Trumball Memorial Hospital

National Labor Relations Board - Board Decisions

May 31, 1988

288 N.L.R.B. 1429 (N.L.R.B. 1988)

TRUMBALL MEMORIAL HOSPITAL 1429
Trumball Memorial Hospital and Ohio Council 8,
American Federation of State, County, and Mu-
nicipal Employees, AFL-CIO, and its Local
2804. Cases 8-CA-16005 and 8-CA-16005-2
May 31, 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND BABSON
On April 13, 1984, Administrative Law Judge
Frank H. Itkin issued the attached decision. The
Respondent filed exceptions and a supporting
brief,' and the Charging Party filed a brief in sup-
port of the judge's decision.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, 2 and
conclusions as modified and to adopt the recom-
mended Order as modified.
1. In adopting the judge's finding that the Re-
spondent's poststrike proposals to modify the con-
tractual recognition clause and to eliminate or
modify dues checkoff and union security violated
Section 8(a)(5) and (1) of the Act, we note that
these proposals already were part of a course of
conduct designed to fragment bargaining and
hinder reaching an agreement.
While the judge found that the Respondent also
violated Section 8(a)(5) and (1) by failing to supply
the Union with requested information concerning
strike replacements, he found it unnecessary to de-
termine whether such information constitutes a
mandatory subject of bargaining because the Re-
spondent was insisting that the Union agree to ne-
gotiate the status of striker replacements before fur-
ther discussion took place on a renewal agreement.
We note that the Board has found information as
to striker replacements to be relevant and neces-
sary to the Union's role as bargaining agent for a
unit of employees. See, e.g., Georgetown Holiday
Inn, 235 NLRB 485 (1978).
We also agree with the judge's rejection of the
Respondent's contention that the strike here was
converted from an unfair labor practice strike to an
We deny the Respondent's request for oral argument as the record
and the exceptions and bnefs adequately present the issues and the posi-
tions of the parties
2 The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cif 1951)
We have carefully examined the record and find no basis for reversing
the findings
economic strike when the union membership re-
jected the parties' tentative collective-bargaining
agreement on September 17, 1982. Unlike the cases
relied on by the Respondent, such as Genova Ex-
press Lines, 245 NLRB 229 (1979), and Trident Sea-
food Corp., 244 NLRB 566 (1979), there is no evi-
dence in this case that the Respondent cured its un-
lawful conduct. On the contrary, we have found
that the Respondent continued to violate the Act
by refusing to furnish information to the Union
about striker replacements and by refusing to rein-
state unfair labor practice strikers who made un-
conditional offers to return to work. Under the cir-
cumstances, we do not find, as the Respondent
urges, that the Union's rejection of the tentative
collective-bargaining agreement and its decision to
remain on strike were unrelated to the Respond-
ent's unfair labor practices.
2. We adopt the judge's conclusion that the Re-
spondent violated Section 8(a)(3) and (1) of the Act
by refusing to reinstate 138 of 139 named unfair
labor practice strikers whom he found to have
made unconditional offers to return to work. Re-
garding those strikers seeking reinstatement whom
the judge found made their unconditional offers to
return to secretaries or receptionists or persons an-
swering the Respondent's telephone at the number
they called, we conclude that as to Addie Harris,
Kathleen Jones, Barbara Latham, and Robert
Mickens the evidence clearly is sufficient to estab-
lish that the Respondent was put on notice of their
unconditional offers to return. We note particularly
the testimony of these four employees concerning
their respective phone calls is corroborated by the
evidence that the Respondent eventually responded
to them by offering the strikers some kind of em-
ployment opportunity, although less than substan-
tially equivalent employment.
With respect to striker Marilyn Sonderman, we
conclude that she made an unconditional offer to
return on August 10, 1982, when she phoned the
nursing office and was told to report to the hospi-
tal the following day. Sonderman did report to
work the following day but was offered less than
substantially equivalent employment by Supervisor
Clara Schooley. We further conclude that Arveda
Whetstone also made such an unconditional offer
about August 5, 1982, when she sought reinstate-
ment by phoning the secretary in the nursing office
whom she had called before the strike about being
available for work.
Regarding striker Velma Sanders, however, we
find that her unconditional offer to return to work
was made in late September 1982 when she met
with the director of nursing at the hospital and not,
as the judge found, on August 12, 1982, when
288 NLRB No. 153
1430 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Sanders testified that she "called" the "nursing
office" and "said I would like my job back." We
conclude that this evidence is insufficient to estab-
lish that on August 12 Sanders made an uncondi-
tional offer to return because, unlike in the cases of
Harris, Jones, Latham, and Mickens above, there
are no subsequent events that indicate that the Re-
spondent was on notice of the call and because,
unlike in Whetstone's situation, Sanders did not
state that she spoke with a person whom she had
called before the strike about being available for
work. Furthermore, although the judge stated that,
in any event, the issues raised by these employees'
unconditional offers should be preserved for com-
pliance, we are satisfied that in the cases of the
seven strikers discussed above the matter was fully
litigated and the judge did not foreclose the Re-
spondent from the opportunity to cross-examine
the witnesses.
With respect to striker Geraldine Dawson, how-
ever, we do not adopt the judge's finding that she
made an unconditional offer to return to her posi-
tion in August 1982, which was rejected by the Re-
spondent at that time. The record as to Dawson is
incomplete because the judge precluded the Gener-
al Counsel from adducing certain testimony in
hearing. At footnote 37 of his decision, however,
the judge reversed his ruling and would now allow
this testimony in the record. Given the circum-
stances present here, we will not pass on the merits
of the complaint allegations regarding Dawson at
this time. Instead, we shall defer consideration of
this issue until the parties have been permitted an
opportunity to request supplemental examination of
Dawson, or related witnesses, in the compliance
stage of this proceeding.
In adopting the judge's conclusion that the Re-
spondent violated Section 8(a)(3) and (1) of the Act
by discharging seven employees on sick leave or
vacation at the time of the strike because of their
suspected participation in the strike, we place no
reliance on the judge's references to Conoco, Inc.,
265 NLRB 819 (1982), and Texaco, Inc., 260 NLRB
1192 (1982). Rather, we rely on the Board's deci-
sion in Muir°, Inc., 266 NLRB 1175 (1983).
Finally, in adopting the judge's conclusion that
the Respondent violated Section 8(a)(1) of the Act
by informing employees in writing after the unfair
labor practice strike commenced that they could be
permanently replaced, we rely on the Board's deci-
sion in Safelite Glass, 283 NLRB 929 (1987).
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Trumbull Memorial Hospital, Warren,
Ohio, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modi-
fied.
Substitute the attached Schedule A—from which
the name of Geraldine Dawson has been deleted
pending final resolution of the issue of whether she
made an unconditional offer to return to work in
August 1982—for that of the administrative law
judge and substitute the attached Schedule A in the
notice to employees.
Schedule A
Anna Arambasic Charles Kohut
Glenna Austin Jean Lally
Vondell Austin Lydia Lampley
Simmie Barrow Barbara Latham
Alan Bauman James Leigh
Anna Baxter Janice Lenhart
Delores Bennett Marie Leposky
Frances Benson Shirley Lloyd
Roger Berry Sophia Lubich
Eugenia Borowik Ursual Lugiewicz
Robert Brainard Louis Mack
Barbara Brant Veronica Manofsky
Barbara Brown Cordelia Marks
Karen Burr Brenda Marsico
Glenna Butcher Dorothy Martina
Carlena CaIlion Angela McCoy
Judy Campana Delores McIntyre
Eva Capellas Vivian McKinney
Jeffrey Chapin Icephine McNeal
Esther Chapman Joan McVicker
Israelito Ciletti

Robert Mickens
Marie Copenhaver Blanniel Mitchell
Sophia Core Bob Mohan
Gerald Cranston Edna Morgan
Thomas Crump Kathy Morin
Judy Davenport Donald Neiswanger Sr.
James Davidson Nary Nichols
Lustean Davis Karen Osipchak
Phyllis Davis Karen Paige
Carrie Deal

Regina Paris
Liliana DiGiacobbe Irene Powroznyk
Panagiote Dills Denise Price
Cleathe Noreen
Dodge Martha Prosser
Ann Domyanich George Quiggle
Kathy Donnelly Pat Rate11
Audrey Dotson Beverly Razum
Patricia Ellison Daphane Robinson
Ester Evans Phyllis Rogusky
Sarah Flaugh
Richard Rolfe
Patricia Flavell

Katherine Rostan
Mary Fox Patricia Rumancik
Vernel Franklin Tamma St. Clair
— „ -
"TRUMBULL MEMORIAL HOSPITAL 1431
Kay Gardiner
Vehna Sanders
Nancy Gilliam Kenneth Schultz
Klara Gonia
Linda Schultz
Mary Grayer
Denise D. Sherman
Cindy Greene
Sarah Shick
Marjorie Hall

Helen Smith
Ed Hancin Marilyn Sonderman
Mary Harrington Don Sowers
Addie Harris Dorlette Sparks
Patricia Harris

David Stevens
Rozetta Harris

Victoria Stewart
Carol Heim
Thelma Thomas
Betty Henderson Kathleen Thompson
Michael Henline
Mary Ticoras
Irene Honeywood Avanell Tomlin
Dale Hood

Angela Toriello
Rosa Bell Horne
Pamela Uchrinscko
Canary Howard

David Ullom
Nola Hunt

Donna Ullom
Lois Ignatz
Edith Waltermire
Helene Ipsa
Dora Lee Walters
Alma Jefferies

Vanessa Ward
Renee Johnson
Chester West
Kathleen Jones Arveda Whetstone
Mark Joseph

Mary Lee Williams
Maria /Candle Nancy Louise Wilson
Madelyn Kennick Cynthia Zandarski
Charles Z Adamson, Esq., for the General Counsel.
Robert J. Janowitz and Clifford Elliott Esqs., for the Re-
spondent.
Ronald H. Janetzke, Esq., for the Union.
DECISION
FRANK H. triaN, Administrative Law Judge. Unfair
labor practice charges in the above-consolidated cases
were filed on August 17 and 27, and an amended charge
was filed on October 20, 1982. A consolidated complaint
issued on October 27, 1982. The complaint was later
amended. Some 21 days of hearings were held in Warren
and Cleveland, Ohio, on the issues thus raised by the
consolidated complaint as amended, commencing on
February 28 and ending on June 27, 1983. Briefly, the
General Counsel contends that Respondent Hospital,
commencing in June 1982, during the course of negotia-
tions with Charging Party Union for a renewed collec-
tive-bargaining agreement, violated Section 8(a)(5) and
(1) of the National Labor Relations Act by, inter alia, re-
fusing to furnish the Union with information concerning
bargaining unit work performed by nonunit personnel;
refusing to discuss economic issues until all noneconomic
issues were resolved; warning that if the Union engaged
in a strike against the Hospital all pending contract 'pro-
posals would be withdrawn and no longer considered;
announcing, following the commencement of a strike by
the Union on August 1, 1982, that all pending contract
proposals were withdrawn; refusing again to discuss eco-
nomic issues until all noneconomic issues were resolved,
including the status of the strikers and their replace-
ments; refusing to furnish the Union with the names and
addresses of striker replacements; proposing that the
union dues-checkoff provision be eliminated from any
future agreement and generally proposing that the union
recognition and union shop and other contractual provi-
sions be modified; and, later, proposing that any agree-
ment between the parties should provide that the Hospi-
tal be required to recognize the Union as bargaining
agent for only those unit employees designating the
Union in writing as their representative. The General
Counsel further contends that the strike, which com-
menced on August 1, 1982, was caused and prolonged by
the unfair labor practices of Respondent Hospital and
that the Hospital thereafter violated Section 8(a)(3) and
(1) of the Act by refusing to reinstate certain named em-
ployees who, since August 1, have made unconditional
applications to return to their jobs; by refusing to rein-
state certain named employees who were on sick leave
status and on vacation status on August 1; by terminating
and refusing to reinstate employees Randall Adkins,
Margo Gianakos, and Beatrice Wallace; by terminating
and refusing to reinstate or otherwise discriminating
against certain named probationary employees; and by
making related coercive statements to the employees. Re-
spondent Hospital denies, inter alia, that it has violated
the Act as alleged in the amended consolidated com-
plaint.
On the entire record in this proceeding, including my
observation of the demeanor of the witnesses, and after
due consideration of the briefs filed by all parties, I make
the following
FINDINGS OF FACT
I. THE 1982 BARGAINING BETWEEN PARTIES AND
NATURE OF THE STRIKE
The Charging Party Union was certified during late
1975 as bargaining agent for a unit consisting principally
of Respondent Hospital's service and maintenance em-
ployees at its facility in Warren, Ohio. The parties nego-
tiated an initial collective-bargaining agreement effective
from August 1, 1976, until July 31, 1979, and a renewed
agreement effective from August 1, 1979, until July 31,
1982. We are concerned here principally with the bar-
gaining relationship between the parties during their ne-
gotiations for a renewed agreement, commencing about
June 1, 1982. It is essentially undisputed that, when the
current negotiations began, the bargaining unit consisted
of approximately 700 employees.' The evidence pertain-
The jurisdictional allegations of the consolidated complaint, as
amended, and the Union's status as exclusive bargaining agent for an ap-
propriate unit of the Hospital's employees are not disputed here. The ap-
propriate unit, as alleged, consists of:
All regular full;time and part-time service and maintenance employ-
ees, including storeroom manager, all storeroom clerks, EEG and
ECG technicians, all hospital clerical employees, record clerks, re-
ceptionists, medical stenographers, medical secretaries, x-ray and
medical transcribers, patient hostesses, and those clerk typists, cash-
iers, file clerks, senior clerks and secretaries who work m areas other
than the Employer's administration, admitting data processing, ac-
counting, payroll, purchasing, personnel, and business office depart-
ments, employed by the Employer at its hospital facility located at
Continued
1432 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ing to the 1982 negotiations and the attending strike is
summarized and discussed below.
A. The June I through July 31 Negotiations
Formal negotiations for a renewed agreement began
on June 1, 1982. 2 William Van Zandt, a union staff rep-
resentative, was the chief negotiator for the Union until
shortly after the strike commenced, when Van Zandt
was replaced as chief negotiator by the Union's attorney,
Ronald Janetzke. Van Zandt, however, continued on as a
member of the Union's negotiating team. The Union's
bargaining team and committee also included Delbert
Price, Donald Clutters, Annabelle Pough, Dorothy Mar-
tina, Elizabeth Hill, Donald Eberts, and Denise Price.
Paul Carlson, the Hospital's assistant executive director,
was the Employer's chief spokesman. Carlson was assist-
ed by Karl Kuppler. Denise Price kept the Union's min-
utes or notes of the earlier 1982 bargaining sessions. (See
G.C. Exh. 8.) Ronald Janetzke kept the Union's minutes
or notes from August 9 until about December 17, 1982,
when the parties reached an agreement which was rati-
fied by the Union's membership. (See G.C. Exh. 9.) Karl
Kuppler kept the Hospital's minutes or notes. (See R.
Exh. 5.)
Van Zandt testified that on June 1, the "Union submit-
ted their proposals in booklet form . . . and had a brief
discussion with the Hospital." (See R. Exh 4) Van
Zandt recalled that the parties discussed the "date of the
next meeting," and the Hospital
. . . stated to us at that time how they wished to
proceed in the negotiations. . . there was some talk
about ground rules and a news blackout. . . . The
Hospital said it wanted to discuss first the noneco-
nomic proposals and then go on to the economic
proposals. . . . We did not agree to that. . . .
The second meeting, as Van Zandt further testified,
was on June 24. Van Zandt recalled:
1350 East Market Street, warren, Ohio, and in the job classifications
of the bargaining unit as set forth in Appendix A (of the collective
bargaining agreement between Respondent and the Union effective
August 16, 1979 to July 31, 1982), for the purpose of establishing
rates of pay, wages, hours, and other conditions of employment, but
excluding all professional employees, office clerical employees, phys-
ical therapy assistants, licensed practical nurses, nursing technicians,
medical technicians, x-ray technicians, respiratory therapy techni-
cians, housekeeping crew leaders, buyer-dietary, chief transcriber,
chief receptionist, laboratory technicians, laboratory technologists, x-
ray technologist, dietitians, registered nurses, visual arts specialist,
physical therapists, administrative personnel, confidential secretaries,
security personnel, temporary employees, and supervisors as defined
in the National Labor Relations Act.
2 There was essentially uncontroverted testimony that the Hospital had
contacted the Union in late 1981 and early 1982, assertedly for the pur-
pose of "reaclung/a rather quick agreement . . three months early."
See, generally, Hospital's brief, pp. 5-9. The Hospital wanted, during this
preliminary contact, the Umon's "bottom line" proposals. The Union, in
response, submitted a written proposal to the Hospital during March
1982 The Hospital, however, later expressed "disappomtment" over the
Union's written proposal Ultimately, the Union—after bemg apprised by
the Hospital that its preliminary written proposal was in effect not "rea-
sonable"—notified the Hospital that negotiations "will have to continue
in the normal fashion."
At that meeting we discussed our economic propos-
als, and we were told by the Hospital that they did
not wish to discuss our economic proposals until all
noneconomics were either withdrawn or agreed to.
Van Zandt added that this "issue" came up repeatedly
"during negotiations." Thus, from June 24 until August
1,
. . . at every meeting, except for one, I believe, the
issue of noneconomics blocking the settlement or
the discussion of economics came up. . . . They
[the Hospital] refused to discuss any economic
issues until all noneconomic issues were either with-
drawn or agreed to.. . . . I didn't agree with that
position . . . . My response was that we wanted to
proceed to economic issues.
Van Zandt testified that at the seventh bargaining meet-
ing on July 26,
. . we were discussing bargaining unit work, The
duties of nonbargaining unit people, and the bar-
gaining unit duties of nonbargaining unit people.
We requested from the Hospital a list of bargaining
unit duties that were being performed by nonbar-
gaining unit employees.. . . The Hospital respond-
ed that they didn't have the information, that they
wouldn't get it for us.
Van Zandt added that "the Hospital again refused to dis-
cuss economic issues until all noneconomic issues were
either settled or withdrawn."
At the eighth session, on July 27, the Union, according
to Van Zandt, renewed its request with respect to non-
bargaining personnel performing unit work and "they
again said they did not have that information." Van
Zandt added, "[t]he Hospital again refused to discuss
economic issues until all noneconomic issues were either
settled or withdrawn." At the ninth session, on July 28,
"I asked the Hospital if they would proceed on to eco-
nomics," and they "wanted to clarify all the noneconom-
ic issues before they would even address the economics."
At the 10th session, on July 29, "we addressed noneco-
nomic issues and we asked that the economic issues be
addressed, and the Hospital refused." The 11th meeting
was on July 30, and "we asked to address economic
issues once more. The Hospital again refused, stating
they wished to resolve all the noneconomic issues."
Van Zandt further testified that on July 31, "the last
day of the contract," the parties held their 12th meeting.
Van Zandt recalled:
The Hospital's position was they didn't wish to dis-
cuss economics until they had clarified all the non-
economic areas, and they had some reservations
about discussing some of the noneconomics also.3
. . . the Union again asked that the Hospital consid-
er submitting its economic proposals to the Union.
Van Zandt indicated that if an adequate proposal
3 The Hospital's bargaining notes for this critical session on July 31 (R.
Exh. 5, p. 89), read in part:
TRUMBULL MEMORIAL HOSPITAL

