act in
refusing to pay striking employees vacation benefits which
accrued under a terminated collective-bargaining agree-
ment, while paying such benefits to striker replacement,
returning strikers, and nonstrikers who had been at work
on a certain date during the strike. In language equally
applicable to the situation presented in the instant case, the
majority stated (at 32):
The unfair labor practice charged here is grounded
primarily in §8(a)(3) which requires specifically that the
Board find a discrimination and a resulting discourage-
ment of union membership. American Ship Building Co.
v. Labor Board, 380 U.S. 300, 311 (1965). There is little
"1 388 U.S 26 (1967).
1117
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
question but that the result of the company's refusal to
pay vacation benefits to strikers was discrimination in
its simplest form. Compare Republic Aviation Corp. v.
Labor Board, 324 U.S. 793 (1945), with Teamsters Union
v. Labor Board, 365 U.S. 667 (1961). Some employees
who met the conditions specified in the expired
collective bargaining agreement were paid accrued
vacation benefits in the amounts set forth in that
agreement, while other employees who also met the
conditions but who had engaged in protected concerted
activity were denied such benefits. Similarly, there can
be no doubt but that the discrimination was capable of
discouraging membership in a labor organization
within the meaning of the statute. Discouraging
membership in a labor organization "includes discour-
aging participation in concerted activities . . . such as a
legitimate strike." Labor Board v. Erie Resistor Corp.,
373 U.S. 221, 233 (1963). The act of paying accrued
benefits to one group of employees while announcing
the extinction of the same benefits for another group of
employees who are distinguishable only by their
participation in protected concerted activity surely may
have a discouraging effect on either present or future
concerted activity.
The majority therefore concluded, on the basis of three
recent opinions of the Court,'7 that (35) "[s]ince discrimi-
natory conduct carrying a potential for adverse effect upon
employee rights was proved" and the Company failed to
come forward with evidence of legitimate motives for its
discriminatory conduct, the charged unfair labor practices
were sustained.
On the basis of the foregoing principles, I find that the
Respondent's application to returning strikers of its new
weekend work assignment policy, relating as it does to a
"term and condition of employment," discriminated
against employees who were exercising their statutory right
to engage in protected union and concerted activities and
thereby discouraged union membership in violation of
Section 8(a)(3) of the Act and interfered with protected
activity in violation of Section 8(a)(1) of the Act. The fact
that the policy also applied to new employees and those
who returned to work after March 1, 1974, from a leave of
absence granted prior to that date cannot exculpate the
Respondent from the discrimination suffered by the
striking employees.
C. The Alleged Unlawful Domination of, and
Assistance to, the Grievance Committee
1. The evidence
While the Union was involved with the Respondent in
various state board and court and National Board
proceedings, as previously outlined in this Decision, to
vindicate its right to represent certain employees at Mercy
Hospital pursuant to its certification issued by the state
1? American Ship Building Co. v. N.L.R.B., 380 U.S. 300 (1965); N.L.R.B.
v. Brown,. er at, d/b/a Brown Food Store, et al., 380 U.S. 278 (1965);
N.. LR. B v. Erie Resistor Corp., et al., 373 U.S. 221 (1963).
'8 As the unfair labor practice charge in Case 7-A 12174 alleging
unlawful domination of. and assistance to, the Grievance Committee was
filed and served on July 15, 1975, evidence of events occurring before
board, the Respondent revised its grievance procedure
wherein the Grievance Committee was created to handle
employee grievances in the third stage of a four-stage
grievance procedure. The evidence relating to the forma-
tion and administration of the Grievance Committee,
alleged to violate Section 8(a)(2) and (1) of the Act, is
substantially undisputed and is as follows:
In the summer of 1974,18 Mercy Hospital and Memorial
Hospital each had a separate grievance procedure. Dissat-
isfied with the way these procedures operated to their
disadvantage, the employees complained to the Respon-
dent and refrained from utilizing them. Consequently,
Administrator Hiltz instructed the then personnel director,
Benjamin Duckworth, to meet with the employees to
obtain their ideas regarding an acceptable grievance
procedure with the view of restructuring the existing
procedures. Duckworth thereupon assembled information
concerning the grievance procedures used at various
hospitals and other establishments and announced in the
Respondent's publications the Respondent's intention to
formulate a new grievance procedure, inviting the employ-
ees of Mercy and Memorial Hospitals to attend meetings to
be held at both Hospitals and to contribute their sugges-
tions and ideas. A total of about six such meetings,
presided over by Duckworth, were held on different dates
from September through November 1974 with employees
of one Hospital being permitted to attend any meeting at
the other.
At the initial meeting, the employees' complaints
concerning the existing grievance procedures were discuss-
ed and Duckworth explained the different types of
grievance procedures utilized at other hospitals and plants,
which he posted on a blackboard for employees to inspect
and consider as guidelines. At this and subsequent
meetings, the principal subject considered was the creation
of a Grievance Committee and the role it would play in the
grievance procedure. The other steps of the grievance
procedure were given minimal, if any, attention. At all
these meetings, employees voiced their views and criticism
of the various plans and made suggestions and proposals of
their own, upon which Duckworth, in turn, offered his
comments and opinion. Questions raised by employees
were also answered by Duckworth. To assist him in
ultimately drafting an acceptable grievance procedure
Duckworth kept notes of what he regarded reflected a
consensus of the employees' views expressed at these
meetings. However, no employee vote was taken concern-
ing any aspect of the grievance procedure.
A final meeting was held in November 1974, at each of
the Hospitals. Duckworth prepared, in advance, a docu-
ment which he distributed among the employees in
attendance. Noting that "[r]esolving grievances should be
viewed as the hospital's and its employees mutual obliga-
tion to contribute to the highest quality of care to patients,"
the document stated that "[i]n developing a grievance
procedure for Mercy-Memorial Hospital, the participation
January 15, 1975, was received solely for background purposes "to shed
light on the true character of matters occurring within the 16-months]
limitations period." Local Lodge 1424, International Association of Machin-
isis, AFL-CIO v. N.L.R.B., 362 U.S. 411. 416 (1960). It is noted that these
unfair labor practices were repeated in the charge filed in Case 7-CA 12599
on December 17, 1975.
