Swedish Hospital Medical Ceter

National Labor Relations Board - Board Decisions

Sep 16, 1977

232 N.L.R.B. 16 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Swedish Hospital Medical Center and Washington
State Nurses Association. Case 19-CA-9116
September 16, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On May 9, 1977, Administrative Law Judge
Maurice M. Miller issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief, and the General
Counsel filed a brief in support of the Administrative
Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Swedish Hospital
Medical Center, Seattle, Washington, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
DECISION
STATEMENT OF THE CASE
MAURICE M. MILLER, Administrative Law Judge: Upon
a charge filed December 23, 1976, and duly served, the
General Counsel of the National Labor Relations Board
caused a complaint and notice of hearing dated January
26, 1977, to be issued and served on Swedish Hospital
Medical Center, designated as Respondent in this decision.
Therein Respondent was charged with the commission of
unfair labor practices within the meaning of Section
8(a)(l), (3), and (5) of the National Labor Relations Act, as
amended. 61 Stat, 136, 75 Stat. 519, 88 Stat. 395.
Respondent's duly filed answer conceded certain factual
allegations within General Counsel's complaint, but denied
the commission of any unfair labor practice.
Pursuant to notice, a hearing with respect to this matter
was held before me on April 19, 1977, in Seattle,
Washington. The General Counsel, Respondent, and
Complainant Association were represented by counsel.
Each party was afforded a full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce
232 NLRB No. 4
evidence with respect to pertinent matters. When the
hearing convened, counsel presented a joint stipulation of
facts, with supportive documentation; thereafter, Respon-
dent presented two witnesses. They testified briefly with
regard to particular considerations which had prompted
Respondent's course of conduct, challenged herein. Since
the hearing's close, briefs have been received from General
Counsel and Respondent's counsel. These briefs have been
duly considered.
FINDINGS OF FACT
Upon the previously noted stipulation of facts, documen-
tary materials proffered in support thereof, and the
complete testimonial record, I make the following findings
of fact:
1. JURISDICTION
Respondent raises no question herein with respect to
General Counsel's jurisdictional claim. Upon the com-
plaint's relevant factual declarations - specifically, those
set forth in detail in the second paragraph thereof - which
are conceded to be correct, for jurisdictional purposes
solely and on which I rely, I find that Respondent herein
was, throughout the period with which this case is
concerned, and remains an employer engaged in commerce
and business operations which affect commerce within the
meaning of Section 2(2), (6), and (7) of the Act. Further,
with due regard for presently applicable jurisdictional
standards, I find assertion of the Board's jurisdiction in this
case warranted and necessary to effectuate the statutory
objectives.
II. COMPLAINANT ASSOCIATION
Washington State Nurses Association, designated as
Complainant Association within this decision, is a labor
organization within the meaning of Section 2(5) of the Act,
as amended, which admits certain of Respondent's em-
ployees to membership.
III. THE UNFAIR LABOR PRACTICE CHARGE
A. Issue
Following a lawful work stoppage during which certain
members of Respondent's nursing staff refused to partici-
pate, withdrew their participation and returned to work, or
were newly hired, while the work stoppage was in progress,
Respondent's management decided to grant, promised,
and subsequently granted, single compensatory "days off"
with pay to nursing staff members who had refused to
participate in Complainant Association's strike, or who
had suspended their participation therein. General Counsel
contends, herein, that Respondent's decision, coupled with
its subsequent course of conduct - which Respondent's
management had taken, unilaterally, without prior notice
to, or consultation with, Complainant Association herein
- compassed Section 8(a)(1), (3), and (5) unfair labor
practices. Respondent contends, contrariwise, that, with
due regard for certain circumstances which had purported-
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SWEDISH HOSP. MEDICAL CENTER
ly motivated its decision, its course of conduct should be
considered privileged.
B. Facts
1. Background
On October 29, 1974, Respondent became privy to a
collective-bargaining contract - designated the First
Agreement herein - which had been negotiated by Seattle
Area Hospital Council and Complainant Association, with
a July 1, 1974, effective date. Hospital Council had
represented certain designated member hospitals, eighteen
in number, during the collective-bargaining negotiations
with Complainant Association herein which had preceded
the First Agreement's execution. Respondent had, during
those negotiations, maintained and currently maintains
Hospital Council membership.
While the First Agreement was being negotiated, and
throughout the period with which this case is concerned,
Complainant Association had been and remains the duly
selected majority representative of registered nurses em-
ployed by Hospital Council's member hospitals. General
Counsel, Complainant Association, and Respondent have
stipulated that by virtue of Section 9(a) of the statute
Complainant Union has been and is entitled to claim
recognition as the exclusive representative of all nurses
within the designated bargaining unit for collective-bar-
gaining purposes. Indeed, Complainant Association has
been throughout the period with which this case is
concerned duly recognized as their exclusive bargaining
representative. Within its collective-bargaining contract,
negotiated with Hospital Council, the bargaining unit
covered - which the parties considered appropriate for
collective-bargaining purposes within the meaning of
Section 9(b) of the statute - was defined thusly:
All registered nurses classified as. resident nurse,
general duty staff nurse, charge nurse, assistant head
nurse and head nurse; excluding supervisors and all
other employees.