1433
were submitted that could be taken to the member-
ship this evening, then perhaps the remaining non-
economic items could be resolved. Carlson stated
that the Hospital must have a clearer defined posi-
tion of the non-economic items before presenting a
realistic economic proposal.
"That afternoon, however, the Hospital made us an eco-
nomic offer regarding wages only." Prior to this point,
according to Van Zandt, no economic issues had been
"addressed by the Hospital." At the time, "all" of the
Union's 30 to 35 "economic proposals" were "still pend-
ing on the table." In addition, Van Zandt claimed that,
later, at this 12th session,
• . . when the Hospital made another economic
offer late that evening, they said . . . this was the
Hospital's second economic offer, and . . . if we
didn't accept that agreement. . . that would all be
withdrawn, and all conditions of employment
would be terminated, all currently agreed to items
currently on the table would be taken off.
If the Union would not accept the offer and chose
to strike, all terms and conditions of employment
would be terminated. All offers would be off the
table and . . . terms and conditions . . would be
terminated.
The strike commenced, as discussed below, on midnight
of July 31.4
4 On cross-examination, Van Zandt acknowledged that the Union's ini-
tial proposal to the Hospital (R. Exh. 4) covered some 250 pages; that the
Union, after negotiations started, refused to meet at a particular building
on Hospital property because of, inter alia, Carlson's or Kuppler's state-
ment to union negotiators that they not enter the building until after the
Hospital negotiator "got there"; that the Union then insisted on meeting
at a "neutral area"; that on July 30, "we made a substantial change in our
noneconomics", that the Union then "cut it down to a dozen issues"; that
the union negotiators or committee previously had obtained strike author-
ization and given the Hospital notification of this; and that, on July 31,
Carlson
gave us a list of items that he felt impacted on patient care and, in
the noneconomic area . . some items that he would not discuss
. . . When we Identified job bidding and job description as being
vital to the Union on several occasions, he said he wanted not only
to get an agreement or withdrawal of all other noneconomics before
discussing those two items. . he further stated he wouldn't discuss
economics until all noneconomics were either agreed to or with-
drawn.
Van Zandt further acknowledged on cross-examination that on July 31,
he told Carlson "I had to get the economics"; that the Hospital later
gave "its money proposal," "its initial economic proposal," "a wages
only proposal"; that the Union was then seeking area wage "parity"; that
Carlson summarily "rejected the parity issue on the basis that what hap-
pened at other hospitals didn't concern him", that the Union made a re-
duced or modified proposal; that the Hospital, during this July 31 session,
"made a second offer on wages only"; and that:
We stated we weren't satisfied with that. We discussed parity . . . .
We wanted to discuss the other areas of our proposal, but, not being
able to get any conversation going, that was when we took our
caucus in the early evening.
Later, the Union "reduced our economic proposal" and the Hospital
came back with its final proposal. Carlson said: "if this isn't accepted, it's
withdrawn. . [all] terms and conditions of employment are terminated,
and everytlung that is agreed to up until now, or proposed up until now,
is off the table."
Delbert Price, employed by the Hospital as a garden-
er, president of the Local, and a member of the Union's
executive board and bargaining committee, testified that
about July 26, the seventh bargaining meeting,
. . we were having discussion on the supervisors
working section of the contract . . . . Carlson
brought up the fact that certain supervisors. . . had
to perform bargaining unit work to keep up their
skills and also to work in a supervising capacity.
Van Zandt asked Carlson "would you please supply the
Union with a list of the supervisors"; Carlson said "the
list was not available." This request was repeated and
Carlson asserted that the Hospital "did not have the list
available." Price further testified that, about the second
bargaining session, June 24, Carlson "indicated to the
Union that he wanted to settle all noneconomic issues
before moving on to economic issues." Van Zandt "said
he could not agree to that method." This same "issue"
arose several times during the ensuing sessions. Carlson
"would always state that the Hospital did not want to
negotiate on economics until all noneconomic issues
were settled." Van Zandt "kept pressing Mr. Carlson for
an economic offer." The "first economic offer" from the
Hospital "came across the bargaining table. . . from Mr.
Carlson . . . between the hours of 3:30 and 4 p.m. on
July 31, 1982," limited to "wages only." There were, at
the time, some 30 "economic issues on the table."
Price recalled that about 4:30 p.m. on July 31, Carlson
warned
if the Union decided to not accept their economic
proposal and decided to go on strike, that all agree-
ments between the Union and the Hospital, and all
terms of employment at the Hospital, would be ter-
minated.
Carlson repeated this warning about 11 p.m. that same
day, after the Hospital made, in effect, a final economic
offer. Carlson, however, this time used the word "can-
celled" instead of "terminated." The strike, as discussed
below, started at midnight.
Donald Clutters, a member of the Union's executive
board and bargaining committee, testified that the Hospi-
tal had "agreed [that] by the third meeting, all proposals
would be on the table, economic and noneconomic";
however, later, the Hospital "still wouldn't discuss eco-
nomics until all the noneconomics were resolved" and
"it was brought up several times." From about June 1
until July 31, Van Zandt repeatedly "asked the Hospital
for an economic proposal and the answer just kept
coming back that we're not going to discuss economics
until all noneconomics would be settled." The Hospital
gave its first "economic proposal," "strictly wages," be-
tween about 4 and 5 p.m. on July 31. Remaining "on the
table," at the time, were a substantial number of "eco-
nomic issues" such as, for example, sick leave, vacations,
longevity pay, and hospitalization. In short, the Hospi-
tal's first economic proposal, on July 31, did not address
economic issues still on the bargaining table. See also the
testimony of Annabelle Pough (Tr. 585-586); Dorothy
1434 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Martina (Tr. 635); Elizabeth Hill (Tr. 666-667); Donald
Eberts (Tr. 720-721); and Denise Price (Tr. 770-771).
Clutters next recalled that on July 31, Carlson "stated
that if there was a strike . . . all proposals would be
lifted from the table"—bargaining "would be" at "point
zero." See also the testimony of Annabelle Pough (Tr.
586-587); Dorothy Martina (Tr. 638); Elizabeth Hill (Tr.
668); Donald Eberts (Tr. 722); and Denise Price (Tr.
768-771). And, Clutters generally related how the Union
had "requested information," without success, pertaining
to supervisors performing "unit work." See also the testi-
mony of Annabelle Pough (Tr. 623); Dorothy Martina
(Tr. 633-634); Donald Eberts (Tr. 719-722); and Denise
Price (Tr. 766-767).
Charles Johns, chief executive officer and director at
the Hospital, testified that during late 1981 or early 1982,
because of impending plans for construction of an addi-
tion to the Hospital and an imminent accreditation
survey, "there was the feeling that perhaps it was possi-
ble to move up" the 1982 negotiations with the Union,
and "perhaps even reach an early agreement." Johns also
asserted as a reason for wanting early negotiations, "our
feeling that perhaps we would be in a better position to
get approval from the board for a pay increase. As Johns
testified, however, the Union, in response to the Hospi-
tal's inquiries for an early agreement, had requested "an
approximately 15 percent pay increase" for certain pay
rates; and Johns was "quite upset" at this "unrealistic
demand"—other companies in this area were asking for
and getting concessions." Paul Carlson, assistant execu-
tive director for the Hospital and its chief negotiator in
1982, similarly testified about the Hospital's efforts to get
the Union to submit a preliminary or early "bottom line"
bargaining proposal. Carlson, in discussing this subject
with union representatives, assertedly observed or detect-
ed a schism between the Local bargaining committee and
the Union's staff representative. Nevertheless, the Union
presented the Hospital with a written proposal during
March 1982. This proposal addressed both economic and
noneconomic issues. Carlson, like Johns, regarded the
Union's proposal as "unreasonable," and the Hospital
never made a counterproposal. Carlson apprised Van
Zandt that he felt the proposal was unacceptable, and
Van Zandt, in turn, stated that "negotiations would have
to continue in the normal fashion" of bargaining—"nego-
tiations would have to go through the traditional
method."
Carlson related the progress of the 1982 prestrike bar-
gaining sessions, in part as follows: At the initial June 1
meeting, the Union submitted its full written proposal (R.
Exh 4). Carlson recalled that "the Union proposed at
that time to get into some discussions regarding the ne-
gotiations," however, "I told them that I didn't feel that
any discussions right on this time, June 1, would be posi-
tive until I have a chance to see what was between the
covers of the proposal." According to Carlson, "a sub-
stantial number of these proposals . . . got right to the
heart of our ability to effectively manage the Hospital"
and "it looked like it was going to be a difficult negotia-
tion." Carlson added, "we felt the only way we would
proceed was to go through the noneconomics of this
proposal first before getting into the economic discus-
sions." The second meeting was then scheduled for June
24, some 3 weeks after receiving the Union's June 1 writ-
ten proposal and, as noted, over 2-1/2 months after re-
ceiving the Union's written preliminary proposal.
On June 24, "ground rules" were discussed. Carlson
testified:
As in the past, I proposed to the Union that the
Hospital would prefer to discuss the noneconomic
matter prior to getting into the economic discussion.
Bill [Van Zandt] said that the Union had given us a
total proposal on both economic and noneconomics
. . . and, that he would like to discuss them jointly.
Carlson, however, responded by telling Van Zandt that
he "had to get a reasonable handle on the noneconomic
items before entering into the economic discussions."
Carlson asserted that Van Zandt made "no comment" or
objection to this proposal. The Hospital then reviewed
the Union's written proposals "item by item," "in the
noneconomic areas." Thus, for example, union proposals
pertaining to the length of the probationary period, su-
pervisors performing unit work, union security, over-
time, management rights and the transfer of three unit
employees, the no-strike provision, discipline, and unsafe
working conditions were discussed. Carlson objected to
various proposed contractual changes.5
The next meeting was held some 2 weeks later on July
8. Carlson asserted that Van Zandt stated at this session
"that the economics obviously were important, but also
the noneconomics were important also, and he was will-
ing to discuss them." Carlson recalled, however, that
Van Zandt also stated that "the Union was interested in
parity," referring to the Union's economic demand of
"wage parity." The parties then continued to discuss the
Union's noneconomic proposals, and did "initial off on"
a tentative agreement pertaining to "hours of work."
Carlson again objected to various proposed contractual
changes. Carlson denied that the Union "demanded" at
this meeting a discussion of their economic proposals.
Carlson, however, generally acknowledged that, by the
close of this session, the Hospital "had gone through. . .
all of the proposals" made by the Union. Consequently,
"the parties agreed that we ought to have all of our pro-
posals in by the next meefing."6
The next meeting was on July 12. Carlson recalled
that, in fact, it "was at the July 12 meeting where we
completed" "the discussion with respect to the Union's
initial proposal." Carlson also recalled, "I stated that the
Hospital was proposing that we defer these [economic]
5 Carlson generally asserted that the parties had a "ground rule" to
defer economics during the initial 1975-1976 negotiations; that the "par-
ties" invoked a "similar ground rule" "on different occasions" during the
1979 negotiations, and that, in effect, this "same procedure was employed
during the 1982 negotiations." As recited supra, the union bargaining rep-
resentatives demed that such a "ground rule" or "procedure" existed
here. Moreover, as discussed further below, Carlson acknowledged that,
"during the last week of negotiations up until July 30, 1982," the "same
number of noneconomic matters were left on the table"—the "same
number that we started with for all intents and purposes"
6 On cross-examination, Carlson claimed that "all proposals" meant
only noneconomic proposals. Cf. R. Exh. 5, pp 12 and 3 and Tr 2545.
TRUMBULL MEMORIAL HOSPITAL 1435
items until we got a more clear and/concise understand-
ing in the noneconomic areas." Carlson again asserted
that Van Zandt made no objection to this suggestion. In
addition, the Union gave the Hospital some additional
proposals and the Hospital presented its initial written
noneconomic proposals. Discussion followed. Tentative
agreement was reached pertaining to hospitalization and
bulletin boards.
The July 15 meeting, according to Carlson, was brief.
The parties had been meeting at a building known as the
White House, on Hospital property. However, Hospital
representative Carlson or Kuppler had "asked the Union
bargaining committee to wait to enter the building until
Kuppler" or Carlson "got there" and, apparently, the
Employer, in the process, "had insulted the Union." The
parties then agreed to hold the next meeting at a neutral
place. Carlson claimed that, as a consequence of this
short meeting, he had "not had the opportunity to com-
plete [his] initial review of the Union's proposal" present-
ed to him at the prior meeting.
At the next meeting, on July 20, the Union made it
clear to the Employer that it would not meet at 'the
White House. The Union also presented its strike notice.
Carlson claimed that, at this meeting, "we finally got
through the total Union proposal." Van Zandt then re-
quested a written counterproposal "on each and every-
one of the Union's proposals" Carlson responded that,
"to provide a written response to each and every propos-
al would be . . . an extensive job in light of the time
frame that we were working with"; Carlson "didn't feel
that it was at all appropriate"; and
I [Carlson] stated . . . the Hospital's position that,
other than the agreed upon items that we had
reached to date, and the Hospital's proposal. . . we
were proposing the language as it currently existed
in the collective bargaining agreement.
Carlson subsequently appeared on July 22 for a bar-
gaining session at the White House. The Union did not
appear there, as the union representatives had indicated
earlier. The parties later met on July 26 at a different lo-
cation. A Federal mediator was present at this session.
The parties then argued about a union handout or leaflet
that, in effect, characterized the Hospital's bargaining as
"take-away" or "concessionary." The mediator met with
the parties. Carlson, as he testified,
continued to urge the Union to develop a consensus
or priority of what their noneconomic proposals
were. . . . [Carlson] urged the Union. . . to pack-
age it down to a workable number here. . . so we
might move ahead into other areas.
The Union insisted that "this was their proposal"
There was also a discussion about supervisors performing
unit work. Carlson noted, inter alia, that "this perform-
ance of such work is necessary . . . ." Carlson claimed
that Van Zandt did not "request any information" on
this subject.7
The next session was on July 27. The mediator was
present. There were, according to Carlson, "a number of
preliminary issues that were discussed," including "a va-
cation arbitration case." The Union requested that Johns,
the Hospital's director, "be present at the negotiating
table." Carlson said that he would "review it with"
Johns. The Union requested that the Hospital "prepare a
wage proposal." Carlson testified:
My response was that, you know, we were still
facing, as we were on June 1, the same amount of
noneconomic proposals that had not been modified,
altered or deleted in any fashion, and that the Hos-
pital had to have a clear handle, or an entire handle
on, you know, what the particular priority items
were. Let's get it down to a workable number, and
once we get it to a workable number, then we can
move into economic discussions.
Carlson added:
But, in light of the fact that the Union had told us
that, you know, they were not prepared to modify
the items, or they hadn't done it as yet, I did not
feel that I could move into the economic area, until
I had a better handle on the noneconomic matters.
Carlson, on the other hand, denied insisting or stating
that "all noneconomic matters had to be resolved before
[he] would be willing to discuss economics." The parties
continued their discussion. Job bidding and transfer pro-
posals were discussed. Overtime was discussed. Supervi-
sors not performing unit work was also discussed.
The next session was on July 28. Carlson claimed that
Van Zandt faulted the Hospital for not providing certain
requested arbitration information in a more timely
manner, and stated that "this could be a reason for the
strike." There was discussion over pending proposals.
According to Carlson,
we reviewed several of the areas that were out-
standingly of concern to the Hospital . . . again we
were back to overtime, supervisory work, job bid-
ding, transfer, leave of absence, health and safety,
that's all I recall.
The next session was on July 29. The mediator was
present. A pending proposal was discussed. The Hospital
wanted further modification and changes from the
Union. The Union, however, explained that they were
"standing or staying on their noneconomic proposal" and
the Hospital had not "changed theirs." The parties "con-
tinued to rehash many of the articles" of the noneconom-
ic proposals.
The next session was on July 30. According to Carl-
son, the Union submitted a counterproposal, and Carlson
7 Carlson was later asked: "At some time later did the Union request
mformation concerning employees who were not in the unit doing unit
work?" He responded- "Several weeks or months later"
1436 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
stated to the Union that I [Carlson] was pleased to
receive a proposal which substantially modified
their noneconomic position. And, Van Zandt stated
. . . that he was hopeful that the Hospital would
prepare an economic proposal.
Carlson then agreed that he would and the meeting ad-
journed.
The last session before the strike was on July 31. Carl-
son testified that Van Zandt was "less than enthusiastic
about the possibility" of reaching agreement that day.
Carlson, previously, confided to his associate that "we've
seen the break we've been looking for." Carlson then tes-
tified "I again reviewed the noneconomic issues before
us, hoping to break away for some further agreement in
this area. I just got nowhere and we proceeded on into
other matters." The parties discussed health and safety
proposals. Carlson objected to the Union's proposal, as-
serthig that, in effect, "we were placing the authority
with 700 separate individuals to make their own decision
as to what was a safety hazard. Carlson, during a caucus
or break that same day, "drafted a proposal on health
and safety." Later that day, "a little after" 2 p.m., the
Hospital presented the Union with its first economic pro-
posal. The Union was "very dissatisfied with the propos-
al." As noted, it was limited to wages only. The Union,
nevertheless, gave the Hospital an "economic proposal."
Carlson claimed that, "in certain areas, it was a higher
proposal than what they had shown us in February.8
Then, as Carlson testified:
I stated that if the Union left not to return, then it
would appear that a strike would be inevitable. And
I said, if that in fact did occur, that the relationship
with respect to conditions of employment between
the Hospital and the Union would be cancelled.8
The Union did not stop bargaining. The Hospital pre-
pared a second proposal. This was limited to wages only.
The Union wanted wage parity. The Hospital disagreed
with the Union that, "as they put it, they needed just a
dollar an hour or something to catch up." The Union
later presented the Hospital with another economic pro-
posal. Again, Carlson asserted that this was "substantial-
ly greater" than the Union's preliminary bottom line pro-
posal in March. The Union left.
Later that evening, about 10 p.m., the Union returned.
The Hospital made another economic proposal. This pro-
posal only addressed wages. Van Zandt responded that
this "offer didn't come close to making it, that we had
no agreement on noneconomics, and as far as he was
concerned there was no agreement to go any further that
evening." Carlson admittedly informed Van Zandt that,
"at this point in time, any previously agreed upon items
8 It was in March when the Union gave the Hospital its bottom line
preliminary proposal, as discussed supra.
9 Carlson claimed that he meant by the above statement "that their in-
surance would be cancelled if a work stoppage began." He apparently
did not say this. Carlson assertedly later fully explained this to the Union.
The Hospital's bargaining notes, however, admittedly do not refer to "in-
surance" Cf. R. Exh. 5, p. 96 Also see remaining notes for this session
(pp 85-96)
were not agreed upon." The strike started on midnight
July 31.
B. The Strike and the Negotiations from August 5
Through December 17
The 13th bargaining session was held on August 5.
Union negotiator Van Zandt recalled Hospital negotiator
Carlson then announcing:
As he told us before the strike, everything, all offers
were withdrawn. Everything was off the table and
we were starting from scratch. . . . [They] contin-
ued to want to settle all noneconomics prior to any
discussion of economics.
Later in the evening, after we had taken a caucus,
Mr. Carlson came in and informed us that the Hos-
pital had hired some 96 to 98—he couldn't be sure
of how many employees—to replace the people
who went out on strike. He stated that . . . the
Hospital had made an employment commitment to
these people, and that they would not discuss any-
thing until the Union agreed with their position on
what was termed the strike replacements.
Van Zandt recalled that the 14th meeting was held on
August 9. Ronald Janetzke, the Union's attorney, became
its chief spokesman at that session. Van Zandt testified:
Mr. Janetzke reviewed the positions of the parties
up to that point and asked to proceed in the negoti-
ations.
Mr. Janetzke continued to press for the status of the
strike replacements; the names, addresses of the
striker replacements and the names and addresses of
those who were replaced.
Van Zandt noted this "issue" or "request for that type of
information" "came up several times" later at other ses-
sions, and the Hospital again "would not give out the
names of the striker replacements or the addresses."
A 15th session was held on August 10. Van Zandt re-
called Carlson stating at this meeting "that he would not
go on to other issues, as far as negotiations were con-
cerned, until that issue [concerning striker replacements]
was resolved." Further, "they [the Hospital] stated that
they would not discuss any economic issues until all non-
economics were resolved." And, at the 16th session on
August 11, according to Van Zandt:
The Union made an offer to the Hospital which was
very close to the Hospital's position up to that time,
and made an unconditional offer to return to work
on behalf of all the employees. . .. [The] Hospital
did not respond at that time, as I can recall."
However, at the 17th meeting, on August 12:
10 Van Zandt acknowledged that this offer to return was, in effect,
conditioned on acceptance of the Umon's settlement proposal.
TRUMBULL MEMORIAL HOSPITAL