1118
MERCY-MEMORIAL HOSPITAL
and advice of all employees is encouraged." It then
summarized a number of suggestions received since the
first meeting and urged that an attempt should be made "to
finalize the above suggestions or add any that you feel
pertinent. We should also decide on an effective date for
the procedure and a method for electing a Grievance
Committee." The ensuing discussions, in which Duckworth
and employees engaged, among other things, dealt with the
encouragement of settlement of grievances at the early
stages of the grievance procedure; the establishment of a
grievance committee as part of the appeal process should
early settlement fail; the composition of the Grievance
Committee and qualifications of its members; whether a
representative of management should be included to
present management's viewpoint; the payment of straight
time rates to members of the Committee for the time spent
in hearing a grievance; the grievant's right to select four
members of the Grievance Committee and a department
head to hear the grievance at this step; and the grievant's
right to representation, should he or she desire it, during
this stage of the grievance procedure.
The question of the effective date for the new procedure
was also raised by an employee. Since Duckworth had to
reduce into writing the new grievance procedure evolved at
these meetings and to submit it to the administrator and
the board of directors for approval because it embodied a
new policy, he informed the employees that the plan could
be put into effect in January 1975 at the earliest, as it
ultimately was. Moreover, Duckworth pointed out that it
would be impossible to arrange for nominations and the
election of members of the Grievance Committee by that
date, and that therefore it would be advisable to have an
interim grievance committee appointed to serve for 3 or 4
months when an election of the permanent Grievance
Committee could feasibly be held. The employees were
agreeable to this idea, as well as to the proposal that the
interim Committee be composed of 10 employees to be
selected at random, one from each Hospital department.
Duckworth was thereupon requested by the employees to
make the Committee selection.
Based on the foregoing discussions and guided by the
provisions of the grievance procedures prevailing at other
establishments, Duckworth drafted a grievance procedure
for the Respondent's Hospitals, which was published in the
December 1974 Mercy-Memorial News, one of its publica-
tions, under the heading of "Grievance Policy and
Procedure." The introductory paragraph stated that the
grievance procedure therein set forth "is a draft of the
employee grievance policy and procedure compiled from
employee suggestions and ideas." It then continued:
"! The personnel guide, which notes on its first page that it "represents
the policies and practices presently in effect at our hospital.'" outlines the
terms and conditions of employment there, along with other personnel
matters.
2. A grievance is defined in the personnel guidebook "to mean any
co'mplaint or inequity concerning an employee or group of employees with
regard to working conditions. disciplinary actions. hospital policies.
departmental polics and procedure, salary problems. discrimination.
complaints. and other incidents in general that affect employer employee
relations.
2z Stage I involves presentation of the grievance to the employee's
immediate supervisor, while stage II involves his department head.
The personnel director asks that employees examine
the proposed draft and refer further suggestions and
recommendations to his attention.
All suggestions will be reviewed and the grievance
policy and procedure will then be finalized and placed
into effect.
When submitting your suggestions and ideas, re-
member you may be affected in the future by the policy
and procedure, give it your careful consideration.
This publication was distributed among the employees in
January 1975. Apparently the draft met with the approval
of the board of directors and Administrator Hiltz and the
same month was incorporated in the Respondent's "Per-
sonnel Guide - January 1975" 19 as the grievance
procedure then in effect at Mercy and Memorial Hospitals.
The issue of unlawful domination and assistance centers
around stage III of the grievance procedure which provides
the following appeal procedure if an employee's griev-
ance 20 is not resolved to his satisfaction at the lower
levels: 21
Employee:
I. The employee must present his grievance to the
Director of Personnel within three days following
the completion of stage II.
Personnel Director:
2. The Personnel Director will arrange for a meeting
of the Grievance Committee 22 and inform em-
ployee and/or designee (if any) of the date.
Grievance Committee:
3. Investigate all aspects of the grievance including
meeting (if necessary) with the employee and/or
designee (if any).
Grievance Committee:
4. The Committee will render its decision within five
days after its meeting. The Committee will inform
the Personnel Director of its decision and the
Director will inform the employee.
Employee:
5. If the employee is still not satisfied with the
outcome of the grievance, he should proceed to
stage IV.
As a matter of practice, when a third-stage grievance is
initiated, the personnel director presents the grievant with a
list of the 10 committee members from which he chooses 4
to serve on a sort of panel of the Committee to hear his
grievance. The grievant is also given the choice of a
22 The grievance procedure defines the Grievance Committee as:
composed of four employees and one department head. Employees are
elected for a one-year term by all employees and the employee may
select a department head of his choice. Any member must have a
minimum of three years of continuous employment with the hospital.
As indicated below, the statement of policy Duckworth handed the elected
10-member Grievance Committee modified this definition to provide for a
2-year staggered term for members of the Committee.
1119
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
department head, other than his own or that of a sitting
committee member, to be the fifth member of that
committee. The members of this committee are then
notified by the personnel office of their selection and are
excused from their work duties in order to hear and decide
the grievance. The employee members are paid for their
time at their regular straight time wage rates while serving
on the committee. When the grievance is being heard, the
personnel director attends for the purpose of presenting to
the committee a written synopsis of the issues and the
positions of the parties taken at the earlier grievance steps,
which the personnel office had previously prepared. Other
documents are also submitted and the complete personnel
file of the grievant is made available to the committee for
its inspection. The personnel director is then excused
unless the committee desires to question him. After the
hearing, the committee members enter upon their delibera-
tions in private and render their decision based on a
majority vote. Each member, including the department
head, has one vote and the committee's decision may not
contravene the Respondent's policy or other rule or
regulation, which the committee is not authorized to
change or modify. However, if the grievance involves
disciplinary action, the committee may decrease it but
never increase it. Finally, the decision is reported to the
personnel office which, in turn, notifies the grievant. If the
grievant is still dissatisfied with the outcome, he has the
option of proceeding to stage IV wherein his grievance will
be considered by the personnel committee of the board of
directors. Should he not appeal, the Grievance Commit-
tee's decision becomes final and binding.