This contractually defined group, so the record shows,
covered, within a single, multiemployer bargaining unit, all
registered nurses working, within the classifications shown,
for Hospital Council's member hospitals privy thereto.
The collective-bargaining contract noted expired on June
30, 1976, consistently with its terms. Negotiations between
Complainant Association and Hospital Council, looking
toward a replacement contract, had prior thereto been duly
initiated on or about May 20, before the designated First
Agreement's termination date.
2. The strike
On or about July 12, 1976, most of the registered nurses
within the First Agreement's designated multiemployer
bargaining unit ceased work concertedly; the stipulated
record shows Complainant Association had called a
concededly "lawful" strike in furtherance of its bargaining
objectives. When the strike began, Respondent's registered
nurse roster compassed some 447 staff members. Within
this group, 390 nurses ceased work; 57 did not strike. A list
of nonstrikers - proffered for the present record - may,
so it shows, include staff members who had not been
scheduled to work when the strike began - part-time
employees; nurses then on vacation, sick leave, or leaves of
absence; and nurses who had initially ceased work but who
subsequently returned to work during July, the strike's first
month. Thereafter, during August and September 1976
particularly, while the strike was in progress, 11 nurses
abandoned their strike and resumed work. Likewise, during
these 2 months, Respondent hired 14 new registered nurses.
Meanwhile, for a comparatively short July-August period,
X-ray technicians in Respondent's hire had, likewise, gone
on strike. Of 18 technicians, 16 had ceased work, while 2
had continued to perform their regular services. This work
stoppage had ended while Complainant Association's
strike was still in progress.
The registered nurses' strike was terminated, on or about
September 17, with the negotiation of a strike settlement
agreement between the parties. Therein, Hospital Council,
for its member hospitals, and Complainant Association,
mutually agreed, inter alia, that there should be no
discrimination of any kind by the parties against nurse
personnel who had freely exercised designated rights which
the Act protects.
3. The new contract
Likewise, on or about September 17, Complainant
Association and Hospital Council negotiated and signed a
collective-bargaining contract, designated the Second
Agreement herein, with a June 30, 1979, termination date.
The parties have stipulated that Respondent, by virtue of
its Hospital Council membership, became privy thereto.
By its terms, this September 17 Second Agreement
likewise covers registered nurses working within a single,
multiemployer bargaining unit - concededly appropriate
for collective-bargaining purposes within the meaning of
Section 9(b) - which stands defined therein, thusly:
All full-time, part-time and per diem registered nurses
employed by the Employer; excluding supervisory and
administrative positions and all other employees.
Since September 17, 1976, and throughout the period with
which this case is concerned, Complainant Association has
concededly been - so the stipulated record shows - the
duly selected representative of a majority of nurses within
the designated Second Agreement's defined bargaining
unit; by virtue of Section 9(a), Complainant Union has
been, and remains, the exclusive bargaining representative
of all nurses within the designated bargaining group,
including those in Respondent's employ, with respect to
their rates of pay, wages, hours of employment, and other
terms and conditions of work.
4. The compensatory day grant
On or about October 13, 1976, Respondent's manage-
ment - without any previous notice to, or consultation
with, Complainant Association's representative - decided
to grant I compensatory day off, with pay, for certain staff
personnel who had not participated in Complainant
Association's strike, or who had returned to work before
17
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the strike settlement date. Within a memorandum dated
October 13, and directed specifically to nursing department
personnel who would be considered eligible for such a
compensatory day, H. Jean Byers, Respondent's director of
nursing, declared that:
This note is to express my sincere appreciation to all
Nursing Department employees for their outstanding
efforts and cooperation during the recent nurses' strike.
Because of your willingness to assume additional
responsibilities, we were able to maintain our excellent
quality of patient care. The Nursing Office is well
aware of the emotional, physical, and financial hard-
ships which were imposed upon the staff during this
period. As a gesture of gratitude we would like to offer
each employee one compensatory day to be scheduled
off with the approval of the Head Nurse and Clinical
Supervisor.
Subsequently, Respondent's decision to grant the so-called
compensatory day was reported to Respondent's nursing
department supervisors by Director of Nursing Byers
during their regular November 2 supervisors' meeting.
Byers' October 13 memorandum had been distributed
presumably some time shortly thereafter to some 82 nurses.