1437
The Hospital stated in response to the Union's offer,
that they would ask or propose that the Union dues
checkoff be eliminated from the contract, that rec-
ognition be changed, the article on recognition, and
that he article on Union security be changed, and
that all other sections of the [expired] contract be
changed, but they didn't say how.
Janetzke asked "how they wanted to change" the union-
recognition clause and the union-security clause and "all
other sections of the agreement." Van Zandt recalled:
"They refused to tell him how."
Van Zandt next recalled that at the 18th session, on
August 17, the Hospital presented an offer (G.C. Exh.
10), to the Union. Janetzke, after examining this propos-
al, "stated to the Hospital that it was an improper subject
of negotiations to present changes in the recognition
clause." Janetzke, referring to G.C. Exh 10, asked "if he
[the Union] could represent a person who had not desig-
nated in writing that they were represented by the
Union." And, "the Hospital's response was that the em-
ployees would have to designate in writing if they were
to be represented by the Union or not, regardless of the
bargaining unit's status."11
Ronald Janetzke testified that he assumed the role of
chief union negotiator on August 9. At this 14th bargain-
ing session,
the Hospital . . stated their position was that the
striker replacement issue must be settled before
there could be any bar,4aining on any noneconomic
matters. Noneconomic matters would have to be
settled before there could be bargaining on econom-
" Van Zandt testified on cross-examination that on July 31, the
Union's executive board or negotiating conumttee "decided to strike, and
It wasn't solely because they were too far apart, but because the Hospital
would not address our economic issues other than wages. . . would not
discuss them" The next meeting was on August 5, where Carlson stated:
"We're starting from scratch, "he also stated that he did not wish to dis-
cuss any economic issues." Van Zandt agreed, however, that he never
received a "lower offer from the Hospital" after July 31. Van Zandt
noted that Carlson, on August 5, refused to explain to the Union "the
employment commitment" to the striker replacements.
Van Zandt was questioned on cross-examination about a union meeting
on August 14 Van Zandt recalled: "The purpose of the meeting was to
discuss continuation of the strike" because of, inter alia, 'the posture of
the Hospital"; the "hiring of replacements"; the Union felt there "were
unfair labor practice[s]"; the "refusal of the Hospital to bargain on our
proposals"; and the "refusal to give us information." The membership
voted "to stay out on strike."
Van Zandt further noted that on August 17, Carlson ultimately with-
drew his proposed recognition clause following Janetzke's protest that it
was illegal, and "that left checkoff and Union shop." The Hospital still
wanted, at that time, membership on a voluntary basis" and no "check-
off"
Van Zandt, referring generally to later meetings ultimately resulting in
an agreement on December 15, which the membership ratified on De-
cember 17, testified:
It was the Union's position that [the issue of strike replacements] was
not a subject of bargaining . It was the Hospital's position that
it must be discussed before anything would be settled; and one of the
mam stumbling blocks during this period of time was whether that
should be discussed at all [And], it was [later] discussed, and the fact
that the strike replacements were there was a major point of dis-
agreement . . ." (See Tr. 214-216)
ic matters. Then, of course, there could be the eco-
nomic matters.12
Janetzke replied to the Hospital:
We objected and said we did not see that bargain-
ing had to go in that sequence. We took the posi-
tion that economic and noneconomic matters could
be discussed either separately or simultaneously and
that there didn't have to be any particular order
. . . .
Janetzke further responded: "we didn't think the striker
replacement issue was a question that had to be resAved
before all other matters could be resolved or discussed."
The Hospital "disagreed." Jarietzke then asked the Hos-
pital "if they had any economic offer of any kind to
make to us, and the Employer's response was that it had
no economic offer."
During this August 9 meeting, the Hospital asserted
that "the strikers had abandoned the Hospital" and the
Hospital "had made a moral commitment to the striker
replacements." And, as Janetzke recalled, "we asked
them for the names and addresses of all striker replace-
ments, and we asked to have specifically designated,
after [a] striker replacement, the name of the striker that
was replaced by the specific replacement." In response:
the Hospital took the position that while the ques-
tion of the status of the strikers had to be resolved
as a first condition, that the question of us getting
information concerning the striker replacements was
not a proper subject of bargaining, and they said
they would not give us that information.
Janetzke again requested the striker information on
August 12, 17, 18, and September 1, 10, and 28. About
the second or third such request, Janetzke also asked for
"the telephone numbers of the striker replacements." The
Hospital refused. As Janetzke noted:
We indicated to the Hospital that we felt that we
were entitled to this information generally as the
bargaining agent . . . we indicated we wanted this
information so we could make an intelligent deter-
mination concerning termination of the strike. . . .
We wanted to check out the Employer's representa-
tion that the striker [replacements] were offered a
permanent job."
On August 9, Janetzke continued, the Union made an
economic and noneconomic proposal to the Hospital,
and the "Hospital rejected or proposal in total. They in-
dicated they had no response." At the next session, on
August 10, as Janetzke further testified, the Union "re-
vised that proposal. . . moving our demands downward,
and it covered both economic and noneconomic areas."
In response, the Hospital "took the position that the
striker replacement issue had to be resolved before other
matters could be resolved [and] they rejected our pro-
12 Counsel for Respondent stated in their brief (p. 96): "Carlson said
his preference was to resolve the non-economic issues, mcluding the re-
placement issue, first."
1438 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
posal." Janetzke recalled that at the 16th session, August
11:
The Hospital gave us a proposal covering both eco-
nomic and noneconomic matters . . . and stated
that they felt the striker replacement question had
to be resolved. . . . Our response was that we with-
drew all of our noneconomic demands. We accept-
ed all of the Employer's noneconomic demands. We
accepted all of the Employer's economic demands
except that we proposed on the wage proposal. . .
a modification . . . . We withdrew all of our de-
mands from the bargaining table.
Janetzke added: "The Employer . . . in essence said
[striker replacements as an issue] is a mandatory subject
of bargaining" and, as noted earlier, the Employer insist-
ed "that's something that had to be resolved." The
Union disagreed that the "striker replacements" or "rein-
statement of the strikers was a "mandatory subject of
bargaining." The Union was "willing to take our chances
with litigation," in resolving this issue. The Hospital
"called off the rest of the meeting."
At the 17th session, on August 12, as Janetzke testi-
fied, the Hospital again insisted that "the striker replace-
ment question was mandatory," and the "Employer
maintained that position until very late in the bargaining
sequence . . . they were still on that position in Septem-
ber around the 15th, and October . . . around the 5th
and the 20th of October." Janetzke added: "It was soon
after Mr. Elliot [counsel of record for the Hospital] came
in that they changed their position. . . it was late in the
bargaining sequence that striker replacements was not a
mandatory subject of bargaining."
Further, at the August 12 meeting, according to Jan-
etzke, the Hospital made a "proposal," in part, as fol-
lows:
The Hospital's proposal was to eliminate from the
recently expired contract the checkoff provision
. . . to amend the recognition clause. . . it was not
prepared to tell us how they were going to amend
the recognition clause . . . to either amend or
delete the Union shop and it wasn't clear. . . they
weren't prepared to tell us how . . . [the Hospital]
wanted to amend the rest of the contract . . . it
wasn't sure how . . . they were not prepared to tell
us.
Janetzke, 2 days later, on August 14, attended and ad-
dressed a union membership meeting. Janetzke testified:
Well, I informed the membership that the pur-
pose of the meeting was to explain to the member-
ship the various positions that the Employer was
taking at the bargaining table, and to explain what
actions we were going to take in reference to those
positions, and to have them vote whether they
wished to continue to strike or not strike, because
' 3 As discussed below, the union membership rejected two so-called
tentative settlement agreements during September and October.
of the Employer's conduct at the bargaining table. I
then proceeded to cover the various areas.
Well, I covered the area of the Employer basical-
ly refusing to give us any position when the bar-
gaining was in the early stages, in August. It was
dragging out. I explained that we weren't getting
any place, really, in the bargaining, because, origi-
nally on, we had no position from the Employer on
anything. Then, when we did get a position, they
proposed to take away the checkoff. They proposed
to open the question whether the Union should be
recognized. They proposed to open the question
whether there would be or not be a Union shop.
They had opened the whole contract including, you
know, possible renegotiation and possibly opening
all the economic provisions of the contract for re-
negotiations.
I explained to them the employer's position con-
cerning the striker replacements. I explained to the
membership that the Employer, early on, took the
position that it had a moral commitment to the
striker replacements, that it had promised them
jobs. The striker replacements had come to the Em-
ployer in the Employer's hour of need, that as I
saw it, the Employer was saying that the Employer
had, in essence, said that the strikers had abandoned
the Employer and patients. The Employer made it
very clear that it did not wish to tolerate strikes in
the Hospital. I explained to the membership what
mandatory subjects of bargaining were, what non-
mandatory were and how our position was that the
striker replacement issue was not a mandatory sub-
ject of bargaining. Our position being that it was
permissible, that while we were willing to discuss it
we were not willing to give up our position . . . .
I informed the membership that we were filing
charges with the National Labor Relations Board
because of the Employer's conduct, including the
checkoff, recognition and Union shop position.
Then there was a motion made from some person, a
member . . . to continue to strike because of the
conduct that I had mentioned that the Employer
was engaging in . . . . As I recall, [the vote] was
unanimous to continue to strike.
Janetzke, like Van Zandt, recalled that on August 17,
the eighteenth session, the Hospital presented General
Counsel Exhibit 10, a "recognition proposal. Janetzke as-
serted to the Hospital that "we had certification"; "we
did not have to bargain concerning recognition"; "we
did not have to secure individual designations from em-
ployees"; and "we considered this to be an unfair labor
practice." Later that same day, the Hospital
did withdraw this proposal from the table; however,
they said they were sticking to their other positions
in reference to the contract openings, such as, the
Union shop and checkoff, those types of things.
TRUMBULL MEMORIAL HOSPITAL