As contemplated at the employee meetings, Duckworth
appointed an interim grievance committee composed of 10
employees whom he selected from the various departments
to act as the third stage of the grievance procedure until a
permanent grievance committee was elected by the
employees. A number of employees declined Duckworth's
invitation to serve on this committee. At the first meeting
of the interim committee, Duckworth distributed among
the members a two-page policy statement which, according
to Duckworth, reflected the understanding reached at the
earlier employee meetings. This document described the
function and composition of the committee, the term of
office of members of the committee, the procedure to
follow in investigating and resolving the grievance, the
objective of the grievance procedure, the confidentiality of
records, the grievant's right to designate an individual to
assist or represent him, the nature of the committee's
decision, and the grievant's right to appeal. Pursuant to the
established procedures, the interim grievance committee
processed and resolved a number of grievances, some of
which were decided in favor of the grievants and others in
favor of management.
After several months of the interim committee's opera-
tion, Duckworth made arrangements for its replacement by
a permanent grievance committee. Accordingly, Duck-
worth scheduled an election for June 27, 1975. This was
announced in the Respondent's publication in which
':' In addition to the nominees in the first election, Cain and another
employee became candidates.
"2 Duckworth testified, without contradiction, that this statement also
nominations were invited to be submitted to the personnel
office or deposited in the suggestion boxes located in both
hospitals. All full-time employees who had 3 years seniority
were eligible for nomination. When Duckworth received
the slips of paper nominating the employees, he placed
them in an envelope for the employees' inspection, if they
so wished to do. Duckworth then prepared the ballots at
the Respondent's expense and, instead of listing the
nominees in alphabetical order, decided to use a random
number table and scramble the names so that the same
names did not appear at the top of the list and thus insure
the fairest vote possible. The ballots were thereafter
distributed among the employees when they received their
paychecks. Upon voting their choice of four nominees, the
employees deposited their ballots in one of the suggestion
boxes. These ballots were subsequently collected by the
individual in charge of the boxes who delivered them to the
interim committee. However, the ballots were never
counted as employee Dennis Cain promptly filed a
grievance with the interim committee challenging the
fairness of the election. The committee upheld the
grievance, vacated the election, and directed that a new
election be held.
As a consequence, Duckworth scheduled and announced
a new election for August 8, 1975, following the same
election procedures as before.23 Thereafter, the cast ballots
were tallied by the interim grievance committee in the
presence of Duckworth and the results were certified by it.
After the foregoing election, the newly elected Grievance
Committee held its first meeting with Duckworth in
attendance. Here, too, Duckworth handed out to the
committee members a three-page policy statement which
was an expanded version of the policy statement previously
given to the interim committee members, but with some
modifications. 24 While the statement made clear that the
committee was not empowered to "change or alter any
rule, regulation or standard presently in effect at the
hospital," it also specifically noted that "'t]he committee
does have the right and the obligation to recommend to the
Director of Personnel and all other administrative heads
through him and in writing, any change in rules, regula-
tions, and standards. These recommendations will then be
discussed and acted upon by the administrative head and
the committee members and be informed of that decision."
The Respondent insists that this right to make recommen-
dations is no different from the opportunity afforded any
employee to make recommendations and that such recom-
mendations are processed in the same way without any
negotiations taking place.
At this meeting there was also some discussion concern-
ing the experience of the interim committee in handling
grievances and its mode of operation. In addition, on the
prior recommendation of the interim committee to Duck-
worth, the policy of staggering the members' term of office
was adopted in order to maintain a degree of continuity in
the Grievance Committee. Accordingly, a drawing was
held to determine the five members who would serve I year
and the other five members who vould serve 2 years.
reflected the consensus at the employee mleetings. Among other things, the
statement changed the regular term of office of a committee member from I
to 2 years.
1120
MERCY-MEMORIAL HOSPITAL
It is undisputed that only one matter was handled by the
elected Grievance Committee which resulted in a change of
hospital policy 25 and that related to the question of an
employee's qualification for a longevity service pin. A
grievance pertaining to this matter was filed on August 28,
1975, by an employee on behalf of herself and other
employees in which she complained about the different
methods used to determine eligibility. Duckworth, then
newly appointed to his assistant administrator position,
called a meeting of the Grievance Committee. With
Duckworth's successor as personnel director in attendance,
they discussed the subject of service pins with the
committee whose recommendation for a single uniform
policy was solicited. The committee made its recommenda-
tion which was adopted by management sometime later
without further discussion or negotiation.
2. Concluding findings
The consolidated complaint alleges that the Grievance
Committee is a labor organization which the Respondent
has dominated and with whose formation and administra-
tion it has interfered in violation of Section 8(aX2) and (1)
of the Act. The Respondent, however, denies that the
Grievance Committee is a statutory labor organization,
insisting that it exists solely for the purpose of deciding
grievances and that it does not engage in collective
bargaining as that phrase is commonly understood. It
further argues that for that reason, as well as the lack of
sufficient evidence that the Grievance Committee was
unlawfully dominated or assisted, the 8(a)(2) and (I)
allegations of the consolidated complaint in that regard
should be dismissed.
Section 2(5) of the Act, in pertinent part, includes in its
definition of "labor organization" any "employee represen-
tation committee or plan, in which employees participate
and which exists for the purpose, in whole or in part, of
dealing with employers concerning grievances, labor
disputes, wages, rates of pay, hours of employment, or
conditions of work." The critical factor in this definition as
it affects the issue of labor organization here presented is
whether the Grievance Committee "exists for the purpose
. . . of dealing with" the Respondent concerning grievanc-
es. While the Supreme Court has held that the phrase
"dealing with" is much broader than the term collective
bargaining,26 I am not persuaded that the General Counsel
has established by a preponderance of the evidence that the
Grievance Committee here involved was formed for the
purpose of dealing with the Respondent on behalf of
employees concerning their grievances or that the commit-
tee functioned in that manner. Quite the contrary, the
committee was created simply to give employees a voice in
'' All other matters handled b) the Gnevance Committee were
grievances which did not involve a change in hospital policy or rules.
'- '..L.R B . (oabo Carbon (norpani and (Cabo Shops, Inc, 360 U.S.