This group compassed those 57 nurses who, within
Respondent's view, had never withheld their services, plus
I I nurses who had struck but had resumed work before the
strike settlement date, together with 14 nurses who had
been hired while the strike was in progress. Those nurses
who had ceased work on July 12, and who had continued
to withhold their services for the full strike period - some
379 in number - received no memorandum conveying a
compensatory day promise from Respondent's manage-
ment. Respondent's management, further, made compara-
ble compensatory day off commitments to some other
nursing department personnel, not compassed within the
professional group which Complainant Association repre-
sented, who had worked during the registered nurses' work
stoppage. This group, which compassed some 313 employ-
ees, included ward clerks and secretaries, central service
personnel, nursing assistants, nonlicensed nurses, practical
nurses, student RN employees, surgery technicians, order-
lies, tech I workers, certified registered nurse anesthetists,
and licensed practical nurses; Respondent considers them
nursing department workers.
Subsequently, hospital staff personnel working in various
other areas of Respondent's facility - that is, within
departments other than the nursing department with which
we are concerned - protested Respondent's failure to
grant them compensatory days off with pay, despite the
fact that they had likewise worked throughout Complain-
ant Association's work stoppage. (Inter alia, those X-ray
technicians who had worked throughout the July-August
period, while their fellow technicians were on strike, had
not been granted compensatory days.) On December 3,
within a communication directed to representatives of
these various departments, Respondent's personnel direc-
tor, Barbara James, took note of these protests. She
declared that Respondent's management had made an
"administrative decision" to grant the compensatory day:
as an expression of thanks to those [nursing
department] employees for their efforts during the
recent RN strike. Without the support of those
employees the hospital would have been unable to
accept any patients and working hours would have
been further reduced or eliminated altogether. The
Nursing Department personnel worked long hours, all
shifts, and had schedules changed constantly in order
to provide the necessary care for our patients. ..
Respondent's personnel director reported management's
appreciation for the "hardships" which all hospital employ-
ees had faced, but noted that it was the support which
nursing department personnel provided which had "al-
lowed the hospital to function at all" during Complainant
Association's work stoppage.
The stipulated record, though it provides no factual
details, warrants a determination, which I make, that
Respondent still refuses to bargain with Complainant
Association regarding its compensatory day off commit-
ments. Since October 13, some of Respondent's staff
personnel have requested, scheduled, and taken their extra
day off with compensation; the precise number of those
who have thus far taken their compensatory day, however,
cannot be, so Respondent contends, readily determined.
C. Discussion and Conclusions
1. Contentions of the Parties
General Counsel's representatives herein have presented
three closely related contentions. Basically, they seek a
determination that Respondent's promise to grant purport-
edly compensatory days off with pay for nurses who did
not participate in Complainant Association's lawful work
stoppage, or who withdrew from their initial participation
therein, constituted a statutorily proscribed encroachment
upon the right of Respondent's nurses to strike, which
violated Section 8(a)(l). Further, they contend that
Respondent's commitment to grant such compensatory
days - coupled with its subsequent payments for particu-
lar days off which some "substantial number" of nurses
within the privileged group subsequently took - consti-
tuted disparate treatment, motivated by statutorily pro-
scribed considerations, which violated Section 8(a)(3)
specifically. Finally, General Counsel's representatives
argue that Respondent's course of conduct - which
reflected its determination, unilaterally, without prior
notice to Complainant Association herein, or consultation
with that body's representatives, that certain designated
nonstrikers would be severally granted compensatory day
- should be considered a statutorily proscribed refusal to
bargain.
Respondent's presentation and posthearing brief, how-
ever, suggest its reliance upon several countercontentions.
First, Respondent's counsel would have this Board note
that since his client's managerial representatives neither
determined nor publicly declared their readiness to grant
any nonstrikers compensatory days off with pay before
Complainant Association's strike terminated, no conclu-
sion should be considered warranted that Respondent had
thereby encroached upon or interfered with the statutorily
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SWEDISH HOSP. MEDICAL CENTER
protected right to strike which Complainant Association's
members had theretofore exercised.
Counsel further contends that any determination bot-
tomed upon this record with respect to whatever "tendency
to discourage" management's compensatory day program
might have upon hospital and medical center personnel,
with respect to their future exercise of statutorily guaran-
teed rights, would necessarily be derived from "rank
speculation" merely.
Further, Respondent's presentation and brief suggest a
contention that - because the hospital and medical
center's so-called compensatory day grant was considered
a reward for the demonstrated willingness of nursing
department nonstrikers to handle "additional responsibili-
ties" while Complainant Association's work stoppage was
being maintained, and compensation for "emotional,
physical, and financial hardships" which these nonstrikers
had suffered - such day off grants with pay should not be
considered a special type of benefit provided for staff
personnel merely because they had refrained from strike
participation; shortly, counsel suggests that Respondent's
compensatory day grants should not be considered a
manifestation of discriminatory favoritism toward non-
strikers, whereby Association membership and participa-
tion in statutorily protected, Association-sponsored con-
duct, on the part of Respondent's represented staff
personnel, would be discouraged.
These several contentions raise significant, somewhat
novel, questions. However, the decisional principles which
should determine their disposition have been characterized
as well established within this Board's view. Those
principles must now be considered.