1439
Janetzke, as he testified, recalled also receiving from
the Hospital Respondent's Exhibit 5(a), at the 22d meet-
ing of the parties, on September 2. This was another pro-
posal from the Hospital. Janetzke made "comments in
reference to checkoff, but mostly objected to the section
. . . beginning with the [proposed] preferential hiring list
to be used," as follows:
We indicated that we didn't think what the Hospital
was offering was worth much. . . it wasn't advanc-
ing the bargaining. . . .
. . .
We said to the Hospital, you're position is that
they're economic strikers. Our position is that they
are unfair labor practice strikers. Without waiving
our position, even accepting your position that
these people are economic strikers, this provision is
unlawful because what it does is to give to those
striker replacements who are working. . . super se-
niority.
. . . •
We made it very, very clear that we considered this
proposal to be unlawful. . . . We told them that in
no way, shape or form would we agree to waiving
• . . those rights.
Later, "this proposal was either withdrawn or supersed-ed!,
Janetzke recalled that September 15 "is when we
reached what we might call our first tentative agreement
. ." The membership, however, "voted down this ten-
tative agreement." At the 27th meeting, on September
28, following the membership's rejection of the first so-
called tentative agreement, the Hospital made a proposal;
"we made a long rather detailed proposal"; "we covered
economic and noneconomic areas"; "requested informa-
tion"; "we made the same request that we had made in
reference to the striker replacement issue"; "we renewed
our request for the information concerning strikers who
returned to work"; "we renewed our request for the
names of supervisors and the type of work [they] were
performing that was unit work"; and "the Employer re-
fused to give us any of the information."
Janetzke generally summarized the sessions from Octo-
ber 1 until a settlement was ultimately accepted by the
membership on December 17, in part as follows:
Well, I continued to lead the negotiations until I
think, October 5th. . . . After October 5th, Robert
Brindza [union district president] took over the ne-
gotiations. . . He continued up through the—I
think the last session we had was the 25th or the
26th. . . of October. . . Well, I resumed as the
Union leader for the negotiations. After that, we
met on November 30th, I think December—one day
early in December. December 8th, I think it was.
54 Counsel for Respondent state in their brief (p. 152): "By the Sep-
tember 15 meeting the parties had agreed to a recall procedure that did
not require the Hospital to reinstate strikers within a required period of
time." Counsel observed later (p. 181): ". . . the Union noted that the
real issue was that the Hospital did not want to terminate the striker re-
placements [and] that is what keeps the parties where they are at."
Then we met December 15th and carried over to
the 16th.
[The] negotiations resulted in a proposal which was
taken to the membership, which they approved, and
that terminated the strike.
. . . .
We had proposed [earlier] that the Union would
maintain all of its rights to pursue all of the reme-
dies under the National Labor Relations Act. The
Employer [has] countered and added his name to
that, and also proposed that both parties would
have all rights under Federal law. We liked that
proposal. We thought it protected our rights even
more, so we accepted it and we made it clear to the
Employer that we were protecting our rights to liti-
gate the question of the status of the strikers as to
whether they were unfair labor practice strikers,
and we made it clear to the Employer that if we
wanted, we were going to pursue, to the fullest
extent, the backpay remedy on behalf of all of our
members.
Janetzke, on cross-examination, explained the Union's
position with respect to the striker replacement issue, in
part, as follows:
What we wanted and what we thought we were en-
titled to was the recall of the strikers when the
strike terminated. We felt we were entitled to the
recall, whether the Employer terminated [the re-
placements] or not.
[We] would make [at Strike's end] an unconditional
offer to return to work for each and everyone of
the strikers . . . and what [the Hospital] did with
the striker replacements, if he terminated them, then
that's all right. If he didn't, that was all right too, as
long as he returned the strikers to work.
. . . .
We saw the striker replacements as being replace-
ments for unfair labor practice strikers, and. . . the
law provided that [the Employer] could not hire
permanent replacements for unfair labor practice
strikers.
The December 15 settlement, as explained by Janetzke,
contained language "protecting our rights to litigate the
question of the status of the strikers.""
15 On cross-examination, Janetzke agreed that the Hospital's "money
proposal," first made at the 12th bargaining session on July 31, "did not
increase after the strike . . . the money proposal was the same on the
straight wages." The contract ultimately ratified by the union member-
ship on December 17 "was exactly the same wage proposal that the Em-
ployer made July 31."
Janetzke also explained that the Union had requested information per-
taining to the striker replacements because, inter aim, "the Employer, we
felt, was not giving us the true number on the different times he gave us
numbers.. . we thought if we had the names we could pin him down to
exactly how many striker replacements were in there . . we doubted
the figures he was giving us . . . ." On one occasion, about August 12,
Carlson claimed that the striker replacement figure was then up to 456
striker positions filled. Later, about September 1, the Hospital gave the
Continued
1440 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Delbert Price, president of the Local and a member of
the union executive board and bargaining committee, ex-
plained that, on July 18, the union membership, by secret
ballot, had voted "to authorize the executive board to
call a strike if they deemed it necessary." Price later pre-
sided over a membership meeting about 7:30 p.m. on
July 31. Price testified:
I informed the membership of what the Hospital
had offered as far as wages. . . I explained some of
the noneconomic issues . . . and then I proceeded
to tell the membership how the Hospital had re-
fused to give the Union certain information . . . . I
do remember that I mentioned that the Hospital had
told the negotiating team that they did not want to
negotiate economics until all noneconomic issues
had been settled, but they had presented us with a
wage offer only. . . . They refused to discuss all
other economic issues.
And, about 10:30 p.m. that same day, July 31, the
Union's executive board met. Price further recalled:
We discussed how the Hospital was negotiating.
Almost all the members expressed their dissatisfac-
tion with the way the Hospital was negotiating.
They felt that they were negotiating in bad faith
. . . by waiting until the last day to give us an eco-
nomic offer, and telling us to take wages only and
forget everything else. We thought they were bar-
gaining in bad faith.
A motion was made "that if the Hospital continued to
bargain in bad faith, and we could not reach an agree-
ment by midnight because of that, that the Local Union
would go on strike."
Price, as he further testified, attended the August 5
bargaining session. He recalled Carlson stating that "all
agreements were off the table . . . he wanted to settle all
noneconomic issues first, then proceed to economics."
Janetzke, at the August 9 meeting, "wanted to know the
names and addresses of all the striker replacements, and
who they replaced." The Hospital refused. Janetzke re-
peated this request "several times."
Union a list that purported to show the "strikers replaced"; however, as
Janetzke noted, one listed replaced striker employee had a job in a hospi-
tal wing "not even operating."
Janetzke was questioned about violence and misconduct during the
strike Janetzke admitted that Carlson had cited alleged acts of miscon-
duct or violence Also see R. Exh. 8, a temporary restraining order en-
tered against the Union about August 7. See Tr. 309-310. Further, a so-
called solidarity group, described as a "group of unions, got involved at
some point in this dispute A solidarity significant proportions on a
weekly basis"—"they would be demonstrating against the Hospital." Jan-
etzke noted that the so-called solidarity group or movement interjected
itself into the bargaining and, m effect, ultimately "completely destroyed
our bargaining position."
Janetzke denied that he or Van Zandt informed the Hospital that, in
effect, "a strike was inevitable." Janetzke in fact apprised Carlson:
Bill Van Zandt counseled against the strike because of the economic
posture in Warren and the extremely high unemployment rate, and
because the economic climate was not one that would support a
. . [It] was my understanding that Council 8 never encour-
aged any of these employees to go on strike.
Later, at the August 12 bargaining session, as Price
testified, Carlson came in, and informed the Union
that he wanted to drop checkoff. . .; he wanted to
modify Union security and the recognition clause of
the contract; and open up all other articles in the
contract to be negotiated.
Janetzke asked "how," and the Hospital would not
"inform the Union how they wanted to modify any sec-
tions of the contract, but they would. . . ."
Price also presided over the membership meeting on
August 14. According to Price, Janetzke, hi addressing
the membership, "explained . . . how he felt, the Hospi-
tal was negotiating in had faith." The membership then
voted to "stay out on strike due to the Hospital's con-
tinuing bad faith bargaining and unfair labor practices."
Union negotiating team member Clutters similarly re-
called that at the August 5 bargaining session, Carlson
stated that "since the strike, all provisions were off the
table and we are starting from scratch." See also the tes-
timony of Annabelle Pough (Tr. 587-588); Dorothy Mar-
tina (Tr. 639); Elizabeth Hill (Tr. 669); and Donald
Eberts (Tr. 723).
Clutters next recalled that on August 12, Carlson
wanted "to take out the Union dues . . . checkoff. . . to
eliminate checkoff"; "to modify recognition, union secu-
rity;" and "to negotiate over the whole contract." Carl-
son would not tell Janetzke "what provisions" in the ex-
pired contract he wanted "to negotiate over." See also
the testimony of Annabelle Pough (Tr. 590-591); Doro-
thy Martina (Tr. 641); Elizabeth Hill (Tr. 670-671);
Donald Eberts (Tr. 724); and Denise Price (Tr. 774-775).
Clutters further recalled that Carlson refused to fur-
nish Janetzke on August 9 with the names and addresses
of "striker replacements" and "who they replaced."
Clutters, on cross-examination, insisted that Carlson
"didn't specify what reasons he had for not giving that."
See also the testimony of Annabelle Pough (Tr. 589);
Dorothy Martina (Tr. 640); Elizabeth Hill (Tr. 670);
Donald Eberts (Tr. 724); and Denise Price (Tr. 773).
Clutters further recalled that on July 18, the union
membership had voted to give the union executive board
"the right to call a strike"; that on July 31, Delbert Price
apprised the membership at a meeting that the Hospital
"was bargaining in bad faith"; and that, later that same
day, July 31, the union executive board voted "to go out
on strike because of the bad-faith bargaining of the Hos-
pital." Thereafter, on August 14, after Janetzke reviewed
for the membership the Hospital's conduct and discussed
the filing of charges with the Labor Board, the member-
ship voted "to continue the strike" because of "bad faith
bargaining." See also the testimony of Annabelle Pough
(Tr. 591-595); Dorothy Martina (Tr. 643-645); Elizabeth
Hill (Tr. 672-674); Donald Eberts 725-728); and
Denise Price (Tr. 775-779).
Hospital Negotiator Carlson summarized the poststrike
negotiations, in part as follows: On August 4, the Hospi-
tal decided to hire replacements and "they would be
hired as regular employees." Carlson then instructed his
staff "that they should immediately prepare to com-
mence the hiring process." The first negotiation session
after the strike was on the next day, August 5. At that
TRU1VIBULL MEMORIAL HOSPITAL 1441
meeting, the Federal mediator was present. Carlson
claimed that proposals . . . were exchanged." Carlson
assertedly announced to Van Zandt: "the Hospital was
not prepared to compromise any of the areas which I
had described as patient care items." Carlson claimed:
"our proposal was. . . essentially the same as we had on
the 31st of July . . . on the noneconomics." Later that
day, August 5, Carlson informed Van Zandt that "it was
necessary in terms of being able to function at the Hospi-
tal that we hire replacement personnel." Also see G.C.
Exh. 5. Van Zandt was "extremely displeased." The
Union asked "how many were hired." Carlson later re-
plied: "96 or thereabouts."16
Carlson recalled that on August 6, as he attempteVo
leave the Hospital, he "was run off the road" by a„ sink-
ing employee, Steven Gerish. Carlson testified that° "Mr.
Gerish said he was going to take me On . . ,because
some scab had taken hisjob . . he didn't care what
happened to him" This incident took place "immediately
adjacent to the Hospital." Carlson also recalled that later
that same evening, "I observed 'what has been described
as a rally of approximately 200 of our employees at the
emergency room entrance." There were picket signs
identifying the Union "on strike." According to Carlson,
there was also an "accident" at the emergency room en-
trance attributable to "the unruly crowd that had
blocked the. . entrance." 17 As noted supra, the Hospi-
tal secured a temporary restraining order on or about
August 7. (Also see R. Exh. 59, a preliminary injunction
dated August 16, 1982.)
The next bargaining session was on August 9. The
Federal mediator and Attorney Janetzke were present's
At that session, Carlson apprised Janetzke about the
Gerish-automobile incident. Janetzke "stated that he
didn't condone this type of activity, and he didn't agree
with it." Carlson then told the Union that, on the "eco-
nomic" proposal, "we were remaining firm." There was
"some discussion" of the "noneconomic issues that were
still unresolved," "attempting to identify what those
areas were"—overtime, job bidding, leave of absence,
and three or four others.
16 Carlson elsewhere testified that he conferred with Johns subsequent-
ly on August 6, and was then told, "hire them just like any other employ-
ee" as "permanent employees."
On cross-examination, Carlson further acknowledged that, when the
Union struck on July 31, "all of [his] proposals, both economic and non-
economic, were off the table." See Tr. 2602. Carlson also testified: -
Q. And ask you again, on August 5 did you repeat that all pre-
viously agreed to items by the Hospital were withdrawn from the
bargaining table?
A. Yes. I incorporated by reference my statement that I had made
on July 31.
11 Carlson recalled that during the early hours of August I, when the
strike commenced, about 30 strikers rallied at the emergency room en-
trance, and there was noise and disturbances on the street.
18 Carlson, in his testimony, made reference to a private conversation
on August 9 with Van Zandt and Price, where they expressed their "dis-
pleasure with [his] attitude"—"they stated that [his] attitude was one o
confrontation." Carlson stated, inter ails, "that [he] felt there was a small
number of individuals who were trouble makers and that we should no
base our overall relationship on this." Van Zandt assertedly then made
"unofficial wage proposal to the Hospital" of 80 for the first year, and
cents for the second and third years, in across-the-board wage increases.
This proposal was, Carlson claimed, higher than the Union's mid-Marc
preliminary proposal "with respect to some classifications." This proposa
was apparently rejected.
Carlson claimed that during the August 9 meeting,
Janetzke asked about the status of the replacements, and
was told "that they were permanent employees." Jan-
etzke wanted "their names and addresses." Janetzke as-
sertedly said to Carlson, "there was no rush." Carlson
"did not refuse to supply him that information." Carlson
added, however:
I told Ron [Janetzke] that I didn't know whether
this was relevant information, or information that
we were required to provide to the Union, but I
would check with legal counsel and get back to
him.
Janetzke, according to Carlson, had no "objection" and
made no "immediate demand." Elsewhere, Carlson testi-
fied that, at this same meeting, the Union proposed "that
the Hospital terminate the striker replacements.""
At the next session, on August 10, the Union reduced
its proposal on economics and, according to Carlson,
was still "demanding a termination of the replacement
workers." As for the Hospital's proposal, Carlson now
testified, in part as follows:
Q. Had Mr. Johns authorized you to put the eco-
nomic proposal on the table earlier than you actual-
ly put it on the table?
A. Oh, Yes.
Q. And why had you waited until August 10 to
put it back on the table?
A. Because I was attempting to further refine the
number of noneconomic proposals that were there.
One of the most recent Union proposals had defmed
those noneconomic items down to two or three
items now. [Cf. Tr. 2602.]
At the time, strikers were abandoning the strike and of-
fering to return. And, additional replacements were
being hired.
The next session was on August 11. ,Carlson asserted
that during a private meeting that day, Attorney Jan-
etzke had admitted to him "that this particular strike was
the fault of the Local . . . the Local was looking for a
fight." Van Zandt, present at this meeting, assertedly ad-
mitted that "a strike was inevitable." The Union submit-
ted a counterproposal. The Union's proposal states, inter
alia, "If agreement is reached there will be an uncondi-
tional offer to return to work." Carlson later asked Jan-
etzke: "where are we on the replacement issue." Jan-
etzke replied: "You keep them" Carlson was "shocked."
Carlson asked: "What do we do with Union security?"
Janetzke replied: "handle it the same way you always
handled it"—"it would be handled in the same fashion
that we handled it for the past six years." Negotiations
ended for the day.
19 Carlson also noted that, as of August 6, he had received reports on
a regular basis from Hospital security personnel of "alleged strike related
misconduct." Carlson, in addition, had received "anonymous calls" of a
threatening nature at his home. Later, there were acts of vandalism to his
property, including the throwing of garbage, nails, "and things of that
nature."
1442 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On the next day, August 12, the parties again met.
Carlson, as instructed by Johns, "called for the deletion
of the dues deduction article." Janetzke became "quite ir-
ritated." Janetzke, according to Carlson,
was quite pointed on several different occasions, re-
questing exactly which articles that swe were pro-
posing be either modified or deleted completely
[from the expired contracts] I told him, for purposes
of today's meeting, we are only proposing the delet-
ing of the dues checkoff article. I said, there may be
further modifications in other articles since we
didn't finish until quite late last evening. . . . I had
not had time to review the other two.
Carlson was shown the Union's bargaining notes, and
asked (see Tr. 2354-2355):
There's a provision or a notation under the provi-
sion "Employer Position." And it says . . . "Dues
checkoff to be eliminated and all other articles, such
as Union security and recognition be modified to be
voluntary." Does that in any way summarize the
position that you expressed at the bargaining table
that day?
Carlson responded:
Obviously not a verbatim quote, but it reflects what
I said, that we're looking at checkoff today, and
any other article that would impact on mandatory
membership.
Carlson acknowledged that Janetzke "continued to press
for specific proposals in writing." There was also a dis-
cussion on "recognition." Janetzke "renewed his request
for the names and addresses" and "phone numbers" of
striker replacements. Carlson testified, "I stated I would
get back to him" The Hospital, by August 12, assertedly
had not rejected this union request.
The next meeting was August 17. Again, Janetzke re-
quested names, addresses, and telephone numbers of
striker replacements. Carlson refused to provide the re-
quested information, citing the "ever escalating severity
of the violence surrounding this strike."20 The Hospital
presented a proposal on "wages, previously agreed upon
items, checkoff, security and recognition." (See G.C.
Exh 10.) Carlson, later that day, withdrew the "proposal
on recognition." The Union was seeking, at this session,
that "all replacement workers should be treated as non-
permanent replacements." Carlson regarded this as a
"completely reversed position."
A meeting was held on August 18. The Union again
renewed its request pertaining to information on striker
replacements, and Carlson, for the reasons generally as-
serted earlier, refused.
Carlson, Janetzke, Kuppler, and Robert Brindza, presi-
dent of Union Ohio Council 8, met on August 20. The
parties agreed that their meeting and discussion would be
20 On cross-examination, Carlson was asked whether his bargaining
minutes actually reflect the above-stated reason being given to the Union
for refusing to provide the requested information. Carlson was uncertain.
See Tr 2605-2607, cf. R. Exh 5, p. 133.
"off-the-record." Carlson, at this hearing, related what
was said at this meeting. 21 According to Carlson, Union
Official Brindza, after making a proposal that was reject-
ed, threatened the Hospital with "war" and enlargement
of the labor dispute. And, Carlson claimed that Union
Official Brindza "laid the blame on the negotiating com-
mittee" for the strike and admitted to him that, in effect,
"there was no way. . . the Employer could reasonably
respond to such a massive and overwhelming proposal as
the Union submitted." 2 2
The next bargaining session was on September 1. Carl-
son cited "increasing acts of vandalism," after the Union
renewed its request for information pertaining to striker
replacements. The Union submitted a "package propos-
al" at this meeting. The Hospital rejected it "because we
were still not agreed on the security and checkoff issues
at that time." The Hospital assertedly would not agree to
"mandatory membership." At the next session, Septem-
ber 2, the Hospital proposed to "remove their request for
the deletion of the dues checkoff article." (See R. Exh.
5(a).) There was discussion. The Union objected to the
Hospital's proposed "recall procedure" as inherently dis-
criminatory and illegal. The Union presented a counter-
proposal. Carlson claimed that, with the "withdrawal of
the Hospital's proposal to delete checkoff, the "outstand-
ing issues" were only "Union security" and "no repris-
al." He agreed that these were the "main issues," and he
would include the "recall procedure." Carlson claimed
that he was first asked for information about "strikers
[employees] who had been replaced" at this meeting. He
assertedly agreed to provide this information.2
The next meeting was on September 10. Carlson sup-
plied the Union with information pertaining to replaced
"strikers." (See R. Exh. 42.) The Hospital's "recall pro-
cedure" was discussed, The issues remaining assertedly
were no reprisal and union security.24
The next session was on September 13. "Union securi-
ty" was discussed. The Hospital wanted voluntary mem-
bership. The recall procedure was discussed. Carlson as-
sertedly reiterated that the Hospital was no longer seek-
ing to eliminate checkoff. Then, the parties met on Sep-
tember 14. The Union asked "if the Hospital would be
21 I permitted this testimony and related evidence over objection, be-
cause there was no sufficient showing here of any privilege that, on bal-
ance, would override the alleged significance and necessity of fully dis-
closing tins segment of the bargaining scenario Although, on reconsider-
ation, I find very little added to this full record by these and related off-
the-record statements, I nevertheless adhere to my earlier ruling. See Tr.
2378-2402.
22 Carlson next testified that on August 25, a crowd of some 300 gath-
ered near the Hospital emergency room, and the emergency room en-
trance was blocked. The police were called and arrests were made. Some
persons carried union picket signs. Other signs indicated that "other
locals" were "supporting the Union."
23 Carlson next referred to a mass demonstration outside hospital prop-
erty, consisting of about 400-500 persons, on September 8. Striking em-
ployees were in the group There were also union pickets in the area.
They blocked entrance to the facility and arrests were made A striking
employee got into a fight with a Hospital security guard and was arrest-
ed. There were also rocks thrown through Hospital windows and related
acts of misconduct. Carlson also recalled an anonymous threatening tele-
phone call to his home and family
24 Carlson claimed that acts of violence and vandalism at and away
from the Hospital were continuously being reported to him during this
time.
TRUMBULL MEMORIAL HOSPITAL 1443
receptive to a proposal with some type of agency fee in-
corporated to replace Union security." Carlson agreed.
Then, the parties met on September 15. The Union's pro-
posal dealt with the agency issue—there was no proposal
on reprisals. According to Carlson, "the two matters that
had been outstanding were either addressed or dropped
by the Union at the start of the September 15 meeting."
The recall procedure, Carlson asserted, "had been
worked out in earlier September meetings." This was,
according to Carlson, "an open ended preferential hiring