203. 211 (19S9)
7' In sile or the Respondent's unlawful refusal to recognize the Union.
is the certified representative of Mercs Hospital's employees. perhaps the
a;doption ot the new- grievance procedure and. in particular, the formation of
the (irievance Committee here involved, might he violatise of Sec. 8(a}
5
) of
the Act. How.eser. such an unfair labor practice was neither charged nor
illeged in the consolidated complaint nor litigated at the hearing.
-' Shruld the Board disagree swith ms determination that the Grievance
resolving the grievances of their fellow employees at the
third level of grievance procedure, not by presenting to or
discussing or negotiating with management but by itself
deciding the validity of the employees' complaints and the
appropriateness of the disciplinary action, if any, imposed.
It is not without significance that, should a grievant be
dissatisfied with the disposition of his grievance, he could
appeal the Grievance Committee's decision to the highest
level of management-the personnel committee of the
Respondent's board of directors. Otherwise, the Grievance
Committee's decision would be final. The fact that a
department head designated by the grievant also served on
the committee to hear the grievance is not sufficient
evidence that the committee thereby exists to deal with
management. Clearly, the department head, who has only
one vote like any employee member on the committee, is
bound by the decision reached by a majority of the
committee. Moreover, the single occasion when Respon-
dent's officials, Duckworth and Carpenter, discussed with
the full Grievance Committee the Respondent's service pin
award policy, which also was the subject of a grievance,
and adopted the committee's recommendation for a
change in policy certainly cannot convert the committee's
status into a statutory labor organization.
In sum, having found that the Grievance Committee is
not a labor organization within the meaning of the Act, I
conclude that the prohibitions of Section 8(a)(2) and (I) of
the Act are not applicable to it.27 Accordingly, the relevant
allegations of the consolidated complaint will be dis-
missed. 28
D. Alleged Interference, Restraint, and Coercion of
Employees
1. The "Remember Mercy" leaflet
In Board proceedings instituted by the Union (Case 7-
RC-12947) to represent certain employees at the Respon-
dent's Memorial Hospital, an election was scheduled for
December 19, 1975.29 As is not unusual in representation
cases, the Union and the Respondent waged campaigns to
defeat each other at the polls. The consolidated complaint
alleges that in order to dissuade employees from voting for
the Union the Respondent distributed a leaflet entitled
"Remember Mercy" in which it advised them that their
efforts to obtain union representation would be futile and
that the Respondent thereby violated Section 8(a)(1) of the
Act.
It appears that, in response to the Union's campaign
literature concerning higher wages and other benefits it
would obtain for Memorial Hospital unit employees, the
Respondent about 2 or 3 weeks before the scheduled
Committee is not a statutory labor organization. I would find that. while the
record would not sustain a finding of unlawful domination within the 6-
month limitation period under Sec. 10(b) of the Act. the evidence would
warrant a finding of assistance and interference with the administration of
the committee in violation of Sec. 8(aK2) and (I) of the Act. Cf. Duquesne
Universiro of the Hotl Ghost, 198 NLRB 891 (1972).
2" Two days before the scheduled date, the election was indefinitely
postponed when a charge was filed bs the Union in Case 7 CA 12599
alleging, among others, a violation of Sec. 8ta)2) of the Act. This charge
blocked further processing of the representation petition.
1121
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representation election issued a leaflet entitled "Remember
Mercy" which it mailed to the employees. In it, the
Respondent in chronological order listed the following
events beginning with the Union's victory on May 20, 1970,
in a representation election held among the Mercy
Hospital unit employees: a strike by 110 employees at that
hospital on May 1, 1972, as a result of the Union's inability
to secure a contract; the continuing strike by 106
employees on June 30, 1972, while 126 employees remained
at work at this hospital; the Respondent's institution of a
lawsuit in a local court charging the Union and others with
unlawful conduct; and the fact that on indicated successive
dates the Union "[s]till [had] no contract and no bargain-
ing has taken place," noting the increasing number of
months which had elapsed since the last bargaining
meeting. Concluding the Respondent's message, the leaflet
stated:
AS OF TODAY . . .
OVER 5-1/2 YEARS AFTER THE ELECTION AND
LOCAL 79 STILl. HAS NOT BEEN ABLE TO GET ITS
FIRST CONTRACT WITH THE MERCY UNIT AND NO
BARGAINING HAS TAKEN PLACE FOR THE LAST 4-1/2
YEARS.
AS OF TODAY . . .
ON NOVEMBER 3, 1975, THE HOSPITAL WROTE
LOCAL 79 AND TOLD THE UNION IT WOULD NOT
AGREE WITH THE UNION'S DEMAND TO COMMENCE
BARGAINING FOR A UNION CONTRACT AT THE
MERCY UNIT.
It is noted that there are significant omissions from the
leaflet which could explain the absence of bargaining.
Thus, as previously discussed in this Decision, on June 30,
1972, the Respondent withdrew recognition from the
Union, resulting in state board and court proceedings in
which the Respondent was found guilty of unlawfully
refusing to bargain with the Union. Moreover, Administra-
tor Hiltz admitted in his testimony that the Union had
made several bargaining requests since June 30, 1972. On
the other hand, although the Union had ample opportunity
to respond to the Remember Mercy leaflet and to clarify
the situation in the handbills it subsequently circulated
among the employees, it did not do so. Perhaps it was
unnecessary since there is undisputed, credible testimony
by employee Cain that the Remember Mercy leaflet was
discussed by a union representative at a meeting with
employees. There is also uncontroverted testimony by
Hiltz, which I credit, that on December 17, 2 days before
the scheduled election, he addressed the Memorial Hospi-
tal unit employees and that, reading from a prepared
statement, not claimed by the General Counsel or the
Union to violate the Act, he assured the employees, among
other things, that "[t]he law requires that we bargain in
good faith-and we will."
:"' Sec. 8(c) provides that the:
expressing of any views, argument, or opinion or the dissemination
thereof, whether in written. printed, graphic, or visual form, shall not
As indicated above, it is the General Counsel's theory
that the Remember Mercy leaflet unlawfully infringed
upon the self-organizational rights of the Memorial
Hospital unit employees because it advised the employees
that their efforts to secure union representation were futile
and that therefore they should not vote for the Union at the
scheduled election. The Respondent, however, denies that
futility of seeking union representation was the import of
the leaflet or that the leaflet otherwise unlawfully interfered
with employee rights. I find no merit in the General
Counsel's position.