2. Discussion
Consistent with Section 8(aXI), respondent employers
clearly may not "interfere with, restrain or coerce employ-
ees" with respect to their exercise of statutorily protected
rights; the right to strike, of course, constitutes one such
statutorily guaranteed right. N.LR.B. v. Erie Resistor
Corp., 373 U.S. 221, 233 (1963); N.LR.B. v. Washington
Aluminum Company, Inc., 370 U.S. 9 (1962); Aero-Motive
Manufacturing Company, 195 NLRB 790, 791 (1972). A
determination with respect to whether some particular
respondent employer may have "interfered" with his
workers' statutorily protected rights, flouting Section
8(a)(1)'s proscriptive requirements thereby, will - so the
cases hold - require factual findings, first, with respect to
whether that employer had participated in conduct "which,
it may reasonably be said, tends to interfere with the free
exercise of employee rights" contrary to statutory man-
dates. N.LR.B. v. Illinois Tool Works, 153 F.2d 811, 814
(C.A. 7, 1946). And this Board has held that benefits
granted to nonstrikers, while comparable benefits are being
denied or withheld from strikers, do constitute interference
statutorily proscribed. N.LR.B. v. Great Dane Trailers,
Inc., 388 U.S. 26 (1967); N.LR.B. v. Erie Resistor
Corporation, supra, Aero-Motive Manufacturing Company,
supra. In this Board's Aero-Motive decision - which dealt
with a cash bonus paid to nonstrikers, decided upon while
a work stoppage was in progress but publicized and paid
directly following that work stoppage's conclusion - the
Board panel majority noted that:
. I. [The] issue posed here is whether the payment
of a special cash bonus to employees who chose to
refrain from protected, concerted activity (plus the
nonpayment of such a bonus to employees who had
persisted in engaging in the protected strike activity)
tends to interfere with thefree exercise of the statutory
right of the employees of this plant to engage in strike
action. .. It is by now axiomatic that employers
violate our Act if they grant special benefits to
employees who refrain from engaging in concerted
activity and .. . deny such benefits to those who
choose to engage in such activity.
Moreover, this Board has since held that when a labor
organization calls and conducts a strike calculated to
support a position taken in contract negotiations, the
disparate treatment of strikers and nonstrikers calculated
to discourage worker participation in such a legitimate
strike constitutes discrimination to discourage "member-
ship" within the labor organization concerned. Technitrol,
Inc., 201 NLRB 74, 78 (1973), citing N.LR.B. v. Great
Dane Trailers, Inc., supra at 32; Radio Officers' Union of the
Commercial Telegraphers Union, AFL [A.H. Bull Steamship
Companyj v. N.LR.B., 347 U.S. 17, 43-44 (1954). See,
likewise, N.LR.B. v. Erie Resistor Corp., supra at 233, in
this connection. Thus, Respondent's present contention
that General Counsel's representatives have failed to
sustain their burden (since they have produced no
"evidence" that the grant of compensatory days off really
discouraged membership in Complainant Association, or
participation in that organization's programs, or that it had
been "motivated" by some desire to generate discourage-
ment) carries no persuasion. Whenever a respondent
employer's contrasting treatment of nonstrikers and strik-
ers may fairly be characterized as disparate - without
some persuasive showing, proffered by the particular
employer concerned, that some "legitimate and substan-
tial" business justification had motivated challenged
conduct - statutorily proscribed discrimination may be
found.
With respect to whether a respondent employer's
unilateral determination, within his sole discretion, to grant
nonstrikers a special benefit should, further, be considered
a statutorily proscribed refusal to bargain, this Board, in its
Aero-Motive decision, commented at 792:
Normally, making unilateral changes in wage payments
violates an employer's obligation to bargain. But we are
here dealing with a payment which was illegal. Is it
true, then, that there was nothing which could have
been lawfully bargained about? We think not ...
[Here], had Respondent known, before it decided on
the payments, of the Union's view that they contra-
vened our Act, and, further, that the Union intended to
pursue the matter before this agency, mayhap Respon-
dent would have taken second thought and all of these
proceedings might have been avoided . . . [because
discussions with the labor organization concerned,
regarding a proposal's possible or probable illegality,
19
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
might dissuade the proposing party from pursuing his
proposal further, or because such discussions might
have persuaded the parties to pursue some alternative
procedure which might not run afoul of legal prohibi-
tions] ... We are therefore of the view that the raison
d'etre of requiring bargaining in advance of changes in
wages has at least as much application to proposed
illegal changes as to legal ones. (Interpolation supplied
to promote clarity.)
Pursuant to this rationale, a respondent employer's
determination with regard to special benefits which he
would grant to nonstrikers but withheld from work
stoppage participants (when reached without notice to their
recognized bargaining representative, or consultation with
its spokesman) may properly be considered a tacit refusal
to bargain, statutorily proscribed.