list." Carlson apprised the Union that its "proposal was
agreeable to the Hospital." There was further discussion
on a vacation arbitration award, and a tentative agree-
ment was reached. (See R. Exh. 44.) The membership,
however, on September 17, rejected this tentative agree-
ment.25
The parties met again on September 28. The Union
presented a proposal. This proposal included previously
dropped items. The proposal sought, inter alia, immedi-
ate termination of the replacements. Requests for infor-
mation were made. The Hospital made a proposal. The
next meeting was on September 30. Representatives of
other labor unions attempted to be present, including the
so-called solidarity group. A discussion followed over
who should in fact be present at such bargaining. The
Hospital made a proposal. The Union made a proposal.
The Hospital now proposed the guaranteed "reinstate-
ment of the strikers at some point during the life of the
[proposed] agreement," even if this resulted in displace-
ment of the permanent replacements. Carlson called this
a "significant change in our proposal."
The next meeting was on October 1. Outside labor
representatives interrupted the parties and made threats.
The Hospital had announced that "it was unprepared to
move off the recall over the life of the contract propos-
al." A solidarity rally involving some 1200 persons, in-
cluding strikers, took place at the Hospital on the next
day, October 2. There was alleged misconduct and ex-
tensive property damage. Tires were slashed, one auto
was overturned, fences were destroyed, and rocks were
thrown. The parties again met on October 5.
A meeting was held on October 9. Brindza and Jan-
etzke attended for the Union. Johns and Carlson were
there for the Hospital. Brindza assertedly acknowledged
that the Hospital was a "fair Employer"; that the Local
had made "any number of errors"; and the Local "made
it impossible for the Hospital to formulate any economic
offers." No specific ideas or proposals were advanced.
The parties met on a number of occasions during Octo-
ber, as generally described by Carlson. About October
27, a second so-called tentative agreement was reached,
which was also rejected by the union membership. At
some point during these October meetings, the Hospital
25 Carlson claimed that Janetzke admitted that "local steel unionists
and United Auto Worker unionists" had "taken over" the Union's Sep-
tember 17 meeting, and "the help they had been receiving had turned to
destruction." I note that Janetzke, in his testimony, explained that the so-
called solidarity group or movement had interjected itself here and, in
effect, had destroyed the Union's bargaining position.
There was on September 22 some 500-600 demonstrators at the Hospi-
tal. There were striking union members in the area There were so-caned
solidarity people there. Acts of vandalism and violence occurred There
were also acts of vandalism and misconduct on September 28.
proposed to "recall the striking , employees over the life
of the contract" and "guarantee the Union specific mini-
mums in given time segments." (See R. Exh. 45.)
The parties met once in November and in December.
On December 16, another tentative agreement was pro-
posed, and approved by the union membership on De-
cember 17, as discussed above.
Hospital Director Johns testified that, following the
commencement of the strike, a decision was made by the
Hospital to hire "permanent employees." According to
Johns, "the final decision was made on Wednesday
morning, I think that was August 4. . . to begin hiring
some employees" and the "decision was that these em-
ployees would be hired like other employees, and these
would be permanent employees." Elsewhere, Johns
stated that the decision to hire permanent replacements
was made on August 6, because, according to Johns,
"some of the employees who had been hired were won-
dering whether they were in fact permanent employees
or was this a temporary thing." Johns also asserted that,
early during the strike, unidentified replacements and/or
strikers who had abandoned the strike, discussed with
him, inter alia, "the amount of picket line violence";
their status at strike's end; and "whether we were going
to force them to have to pay dues to this Union." Johns
claimed that, when it was later reported to him that the
Union during bargaining assertedly "took the position
that the replacements could stay but that they would
have to join the Union in the normal period of time," he,
Johns, was completely surprised and almost shocked—
"we were not interested in that occurring." In addition,
Johns claimed that Robert Brindza, president of OW°
Council 8, had acknowledged to him at a meeting dm*
early October, that he, Brindza, was "very upset with
the way the local representatives had handled this
matter, almost apologizing for there being a strike in a
hospital which he thought was not right." Brindza asser-
tedly admitted to Johns that "the Local Union had pre-
sented proposals in such a way that it was difficult for
the Hospital to agree or for an agreement lo be
reached." Johns also added that Janetzke, the Union's at-
torney, in effect, similarly agreed in "apologizing that
there had been a strike."
Karl Kuppler, assistant executive director at the Hos-
pital, also testified. He kept the notes for the 1982 ses-
sions. At the August 11 meeting, Kuppler claimed that
Janetzke had admitted, inter alia, that the "Local had
been unreasonable," and Van Zandt similarly admitted,
inter alia, that the "strike seemed inevitable." The Union
assertedly proposed that day "that the replacement
workers remain in their positions and that the strikers be
recalled on an as-needed basis." The Hospital, however,
was concerned with "what impact" would all this have
on "replacement workers, with regard to compulsory
Union membership, Union security, those types of
issues." Janetzke assertedly confirmed his understanding
that, under this proposal, replacements would be re-
quired to become union members. The job applicants, ac-
cording to Kuppler, had "quite a general concern about
having to. . . affiliate with the Union. . . to pay dues."
1444 DECISIONS OF' THE NATIONAL LABOR RELATIONS BOARD
Kuppler next claimed that, on August 20, during an
off-the-record discussion, Union Representative Brindza
faulted the Local. The Hospital then rejected a union
proposal, and Brindza threatened war with the labor
movement." Kuppler recalled that later, on October 1,
solidarity movement individuals came into their caucus
room and, in effect, made threats. Kuppler could not
recall specifically dates when the union requested infor-
mation on the striker replacements, although he asserted
in general that Carlson had explained his reason for not
providing this information "in light of the acts of vio-
lence and disruption."
On cross-examination, Kuppler was asked: "had Carl-
son made changes in the [bargaining] minutes between
the time you gave it to him and the time they were tran-
scribed, based upon your review after you saw the final
transcribing?" Kuppler testified:
I honestly can't say. I reviewed the final copy for
. . . typographical mistakes that would have been
made by my secretary. I wasn't reviewing them for
substance or for content material.
Further, Kuppler claimed that, at the second meeting on
June 24, Carlson said that "he wanted to resolve non-ec-
onomics first before going on to economics," and Van
Zandt "agreed," that is, "he did not object." And, with
respect to the August 11 meeting, Kuppler further testi-
fied:
Q. Isn't it true that on August 11, when the
Union gave you their proposal, that the Union did
not propose that replacements remain on the job,
did not make that proposal to you?
A. Their proposal was an unconditional offer to
return to work. The phrase was your proposal was
the unconditional offer to return to work, not re-
placement workers stay in their position.
Q. In fact, in the Union proposal there is abso-
lutely nothing said about the replacement workers.
A. Not until the follow up session with you in
OUL LOOM.
Finally, Kuppler explained that, in recording notes for
the sessions, he dictated from his draft or text into a re-
cording machine. His draft was not saved—the initial
notes were destroyed.
Ralph Smith, director of security at the Hospital in
1982, testified that, on August 6, some 350 persons pick-
eted or congregated at the Hospital property. The pro-
testors made noise and blocked the emergency room.
There was a traffic accident. Carlson, it was reported,
had been run off the road that day. A temporary re-
straining order was obtained about August 7. Striking
employees or protestors generally made obscene state-
ments and threatening remarks. Smith, when pressed for
specifics, said "I saw a number of other employees who I
could name by name, but I cannot at this time attribute
any particular remark to them," Smith generally claimed
that rocks and bottles were thrown on numerous occa-
sions. Smith added, "I think it was the beginning of the
fourth week, we experienced our first outside rally."
Smith generally described the rally of August 25. There
was mass picketing. The emergency room was blocked.
Arrests were made. Smith generally described a rally on
September 8. Strikers were present. Again, the emergen-
cy room was blocked; eggs were thrown; fireworks were
used; and rocks were thrown. There was violence and
arrests were made. A striking employee assaulted a secu-
rity guard. Smith generally described a rally on Septem-
ber 22. There were some 400 persons there. Rocks were
thrown and property was damaged.
Smith related in general other acts of violence, vandal-
ism, assaults, and property damage throughout the perti-
nent period. On September 26, "Hospital windows were
shot out." This type activity occurred again on a number
of occasions. A bomb threat was made on September 30.
Smith also recalled the solidarity rally on October 2 with
some 1100-1200 persons. Pickets were there. There was
violence, threats, and related misconduct. Rocks were
thrown through windows. Smith generally related these
and later incidents. Persons who worked at the Hospital
assertedly were reporting threats and acts of misconduct
to Smith or his associates, and he related these reports to
his superiors.26
On rebuttal, Robert Brindza, president of the Union's
Ohio Council 8, testified that he attended a meeting on
August 20; that he did not "blame the Local Union" for
the strike; and that he did not admit that the Local's pro-
posal "was irresponsible and it showed the Hospital that
there was no way it could reasonably respond." Brindza
testified that he also attended a meeting on October 9
and that he did not admit that the Local "made it impos-
sible for the Hospital to formulate an economic offer" or
"there was no way a proposal could be put together by
the Hospital." Brindza also recalled that he had partici-
pated in the initial 1975-1976 negotiations between the
parties. He explained that "there was an understanding
that we would proceed to discuss the noneconomic
issues and try to resolve as many of those noneconomic
issues as we possibly could, with the understanding that
either party, at any time, depending on the pr,ogress that
was being made in the noneconomic area . . . could
move into economic discussions."
Janetzke, counsel for the Union, testified on rebuttal.
He too denied or refuted various admissions of blame or
fault attributed by Carlson, Johns, and Kuppler to ,him,
2 6 Counsel for Respondent, during the hearing, offered into evidence
R Exh. 46, a so-called Department Strike Log, and R. Exh. 47, a summa-
ry of the some 250 pages of the strike log. Counsel for Respondent
argued that R. Exh. 46 was "mamtamed by the Hospital during the
course of the 1982 strike"; that it was "maintained in the regular course
of business"; and, therefore, that it is a "hearsay exception" under Rule
803(6) of the Federal Rules of Evidence. After reviewing the testimony
of both Carlson and Smith, I ruled that this strike log, containing multi-
ple hearsay, is not covered by the cited exception. An interlocutory
appeal was sought and denied by the Board. On reconsideration, after re-
viewing the entire record pertaining to the above exhibits and related
conduct, and noting that the Hospital does in fact maintain regularly inci-
dent investigative reports, which would qualify under Rule 803(6), I
adhere to my rulmg, as stated above I have, however, received into evi-
dence under Rule 803(6) R Exh. 49, "the compilation of the security de-
partment's Incident Investigative Reports that deal with those matters
that the Hospital believes the strike related to." See Tr. 2864-2867; also
see Tr. 2695-2704, 2725-2726, 2746-2753, 2763, 2765-2769, 2772-2774,
2778-2787, 2861-2864. See also testimony of Secunty Officer John
Schultz (Tr. 190-3220).
TRUMBULL MEMORIAL HOSPITAL 1445
Van Zandt, and Brindza. In short, Janetzke, Brindza, and
Van Zandt did not admit that the Local was responsible
for the strike, or fault the Local in the process. Janetzke
assertedly wanted no so-called solidarity or outside labor
movement participation in this labor dispute. He attempt-
ed without success to get the outside activists to "leave
us alone." He instructed Van Zandt to get the message
to the so-called solidarity people that "we didn't con-
done violence" and "didn't want any problems in their
rallies." However, as Janetzke acknowledged elsewhere,
as the strike progressed, the solidarity people and outside
labor interests had rallies; union members, pickets, and
officials were present; and the so-called solidarity people
or outside labor interests got involved in the bargaining
process and at a ratification meeting. In the process,
these outside labor interests undermined the Union's bar-
gaining position and control.
Van Zandt, the Union's negotiator, testified on rebut-
tal. He denied telling Carlson on July 31 that "the parties
would have to start from scratch"; that the Union re-
mained silent when Carlson proposed deferring; discus-
sion on economics; and that Carlson ever used the term
"manageable" level in attempting to defer the discussion
of economic issues. Van Zandt noted that the solidarity
day committee's first rally at the Hospital was on August
25, Van Zandt instructed his people to keep away from
the so-called Solidarity protestors at the rallies. Van
Zandt was present at rallies.
Van Zandt denied stating that a "strike was inevita-
ble." Finally, Van Zandt denied the testimony of one
Noreen Moderalli, offered by Respondent, to the effect
that h; in April or May 1982, had stated at a bar in
Youngstown that the Hospital "is going on strike in
August for two weeks." Van Zandt explained that he
could not know in April or May whether "there was
going to be a strike." Van Zandt even denied knowing
the name of Moderalli.27
Delbert Price, president of the Local, testified on re-
buttal. Price, like Van Zandt, denied that there was,
during the negotiations for a renewed agreement in 1979,
"any agreement" to defer the discussion of economic
matters; that the Union agreed to such a proposal in
1982; and that the Union remained silent in 1982 when
Carlson attempted to defer discussion on economics. Van
Zandt said "they could not agree." The so-called mass
solidarity day committee rallies actually started on
August 25. Price testified:
I told the members that AFSCME would prefer
that we not go down to the rallies, but if we went
down to remain across the street and remain peace-
ful.
I credit the testimony of Jan etzke and Van Zandt, as
detailed in sections A and B, supra. Their testimony, as
27 Noreen Moderalli, director of dietetics for another hospital, called
as a witness for Respondent, had claimed that "prior to May 20, 1982,"
Union Negotiator Van Zandt told her in "a lounge in the Youngstown
area" that "Trumbull Memorial is going on strike m August for two
weeks." Moderalli could not recall the name of the lounge because, as
she explained, "We [she and a friend] visited one or two other bars be-
sides that night."
demonstrated above, is in significant part mutually cor-
roborative and, further, is thoroughly corroborated by
testimony of Delbert and Denise Price, Clutters, Pough,
Martina, Hill, Ebert, and Brindza. Their testimony is
even substantiated in part by the Hospital's own bargain-
ing notes. Janetzke and Van Zandt testified at length in
this proceeding; their testimony withstood extensive
cross-examination; and they impressed me as reliable and
credible witnesses. In sum, on this entire record, includ-
ing my observation of the demeanor of the witnesses, I
find that the above-recited testimony of Janetzke and
Van Zandt reflects a candid, reliable, reasonable, and
trustworthy account of the 1982 bargaining sequence.
Insofar as the testimony of Carlson, Johns, and
Kuppler differs with the cited testimony of Janetzke,
Van Zandt, Delbert and Denise Price, Clutters, Pough,
Martina, Hill, Ebert, and Brindza, I am persuaded here
that the testimony of the latter witnesses is more reliable
and trustworthy. The testimony of Carlson, Johns, and
Kuppler was, at times, vague, evasive, incomplete, un-
clear, and contradictory. They did not impress me as re-
liable and accurate witnesses in relating their versions of
the pertinent bargaining chronology. Thus, for example,
Van Zandt credibly and fully related that Carlson, on
July 31, warned:
If the union would not accept the [Hospital's wages
only] offer, and chose to strike, all terms and condi-
tions of employment would be terminated. All
offers would be off the table . . . and terms and
conditions would be terminated.
Van Zandt's testimony, in this and related respects, is
thoroughly corroborated, as demonstrated above. Carl-
son, on the other hand, claimed that he meant by his
statement on July 31 that the employees' "insurance
would be cancelled if a work stoppage began." Carlson,
however, admitted that the Hospital's bargaining notes
do not refer to "insurance" and, apparently, he did not
say at the time what he assertedly meant. Elsewhere,
Carlson acknowledged that, when the Union struck on
July 31, "all of [his proposals], both economic and non-
economic, were off the table"—"all previously agreed to
items were withdrawn from the bargaining table."
In addition, Carlson claimed that, during the pertinent
bargaining chronology, he repeatedly declined to make
an economic offer to the union negotiators relying on an
alleged "ground rule" or understanding among the par-
ties that permitted him to defer discussing economics;
that the union negotiators acquiesced in his deferrals; and
that the union negotiators did not in fact demand or
insist on a more timely discussion of the many outstand-
ing wage and nonwage economic issues. Van Zandt fully
and credibly testified to the contrary, as demonstrated
above. His testimony is thoroughly corroborated by the
Union's bargaining committee members and Janetzke.
Moreover, as discussed below, the testimony of Van
Zandt and Janetzke and the Union's bargaining commit-
tee members—when assessed in the context of the entire
bargaining sequence and when compared with the Hospi-
tal's own bargaining notes—makes it clear here that
Carlson, contrary to his assertions, was engaged in a
1446 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
total course of conduct plainly calculated to fragmentize
and frustrate the bargaining process. Carlson, before the
strike, adamantly and rigidly refused to discuss the
Union's wage and nonwage economic proposals "until all
noneconomics were either withdrawn or agreed to."
Carlson, after the strike commenced, insisted that the
"striker replacement issue must be settled before there
could be any bargaining on any noneconomic matters"
and, then, "noneconomic matters would have to be set-
tled before there could be any bargaining on economic
matters." Carlson, by this and related conduct, prevented
any meaningful bargaining from taking place.
Carlson, Johns, and Kuppler, in their testimony, assert-
ed that Janetzke, general counsel for the Union, and
Brindza, the district president for the Union, as well as
Van Zandt, the Union's staff negotiator, all repeatedly
admitted—after the strike started and in some cases after
unfair labor practice charges had been filed—that the
Local Union, in effect, was at fault here for the strike
and had prevented the Employer from making a more
complete and timely economic proposal. I find, on this
full record, the testimony of Janetzke, Brindza, and Van
Zandt to be more reasonable and trustworthy. In particu-
lar, I do not believe Carlson's claims that Janetzke
openly admitted to him about August 11 that the strike
"was the fault of the Local"; that Van Zandt similarly
admitted that a strike was "inevitable"; that Brindza,
with Janetzke, conceded about August 20 that "there
was no way the Employer 'could reasonably respond to"
the Union's proposal; and that Brindza, with Janetzke,
also conceded to Carlson and Johns about October 9 that
the Local Union had "made it impossible for the Hospi-
tal to formulate any economic offers," and he, Brindza,
was in effect "apologizing for there being a strike in a
Hospital." I am persuaded here, instead, that these union
representatives and officials did not make such state-
ments. In like vein, I reject as incredible Carlson's asser-
tion that Janetzke, although repeatedly requesting the
names and addresses of the striker replacements, assured
Carlson that "there was no rush." Janetzke credibly testi-
fied how he repeatedly requested this information and
his request was refused. His testimony, as discussed
above, is corroborated.28
28 I note the brief and sketchy reference in Janetzke's notes for a later
session to the words, "not needed immediately." (See Hospital Br. 122
and G.C. Exh 9, p. 8; cf G.C. Exh. 8, pp. 51 and 58.) Nevertheless, on
the entire record, I am persuaded here that Janetzke, commencing on
August 9, , repeatedly pressed for, and was refused, this pertinent data.
The Hospital, as stated earlier, admittedly rejected Janetzke's August 9
request on August 17, when it assertedly cited strike-related misconduct
as a reason for its refusal.
I also note that Ralph Smith, the Hospital's director of security, testi-
fied with respect to strike-related misconduct. The Hospital was princi-
pally attempting to establish the details of this alleged misconduct by its
so-called strike log. As discussed, I would not receive this 250-page doc-
ument in evidence as a business record exception to the hearsay rule.
Smith's independent recollection of these alleged acts of strike-related
misconduct, as the record shows, was often m general terms In my view,
the Hospital's Investigative Report Forms, received in evidence, provide
a more reasonable summary of the cited misconduct. Further, I also find
the related testimony of security officer John Schultz (see Tr. 3190-
3122), insofar as pertinent, to add little to what has already been shown
with respect to alleged strike-related misconduct.
Finally, counsel for Respondent cite the testimony of
one Noreen Moderalli, and argue (Br. 222), "For the
ALJ to credit Van Zandt on this issue, he would have to
find- that Moderalli fabncated the incident a finding that
would have no factual basis." Moderalli, whose brief tes-
timony is summarized above, claimed that Van Zandt
told her, in some lounge in the Youngstown area, "prior
to May 20, 1982," that "Trumbull Memorial Hospital is
going on strike in August for two weeks." Van Zandt
denied this testimony and denied knowing Moderalli.
Van Zandt explained that he had no way of knowing, at
that time, what would happen in August. Moderalli, on
the other hand, although certain of Van Zandt's words,
could not remember the month or the bar where this
statement assertedly was made, because she and her
friend had visited "one or two other bars that night." On
this record, I find Van Zandt's denial more credible.
Discussion
The General Counsel and the Union argue that Re-
spondent Hospital, by its conduct during the 1982 negoti-
ations for a renewed contract, failed and refused to bar-
gain in good faith with the Union. The Hospital argues
that it fully satisfied its statutory bargaining obligation.
Section 8(a)(5) of the Act makes it an unfair labor prac-
tice for an employer "to refuse to bargain c011ectively
with the representative of his employees." The control-
ling legal principles have been restated many times by
the Board and the courts. Thus, in NLRB v. General
Electric Co., 418 Fal 736, 762 (2d Cir. 1969), cert.
denied 379 U.S. 965 (1970), the court stated:
[T]he statute clearly contemplates that to the end of
encouraging productive bargaining, the parties must
make "a serious attempt to resolve differences and
reach a common ground," NLRB v. Insurance
Agents' Ina Union, 361 U.S. 477, 486, 487, 488 . . .
(1960), an effort inconsistent with a "predetermined
resolve not to budge from an initial position."
NLRB v. Truitt Mfg. Co., 351 U.S. 149, 154-155
. . . (1956) (Frankfurter, J., concurring).
A pattern of conduct by which one party makes it
virtually impossible for him to respond to the
other—knowing that he is doing so deliberately—
should be condemned by the same rationale that
prohibits "going through the motions" with a "pre-
determined resolve not to budge from an initial po-
sition." See NLRB v. Truitt Mfg. Co., supra (con-
curring opinion).
And, in NLRB v. Patent Trader, Inc., 415 F.2d 190, 197-
198 (2d Cir. 1969), modified en banc 426 F.2d 791 (2d
Cir. 1970), the court explained:
Mhe Company "entertained no sincere desire and
made no genuine effort" to conclude an agreement
with the Union. It is well-settled that the "perform-
ance of the duty to bargain requires more than a
willingness to enter upon a sterile discussion of
union-management differences." NLRB v. American
National Insurance, 343 U.S. 395, 402 . . . (1952).
TRUMBULL MEMORIAL HOSPITAL 1447
And although "the obligation of the employer to
bargain in good faith does not require the yielding
of positions fairly maintained," NLRB v. Herman