I do not read the Remember Mercy leaflet as conveying
the message that it would be futile for the Memorial
Hospital unit employees to select the Union as their
bargaining representative because the Respondent would
refuse to perform its statutory obligation and bargain with
the Union even if the Union won the election. Rather, I
find that the leaflet's reference to the bargaining history at
Mercy Hospital was merely intended to place the responsi-
bility on the Union for their failure to conclude an
agreement covering the Mercy Hospital employees and for
the breakdown in negotiations, and thereby to demonstrate
that the Memorial Hospital unit employees had nothing to
gain from voting for the Union. Whether true or not, it is
clear that the Respondent's statements were nothing more
than an expression of opinion which the Constitution and
Section 8(c) of the Act30 safeguard, and not an invasion of
employees' statutory rights. Nor is a contrary finding
warranted by the Respondent's final statement in the
Remember Mercy leaflet, quoted above, that on November
3, 1975, the Respondent had informed the Union that it
would not resume bargaining for a contract for the Mercy
Hospital employees, as requested by the Union. Plainly,
the Respondent was simply reiterating its long held
position-whether legally tenable or not-that the Union
had lost its status as the majority representative of the
Mercy Hospital employees.
Accordingly, I find that the Remember Mercy leaflet did
not violate Section 8(a)(1) of the Act and that therefore the
allegations of the complaint relating to that leaflet should
be dismissed.
2. Service Director Hazlett's remarks to employee
Miracle
Effie Mae Miracle, a relief cook employed at Mercy
Hospital for II years and a union activist, testified to the
following conversation she had with her supervisor, Service
Director Donald Hazlett, in either late November or early
December 1975: Hazlett summoned her to his office. June
Sharpe, another union supporter, was already there.
Hazlett asked Miracle and Sharpe whether either one of
them had removed from the kitchen bulletin board certain
literature which the Hospital had posted concerning the
Union and the election scheduled to be held at Memorial
Hospital. When both employees denied that they had done
it, Hazlett, stating to Miracle that he was aware that she
was very active on behalf of the Union-which she readily
constitute or be evidence of an unfair labor practice under any of the
provisions of this Act, if such expression contains no threat of reprisal
or force or promise of benefit.
1122
MERCY-MEMORIAL HOSPITAL
admitted-repeated his inquiry about the removal of the
literature and whether she had given it to the Union.
Miracle again denied that she had done it or that she knew
who had.
This led to Hazlett's further remarks directed to Miracle
that he had heard a rumor that she had been at Memorial
Hospital, trying to induce 'its employees to vote for the
Union. Miracle denied that she was ever there for such
purpose, and added that the last time she was at Memorial
Hospital was during the previous spring when her father
was a patient in that institution. The conversation ended
with Hazlett warning Miracle that, if he ever caught her at
Memorial Hospital soliciting employees to vote for the
Union, he would fire her, noting that he was tired of
fighting with "you guys over this damn union."
Hazlett admitted that he had called Miracle and Sharpe
into his office but, according to his testimony, he only
asked them whether they or somebody else had removed
from the kitchen bulletin board a notice posted by the
Hospital pertaining to this "union business" or "employees
in the union." He further testified that Miracle and Sharpe
answered the inquiry in the negative and that this
concluded the conversation. He also specifically denied
that he mentioned in this conversation the Union or
Miracle's campaigning at Memorial Hospital or that she
risked discharge. Under cross-examination, Hazlett con-
ceded that out of some 37 employees under his supervision
he had only spoken to the dietary clerk in his office and to
Miracle and Sharpe about the removal of the Hospital
notice and that the reason for speaking to Miracle and
Sharpe was the fact that they were the most outspoken
union advocates, which was a matter of common knowl-
edge in his department.
Miracle also testified to a subsequent conversation which
she had with Hazlett on or about December 16, 1975, after
she had asked Hazlett's assistant, Mrs. Steinman, whether
she would change her day off for December 19 in order to
enable her to take her father to the doctor's. According to
Miracle's testimony, Steinman spoke to Hazlett who then
called Miracle into the office. There, Miracle, in Stein-
man's presence, repeated her request. Indicating some
skepticism about the reason for the need to take off
December 19. which happened to be the date of the
scheduled Board election at Memorial Hospital, Hazlett
asked Miracle whether she was lying. Miracle replied that
she was not and offered to produce a letter to support her
request. Hazlett, nevertheless, commented that he hoped
she was not lying, declaring that, if she ever had to attend
these union meetings, she would do well to let him know
about it,3 ' and she agreed. He then warned Miracle that
she was not to go to Memorial Hospital. This evoked
Miracle's response that should any member of her family
or friend become a patient in that hospital, she would go
there to visit that patient after she clocked out at Mercy
Hospital where she worked. She also asserted her right to
enter the cafeteria in that hospital for a cup of coffee.
Hazlett conceded that he could not stop her from seeing
any of her relatives or other patients at Memorial Hospital
: From the context in which the remark was made it appears to me that
1taleltt was really saying that. if she wanted time off to attend union
rmeelings. she should be candid enough to give him the true reason.
or going to the cafeteria but warned her that "he better not
catch her" in the kitchen trying to talk the employees into
voting for the Union because if he caught her he would
"write . . . [her] up" and that would be "the end" of her.
Miracle answered that the Union had told the Mercy
employees not to get involved in the campaign at Memorial
Hospital because it was none of their business. At some
point in the conversation, Hazlett made the comment that
it was not the Union or the "State" which was responsible
for striking employees' return to work but the Respon-
dent's through "the goodness of. . . [its ] heart."