3. Conclusions
When considered with due regard for these governing
decisional principles, Respondent's suggestion - that no
statutorily proscribed interference should be herein found,
because its managerial decision regarding a compensatory
day-off reward for nonstrikers had neither been reached
nor publicized before Complainant Association's strike was
terminated - carries no persuasion. With respect to a
closely comparable contention, in its previously noted
Aero-Motive decision, this Board commented at 791-792:
While it is true that the absence of an advance
announcement or payment necessarily means that the
bonus was not used as an inducement to refrain from
concerted activity at the time the strike was in progress,
we cannot put on blinders and fail to look at the impact
of the payment on employees at the time it was made
and for the future. Once granted, the former strikers
were plainly disadvantaged with respect to the non-
strikers and it was equally plain that the distinction was
drawn solely on the basis of who engaged in protected,
concerted activity and who did not. This not only
created a divisive wedge in the work force but also
clearly demonstrated for the future the special rewards
which lie in store for employees who choose to refrain
from protected strike activity.
This Board, in its Aero-Motive decision, was dealing with a
respondent firm which had decided, during a strike, that
nonstrikers would be given cash bonuses, but which had
withheld any public pronouncements with respect thereto
until those bonus payments were made, following the
strike's termination. Herein, Respondent's management
representatives had neither conceived their compensatory
day program, nor determined that nonstrikers would each
be given a single day off with pay before Complainant
Association's work stoppage terminated. Within my view,
however, the fact that Respondent's management may not
have reached any decision, with respect to granting
nonstrikers a special benefit, before Complainant Associa-
tion's work stoppage terminated, carries no exculpation;
Respondent's grant, when subsequently publicized, still
carried a prospective thrust. Both former strikers and
nonstrikers were clearly notified that specialfuture rewards
might be given hospital and medical center staff personnel
who could choose thereafter to refrain from participation
in lawful work stoppages. Within its context, Respondent's
communication may reasonably be considered calculated
to interfere with future free exercises of statutorily guaran-
teed rights.
As previously noted, Respondent's presentation and
brief suggest a further contention that its managerial
decision to grant compensatory days off with pay derived
simply from a desire to reward nursing department
nonstrikers because they had been required to handle
"additional" responsibilities; because they had suffered
"emotional, physical, and financial" hardships throughout
Complainant Association's strike; because their families
had been "inconvenienced" thereby; and because their
services had provided crucial "support" without which
Respondent's hospital could not have functioned. In my
view, however, these considerations provide no "legitimate
and substantial" business justification for Respondent's
purportedly compensatory day off program. This Board, in
its previously noted Aero-Motive decision, did consider
whether a respondent employer's desire to compensate
nonstrikers for "special risks" which they had presumably
run, throughout a strike, justified special cash bonus
payments. Regarding the designated respondent's conten-
tion that payments motivated by such considerations
should be considered privileged, this Board declared (at
792) that:
. . . [The] payments here were neither announced nor
made during the strike, nor were they offered as an
inducement to encourage employees to run whatever
risks may have been created by the violence which
accompanied the strike. If then, the employees came to
work and were willing to do so for no more than their
regular wages, what business justification is left for the
granting of special rewards, after the strike is over, to
nonstrikers? We perceive none.
However the Respondent may have characterized
the payments, we believe that the principal impact of
the payments will be to discourage employees from
engaging in protected activity in the future. And we
think this is true even if Respondent's heart was pure.
Thus even if Respondent's officers and agents who
decided upon the bonus payments acted solely out of a
desire to provide additional compensation to employ-
ees whom Respondent believed to have risked personal
harm, our decision herein would be no different. We
are concerned not with the subjective motivation of
Respondent but with the objective impact of its action.
[Emphasis supplied.]
Similar conclusions may reasonably be considered war-
ranted herein. Respondent's various nursing department
nonstrikers may have been required to work long hours, for
which, however, they had presumably been properly
compensated; some may have been required to change
shifts, for which they may or may not have received shift
differential compensation; some may have been required
to cancel or reschedule vacations; and some may have
found their families "inconvenienced" thereby. However,
20
SWEDISH HOSP. MEDICAL CENTER
these nonstriking staff members had nevertheless contin-
ued to report for work; they had presumably been willing
to provide services during Complainant Association's work
stoppage for no more than regular straight time or
Respondent's currently payable overtime compensation.
Thus, Respondent's proffered "gesture of gratitude" herein
cannot logically be considered compelled, warranted, or
justified by business considerations.
Respondent makes no contention, herein, that special
compensatory day privileges were granted to particularly
identified staff members who had personally handled
"additional" responsibilities, worked strange or modified
shifts, canceled or rescheduled vacations previously
planned, or found their families "inconvenienced" general-
ly, in contradistinction to fellow nonstrikers who may not
have suffered such specified burdens, strains, or hardships.