Sausage Co., 275 F.2d 229, 231 (5th Cir. 1960), more
is required than mere "surface bargaining" or
"giving the Union a runaround while purporting to
be meeting the Union for purposes of collective bar-
gaining." NLRB v. Herman Sausage Co., supra, p.
232, quoting NLRB v. Athens Mfg Co., 161 F.2d 8
(5th Cir. 1947).
The Court, in Patent Trader, supra, pertinently noted
that:
"[B]y postponing or removing from the area of bar-
gaining—to the very end of negotiations—most fun-
damental terms and conditions of employment
(wages, hours of work, overtime, severance pay, re-
porting pay, holidays, vacations, sick leave, welfare
and pensions, etc.), [the company] reduced the flexi-
bility of collective bargaining, [and] narrowed the
range of possible compromises" with the result of
6' . . rigidly and unreasonably fragmenting the ne-
gotiations .. ." See Vanderbilt Products, Inc. v.
NLRB, 297 F.2d 833 (2d Cir. 1961),
In Federal-Mogul Corp., 212 NLRB 950 (1970), enfd. 524
F.2d 37 (6th Cir. 1975), the Board similarly held that an
employer's "refusal to permit any discussion of economic
proposals in the contract negotiations and [its] require-
ment as a condition for any such discussion that the
union agree to accept [its] terms on certain non-econom-
ic matters, was a refusal to bargain in good faith." The
court pertinently noted in Federal Mogul that the
union . . . had opened the negotiations by stating
all of its economic demands except wages. Nonethe-
less, for a substantial time the union acquiesced in
the company's demand to settle non-economic issues
first. In the weeks immediately before the strike,
however, the union made a wage proposal and un-
successfully sought economic proposals from the
company.
Further, in Adrian Daily Telegram, 214 NLRB 1103,
1110-1112 (1974), the Board again found that an employ-
er violated Section 8(aX5) "by refusing to submit any
specific economic counterproposals to the union despite
repeated requests by the union, as well as by the media-
tor, and in addition by refusing to bargain with the union
with respect to any economic matters until final agree-
ment had been reached on all non-economic issues." See
also South Shore Hospital, 245 NLRB 848 (1979), enfd.
630 F.2d 40 (1st Cir. 1980), in which the Board found,
inter alia, that art employer, in violation of Section
8(a)(5), "refused to bargain with the union over wages
and other economic benefits which were proposed by
the union unless and until the union agreed to reductions
in certain existing benefits as proposed by the" employer.
The court, in sustaining the Board in South Shore Hospi-
tal, pertinently commented:
Even under the [employer's] version of events,
there was no unequivocal pact to resolve non-wage
items first, but only a loose agreement to discuss
them first with a hope of reaching resolution before
turning to wages. As time went on and agreement
on the [employer's] proposed reductions had not
been reached, the Union made it clear that it de-
sired to know what the [employer's] wage proposals
were. 2 9
The credible evidence of record, detailed supra, shows
that during late 1981 or early 1982, the Hospital request-
ed the Union to submit, in advance of formal bargaining
for a renewed contract, a bottom line economic and non-
economic proposal. The Hospital was anxious to "reach
a rather quick agreement." The Union, in response, sub-
mitted to the Hospital during mid-March a preliminary
bottom line written proposal covering both economic
and noneconomic issues. The Hospital, disappointed over
the Union's preliminary proposal, would not even pre-
pare a counterproposal. Over 2 months later, on June 1,
the parties commenced formal negotiations for a re-
newed agreement. The Union again submitted in writing
an economic and noneconomic proposal. The Hospital,
from the outset, "wanted to discuss first the noneconom-
ic proposals and then go on to the economic proposals."
The Union did not agree to this ground rule or proce-
dural accommodation. Nevertheless, from June 1 until
July 31, when the Union's outstanding contract expired
and the strike commenced, the Union repeatedly urged
that the Hospital submit an economic proposal and thus
address the many outstanding wage and nonwage eco-
nomic issues on the table. The Hospital repeated] y re-
fused. The Hospital adamantly and persistently demand-
ed that the Union's noneconomic proposals had to be
withdrawn or had to resolved before it would address
economics.
At the 10th session, on July 30, the Union reduced or
dropped a substantial number of its noneconomic propos-
als. The Hospital would still not address the economic
issues. At the 11th session, on July 31, as the Hospital's
own bargaining notes show:
The Union again asked that the Hospital consider
submitting its economic proposals to the Union.
Van Zandt indicated that if an adequate proposal
were submitted that could be taken to the member-
ship [that] evening, then perhaps the remaining non-
economic items could be resolved.
The Hospital, in response, again refused to present any
economic proposal. The Hospital was still insisting that
the Union withdraw or agree on remaining noneconomic
issues before it would discuss economics. Finally, that
same evening, as the contract's expiration and strike
29 The obligation to bargain in good faith also requires an employer,
on request, to supply a union in a timely fashion with relevant data. As
the court generally noted in NLRB v. I P. Stevens & Co., 538 F 2d 1152,
1164 (5th Cir 1976).
The case law allows no equivocation regarding the obligation to
supply data. A company which fails to produce relevant information
violates its duty to bargam . . The only requirements are that the
union must request the data and it must be relevant to a legitimate
interest of the union. . .
Also see Murphy Printing Co., 235 NLRB 612, 617-618 (1978).
1448 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
deadline approached, the Hospital submitted, for the first
time, an economic proposal limited to strictly wages. As
a result, the some 30 or more nonwage economic propos-
als of the Union were not even addressed by the Em-
ployer. The Hospital, at the same time, repeatedly
warned the Union: "If [the Union] didn't accept that
agreement. . . that would all be withdrawn, and all con-
ditions of employment would be terminated"—"if there
was a strike . . . all proposals would be lifted from the
table" and bargaining would be at "point zero." Earlier,
as noted, during the Hospital's limited discussion of non-
economic items, including the performance of unit work
by nonunit personnel, the Union had repeatedly asked
for "a list of bargaining unit duties that were being per-
formed by nonbargaining unit employees," and the Hos-
pital repeatedly refused to supply this and related rele-
vant data.
The Union's executive board, on July 31, met with the
membership and reviewed the Hospital's conduct at the
bargaining table. It was ultimately determined that
evening that the Hospital was not fulfilling its bargaining
obligation. As one union committee member emphasized,
"waiting until the last day to give us an economic offer
and telling us to take wages only and forget everything
else."
The Hospital, by July 31, had repeatedly refused to
furnish the Union with relevant information pertaining to
the performance of unit work by nonunit personnel; had
persistently and rigidly refused to discuss the Union's
wage and nonwage economic proposals unless and until
the Union either abandoned its noneconomic proposals
or resolved them in a manner satisfactory to the Employ-
er; and, finally, had threatened the Union and its bargain-
ing committee that, if a work stoppage occurred, "all
proposals would be lifted from the table," bargaining
would be back to point zero and all terms of employ-
ment at the Hospital would be canceled or terminated.
The Union's bargaining committee, and membership,
fully apprised of the Employer's conduct during the
prior months, decided to strike on July 31. The Union's
only other real alternative was to accept the Hospital's
last-minute wages-only offer and thus abandon, without
discussion, its entire nonwage economic proposal and ca-
pitulate on significant remaining noneconomic issues.
Under these circumstances, the Hospital's assertion that
the Union's extensive economic and noneconomic pro-
posals made a strike inevitable here is plainly without
merit. As found above, it was the union negotiators who
repeatedly pressed the Hospital for an economic counter-
proposal in an attempt to get some movement in the bar-
gaining process. Carlson acknowledged that, by July 30,
"the same number of noneconomic matters were left on
the table"—"the same number that we started with."
Carlson still would not discuss economics. The Union
then abandoned or withdrew a substantial number of its
noneconomic proposals. Carlson still would not discuss
economics. On July 31, the Union "again asked that the
Hospital consider submitting its economic proposals . . .
then perhaps the remaining noneconomic items could be
resolved." Carlson insisted that the Union first resolve—
in terms satisfactory to the Employer—remaining non-
economic questions before the Hospital would even
present "a realistic economic proposal."
It was the above and related intransigent conduct on
the part of the Employer at the bargaining table that
caused the July 31 strike. For, as Janetzke credibly ex-
plained, the Union was well aware of the high unem-
ployment rate in the Warren, Ohio area; the "economic
climate was not one that would support a strike"; and
the Union advised against and did not want strike action.
Nevertheless, faced with an employer that was unreason-
ably and rigidly fragmenting negotiations and thus elimi-
nating the flexibility required for any meaningful bar-
gaining to take place, the Union and its membership
struck in protest over the Employer's failure and refusal
to bargain in good faith during the prior 2 months.
The Employer, after the strike started, again demon-
strated the same intransigence at the bargaining table.
Thus, as found above, Carlson reminded the union nego-
tiators, "as he [had] told [them] before the strike, every-
thing, all offers were withdrawn," and the "parties were
starting from scratch" or "point zero." The Hospital was
in the process of hiring permanent replacements for the
strikers, and Carlson so advised the union negotiators.30
The Hospital insisted that this was an economic strike;
the Union claimed that this was an unfair labor practice
strike; the Hospital then asserted that it "would not dis-
cuss anything until the Union agreed with their position"
on the strike replacements. As Janetzke credibly recalled:
The Hospital . . . stated their position was that the
striker replacement issue must be settled before
there could be any bargaining on any noneconomic
matters [and] noneconomic matters would have to
be settled before there could be bargaining on eco-
nomic matters.
The Union protested. The Union, however, at the same
time, requested the names and addresses of the "perma-
nent replacements," so that it could verify and evaluate
the Employer's contentions. The Hospital repeatedly re-
fused to provide this and related information. Thus, the
Employer had again fragmentized bargaining and pre-
vented any meaningful exchange from taking place, by
requiring that the Union, in effect, concede or settle on
the status of the striker replacements before any manda-
tory subjects of collective bargaining would be dis-
cussed. The Employer would then, if such an agreement
or concession were possible, still require remaining none-
conomics to be settled before addressing economic issues.
The Employer further exacerbated the bargaining rela-
tionship by later announcing, as Janetzke credibly re-
called:
The Hospital's proposal was to eliminate from the
recently expired contract the checkoff provision
• . . to amend the recognition clause. . . [the Hos-
pital] was not prepared to tell [the Union] how they
were going to amend the recognition clause; to
either amend or delete the union shop and it wasn't
3° As discussed below, strikers started to abandon the strike and make
application, without s.zcess, for reinstatement.
TRUMBULL MEMORIAL HOSPITAL 1449
clear . . . [the Hospital] 'wasn't prepared to tell the
Union how; [the Hospital] wanted to amend the rest
of the [expired] contract . . . it wasn't sure how
• . . they were not prepared to tell [the Union].
Subsequently, the Hospital proposed, inter alia, that the
Union modify its recognition clause by requiring unit
employees to designate the Union in writing before the
Union could represent them. Janetzke protested that the
Union, certified by the Board, did not have to bargain
over rern ition and such a requirement was illegal. The
Ho,.; as, in like vein, proposed a system of recall of
rikers that Janetzke characterized as illegal because, in
effect, it was inherently discriminatory. The Hospital
later removed its proposed recognition clause and, ulti-
mately, modified or superseded its proposed recall proce-
dure. And, as the parties continued to meet during the
ensuing months, the Union renewed its earlier requests
for information concerning the identity of striker replace-
ments and nonunit personnel performing unit work, with-
out success.
I find and conclude here that the Employer violated
Section 8(a)(5) and (1) of the Act by refusing to discuss
economic issues until all noneconomics were resolved;
by refusing to furnish the Union with relevant informa-
tion concerning bargaining unit work performed by non-
unit personnel; by warning that, if the Union engaged in
a strike against the Hospital, all pending contract propos-
als and agreements would be withdrawn; by announcing,
following the commencement of the strike on July 31, all
pending contract proposals and agreements were with-
drawn and the parties were starting "from scratch"; by
refusing again to discuss economic issues until all non-
economic issues were resolved, including the status of
the striker replacements; by proposing to eliminate the
dues-checkoff pro vision of the expired contract and to
modify other contractual provisions, including those per-
taining to union recognition and union shop; by propos-
ing that thenceforth the Employer only be required to
recognize the Union as the bargaining agent solely for
those unit employees who designate in writing that they
wish the Union to represent them; and by its related acts
and conduct during the entire course of the pertinent
bargaining chronology. Respondent Hospital, by the
above and related acts of conduct, had thoroughly frag-
mentized the bargaining process and prevented any
meaningful exchange or bargaining from taking place, in
violation of Section 8(a)(5) and (1) of the Act, as al-
leged.31
31 The Hospital argues (Br. 265), inter aha, "It was not bad faith but
good sense that, in the face of the Union's demands, the Hospital proper-
ly held onto an employer's main incentive to generate movement from
union bargainers—money." As discussed above, the Hospital here exceed-
ed permissible boundaries of good faith, although hard, bargammg, its
total course of conduct prevented any real movement or meatungful bar-
gaining among the parties, as required by the Act The Hospital, citing
contrary cases, argues (Br, 270), "at no time did the Hospital insist that
the Union had to agree to its noneconomic proposals before discussing
economics" The credited evidence of record, detailed above, is to the
contrary I reject as incredible the assertion of the Hospital here that it
"wanted simply to have the Union clarify" its proposals
The Hospital argues (Br. 273) "there is no evidence that" the Union
made a sufficient demand for information pertaining to the performance
of unit duties by nonumt personnel before the strike. The credited evi-
Under settled principles, where an employer's unfair
labor practice conduct constitutes "one of the causes of
[a] strike . . the strike is an unfair labor practice strike
and the strikers [are] protected against replacement
during the period of the strike." NLRB v. Milco, Inc.,
388 F.2d 133, 139 (2d Cir. 1968). Also see NLRB v.
Southland Cork Co., 342 F.2d 702 (4th Cir. 1965), in
which the court, in agreement with the Board, noted:
It is sufficient to say that the Board was well war-
ranted in holding that the underlying cause, as dis-
tinguished from the immediate cause of the strike,
was the intransigence of the employer and its dilato-
ry tactics in respect to bargaining sessions.
The court concluded in Southland:
Because this was an unfair labor practice strike,
the strikers were entitled to immediate reinstatement
to their jobs, and [the employer's] delay in reinstat-
ing them was violative of section 8(a)(3) and (1) of
the Act. Mastro Plastics Corp. v. NLRB, 350 U.S.
270, 278 . . . (1956).
Moreover, even where a strike has been held not to be
an unfair labor practice strike at its inception, an employ-
er's unlawful actions that prolong the strike may convert
the strike into an unfair labor practice strike. See NLRB
v. Plastilite Corp., 375 F.2d 343, 348 (8th Cit. 1967).
The credited evidence shows that the Union's mem-
bership, on July 18, authorized the executive board "to
call a strike if they deemed it necessary." The Union's
membership again met on July 31. Union President Price
reviewed for them the Employer's entire course of con-
duct during the prior months of bargaining. Later that
evening, Price and the Union's executive board met.
They ultimately concluded that the Employer, by its
continuing course of conduct during this bargaining se-
quence, was "negotiating in bad faith" and, consequently,
they voted to strike at midnight. Subsequently, on
August 14, Janetzke met with the Union's membership.
He too reviewed the Hospital's bargaining conduct, as
found supra, including its continued fragmentization and
intransigence at the bargaining table. The membership
voted to continue the strike. On this record, I find and
conclude that the Union struck the Hospital on July 31
in protest over the Employer's refusal to bargain in good
faith with the Union. I find and conclude that the Hospi-
tal, by continuing to engage in the same and related un-
lawful conduct, prolonged this strike until its end.
The Hospital contends (Br. pp. 321-324) that, "even
assuming, without conceding, that the strike was an
dence of record, Van Zandt's testimony cited above, shows that such a
demand was repeatedly made and flatly refused. The Hospital did not
want to provide this relevant and necessary information. The Hospital,
citing, inter aim, Walker Die Casting v. NLRB, 682 F.2d 592 (6th dr.
1982), also argues (Br. 278), that "The Company's withdrawal of its final
contract offer. . . was simply a legitimate bargaining tactic." The cases
cited are factually inapposite Here, the Employer's withdrawal, together
with its overall course of bargaining conduct including its admonition,
"all terms and conditions of employment would be terminated" and "we
were starting from scratch," shows that we are not simply concerned
with an employer who assertedly is legitimately withdrawing iis last re-
jected package or offer.
1450 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
unfair labor practice strike from its inception, or from
some time in August, the strike was reconverted to an
economic strike on September 17 when the membership
overwhelmingly rejected the first tentative agreement."
In brief, the Hospital argues: "The employees' decision
to stay out on strike had nothing to do with the Hospi-
tal's conduct . . . prior to September 17." I reject this
contention. The Employer, as found above, caused this
strike and prolonged this strike by its repeated and rigid
fragmentization of bargaining and related acts and con-
duct, thereby preventing the parties from engaging in
any meaningful bargaining. The Employer, in addition,
hired permanent replacements for the unfair labor prac-
tice strikers. Strikers, who had decided to abandon the
strike, were denied immediate reinstatement. The Hospi-
tal, at the same time, was insisting that "the striker re-
placement issue must be settled before there could be any
bargaining"—the Employer "would not discuss anything
until the Union agreed with their position on what was
termed the strike replacements." Further, as found
above, outside labor and social groups were becoming
involved in this controversy and the Union ultimately
lost bargaining power here. Indeed, the so-called solidar-
ity group or movement, and related outside activists, got
involved in the picketing, in the bargaining, and even the
ratification process. In short, the Union, as the strike pro-
gressed, lost effective control here and was, in my view,
bargaining simply to extricate itself from a situation over
which it had no meaningful control. Thus, the Union's
so-called tentative agreements would have compromised
the statutory recall rights of the remaining unfair labor
practice strikers. (Cf. R. Exhs. 44, 45, and 2.) Their
status and recall rights remained a stumbling block
throughout the pertinent poststrike period. Under the cir-
cumstances, the proposed settlement agreements, in Sep-
tember and October, rejected by the membership, did
not convert this unfair labor practice strike to an eco-
nomic protest. This strike continued because of the Em-
ployer's unfair labor practices, as found above.
The Hospital also argues (Br. 290-291, 297-313) that
its refusal to furnish the union negotiators with the
names and addresses of the striker replacements was not
unlawful here because, inter alia, "the status of the re-
placements during an economic strike is a non-mandato-
ry subject of bargaining" and, further, there was a "sub-
stantial amount of strike related" misconduct. This con-
tention is also without merit. First, as found above, this
strike was caused and prolonged by the Employer's
unfair labor practices. Cf. Bio-Science Laboratories, 209
NLRB 796 (1974). Second, it was the Hospital that in-
sisted at the bargaining table that the status of the striker
replacements must first be resolved before there could be
any discussion over noneconomic and economic issues.
Consequently, the Union, in an attempt to verify and
evaluate the Employer's assertion here with respect to
the hiring of permanent replacements, requested the
above information that was necessary and relevant for it
to fulfill its role as bargaining agent for the unit employ-
ees. Third—wholly apart from the question of whether
the subject matter of the Union's request is regarded
under the circumstances present here as mandatory or
permissive—the Hospital's insistence on one hand that
this issue must be settled first before there could be any
bargaining, and its refusal on the other hand to provide
information reasonably pertaining to this subject only
serves to demonstrate further that the Hospital was frag-
mentizing and blocking any meaningful bargaining over
mandatory subjects of collective bargaining. The Hospi-
tal, in short, was giving the Union the runaround and
preventing any productive exchange from taking place.
Fourth, as for the alleged strike-related misconduct, this
belated and eschewed reason was not initially cited as a
reason for its refusal to supply this requested data."
Thus, it is the Employer's contradictory and inconsistent
positions at the bargaining table that are significant here,
for this conduct only serves to further illustrate its in-
transigent and rigid fragmentary and bad-faith bargain-
ing. 3 3
In sum, I find and conclude that Respondent violated
Section 8(a)(5) and (1) of the Act as alleged and, further,
the Employer's unfair labor practices caused and pro-
longed the strike until its end.
II. THE HOSPITAL'S REFUSAL TO REINSTATE
STRIKERS ON THEIR UNCONDITIONAL APPLICATIONS
TO RETURN
The strike commenced on midnight of July 31, and
ended on December 17, 1982. As found in section I,
supra, the strike was caused and prolonged by the Hospi-
tal's unfair labor practices. The Hospital, shortly after
the strike commenced, started hiring permanent replace-
ments for the strikers. A number of strikers abandoned
the strike before the strike's end; made individual appli-
cation's to return to work; and were denied or refused
immediate reinstatement. The Union, at strike's end on
December 17, made an "unconditional offer to return to
work on behalf of all striking employees:' (G.C. Exh 6)
The consolidated complaint, as amended, alleges that
since about August 1, 1982, "certain employees of Re-
spondent, including but not limited to" the approximate-
ly 180 employees named therein, "have made positions"
and Respondent has refused to reinstate the employees
"to their former or substantially equivalent positions" in
violation of Section 8(a)(3) and (1) of the Act. (See G.C.
Exh 1(o), as amended.) The General Counsel, during the
hearings, further amended and corrected this list of em-
ployees, adding and deleting names as pertinent informa-
tion developed. The named alleged discriminatees are
listed in Schedule A [omitted from publication], annexed
hereto. The relevant evidence pertaining to this allega-
tion is summarized and discussed below.
Respondent Exhibit 17 is a stipulation of the parties
with respect to 52 of the employees named in Schedule
A, infra. This stipulation shows, inter aha, the dates of
32 The record indicates that the intensity of strike-related misconduct
significantly increased as the strike progressed beyond its first 2 or 3
weeks
33 Because I find the strikers here are unfair labor practice strikers, the
requested information pertaining to their replacements is no longer neces-
sary I will therefore not recommend such a remedial provision. Conse-
quently, I need not deal further with the Employer's argument that, in
view of the strike-related misconduct, the Hospital could reasonably
refuse to disclose such information Again, I note that the Hospital initial-
ly did not cite this misconduct as a reason for its refusal.
TRUMBULL MEMORIAL HOSPITAL