Hazlett gave a testimonial account of two separate
conversations with Miracle subsequent to the first one. The
subject matter of these conversations appears to relate to
the general substance of the above two conversations to
which Miracle testified. Thus, Hazlett testified that, after
his first conversation with Miracle and Sharpe regarding
the removal of the hospital notice from the bulletin board,
he had the following "friendly" 5 to 10 minute conversa-
tion with Miracle in the presence of his assistant,
Steinman,3 2 probably a couple of weeks before the
scheduled December 19 election: Having received a report
from "someone" that Miracle was seen at Memorial
Hospital, Hazlett summoned her to his office. When she
arrived, he informed her that he was advised that she had
been at Memorial Hospital "on union business" and that
she could go there only to visit a patient. He also told her
that she was permitted to go to the cafeteria in that hospital
but not in the kitchen which is a work area. Miracle's
response was that she had not visited Memorial Hospital
and that, in fact, the Union had already told her to stay
away from that hospital. Hazlett categorically denied
telling Miracle that she would be fired if he caught her at
Memorial Hospital, or that he would write her up if she
went there, or that he was tired of fighting with her and
other employees over the Union, or that the Respondent
returned her to her job after the strike out of the goodness
of the Respondent's heart. In his cross-examination,
Hazlett testified that he might have said to Miracle that she
would get "in trouble" if she went to Memorial Hospital
except to visit patients or to go to the cafeteria.
Concerning Miracle's request for the day off on Decem-
ber 19, Hazlett testified that this request prompted the third
conversation he had with her. According to Hazlett, the
following occurred: A few days before December 19, he
called Miracle into his office in connection with her request
made to his assistant, Steinman, for December 19 day off.
In reply to Hazlett's question why she wanted the day off,
Miracle stated that her father had to go to see a doctor.
Hazlett then told her that, if that was the true reason, he
would permit her to have the day off but that he would not
rearrange the work schedule to give her that day off if it
was for "union business," meaning the scheduled Decem-
ber 19 representation election. Miracle assured Hazlett that
her request was for the indicated purpose and Hazlett
granted it. He specifically denied warning her against lying.
Miracle's account of her conversations with Hazlett
appears to me to be more reliable than Hazlett's. The
*2 Neither Steinman nor Sharpe, who Miracle testified was present
during the first conversation, appeared as a witness.
1123
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
details related by Miracle have the ring of truth and not
something imagined or contrived in order to make out a
case against her supervisor with whom she must continue
to work. Indeed, the general import of Hazlett's testimony,
aside from his categorical denials, is not so much at
variance with Miracle's testimony as to render the latter's
version suspect. Miracle's testimony is therefore credited.
Accordingly, on the basis of Miracle's testimony, I find
that Hazlett threatened Miracle with discharge or other
discipline if she engaged in the preelection campaign at
Memorial Hospital on behalf of the Union. Such conduct
was overly broad 33 and constituted an infringement of
employee statutory rights violative of Section 8(a)(1) of the
Act for which the Respondent is liable. Manifestly, the
Respondent cannot claim immunity from such a finding
simply because the Union advised Mercy Hospital employ-
ees not to get involved in the election at Memorial
Hospital. Nor are the threats in question less coercive
because Hazlett agreed that Miracle could visit patients
and the cafeteria at Memorial Hospital and lawfully
prohibited Miracle from entering the kitchen which is a
work area.
3. Hazlett's statements to Griffin and two other
employees
A threat of onerous working conditions was allegedly
made by Service Director Hazlett to kitchen employees
Alma Griffin, Stella Rictor, and June Sharpe. This incident
had its origin in a complaint which employee Karen
Symington made to Hazlett that her job was too much for
her and that she was unable to do the tasks required in her
job description. Hazlett told her that her job had to be
performed and to try to cope with it otherwise it would
have to be "rescheduled." Symington thereupon left the
office distressed and apparently recounted this conversa-
tion to employees Griffin, Rictor, and Sharpe who
thereupon spoke to Hazlett in his office concerning this
matter. Griffin testified that this episode occurred in or
about January 1976, wile Hazlett believed it occurred on a
date he could not remember but which was before the
December 19 scheduled election.
According to Griffin, Hazlett called the three employees
into his office and, in the presence of Steinman, they
complained to Hazlett that he was giving Symington more
work than she could handle. Hazlett replied that that
matter did not concern them. Griffin, however, retorted
that it did concern her since she relieved Symington when
the latter was off. Hazlett then challenged their right to act
as Symington's spokesmen since there was no union in the
picture at Mercy Hospital where they worked, adding that
when a union got in he would permit one of the employees
to serve as a spokesman. At one point in the conversation,
Griffin testified, Hazlett stated that he was going to put
more work on the employees. Although Griffin testified
that this was all she could recall Hazlett saying on this
occasion, the General Counsel, in an attempt to refresh
Griffin's memory, asked her whether anything was said
about what would happen if the Union got in. Griffin
:3:' See, for example, St. John's Hospital and School of Nursing, Inc., 222
NLRB 1150(1976).
:" Neither Sharpe nor Rictor who, together with Griffin, approached
thereupon amplified her testimony that in the middle of the
conversation Hazlett said "if the union got in he would put
more work on us."
Hazlett's version of this episode is as follows: Griffin,
Rictor, and Sharpe entered his office on their own volition
to discuss the work assigned to Symington. When Sharpe
told Hazlett that he was unfair to Symington, Hazlett
replied that the matter was no concern of theirs. At this
point, Griffin said that it was certainly her concern as she
was Symington's relief worker. Hazlett then stated that the
employees had no spokesman but when the Hospital
became unionized they would have a union spokesman. He
specifically denied warning that employees would have to
work harder or that, if the Union got in, he would put more
work on them. Hazlett, however, conceded that he
probably made the remark that if there were a union at the
Hospital they, nevertheless, would have to perform their
jobs as required by their job descriptions qr be "written
up" or disciplined if they failed to do so.
I am not entirely convinced by Griffin's testimony
adduced by the General Counsel in support of the
allegation of the consolidated complaint that Hazlett
"threatened employees with more onerous working condi-
tions should employees adhere to the Charging Union as
their collective-bargaining representative." As noted above,
Griffin added to her testimony that Hazlett said that he
would put more work on the employees the phrase "if the
union got in" only after the General Counsel mentioned
the phrase in an effort to refresh her recollection. 34 On the
other hand, I find that Hazlett's account to the effect that
the Union's presence would not relieve employees of their
duties outlined in their job descriptions reflects what more
likely was said by him on the occasion in question. I
therefore credit Hazlett's testimony in this respect.
I accordingly find that the General Counsel failed to
establish by a preponderance of credible testimony that
Hazlett threatened employees with onerous working
conditions if they continued to support the Union. The
relevant allegations of the consolidated complaint will be
dismissed.