Had Respondent proven persuasively that all registered
nurse nonstrikers had without exception suffered these
personal strains, inconveniences, and hardships, this Board
could, arguendo, still determine, within my view, that no
"legitimate and substantial" business justification, for their
special poststrike rewards, had been generated thereby.
New worktime tasks for nonstrikers, coupled with neces-
sarily "additional" responsibilities, longer hours, changed
or modified shifts, cancelled or shifted vacations, and
revised family programs, frequently become necessary
when work stoppages develop. Such presumptively burden-
some changes could conceivably be considered routine
concomitants of continued service during any work
stoppage for workers who have chosen to refrain from
strike participation. If so, special poststrike rewards for
nonstrikers (who may have suffered nothing more than
these conceivably normal hardships) could hardly be
considered justified.
Had Respondent proven persuasively that registered
nurse nonstrikers were required to work "outside their
normal jurisdiction" during Complainant Association's
work stoppage, special poststrike compensation or benefits
granted - specifically calculated to reward nonstrikers for
such distinctly "beyond normal" services solely - might
arguably be considered privileged. See Association of
Motion Picture Producers, Inc., 79 NLRB 466, 496-499
(1948); Columbia Pictures Corporation and Association of
Motion Picture Producers, Inc., 82 NLRB 568, 634-637
(1949) (the $3.50 award). Nothing in the stipulated or
testimonial record, however, would warrant a determina-
tion that registered nurse nonstrikers were required to work
outside their normal jurisdiction within Respondent's facili-
ty. And, in any event, had a record been made which might
call for such a determination, the cases cited might no
longer be considered viable precedents for the particular
proposition noted. See Aero-Motive Manufacturing Compa-
ny, supra, fn. 7. The present record, however, considered in
totality, requires no such definitive determination, within
my view. Rather, the sole "visible line" which can be drawn
herein - between Respondent's Nursing Department staff
members, within the bargaining unit which Complainant
Association representeda who were granted the right to claim
compensatory days, and staff members, within the same
bargaining unit, who were denied that right - differentiates
merely between those who continued to perform services
and those who ceased work. Necessarily, therefore,
Respondent's course of conduct reflected a disparate
treatment of strikers vis-a-vis registered nurse nonstrikers,
reasonably calculated to reward such nonstrikers for their
refusal to join Complainant Association's work stoppage,
their resumption of work during the strike, or their
willingness to take positions as strike replacements. Such
disparate treatment constitutes discrimination, statutorily
proscribed. Technitrol, Inc., supra, see particularly, footnote
2 therein.
Respondent's counsel suggests that since his client's
management representatives, concurrently with their chal-
lenged course of conduct herein, had refrained from
granting compensatory days off with pay for some few X-
ray technicians who had continued work while their
technician colleagues struck, the hospital's nursing depart-
ment personnel would have had no reasonable ground for
belief that Respondent's program, for them, derived merely
from a purpose to reward nonstrikers for their refusal to
join a work stoppage. I have not been persuaded. True,
Director of Nursing Byers and Personnel Director James
did declare that Respondent's decision to grant Nursing
Department nonstrikers compensatory days off represent-
ed a gesture of gratitude for certain special strains,
burdens, and hardships which they, but no other nonstrik-
ers, had sustained, whereby the hospital's capacity to
function had been preserved. Respondent has made no
showing, however, that all Nursing Department nonstrikers
were burdened equally; the stipulated record, so far as it
goes, would warrant a determination, inter alia, that nurses
hired during the strike, and those who withdrew therefrom
and resumed work, had suffered "inconveniences" for
significantly shorter time periods than their fellow regis-
tered nurses who never ceased work. All nursing depart-
ment nonstrikers, however, were "rewarded" with compa-
rable even-handedness, regardless of their possibly less-
than-equal sacrifices. Respondent's course of conduct,
challenged herein, therefore, still reflects a differentiation
in treatment between registered nurse nonstrikers consid-
ered as a group and their nursing department colleagues
who had ceased work. Such a broadly gauged differentia-
tion, within my view, cannot be considered statutorily
privileged.
With respect to General Counsel's contention that
Respondent's course of conduct likewise reflected a tacit
refusal to bargain, Respondent's counsel notes within his
brief the failure of General Counsel's representatives to
produce evidence that Complainant Association had ever
requested bargaining with respect to compensatory days.
However, his sub silentio suggestion that Complainant
Association's supposed failure to request negotiations
should suffice to foreclose General Counsel's present
contention that Respondent's course of conduct consti-
tuted a refusal to bargain carries no persuasion. Since
Respondent's management representatives had reached
their decision with regard to granting nonstrikers purport-
edly compensatory "days off" with pay without prior
notice to Complainant Association, representatives of that
organization can hardly be faulted for their failure to
request negotiations before Respondent's decision was
publicized. Further, Respondent's decision when publi-
21
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cized, reflected a veritable fait acconpli with respect to
which belated requests for post hoc negotiations would
most likely have been potentially divisive or futile. See
Aero-Motive Manufacturing Company, supra at 792. With
due regard for this Board's rationale the decision noted, I
conclude, consistently therewith, that Respondent's course
of conduct, when it unilaterally determined that nonstrik-
ers would be granted a purportedly compensatory day,
constituted a refusal to bargain, statutorily proscribed.