1451
the 52 employees' "unconditional offer[s] to return to
work" and their "current status." This stipulation, as-
sessed in the context of the full record, makes it clear
that the 52 named employees made unconditional offers
or applications to return to work on the cited dates,
before the Union's application on December 17; were
denied immediate reinstatement; and were for the most
part put on the Employer's preferential hiring list. Some
of the 52 were later offered their old jobs or substantially
equivalent employment, retired, quit, or were offered
only temporary work. See, generally, M. R. & R. Truck-
ing Co., 178 NLRB 167, 172-173 (1969), enf. denied in
part 434 F.2d 689 (5th Cir. 1970).34
I find and conclude, on this record, that all 52 employ-
ees named in Respondent Exhibit 17 were striking em-
ployees who made the "unconditional offer[s] to return
to work" on the dates indicated therein and were refused
reinstatement to their former or substantially equivalent
positions, as alleged in the amended complaint. The 52
employees and the dates of their unconditional applica-
tions are:
1. Barbara Brown 8/12/82
2. Simmie Barrow 8/13/82
3. Roger Berry 8/12/82
4. Robert Brainard 8/12/82
5. Jeffrey Chapin 8/13/82
6. Gerald Cranston 8/12/82
7. Phyllis Davis 8/13/82
8. Carrie Deal 8/14/82
9. Ann Domyanich 8/12/82
10. Judy Davenport 8/16/82
11. Kathy Donnelly 8/12/82
12. James Davidson 8/16/82
13. Ester Evans 8/13/82
14. Patricia Ellison 8/12/82
15. Sarah Flaugh 8/13/82
16. Vernal Franklin 8/12/82
17. Ed Hamill 8/18/82
18. Betty Henderson 8/10/82
19. Marjorie Hall 8/13/82
20. Dale Hood 8/13/82
21. Madelyn Kennick 8/12/82
22. Charles Kohut 8/12/82
23. Jean LalLy 8/13/82
24. Ursula Lugiewicz 8/13/82
25. James Leigh 8/13/82
26. Bob Mohan 8/6/82
27. Brenda Marisco 8/13/82
28. Blanniel Mitchell 8/11/82
29. Angela McCoy 8/17/82
30. Edna Morgan 8/12/82
31. Kathy Morin 8/12/82
34 The above stipulation, as well as related evidence adduced by Re-
spondent, also refers to how strikers voted at union meetings on whether
to continue the strike. I have taken this and related evidence into account
in determining whether a particular striking employee in fact made an un-
conditional application to return before strike's end as alleged. I note,
however, I have found generally, on this full record, that striking em-
ployees, by voting usually at a later time to continue the strike or by en-
gaging in related protected concerted activity, have not demonstrated
that they would not have accepted their former or substantially equiva-
lent Jobs if offered by the Employer in response to their unconditional
applications to return to work.
32. Louis Mack 8/12/82
33. Veronica
Manofsky 8/13/82
34. Mary Nichols 8/13/82
35. Karen Osipchak 8/12/82
36. Regina Paris 8/12/82
37. Martha Prosser 8/12/82
38. Pat Rate11 8/13/82
39. Daphne Robinson 8/12/82
40. Katherine Rostan 8/13/82
41. Beverly Razum 8/13/82
42. Patricia Rumanick 8/13/82
43. Tamme St. Clair 8/13/82
44. Kenneth Schultz 8/11/82
45. Denise D.
Sherman 8/12/82
46. Dorlette Sparks 8/11/82
47. Victoria Stewart 8/10/82
48. Mary Ticoras 8/13/82
49. Avanell Tomlin 8/12/82
50. Dora Lee Walters 8/4/82
51. Chester West 8/12/82
52. Cynthia Zandarski 8/16/8235
The parties stipulated that Israelito Ciletti asked the
Hospital's director of maintenance on December 9, 1982,
"to return to work, and was told that his position had
been replaced." Ciletti was placed on the preferential
hiring list," and has been "employed at the Hospital. . .
since February 28, 1983." (See Tr. 940-942.) I find that
Ciletti made an unconditional appliQation or offer to
return to work on December 9, which was refused, as al-
leged.
Thelma Thomas, a full-time employee in the dietary
department, credibly testified (Tr. 944-957) that she
joined the strike on August 1; that she telephoned Bar-
bara Thomas, assistant food director, on August 5; that
she told Barbara Thomas that she "was calling in regards
to [her] schedule"; that Barbara Thomas said: "I'll get
back to you"; that Barbara Thomas did not "get back"
to her; that she "called every day after the 6th"; that she
spoke to Supervisor Lynn Fabrizio on August 10 and
asked "when they were going to get back to" her; and
that Fabrizio laughed and said that Dietary Department
Director Maloney "is going to call you today." Later
35 One of the named 52 employees, Ed Hancin, was initially alleged
under sec. 12(b) of the complaint as an employee on vacation status who
was discriminatonly refused reinstatement The parties, in the above stip-
ulation, include him with strikers denied reinstatement under sec. 13(a) of
the complaint. Apparently, the General Counsel, during the hearings,
faded to move to correct the complaint in this respect. The complaint is
amended to correct this oversight. See Schedule A, infra Cf R. Exh, 42.
Despite the stipulation and the apparent inclusion of Hancin's name on
the list of 52 employees who made unconditional offers to return, Re-
spondent now asserts (Br. 330-331) that there "is insufficient evidence
that the Hospital was discriminatorily motivated in its actions with re-
spect to Hatton and Mullen," under sec. 12(b) of the complaint As
stated, Hancin is included in the stipulation of strikers (Tr. 1597-1600)
who made unconditional applications to return. The complaint is amend-
ed to correct this error. In any event, even if I were to regard Hancin as
an employee on vacation status, sec. III, below, I would similarly find on
this entire record that Respondent, in denying him reinstatement on his
unconditional application to return, was treating him like a striker, and
thus discriminating against him, in violation of Sec. 8(a)(3) and (1) of the
Act. See sec. III, infra
1452 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that day, August 10, Maloney called Thelma Thomas,
and they had the following conversation: "Well, I
[Thomas] asked him about my job, and he said your job
has been filled." Thelma Thomas, employed by the Hos-
pital for 13 years, was instead offered part-time work,
which she declined. She later reconsidered and asked for
the part-time work, and was told by Maloney that "he
had nothing." Thelma Thomas has not yet been recalled
to work. I credit Thelma Thomas' testimony. She im-
pressed me as a reliable and trustworthy witness. I find
and conclude, on this entire record, that on August 5 she
in fact made an unconditional offer or application to
return to her job; that the Employer was then informed
of and understood this to be the purpose of the call; and
that she was refused reinstatement to her former position
or substantially equivalent work, as alleged.
Liliana DiGiacobbe, a full-time employee in the die-
tary department, credibly testified (Tr. 957-964) that she
went Out on strike on August 1; that she telephoned Die-
tary Department Director Maloney about August 10 and
she "asked him if [her] job was still" available; that Ma-
loney telephoned her the next day and informed her that
she had been "replaced"; and that he offered her part-
time work, which she declined; "I told him no, I want
my 'full-time job back." DiGiacobbe is not presently
working at the Hospital. She is "on the preferential
hiring list." I credit her testimony; I find her to be a
trustworthy witness. I find that she made an uncondition-
al application to return on August 10 and was refused re-
instatement, as alleged.
Cleathe Noreen Dodge, a full-time EKG technician at
the Hospital, credibly testified (Tr. 905-915) that she
joined the strike on August 1; that she attempted to
return to work on August 12; that she telephoned Super-
visor Helen Uber and "told [lUber] I would like to return
to work"; that Uber said she "would have to get back to
me"; that Uber telephoned her the following day and ap-
prised her "that I had been permanently replaced." I fmd
Dodge to be a trustworthy and credible witness. I fmd
that she made an unconditional application to return on
August 12 and was refused, as alleged.
Carol Heim, a part-time employee in the dietary de-
partment, credibly testified (Tr. 969-976) that she joined
the strike on August 1; that the "second or third week of
August" she telephoned Supervisor Lynn Fabrizio
"about coming back to work"; that she "asked [Fabrizio]
if my job was still available"; that Fabrizio said "it was
taken"; that Fabrizio added: "there would be jobs maybe
available . . . I'd have to call Mr. Maloney"; and that
she never contacted Maloney or anyone else at the Hos-
pital. On cross-examination, Heim explained that Fabrizio
said, "maybe there would be a few jobs" and directed
her to Maloney." I credit the the testimony of Heim.
36 Supervisor Lynn Fabrizio testified (Tr. 3079-3083) that Heim tele-
phoned her on August 2 or 3, to "say hello" and "asked me what was
going on" and "wanted to know what she should do" Fabnzio asserted-
ly responded: "I told her I can't tell you what to do. It's up to you. You
have to do what's best for yourself. And I told her, however, if she
wanted to come back to work to contact the dietary department .
Fabnzio claimed that Heim "never" stated that she wanted to return to
work. Fabnzio also claimed that: "If she [Henn] had wanted to come
back, to [Fabrizio's] knowledge, [there] would have been a position for
her at that tune." Fabrizio, on cross-examination, could not recall "just
She impressed me as a trustworthy witness. Fabrizio's
testimony, noted supra, was at times vague, incomplete,
and, in my view, unreliable. I find that Heim did make
an unconditional application to return during the
"second or third week" of August and was refused rein-
statement, as alleged. A more precise date of this appli-
cation or offer to return can be determined, if necessary,
in compliance proceedings.
Canary Howard, a full-time nursing assistant, credibly
testified (Tr. 975-986) that she joined the strike on
August 1; that she telephoned a secretary in the nursing
department about August 10 and "expressed my desire to
come back to work"; that the secretary apprised her that
she "would have to talk to the supervisor," Lois
McLean, who was "busy"; that an "appointment" was
made for her "to speak to" Supervisor McLean on
August 16; that she, Howard, did not keep this appoint-
ment; that she instead telephoned McLean on August 18
and again "expressed my desire to come back to work";
and that McLean responded, "Because you [Howard]
called in and cancelled your appointment on Monday,
we'll have to put you on the referral list Howard was
later offered part-time work. Howard wanted full-time
work; however, she accepted a part-time position. She
has not been offered her full-time job. I credit the testi-
mony of Howard. She impressed me as a trustworthy
witness. I find here that about August 10, she made clear
to the Employer and the Hospital that she wanted her
job back; 37 instead, she was given an appointment almost
a week later to speak with her supervisor, McLean, who
ultimately put her on the "referral list" because she
could not keep her initial appointment 2 days earlier.
About August 10,38 Howard made an unconditional ap-
plication to return, the Hospital had notice of this appli-
cation, and it was refused, as alleged.
Addie Harris, employed by the Hospital as a full-time
nurses aide for 15 years, credibly testified (Tr. 986-1002)
that she was on vacation on August 1; that she joined
exactly what jobs were open on August 2" or August 3. Marilyn Hiles,
secretary to the food service director, acknowledged (Tr 3056-3057) that
Supervisor Fabnzio reported to her that Heim had, in fact, "called the
Hospital. seekmg to report to work"
37 A number of striking employees, like Howard, attempted to relate
telephone conversations with unidentified persons at the Hospital. In
many mstances, on timely objection, I ruled that such telephone conver-
sations were not properly authenticated Ina number of other instances,
the General Counsel, to avoid objection, claimed that this testimony was
"preliminary" However, with the benefit of the full testimony of each
applicant, and with the benefit of the full record with respect to this per-
talent time period, I am now persuaded and have determined, as illustrat-
ed above, that such telephone conversations for the most part are suffi-
ciently authenticated and reliable and, further, the Employer had knowl-
edge of such calls See, e.g , Federal Rules of Evidence, Rule 901(b)(4)
and (6), and Advisory Committee Note Cf N.Y Life Ins. Co v. Silver-
stein, 53 F.2d 986 (8th Cir. 1930). The possibility of reconsideration of the
rulings made with respect to such telephone calls, upon a full record, was
discussed during the hearings (See Tr. 1390-1394, 1395-1397, 1208-1209,
1620-1624, 1634, 1783.) Counsel for Respondent—in those instances
where I have changed or reconsidered my initial ruling or where the
General Counsel seemingly was not offering such conversations as sub-
stantive evidence—should be permitted to make application to further
cross-examine the particular applicant. As noted during the trial, I would
recommend that such supplemental examination, where appropriate, be
deferred to compliance proceedings.
38 A more precise date when this call was made can be established, if
necessary, in compliance proceedings
TRUMBULL MEMORIAL , HOSPITAL 1453
the strike on August 9, when her vacation ended; that on
August 13 she "called the nurses office and asked to
speak to Miss Hall . . the scheduling manager"; that
she was informed by the "secretary" or "girl that an-
swered the phone" that Hall , "wasn't in"; and that she
was then asked "did I [Harris] call to return to work,
and I told her yes, and she say I put you on the list, and
if we need you we'll call you." About 6 days later,
August 19, Supervisor Lois McLean telephoned Harris
and "said that she had this list that [Harris] had called in
to work." Harris asked for her "old job back" in "mater-
nity." McLean said that she "didn't have an opening."
McLean offered Harris a full-time job in "medical"
during the evening. Harris previously had worked days
in "maternity." Harris could not work the evening shift
because she would have no ride or transportation to
work. She has not been called back to work. I credit the
testimony of Harris, as stated above. She impressed me
as a credible witness. I find here that she made, and the
Employer was informed of, an unconditional application
to return on August 13 and, instead, was "put . . . on
the list." Her unconditional application was refused; fur-
ther, the full-time job offered to her by Supervisor
McLean, some 6 days later, was on a different shift and
not substantially equivalent work under the circum-
stances.
Nancy Gilliam, a scrub technician at the Hospital for
about 9 years, credibly testified (Tr. 1002-1011) that she
joined the strike on August 1; that she telephoned her
Supervisor Audrey Lowery on August 13; that she asked
Lowery "would I be able to return to work—was my
position available"; and that Supervisor Lowery said
"no, she's sorry about that." The record is unclear
whether the Hospital later attempted to contact Gilliam.
This may be further developed in compliance proceed-
ings, if necessary. I credit Gilliam as a trustworthy wit-
ness. I find that she made an unconditional application to
return on August 13, and was refused, as alleged.
Eugenia Borowik, employed by the Hospital for about
12 years, credibly testified (Tr. 1028-1049) that she was a
full-time employee in housekeeping; that she joined the
strike on August 1; that at some time in August she tele-
phoned the secretary in the housekeeping department,
Andrea Crawford, and said "I want to come back to
work"; that Crawford responded, "No, you can come
part-time, on call, part-time." Borowik called again later,
without success. On one occasion, she spoke with Ansel
Washington, director of environmental services. Wash-
ington, after Borowik asked him "to come back to
work," said "I'm going to call you." He "never did." I
credit the testimony of Borowik as trustworthy and reli-
able. I find that "some time in August" she made an un-
conditional application to return and was refused, as al-
leged. A more precise date when she initially made her
unconditional application, if necessary, may be deter-
mined in compliance proceedings."
Kathleen Jones, employed by the Hospital as a full-
time nursing assistant during the 6 years prior to the
strike, credibly testified (Tr. 1050-1059) that on August 1
39 It was later stipulated that Crawford was "an agent of the Hospi-
tal." Tr. 1305.
she was on maternity leave; that she was "supposed to
return to work . . . some time in September"; that she
telephoned the Hospital in September and "spoke to
Terry in nursing"—the secretary to Ms. Gross, the head
nurse in the nursing department—and said: "This is
Kathleen Jones, and I'm refusing to come back to work
and I'll honor the picket line"; that she later telephoned
Terry "around the beginning of November"; that she
then "told Terry . . . put my name down on the list to
come back to work" and "Terry said okay"; and that, a
few weeks later, about mid-November, Marge Potts from
Hospital personnel telephoned her and said: "there's a
part-time job open . . if you want to take it." Jones, a
full-time employee, took the part-time job. I credit Jones.
She impressed me as a reliable and trustworthy witness. I
find that she made an unconditional application to return
during the beginning of November, the Hospital had
knowledge of her telephone call, and she was refused her
prior job or a substantially equivalent position. The exact
date of her application during early November can be
determined, if necessary, during compliance.
Rosa Bell Horne, a full-time nursing assistant in pediat-
rics for 10 years, credibly testified (Tr. 1059-1073) that
she joined the strike on August 1; that on August 13 she
talked to a "supervisor in nursing on the medical"; that
she does not know the name of that supervisor; that she
then said: "I called the office to see if my job was still
available"; and that the supervisor replied, she "would
get back to me." About 2 or 3 days later, Nursing Super-
visor Palguta telephoned Horne and "she asked [Home]
if I was still interested in coming back to work. And, I
said yes. The only thing they had available was a part-
time job." Horne explained to Palguta that she needed
her full-time job. Palguta replied that her job had "been
filled"—she was "replaced." Horne acknowledged that
she was later called by the Hospital on October 1 and
then offered a full-time job. Home's husband had died on
September 30 and she explained this. Horne's name was
later stricken from the Hospital's preferential hiring list
during January 1983 because of her failure to return a so-
called letter of intent to the Hospital within the time
specified. I credit the testimony of Home. She impressed
me as a credible and trustworthy witness. I am persuad-
ed here, on the full record, that on August 13 the Hospi-
tal became aware of Home's unconditional application to
return to work and refused her reinstatement because she
had been replaced, as alleged.
Nola Hunt, employed by the Hospital in the laundry
department for 14 years as a full-time employee, credibly
testified (Fr. 1073-1081) that on August 1 she joined the
strike; that on August 12 she telephoned Supervisor
Jerry Barker and asked "if my job was still open"; and
that Supervisor Barker telephoned her later that same
day and stated "my job had been replaced, but maybe he
could work out a part-time job for me if I was interest-
ed." Hunt was not interested in "part-time"—"I wanted
full-time job back." She has not yet been returned to
work. Hunt is on the Hospital's preferential hiring list. I
credit Hunt's testimony as trustworthy, and I fmd that
she made her unconditional application to return and was
refused on August 12, as alleged.
1454 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Lois Ignatz, a full-time ward clerk, credibly testified
(Tr. 1081-1087) that she struck about August 1; that she
spoke to Supervisor Helen Banks on August 9 and stated
"I wanted to return to work"; that Supervisor Banks said
"that my job had been replaced that morning." Ignatz
rejected a part-time job—she wanted her full-time job.
Ignatz is on the preferential hiring list. I credit Ignatz as
a reliable witness. I find that she made an unconditional
application to return on August 9 and was refused, as al-
leged.
Marie Copenhaver credibly testified (Tr. 1087-1101)
that she was a full-time employee working a 40-hour
week in the cafeteria as a cashier; that she joined the
strike; that on August 10 she telephoned Director Ma-
loney; that "I ask him if I can come back to work"; that
Director Maloney said "no . . . your job is gone and
you have been replaced." She was later offered part-time
work which she declined—"I need the full-time job be-
cause I'm self-supporting." She returned to her previous
job on January 4, 1983. Although Copenhaver's testimo-
ny was at times confusing, I am persuaded here that she
credibly and reliably recalled making an unconditional
application to return on August 10 and was refused. She
did not return to her job until January 4,1983.
Donna Ullom, employed by the Hospital as a full-time
filing clerk, credibly testified (Tr. 1107-1120) that she
joined the strike on August 1; that she spoke with Super-
visor Linda Bridges on August 12; that she "asked about
returning to [her] full-time job"; that Supervisor Bridges
said that her "full-time job was already filled"; and that
she was offered instead part-time work. She was pre-
pared to return to this part-time job; however, she was
later advised that she did not have to accept "anything
less than [her] full-time position." Consequently, she did
not return on a part-time basis. She had no further con-
tact with the Hospital. She is on the Employer's prefer-
ential hiring list. I credit her testimony as reliable and
find that she made an unconditional offer to return on
August 12 and was refused, as alleged.
Mary Fox, a full-time housekeeping employee, testified
(Tr. 1120-1130) that she joined the strike on August 1
and on August 16 telephoned Andrea Crawford, secre-
tary to Washington, the head of the department. Fox as-
serted:
I asked Mrs. Crawford if there was any job open-
ings, and that I wanted to come back to work.. . .
She told me she was sorry, that there wasn't any
openings. No part-time openings, no full-time, and
that they would put me on some kind of list . . .
preferential list.
On cross-examination, Fox admittedly told Crawford:
I would like to come back to work and that's why I
called for my job. I was undecided, I wasn't sure
about whether I would want to cross the picket line
because I was scared of violence.
Also see the testimony of Crawford, denying that Fox
offered to return (Tr. 3144-3148). Fox, according to
Crawford, told Crawford that she "was going to honor
the picket line." The testimony of Fox was, at times,
evasive, confusing, and unclear. Fox admits telling Craw-
ford that she was uncertain about crossing a picket line.
On this record, I find that Fox did not on August 16
make an unconditional application or offer to return to
work as alleged. Consequently, Fox would be included
in the Union's December 17 application on behalf of ali
striking employees.
Joan McVicker, a full-time clerk, credibly testified (Tr.
1130-1140) that she joined the strike and offered to
return on August 12. She then spoke on the telephone
with Director Maloney—"I told him I was calling about
my job. He said my position has been replaced." Ma-
loney later offered her part-time work, which she re-
fused. At that time, she said, "I didn't really want to
cross the picket line. When I came back it would be after
the strike was over to my full-time job." McVicker is an
alternate union steward. I credit McVicker's testimony.
The date of August 12, referred to above, however, ap-
pears to be in conflict with the date of August 31 appear-
ing in her prehearing statement. Under the circum-
stances, I am persuaded here that she unconditionally
asked to return, was refused, and was later offered part-
time work, which she declined. Her later reference to
crossing the picket line was, in my view, given as an
excuse for declining the part-time offer. I fmd that she
made an unconditional application to return to her
former or substantially equivalent job in August, the
exact date to be determined in compliance if necessary,
and her application was denied.
Barbara Latham, a full-time nursing assistant, credibly
testified (Tr. 1140-1154) that she joined the strike on
August 1 and that on August 12:
I called the Hospital. I got connected with the nurs-
ing office . . . I don't recall the lady's name that
answered the phone that day . . . I just told her I
would like to return to work. . . . She said we
were putting them on a call list. . . . I just said
okay, thank you, and that was it.
About a week later, Nursing Department Head Gross
telephoned Latham and offered her a part-time job.
Latham, at first, agreed to work part time. She later de-
clined to return to a "part-time job." On cross-examina-
tion, Latham agreed that she told a "nursing supervisor"
that she would "honor the picket line." On redirect,
Latham explained, "I told [the supervisor] I was not en-
dangering my life to cross the picket line for two days
[work] a week." I credit Latham's testimony as recited
above. I am persuaded here that she has candidly re-
called the entire sequence. I find, on this record, that she
made unconditional application to return on August 12;
the Employer had knowledge of her application; and she
was not offered her prior job or substantially equivalent
employment, as alleged.
Ester Chapman, a full-time nurses aide in the emergen-
cy department, credibly testified (Tr. 1167-1172) that she
joined the strike and, "a week after we went on strike,"
she telephoned Supervisor Ellen Banks, "I asked her if I
still had a job. . . . She told me I had been replaced." I
credit the above testimony of Chapman as reliable. I find
that she made her unconditional application "a week
„
TRUMBULL MEMORIAL HOSPITAL 1455
after the strike,” which was refused, as alleged. The
exact date can be determined, if necessary, in compliance
proceedings.
Sophia Core, employed by the Hospital as a full-time
nurses assistant, credibly testified (Tr. 1173-1185) that on
August 11 she was telephoned by Staffing Coordinator
Joan Hall and asked "to come back to work"; that she
was told to report on the next day, August 12; that she
worked 8 hours on August 12 and was then instructed
that she "would have to work part-time," without "bene-
fits"; that she took the part-time assignment for about 13
days; and that later she refused the part-time work, indi-
cating, inter alia, that she "was afraid to come." Core
also explained to the Employer that she was "nervous"
and "just sick." Core was reinstated in March 1983 to
her full-time position. 4° I credit Core's testimony. I find
that she candidly related what had transpired. I fmd that
on August 11 she made an unconditional offer or appli-
cation to return and was not in fact given her former or
substantially equivalent position, as alleged.
David Ullom, employed by the Hospital as a full-time
janitor, credibly testified (Tr. 1186-1192) that he joined
the strike on August 1; that he asked Andrea Crawford,
secretary in the environmental services department, on
August 12 about "getting back to work"; and that he
was told that he "would be put on a hiring list"— he
was "replaced." It was stipulated that Ullom is on such a
list. I credit his testimony—he impressed me as trustwor-
thy. I find that Ullom made an unconditional application
on August 12, the Employer was aware of this applica-
tion, the application was refused, as alleged. 41
Rozetta Harris, a full-time cook at the Hospital, credi-
bly testified (Tr. 1192-1199) that she joined the strike;
that she telephoned Director Maloney on August 13 and
"asked if I could come back to work"; that he said:
"Sorry, all positions filled." She was later offered part-
time positions, which she refused. I credit Harris. She
unconditionally asked for her job back on August 13 and
was refused, as alleged.
Janice Lenhart, a full-time employee in the snackbar,
credibly testified (Tr. 1199-1203) that she joined the
strike; that she asked Director Maloney on August 13 for
her job back; that he said she had been replaced and
would be put on a waiting list. She later declined offers
of part-time work. I credit Lenhart. She made an uncon-
ditional application on August 13 and was refused, as al-
leged.
Robert Mickens, a part-time orderly, credibly testified
(Tr. 1204-1210) that he joined the strike; that on August
18 he telephoned "the nursing office, one of the secretar-
ies"; that the secretary said that "she'd have to get back
to me"; that the secretary called him later that same day
and "said that I had been replaced." Mickens recalled
that he was later offered a job in "central supply," which
he declined because "I had never worked in central
supply before"—"I prefer working with patients." I
credit the testimony of Mickens. He impressed me as a
4° Supervisor Diana Durst testified that on September 24, Core tele-
phoned that "she wouldn't be coming m"—"she was afraid to continue
crossing the picket lines." (See Tr. 3170-3174.)
41 Cf. the testimony of Crawford. (Tr. 3149-3150.) I am persuaded
here that Ullom's recollection is more reliable than Crawford's testimony.
credible and trustworthy witness. I am persuaded here
that he telephoned the Hospital on August 18 and the
Employer was then notified that he wanted his job, and
He was refused, as alleged.42
Glenna Austin, a full-time dietary worker, credibly tes-
tified (Tr. 1210-1216) that she joined the strike; that she
telephoned dietary secretary Marilyn Hells on August 11
"about getting my job back"; that Heils said "they'd
have to get back to me"; that Director Maloney tele-
phoned her the next day, August 12, and said "all the
full-time jobs were taken"; that Maloney offered part-
time work, which she in effect declined. I credit Austin
as a reliable witness. I find that the Employer was aware
of her unconditional application to return to her job on
August 11, and she was refused her prior job or substan-
tially equivalent work, as alleged.
Glenna Butcher, a full-time cook, also credibly testi-
fied (Tr. 1216-1222) that she joined the strike and, on
August 13, in a telephone call, asked Director Maloney
for her job back. Maloney told her too that she had been
replaced. She later declined part-time work. I credit her;
she made an unconditional application on August 13 and
was refused, as alleged.
Delores McIntyre, a full-time housekeeping employee,
credibly testified (Jr. 1238-1248) that she joined the
strike; that on October 11 she telephoned Andrea Craw-
ford, secretary to the executive head of housekeeping,
Washington; that she asked Crawford "if they had any
work for me" and Crawford said to "call back in about a
half hour"; that she again called Crawford; and that
Crawford said: "they didn't have anything for me."
McIntyre called Crawford again on February 28, 1983,
and was again told that there was no work for her. I
credit the testimony of McIntyre. I find, on this record,
that the Hospital had notice and knowledge of her tele-
phone application on October 11 and denied her uncon-
ditional offer to return, as alleged.
Velma Sanders, a full-time nurses aide for 25 years,
credibly testified (Tr. 1259-1269) that she joined the
strike; that about August 12 she called the nursing office
and "said I would like my job back"; that she was told
they "didn't have anything"; that during late September