IV. THE REMEDY
Pursuant to Section 10(c) of the Act, as amended, it is
recommended that the Respondent be ordered to cease
and desist from engaging in the unfair labor practices
found and take certain affirmative action designed to
effectuate the policies of the Act.
I have found that the Respondent unlawfully delayed the
reinstatement of the striking employees listed in Appendic-
es C and D. To remedy this violation, it is recommended
that the Respondent make these employees whole for any
loss of earnings he or she may have suffered by reason of
the delayed reinstatement by payment to him or her of a
sum of money equal to that which he or she normally
would have earned from the date he or she should have
been reinstated to the date upon which he or she was
actually reinstated, as indicated in Appendices C and D,
Hazlett with the Symington problem testified; nor for that matter was
Hazlett's assistant, Steinman, called as a witness.
1124
MERCY-MEMORIAL HOSPITAL
less his or her net earnings during the said backpay
periods.35 Backpay shall be computed with interest on a
quarterly basis in the manner prescribed by the Board in
F. W. WoolwAorth Company, 90 NLRB 289 (1950), and Isis
Plumbing & Heating Co., 138 NLRB 716 (1962). To
facilitate the computation, the Respondent shall make
available to the Board, upon request, payroll and other
records necessary and appropriate for such purposes. The
posting of a notice to employees is also recommended.
In view of the nature of the discrimination found herein
for protected union and concerted activities and support
which "goes to the very heart of the Act,"36 there exists the
danger of the commission by the Respondent of other
unfair labor practices proscribed by the Act. Accordingly, I
recommend that the Respondent be ordered to cease and
desist from in any other manner infringing upon the rights
guaranteed employees in Section 7 of the Act.37
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
I. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. The Grievance Committee is not a labor organiza-
tion within the meaning of Section 2(5) of the Act.
4. By unreasonably delaying the reinstatement of
certain of its striking employees, as found above, and by
applying a discriminatory weekend job assignment policy
to reinstated striking employees, the Respondent has
discriminated in regard to the hire and tenure of employ-
ment of these employees to discourage membership in, and
activities on behalf of, the Union within the meaning of
Section 8(a)(3) of the Act.
5. By such conduct and by threatening employee
Miracle with discharge or other disciplinary action if she
engaged in the Union's preelection campaign at Memorial
Hospital, the Respondent interfered with, restrained, and
coerced employees in the exercise of their statutory rights
within the meaning of Section 8(a)( ) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
7. The Respondent has not dominated or interfered
with the formation or administration of a labor organiza-
tion, namely, the Grievance Committee, in violation of
Section 8(a)(2) of the Act; nor has it engaged in conduct in
violation of Section 8(a)(1) of the Act other than as found
above.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 1.0(c) of the
:L:, As indicated in this Decision. Alice and Mary Biniecki's right to
reinstatement and backpay will he determined in compliance proceedings.
':"` O L R B. v. Enftisle Manufacruring Compan:. 120 F.2d 532. 536 (C.A.
4. 1941). It is also noted that the Board has recently found the Respondent
in violation of Sec. 8(al(5) and (I) of the Act. AUerc -Memorial Hospiial
('r,,rplraion. 224 NLRB 51 ( 1976).
:7 ' L R.B. *. Evpress Publishing Co. 312 U.S. 426.433 (1941).
: In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations o. the National Iabor Relations Board. the findings.
Act, as amended, I hereby issue the following recommend-
ed:
ORDER 3 8
The Respondent, Mercy-Memorial Hospital Corpora-
tion, Monroe, Michigan, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in, or activities on behalf
of, Local 79, Service Employees International Union,
AFL-CIO, or any other labor organization, by unreason-
ably delaying the reinstatement of striking employees upon
their unconditional application to return to work or by
applying a discriminatory weekend job assignment policy
to reinstated striking employees or by discriminating
against employees in any other manner in regard to their
hire or tenure of employment or any term or condition of
employment.
(b) Threatening employees with discharge or other
disciplinary action for engaging in any preelection or
organizational activities on behalf of the above-named
Union or any other labor organization at the Respondent's
Memorial or Mercy Hospitals.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their right to self-
organization, to form labor organizations, to join or assist
the above-named Union or any other labor organization, to
bargain collectively through representatives of their own
choosing, to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection,
or to refrain from any and all such activities except to the
extent that such right may be affected by an agreement
requiring membership in a labor organization as a
condition of employment, as authorized by Section 8(a)(3)
of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Make whole for any loss of earnings the striking
employees listed in Appendices C and D may have suffered
by reason of the discrimination against them, in the
manner 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 payment records, timecards,
personnel records and reports, and all other records
necessary or useful in analyzing the amount of backpay
due under the terms of this recommended Order.
(c) Post at its Mercy and Memorial Hospital Units in
Monroe, Michigan, the attached notice marked "Appendix
F."3 9 Copies of said notice, on forms provided by the
Regional Director for Region 7, after being duly signed by
the Repondent's authorized representative, shall be posted
conclusions. and recommended Order herein shall. as provided in Sec.
102.48 of the Rules and Regulations, he adopted bs the Board and become
its findings, conclusions. and Order. and all objections thereto shall be
deemed waived for all purposes.
i:S 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."
1125
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the Respondent immediately upon 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 to insure that said notices are not altered, defaced,
or covered by any other material.
(d) Notify the Regional Director for Region 7, in writing,
within 20 days from the date of.this Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the allegations of the
consolidated complaint charging violations of Section
8(a)(2) and (1) of the Act except as found in this Decision
be, and they hereby are, dismissed.