Respondent's counsel spends considerable time in his
brief trying to distinguish this case factually and legally
from the Board's Aero-Motive decision, previously noted. I
have not found his several suggested differentiations
between the cases sufficiently persuasive to dictate a
favorable result, contrary to Aero-Motive, herein. Recogniz-
ing the possibility that the Board may likewise consider its
disposition of the present case controlled by Aero-Motive,
Respondent's counsel finally suggests that Aero-Motive was
wrongly decided; that Board Member Kennedy's dissent
therein should be considered a better definition of those
principles which should be dispositive for present pur-
poses; and presumably that Aero-Motive should therefore
be overruled. Such contentions raise questions of policy
beyond an Administrative Law Judge's proper jurisdiction;
they should be presented for Board consideration.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE
UPON COMMERCE
Respondent's course of conduct set forth in section III
above, since it occurred in connection with Respondent's
business operations described in section 1, above, had, and
continues to have, a close, intimate, and substantial
relationship to trade, traffic, and commerce among the
several States; absent correction, such conduct would tend
to lead to labor disputes burdening and obstructing
commerce, and the free flow of commerce.
In view of these findings of fact, and upon the entire
record in this case, I make the following:
CONCLUSIONS OF LAW
1. Swedish Hospital Medical Center was, throughout
the period with which this case is concerned, and remains
an employer within the meaning of Section 2(2) of the Act,
engaged in commerce and business activities which affect
commerce, within the meaning of Section 2(6) and (7) of
the Act, as amended.
2. Washington State Nurses Association is a labor
organization within the meaning of Section 2(5) of the Act,
which admits certain of Respondent's staff personnel to
membership.
3. Respondent's management - when it unilaterally
decided without notice to or consultation with Complain-
ant Association that certain nurses, who had continued to
perform services, resumed work, or commenced work as
new hires, during a terminated nurses' strike should each
be given I compensatory day off with pay - refused, and
continues to refuse, to bargain collectively with Complain-
ant Association, which Respondent then recognized as the
exclusive bargaining representative of nurses in its hire,
within a bargaining unit contractually defined. Further,
Respondent's management thereby interfered with, re-
strained, and coerced its represented nurses, with respect to
their exercise of rights statutorily guaranteed. Thereby,
Respondent did engage, and continues to engage, in unfair
labor practices within the meaning of Section 8(a)(X5) and
(1) of the Act, as amended.
4. Respondent's management, when it promised and
subsequently granted certain nurses, who had continued to
perform services, resumed work, or commenced work as
new hires, during a terminated nurses' strike, compensato-
ry days off with pay, discriminated with regard to terms or
conditions of work for represented nurses currently in
Respondent's hire, under circumstances which necessarily
discouraged their Complainant Association membership.
Further, Respondent's management, thereby, likewise
interfered with, restrained, and coerced its represented
nurses, with respect to their exercise of rights statutorily
guaranteed. Thereby, Respondent did engage, and con-
tinues to engage, in unfair labor practices within the
meaning of Section 8(aX3) and (1) of the Act, as amended.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act, as
amended.
REMEDY
Since I have found that Respondent has committed, and
has thus far failed to remedy, certain specific unfair labor
practices which affect commerce, I shall recommend that it
be ordered to cease and desist therefrom and to take
certain affirmative action, including the posting of appro-
priate notices, designed to effectuate the policies of the Act.
Specifically, since I have found that Respondent's
determination to grant certain nurses compensatory days
off with pay violated the statute, some effective remedy for
that violation must be provided. The record suggests that
since the date when Respondent's management representa-
tives publicly declared that such compensatory days off
would be granted some "substantial number" of presump-
tively eligible hospital and medical center personnel have
scheduled and taken their compensatory days. In its
previously noted Aero-Motive decision, this Board, con-
fronted with a previously paid bonus which in its view had
violated the statute, declared at 793:
Rescission would appear to be inappropriate and
impractical and would, we believe, create greater
discord among the employees than currently exists as a
result of Respondent's illegal action. The only practical
method, therefore, of restoring the statutorily required
equality of treatment as between employees who
engaged in concerted activity and those who refrained
therefrom is to require the payment of an equivalent
amount to the employees who did engage in the
concerted activity and who were denied the payment.
We shall therefore require Respondent to pay all
employees ... who did not receive the bonus payment
[comparable sums] plus interest ....