APPENDIX A
a. Although erroneously sent the Respondent's letter of
February 28, 1975, the following 19 individuals are not
entitled to reinstatement because they had quit their jobs
on the indicated dates long before the Union's application
for the strikers' reinstatement made on February 21, 1975:
Irene Baker-June 19, 1972; Marie Braden-June 21,
1972; Hobart Carroll-June 5, 1972; Flora Epps-October
26, 1972; William Hakin-July 18, 1972; Kathleen Joyce-
May 23, 1972; Norma Knee-December -, 1973; Mary
LaFrance-September 22, 1972; Katherine Lowe-March
21, 1973; Victor Mexico-June 29, 1972; Frederick
Owsley-June 29, 1972; Wilma Peters-March 5, 1974;
Carolyn Petree-September 29, 1972; Francis Rath-
March 5, 1974; Marian Reaume-quit before September
24, 1973, on which date she was reemployed; Claudia
Sauer-August 16, 1973; Mildred Schardt-May 30, 1973;
Marilyn Smith-October 12, 1974, and Linda Ucci-July
24, 1972.
b. The following employees were deceased prior to the
Union's application for reinstatement: Harriet DuVall and
Janet Sancrant.
APPENDIX B
The following 21 striking employees were timely reinstat-
ed on March 18, 1975, and are therefore not entitled to any
backpay: Marion Avery, Barbara Collino, Nicolena Coluc-
ci, Irene Congioloso, Florence Dussia, Thelma Lucille
Fortner, Alma Griffin, Axie Ivie, Lillian Jones, Genevieve
Kregal, Rosemary LeBeau, lona Langford, Mary McCam-
mon, Robin McMillan (Robinson), Joyce Messer, Pauline
Philbeck, Diane Poupard, June Sharpe, Edward Tibai,
Helen Turner, and Billie Woods.
APPENDIX C
The reinstatement of the following 19 striking employees
was unreasonably delayed and they are therefore entitled
to backpay from March 18, 1975, to the indicated date. [All
dates are in 1975.] Barbara Billmyer-June 23; Billie
Cathey-April 21; Susie Clark-June 23; Shirley Ed-
monds-April 1; Gladys Fleeman-April 1; Ronald
Fountain-June 15; Ethel Freet-April 1; Mattie Hoye-
June 23; Elsie Jones-April 1; Mattie Madison-April 1;
Kathleen McBride-June 23; Bethel McKenzie-April 8;
Hazel Minton-April 1; Kathleen Rhines-April 1; Mary
Ruman-June 23; Hazel Sager-April I; Betty Vergow-
ven-April 8; Tina Welch-April 1; and Rita Zawicki-
June 23.
APPENDIX D
Employees whose reinstatement or to whom a reinstate-
ment offer was separately found in this Decision to have
been unreasonably delayed are as follows, with the
indicated backpay period. [All dates are in 1975.] Charlotte
Goins-3/26-4/1; Dale Lajiness-3/18-5/27; Blauma
Langford-3/18-6/30; Alice McDonald-4/16-5/19; Ef-
fie Mae Miracle-3/18-4/1; William Ohr-3/18-4/8;
Juanita Patterson-3/18-6/23; Bernice Sordini-3/18-
4/1; Alberta Violanti-5/4-5/19; Dorothy Vogler-3/24-
10/14; Harvey Woods-3/29-4/21; and Theo Wylie-
3/3 -4/8.
APPENDIX E
a. The six employees listed received the Respondent's
letter of February 28, 1975, but failed to report or
otherwise communicate with the Hospital. Accordingly,
they are not entitled to reinstatement or backpay: Sandra
Druyor, Virginia Gill, Donald Johnson, Mike Porta,
Shirley Vanderpool, and Lawrence Whittaker.
b. Similarly not entitled to reinstatement or backpay
are the following 10 employees who did not respond to the
Hospital's February 28, 1975, letter except to notify it that
they were quitting: [Quit dates are as shown. All dates are
in 1975.] Jewell Bosenbark - first week in March;
Florence Brewer - after March II; James Cron - July
29; Shirley Marchese - March 13; Evelyn Nolan - May
30; Mary Ann Zawacki - June 26; Jane Faziani - July 1;
Kathy Grubb - June 27; Macie Langford - July 25; and
Buford McKartz - March 19.
c. The Respondent's February 28, 1975, letters mailed
to Peggy Kohler and Danny Longsworth were returned as
nondeliverable. Despite efforts to locate them, the Respon-
dent was unable to reach them. Accordingly, they, too, are
not entitled to reinstatement or backpay.
d. Although the five employees listed below were sent
the Respondent's letter dated February 28, 1975, they are
not entitled to reinstatement as they had reached age 65
prior to the Union's application for reinstatement and were
retired pursuant to the Hospital's mandatory retirement
policy: Marguerite Cuson, Louis Nagy, Edith Nieman,
Martine O'Bryen, and Leo Russeau.
e. Employee Patsy Vanderpool, who had been reinstat-
ed on August 25, 1974, was mistakenly sent the February
28, 1975, letter and therefore was not unlawfully deprived
of reinstatement.
f. Since the following employees never went on strike,
they were erroneously sent the February 28, 1975, letters
and were not unlawfully denied reinstatement: Marion
Costello, Rose Robinson, John Sawick, and Janice Balk.
1126
MERCY-MEMORIAL HOSPITAL
APPENDIX F
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had the opportunity to
give evidence, the National Labor Relations Board found
that we violated the National Labor Relations Act and
ordered us to post this notice.
The Act gives all employees the following rights:
To organize themselves
To form, join, or support unions
To bargain as a group through a representative
they choose
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all of these activities.
WE WILL NOT discourage membership in or activities
on behalf of Local 79. Service Employees International
Union, AFL-CIO, or any other labor organization, by
unreasonably delaying the reinstatement of striking
employees upon their unconditional application to
return to work or by applying our discriminatory
weekend job assignment policy to reinstated striking
employees or by discriminating against employees in
any other manner in regard to their hire or tenure of
employment or any term or condition of employment.
WE WILL NOT threaten employees with discharge or
other disciplinary action for engaging in any preelec-
tion or organizational activities on behalf of the above-
named Union or any other labor organization at our
Memorial and Mercy Hospital units.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of their
right to self-organization, to form labor organizations,
to join or assist the above-named Union or any other
labor organization, to bargain collectively through
representatives of their own choosing, to engage in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any and all such activities except to the
extent that such right may be affected by an agreement
requiring membership in a labor organization as a
condition of employment as authorized by Section
8(a)(3) of the Act.
WE WILL make whole those striking employees
whose reinstatement was unreasonably delayed for any
loss of earnings they may have suffered by reason of
such discrimination.
MERCY-MEMORIAL
HOSPITAL CORPORATION
1127