In my view, some equivalent remedy should be provided
herein. General Counsel's representatives, in their brief,
have suggested that Respondent should merely be "re-
22
SWEDISH HOSP. MEDICAL CENTER
quired to bargain" with Complainant Association regard-
ing the matter and to grant compensatory days off with
pay, for those registered nurses who have been discrimina-
torily denied a benefit, if Complainant Association con-
curs. Such a negotiated accommodation might well be
desirable; nevertheless, Board directives calculated merely
to promote "bargaining" would not in my view provide a
complete or satisfactory remedy. If the parties negotiated a
rescission, Respondent's recapture of the extra pay which
some represented nurses have already received from those
nurses particularly, but not from Respondent's unrepre-
sented nursing department personnel, would surely gener-
ate discord and revive tensions which all concerned would
presumably wish to see forgotten. Should the parties,
however, confirm Respondent's right to grant compensato-
ry days, or bargain to impasse - which could, conceivably,
happen with General Counsel's limited remedy - Respon-
dent's unfair labor practices would stand without correc-
tion. My recommendation, therefore, will be that since
Respondent's management has consistently with its Octo-
ber 13, 1976, memorandum notice already permitted some
"substantial" number of nurses considered eligible for
compensatory days to request their days off when desired,
and to take such compensatory days off, when scheduled
prospectively, subject to prior "approval" granted by
certain designated supervisors, participants in the work
stoppage who have thus far been denied such compensato-
ry days should likewise be considered privileged to request
days off with pay hereafter and to take compensatory days
off scheduled prospectively with management's concur-
rence. Respondent's compliance with such remedial proce-
dures would presumably require no direct "make whole"
payments; further, such procedures would foreclose any
necessity, under the circumstances of this case, for the
Board's currently conventional directive that supplementa-
ry interest payments, prescribed consistently with Isis
Plumbing & Heating Co., 138 NLRB 716 (1962), specifical-
ly, should be made.
Since Respondent's course of conduct in my view reflects
no truly egregious or pervasive purpose to flout the
National Labor Relations Act's prohibitions, no broadly
phrased "cease and desist" directives herein should be
considered warranted or necessary.
Upon the foregoing findings of fact, and conclusions of
law, and the entire record, I hereby issue, pursuant to
Section 10(c) of the Act, the following recommended:
ORDER '
The Respondent, Swedish Hospital Medical Center,
Seattle, Washington, its officers, agents, successors, and
assigns, shall:
I. Cease and desist from:
(a) Granting compensatory days off with pay to
represented staff personnel who have refrained from lawful
strike activity.
(b) Discouraging membership in Washington State
Nurses Association, or any other labor organization, by
discriminating in any like or related manner with regard to
the hire or job tenure of Respondent's hospital or medical
center personnel, or any term or condition of their
employment.
(c) Refusing to recognize and bargain collectively with
Washington State Nurses Association in good faith, or
modifying its current collective-bargaining contract with
that Association, unilaterally.
(d) Interfering with, restraining, or coercing its employ-
ees in any like or related manner, with respect to their
exercise of rights which Section 7 of the National Labor
Relations Act guarantees.
2. Take the following affirmative action which is
required to effectuate the policies of the Act:
(a) Grant each nursing department staff member who
participated in Complainant Association's July-September
1976 strike, who has not yet been privileged to request I
day off with pay, or to take such a day off, prospectively
scheduled with management's concurrence, the right to
request and take I day off with compensation, consistently
with the procedures described within the "remedy" section
of this Decision.
(b) Post at its Seattle, Washington, hospital and medical
center copies of the attached notice marked "Appendix." 2
Copies of such notice, on forms provided by the Regional
Director for Region 19, shall be posted, directly following
their receipt, after being duly signed by Respondent's
representative. When posted, they shall remain posted, for
60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that these notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 19, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
I In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes,
2 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."
APPENDIX
NoTIcE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing, during which all parties were given an
opportunity to present evidence and argument, it has been
determined that we violated the law by committing an
unfair labor practice. In order to remedy such conduct, we
are being required to post this notice. We intend to comply
with this requirement, and to abide by the following
commitments:
WE WILL NOT grant compensatory days off with pay
to represented hospital personnel who have refrained
from lawful strike activity.
WE WILL NOT discourage membership in Washington
State Nurses Associations, or any other labor organiza-
23
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion, by discriminating in any like or related manner
with regard to the hire or job tenure of our hospital or
medical center personnel, or any term or condition of
their employment.
WE WILL NOT unilaterally modify our current
collective-bargaining contract with Washington State
Nurses Association; nor will we refuse to bargain
collectively with that organization, in good faith, in any
like or related manner.
I WE WILL NOT interfere with, restrain, or coerce our
employees in any like or related manner with regard to
their exercise of the right to strike or any other rights
which Section 7 of the National Labor Relations Act,
as amended, guarantees.
WE WILL grant I day off with pay to those staff
members within our nursing department who have thus
far been denied the right to request and take such a day
off with compensation, because of their participation in
the work stoppage which ended September 17, 1976.
SWEDISH HOSPITAL
MEDICAL CENTER
24