she went to the Hospital and spoke to Delores Gross, di-
rector of nursing services; that she told Gross, "I was
here to try to. . . get my job back"; that Gross told her
to "go in the room and see the nurse in there"; that
Sanders went into the room and the nurse "fixed the
papers up for me to come back to work two days a
week"; and that Sanders did not return to work—she
"had been a full-time employee." Later, Sanders contact-
ed Potts in personnel, who also "had two days a week"
work—it "really wasn't enough money" and, later,'she
again contacted Gross for work. She has not yet re-
turned to her full-time job. She admitted on cross-exami-
nation telling "someone at the Hospital," in connection
42 I am persuaded here that the Employer was in fact made aware of
Mickens' telephone call to a secretary on August 18. Cf the testimony of
Marjorie Potts, in personnel (Tr. 3099-3123). Insofar as Potts' recollec-
tion differs with that of Mickens here, I find Mickens to be a more
candid and truthful witness. Potts did not impress me as a reliable wit-
ness.
1456 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
with an earlier application for work, when she was only
offered a part-time position, that she "was afraid to cross
the picket line." She explained: ". . . I didn't want to
come back only two days a week. It wasn't enough to
pay my bills." I credit Sanders' testimony. She impressed
me as a candid and reliable witness. I find that she made
an unconditional application to the Employer about
August 12, the exact date can be determined in compli-
ance proceedings, if necessary, and she was not offered
her former job or substantially equivalent work, as al-
leged. I find that the Employer was aware of her August
application.
Nancy Louise Wilson, a part-time employee in envi-
ronmental services, credibly testified (Tr. 1276-1281) that
she was on vacation until August 2 when she joined the
strike; that she telephoned Director of Environment
Services Ansel Washington on October 13 "to see if my
job had been filled"; that Washington said "he had noth-
ing open"; that on November 4 she received from the
Hospital an "offer to return" for a substantially similar or
equivalent job; and that she never responded to the offer.
She returned to work in January 1983. The General
Counsel only seeks backpay from October 13 to Novem-
ber 4, 1982. (See Tr. 1281.) I find that Wilson credibly
related that she made an unconditional application on
October 13, which was refused. The backpay obligation,
as acknowledged, ends on November 4, 1982.
Kathleen Thompson, a full-time cook, credibly testi-
fied (Tr. 1282-1289) that she joined the strike; that on
August 6 she asked Director Maloney on the telephone,
"was my job open"; that Maloney said "it was filled";
that Maloney subsequently offered her part-time work,
which she accepted; and that she later declined the part-
time work because it would just pay for "gas." I find
Thompson to be a reliable witness. I fmd that she made
an unconditional application on August 6, which was
denied, as alleged.
' Angela Toriello credibly testified (Tr. 1290-1292) that
she joined the strike, and that on November 4 she tele-
phoned Andrea Crawford, secretary in her department,
and had the following conversation: "I come back to
work. She [Crawford] call me. No open." Toriello is ad-
mittedly on the preferential hiring list. I credit Toriello.
She had some language difficulty while testifying. Nev-
ertheless, she impressed me as a trustworthy witness. I
am persuaded here that the Employer was on notice on
November 4 that Toriello unconditionally wanted to
return, and refused her application, as alleged.
It was next stipulated (Tr. 1345):
Patricia Harris called the Hospital seeking reinstate-
ment to her former position on or about August 13,
1982, at which time she was informed that her posi-
tion had been filled. . . . Patricia Harris attended
the Union meeting on September 18, 1982, and
voted to stay out on strike. Patricia Harris is on the
preferential hiring list agreed to by the parties pur-
suant to the strike settlement agreement.
On this record, I find that Harris made an unconditional
application to return to her job on August 13 and was
refused, as alleged.
Geraldine Dawson, a full-time central supply techni-
cian, credibly testified (Tr. 1346-1353) that she joined
the strike; that around August 12 she telephoned the
staffing manager's office in the Hospital; that a "young
lady answered the phone"; and that she, Dawson, identi-
fied herself and asked "I would like to know about my
job."43 Later, during early December, Potts, from per-
sonnel, telephoned Dawson and said: "We have a job
full-time afternoons, a CSR technician." Potts wanted
"an answer . . . right at the moment." Dawson wanted
"an hour and a half." Potts would not wait—that "would
be too late." Dawson was later recalled on January 17,
1983, to a full-time job. I find and conclude, as noted
above, that Dawson was making an unconditional appli-
cation, which was rejected in August, as alleged. I find
that the Employer had notice of the application at the
time. The exact date of the August call may be deter-
mined in compliance.
Irene Honeywood, a full-time housekeeping aide, cre-
dibly testified (Tr. 1353-1361) that she joined the strike;
that "about the third week of August" she telephoned
the Hospital and spoke to Supervisor Bea Turner; that "I
asked was my job available"; that Turner said "she didn't
know" and "she would have Ms. Banks or Ms. Crawford
. . . call"; that Honeywood later that same day called
Crawford, a secretary in this department; that Crawford
"told me my job was no longer available"; that Hon-
eywood was offered part-time work, which she declined.
I credit Honeywood as reliable and trustworthy. I find
that she made an unconditional application about the
third week in August, as alleged, the exact date can be
determined if necessary in compliance; the Employer
was aware of this application; and it was refused.
Richard Rolfe, a full-time janitor, credibly testified
(Tr. 1377-1384) that he joined the strike; that he attempt-
ed to return on August 13; that he then telephoned sec-
retary Andrea Crawford and asked: "if my job was still
open"; that Crawford said "no"; that he later took a
part-time job at the Hospital as night cleaner. I credit
Rolfe as trustworthy. I find that the Hospital was aware
of his unconditional application on August 13, and re-
fused, as alleged.44
Anna Arambasic, a full-time menu clerk, credibly testi-
fied (Tr. 1410-1418) that she joined the strike and, about
December 2, she spoke on the telephone with, among
others, Barbara Thomas, the head r' ;etician, and "told
her I would like my job back." Thomas told Arambasic
to contact personnel; Arambasic said, "I had contacted
the personnel office"; "they told me to contact Mr. Ma-
loney's office; and Thomas didn't know what to say at
the time; then she told me that my job was filled." I
43 I sustained, at this point, an objection by Respondent, for the reason
that the telephone call was not sufficiently authenticated to be binding on
the Employer. As discussed above, assessed in the context of the entire
sequence, and also assessed in the context of this full record, I reconsider
my ruling. I am now persuaded that Dawson, like her coworkers, was
making an unconditional application to return, the Employer was then
appnsed of this call, and she was instead put on the preferential hiring
list
44 Crawford denied (Tr. 3150-3154) talking to Rolfe or having knowl-
edge of his communication I credit Rolfe's recollection as more com-
plete and reliable here. Cf R. Exh. 58 and Tr 3165-3167 and Tr. 3188.
,TRUMBUILL,MEMORIAL2149SPITAL 1457
credit Ararnbasic as trustworthy. I find that about De-
cember 2, a more definite date can be ascertained if nec-
essary in compliance, she made an unconditional applica-
tion to return, which was refused, as alleged.
Barbara Brant, a full-time housekeeping employee, cre-
dibly testified (Tr. 1419-1422) that she struck on August
1 and that on December 6 she telephoned Andrea Craw-
ford, secretary in housekeeping, "to see if there was any
openings at that time." Crawford said: "she was sorry,
but there wasn't any . . ." Brant was put on the "recall
list." Brant has not been recalled. I credit Brant as trust-
worthy; I find that she made an unconditional applica-
tion on December 6, which was denied, as alleged.
Frances Benson, employed by the Hospital as a full-
time housekeeping employee, credibly testified (Jr.
1422-1433) that she joined the strike on August 1 and,
on August 13, telephoned secretary Andrea Crawford.
Benson told Crawford: "I wanted to see about my job."
Crawford told Benson that she had been replaced.
Benson was later offered part-time work which she at
first accepted. Later, as Benson explained, "I didn't go
back because I felt I had been working there for 13 years
as a full-time worker, so I felt I should not go back to
work at the Hospital part-time." Benson was recalled on
March 30, 1983, as a full-time employee. I credit Benson
as a reliable witness. I find that the Employer was in-
formed of her unconditional application of August 13
and she was refused, as alleged,"
Carlena Callion, employed as a full-time scrub techni-
cian at the Hospital for some 16 years, credibly testified
(Tr. 1433-1457) that she joined the strike; that about
August 13 she telephoned Doris Effinger, "supervisor in
the OB department"; that she, Callion, said, "I wanted to
come back to work"; that Effinger said "she didn't have
anything to do with it . . . to call staffing"; that she,
Callion, then "spoke to a secretary there" in staffing and
"said my name is Carlena Calton, I work in delivery and
I would like to return to work"; and that she, Callion,
was told "there was no jobs available in my depart-
ment," and she was placed on the waiting list. Callion re-
called that about a week later, Delores Gross, head of
nursing, telephoned Callion to offer a part-time job. Cal-
lion said that she "needed full-time." Marge Potts from
personnel also called Callon about 2 to 3 weeks later
with another part-time offer. Callion again refused.
Later, Potts offered a full-time job as an aide—which
would be a drop in pay from her prior position and
would involve different duties. Callon declined. She is
still on the list," I credit Callion as a trustworthy and
reliable witness. I find that the Employer in fact became
aware of Callion's initial telephone call about August 13;
that the Hospital then understood that Callion was
making an unconditional application to return; and that
her offer was refused, as alleged. I am persuaded here,
on the full record, that the Hospital was notified about
August 13, the exact date can be determined in compli-
45 Cf. the testimony of Supervisor Patrick Gaskill (Tr. 3181-3187). In-
sofar as Gaskill's testimony differs with that of Benson, as recited above,
I find Benson to be mOre trustworthy and reliable here.
46 A question was raised on cross-examination whether Canton's job as
scrub technician in fact had been abolished. This contention can be devel-
oped further, if necessary, in compliance.
ance if necessary, of Callion's unconditional application
to return to her former job or a substantially equivalent
position.
Judy Campana, employed as a part-time employee
working 20-25 hours per week in the dietary depart-
ment, credibly testified (Tr. pp. 1457-1465) that about
August 12 she telephoned the dietary department that
she then asked Director Maloney "if I could return to
work"; and that Maloney said she "had been replaced."
There was no further conversation. She has not been re-
called, although she is on the recall list. Campana, on
cross-examination, admitted that "within that same
week"—the week of the 12th—she received a telephone
message at home that she "was supposed to get back to
Mr. Maloney." Her father gave her this message, an d she
"never called him back." Director Maloney testified (Tr.
2896-2901) that he was notified that Campana had called
"between the 10th and 12th"; that he returned her call
on Friday, August 13; and that he told Campana "there's
no work available at this time" Maloney claimed that
Campana did not ask him "specifically" to reinstate her.
Maloney nevertheless telephoned her about the 17th or
18th to make an offer "at the same job classification."
She was not there. He left a message and said: "Please
have her return the call. I may have a position available
for her." She did not call. I find Campana to be a truth-
ful and reliable witness. I was not impressed with the tes-
timony of Maloney. His testimony was, at times, equivO-
cal, unclear, and incomplete. I am persuaded here that
Campana made an unconditional application to return on
August 12 and that Director Maloney refused her offer,
as alleged. What transpired thereafter may be considered
and developed further in compliance proceedings, if nec-
essary.
Audrey Dotson, a full-time ward clerk, testified (Tr.
1465-1479) that she was a full-time ward clerk at the
Hospital for about 14 years; that she joined the strike;
that she telephoned Nursing Supervisor Mary Simco
about August 12 and stated: "I was interested in coming
back to work, and was my job still available"; and that
Simco said "my job had been replaced" and she 'would
be put on a list Dotson recalled that later Simco tele-
phoned Dotson to offer her part-time work, which she
declined. Dotson recalled that some time before the
strike ended Assistant Nursing Director Clara Schooley
also telephoned to offer her part-time work, which she
declined. And, she was again called last week by Marge
Potts from personnel and offered part-time work, which
she declined. She is on the recall list. On cross-examina-
tion, Dotson acknowledged telling Simco on August 12
"when she offered me the job," "I would rather return
to my own floor that I was very familiar with, because I
had some problems with my blood pressure, and I didn't
want to go to those floors." That was "the only reason"
for declining the job. Dotson denied being scheduled to
return on August 18. Dotson added that "each time I
was offered a job it was a job on the 3 to 11 shift, which
I had problems getting to work on, and it was part-time,
and I turned them down."
Mary Jane Simco, now director of nursing at the Hos-
pital, testified (Tr. 3015-3033) that she telephoned
1458 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Dotson on August 17 because Dotson "had previously
indicated to, the nursing office that she wanted to return
to work." Simco's call was, assertedly, "to ask her if she
was indeed ready to return to work." Simco assertedly
offered Dotson a full-time position; Dotson accepted the
position; Dotson said she "was having some problems
with her high blood pressure," but she would return on
August 18. According to Simco, however, the two again
spoke on August 17; Dotson apprised Simco that her
blood pressure was elevated; she was upset and "she
didn't know whether she wanted to return." Simco then
conferred with her supervisor, Director of Nursing De-
lores Gross, and telephoned Dotson, with Gross "on the
line," and apprised Dotson that "we would be unable to
hold" the position "open for her." (See R. Exh. 55.)
Director of Nursing Delores Gross testified (Tr. 2978-
2985) that she decided during August that "we could not
hold the position open" for Dotson; that she "would
listen in on the phone just in case Audrey had any fur-
ther questions"; and that Dotson was uncertain whether
to return because of her high blood pressure and the
strike.
Clara Schooley, director of nursing practice, testified
that (Tr. 3255-3260) Dotson was scheduled to return to a
part-time temporary position during late November; and
Dotson telephoned Schooley
to tell me that she would not be keeping her ap-
pointment with me that day. That she had changed
her mind. She had received a phone call, and
during the night there had been rubbish thrown in
her yard, and that they had painted scab on her
door [of her home.]
On this record, I fmd, on balance, the testimony of
Gross, Simco, and Schooley to be more reliable than that
of Dotson. It is true, as the full record shows, there is
ample basis to question the reliability and truthfulness of
Gross, Simco, and Schooley; their testimony was, at
times, unclear and suspect. Nevertheless, I am not suffi-
ciently persuaded here that Dotson in fact did make an
unconditional application to return before strike's end, as
claimed. I find her offer to return was, at best, ambiva-
lent and equivocal. Consequently, the first unconditional
application was on December 17 and made by the Union.
Delores Bennett, a full-time dietary employee, credibly
testified (Tr. 1479-1488) that she joined the strike; that
during "the second week in August" she telephoned
Head Dietician Barbara Thomas and said, "I was calling
about my job"; that Thomas said that "she would have
Maloney get [back] with me"; and that Director Ma-
loney called her later and left a message with her daugh-
ter Karen offering only a part-time job. Bennett ex-
plained that she did not return Maloney's call because "I
wanted my full-time job back, and I decided to stay out
[on strike] with the rest of them." Bennett is on "the
recall list." Karen Bennett, Delores' daughter, also testi-
fied (Tr. 1488-1491) that Maloney telephoned and stated,
"There is a part-time job for [Delores] if she wished to
take it. Would you have her call me back if she wished
. . . to take the job." Karen gave this message to her
mother. Director Maloney acknowledged (Tr. 2879-
2885) that his department "did receive a phone call
somewhere around" August 13 from Delores Bennett
and that he telephoned Bennett on August 17 "to find
out basically why Delores called in." Maloney was asked
"was there a job you had available to offer Delores Ben-
nett at the time." He asserted "yes, I think so" Maloney
told Karen to "please have [Delores] return the call, I
may have a position available." I credit the testimony of
Delores and Karen Bennett. I find them to be truthful
and honest witnesses. I do not credit Maloney's asser-
tions here. His testimony appeared contrived, unclear,
and uncertain. I fmd that Bennett made an unconditional
application about August 13,47 and it was denied, as al-
leged.
Mary Grayer, employed as a full-time housekeeping
aide, credibly testified (Tr. 1511-1517) that she joined
the strike and, later, telephoned the Hospital during the
second , week in August; she asked secretary Andrea
Crawford "was my job open"; and Crawford said, "No,
it had been replaced." Grayer is on the recall list. I
credit Grayer's testimony as reliable. I find that she
made an unconditional application during the second
week in August—the exact date may be determined in
compliance proceedings if necessary—and was refused,
as alleged.
Lustean Davis, a full-time employee in central supply,
credibly testified (Tr. 1517-1530) that she joined the
strike; that about August 12 she telephoned "the nursing
office, staffing," and spoke to a "Joanne" who "was
taking phone calls"; that she, in the past, would call
staffmg when she wanted a vacation or day off; that she
stated to Joanne, "I called to see if I had a job"; that
Joanne replied, "She would put my name and address
down, and that I would be called later." Davis later got
a message that Delores Gross, director of nursing, had
telephoned her. Davis telephoned Gross about August
16; Gross offered a part-time job; and Davis took the
part-time position, starting the next day, about August
17. Later, on November 21, Davis was put back on full-
time work. I find Davis to be a credible and trustworthy
witness; I find that the Hospital had full knowledge of
her unconditional application to return about August
1248 as alleged, and, instead, only offered her part-time
work.
Kay Gardiner, a full-time dietary department employ-
ee, credibly testified (Tr. 1531-1539) that she joined the
strike; that on August 11 she spoke on the telephone
with Director Maloney; that she asked Maloney "is my
job taken and he said yes"; that she asked him "is there
any way that I can come back"; that Maloney offered a
part-time job and she responded: "I'll think about it";
that she called Maloney the next day to take the part-
time job; and that he said it was not "open." Gardiner is
on the recall list. Director Maloney claimed (Tr. 2886-
2890) that Gardiner said to him on August 12 during a
telephone conversation: "I [Gardiner] really didn't know
what I wanted to do" and she did not "offer to return."
He assertedly called her again on August 13 to tell her
47 The exact date can be resolved in compliance proceedings if neces-
sary.
48 The exact date can be resolved m compliance if necessary.
'""7-17In,17"'"-
TRUMBULL MEMORIAL HOSPITAL 1459
that "her position had been replaced." I credit Gardiner
as trustworthy. 49 I do not find Maloney, or his secretary
Hiles, to be reliable or credible. I find that Gardiner
made an unconditional application to return on August
11, which was refused, as alleged.
Cindy Greene, a full-time nurses assistant, credibly tes-
tified (Tr. 1540-1550) that she joined the strike; that on
August 13 she went to the Hospital "to the staffing sec-
retary's office" on the main floor—"that's where [the
Hospital] told us to go to sign in for recall"; that she was
joined by coworkers Ruth Knott and Phyllis Rogusky;
that the staffing secretary "took my name, my depart-
ment and what time I went in"; that "I told her [the
staffing secretary] that I wanted to see if I could get my
job back"; that Knott and Rogusky did the "same thing I
did"; that she, Greene, later spoke to Supervisor of Nurs-
ing Lois McLean in the hallway; that she asked McLean,
"do you think I have a chance of getting my job back,
and she said, we'll see"; and that she, Greene, has not
been recalled. Supervisor Lois McLean claimed (Tr.
3035-3039) that she spoke with Cindy Greene on August
13 and that, on August 17, she attempted to contact
Greene on the phone because "her name was next on the
list that we were using"; and that she was told by the
person on the telephone: "Cindy was out of town for the
week." McLean asserted that she left a message for
Greene to "call if she was interested in returning to
work." McLean added that it "would have been a full-
time" position. McLean claimed that she telephoned
"several days later . . . but the line was busy." I credit
Greene as a trustworthy witness. I do not believe
McLean; I am persuaded here that her testimony is in-
complete, unreliable, and untrue. I find that Greene
made an unconditional application to return to work on
August 13; that the Employer became aware of this ap-
plication on that date; and that Greene was refused rein-
statement, as alleged. She is now on the preferential
hiring list.
Helene Ipsa, a full-time dietary employee, credibly tes-
tified (Jr. 1550-1555) that she joined the strike; that she
telephoned the Hospital on August 11 "and asked is my
job open"; that she spoke on August 11 with Marilyn—
the dietary secretary; that she was told "I'll call you to-
morrow"; that on August 12 Director Maloney tele-
phoned her and said "my full-time job is already taken";
that Maloney offered her part-time work, which she ac-
cepted; and that on September 24 she went "back full-
time." I credit Ipsa as a trustworthy witness. I find that
she made an unconditional application to return on
August 11; that the Employer had notice of this applica-
tion; and that it was refused, as alleged.
Maria Kandic, a full-time elevator employee, credibly
testified (Jr. pp. 1555-1562) that she joined the strike
and, about the second week in August, she 'telephoned
Andrea Crawford, the secretary in environmental serv-
ices, and asked "when I could come back to work."
Crawford said, she was replaced. She was later offered a
part-time job in the emergency room, which she refused.
4 9. Insofar as Gardiner's testimony also conflicts with that of secretary
Marilyn Hiles (Tr. 3058-3064), I find Gardmer's testimony to be more
complete and trustworthy here.
She is on the recall list. I credit Kandic as trustworthy. I
fmd that she made an unconditional application to return
about the second week in August— the exact date can be
determined in compliance if necessary—and she was re-
fused, as alleged. -
Renee Johnson, a part-time dietary worker, credibly
testified (Tr. pp. 1563-1569) that she joined the strike;
that she telephoned the Hospital on August 14; that she
talked to Ms. Potts in personnel and attempted to talk to
Director Maloney; and that Maloney ultimately returned
her call on August 17, and said "I'm calling in regards to
your job . . . I'm sorry, you've been replaced." She re-
turned to work on December 16. I credit Johnson as a
reliable witness. I find that she communicated to the
Hospital on August 14 an unconditional application to
return to her job and that, on August 17, her application
was refused, as alleged. Director Maloney knew the pur-
pose of her call on August 14.
Vondell Austin, a full-time X-ray assistant, credibly
testified (Tr. 1569-1575) that she joined the strike; that
on August 12 she telephoned her supervisor, Milton To-
corzic, and "told him that I called about my job"; that
Tocorzic "told me my job had been filled"; that about
August 15 or 16 she accepted part-time work in the Hos-
pital; and that, as stipulated, she returned to a full-time
position on August 27, 1982. I find Austin to be a trust-
worthy witness; she made an unconditional application
on August 12, which was refused, as alleged, and she
was reinstated on August 27 to a full-time position.
Eva Capellas, a full-time dietary aide, credibly testified
(Fr. 1583-1590) that she joined the strike; that about
August 13 she spoke to Director Maloney on the tele-
phone; that she then "inquired about my job and. . . he
said, at the time, I was not needed, and he would contact
me when he needed me"; and that, as stipulated, on Sep-
tember 10 she was offered the opportunity to return to a
substantially equivalent position. Capellas actually re-
turned to work on February 15, 1983. I credit her testi-
mony as trustworthy. I find that she made an uncondi-
tional application to return about August 13, the exact
date can be determined in compliance if necessary, and
was refused, as alleged. The backpay liability will be
tolled, as stipulated, starting on September 10, 1982.
Karen Burr, a part-time dietary employee, credibly tes-
tified (Jr. 1590-1597) that she joined the strike; that on
September 8 she telephoned the Hospital and spoke to
Marilyn Hiles, Director Maloney's secretary; that she
"asked her if I could speak to Mr. Maloney and she said
he wasn't in . . . he would call me"; and that Maloney
called her on September 9 and said "my secretary told
me that you called yesterday and were inquiring about
your job . . . . He said no, that it was taken, it was al-
ready filled." She has not yet returned to work and is on
the "preferential hiring list." On cross-examination, she
testified:
Q. Did you tell Mr. Maloney that because you
were afraid you didn't think you could come back
to work until the strike was over?
A. No, I didn't say anything about that.
1460 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Director Maloney, in his testimony (Tr. 2891-2895),
claimed that about August 12 or 13, Burr was uncertain
in a telephone conversation whether to return to work;
she never asked for her job back; and he later telephoned
her "to let her know her position at the Hospital was
. • . replaced . . ." Maloney had no "recollection" of
talking to Burr in September. I credit Burr. I fmd her to
be trustworthy. Insofar as Maloney's testimony conflicts
with the testimony of Burr, I find Burr to be more reli-
able. I find that Burr made an unconditional application
to return on September 8; the Hospital was on notice of
this unconditional application in September; and she was
refused, as alleged.
Mark Joseph, an employee, it was stipulated, "made an
unconditional offer to return to work on August 13,
1982, and. . . was in fact returned to his former position
. . . on August 23, 1982" (Tr. 1605). I find that he made
an unconditional application on August 13, which was
refused, as alleged.
David Stevens, a full-time orderly, credibly testified
(Tr. 1609-1618) that he joined the strike; that he on
August 10 telephoned Mary Hoke, assistant director of
the emergency room, and that "I said Mary, this is
David. Is my job still available. She said no, it is filled.
There is no job for you now." I credit Stevens as a trust-
worthy witness. I find that he made an unconditional ap-
plication to return on August 10 and was refused, as al-
leged.
Marilyn Sonderman, a part-time nursing assistant, cre-
dibly testified (Tr. 1619-1634) that prior to the strike she
worked 3 days a week; that she joined the strike; that
about August 10 she telephoned the nursing office; that
"I have the belief from what I can remember that I was
given someone in authority to talk to"; that she then
stated "I called to say that I was willing to come back to
work"; that she was told to "come back on [her] next
scheduled day" and "report to the nursing office"; that
she went to the nursing office on August 11, the next
day; that she then spoke to Director of Nursing Clara
Schooley; and that
she [Schooley] told me that the job classification
that I had been in, which was working afternoons
three days a week, was no longer required, and that
if I wanted to return, I would be working two days
on day shift.
Sonderman took this position. She continued to work
only 2 days a week. I credit Sonderman as trustworthy. I
find that she made an unconditional application to return,
which the Hospital had notice of about August 10, the
exact date can be determined in compliance, if necessary,
and she was not offered her former job or a substantially
equivalent job, as alleged.
Michael Henline, a full-time laundry employee, credi-
bly testified (Tr.' 1634-1643) that he joined the strike;
that he telephoned Supervisor Josephine Musick on
August 13 and that "I told her my name and asked for
Mr. Barker [the head of the department]. I asked about
my job and to talk to Mr. Barker." Barker was assertedly
in a meeting and would call the employee. Barker never
did. Henline telephoned Musick again that same day;
Musick "buzzed" Barker; and "I [Henline] heard him tell
her over the phone that he didn't want to talk to any-
body." Henline was not recalled and is on the "recall
list." It was stipulated that Henline's backpay would toll
or end as of October 28, 1982. I credit Henline as trust-
worthy. I find that the Hospital had notice of his uncon-
ditional application to return on August 13 and he was
refused reinstatement, as alleged.
Icephine McNeal, a full-time dietary employee, credi-
bly testified (Tr. 1643-1648) that she joined the strike;
that about August 12 she spoke to Director Maloney on
the telephone; that she "asked Mr. Maloney was it possi-
ble to get my job back" and he said She had been re-
placed; that he offered her a part-time job, which she ac-
cepted; and that she started working part-time on August
13 for 6 days and was then made full-time. I credit
McNeal's testimony as trustworthy. I find that she made
an unconditional application on August 12, which was
refused, as alleged. She worked part-time starting August
13. She was given full-time work 6 days later, August 19,
Vivian McKinney, a full-time ward clerk, credibly tes-
tified (Tr. 1649-1659) that she had worked at the Hospi-
tal for 28 years; that she joined the strike; that on August
9 she called the staff nursing office and spoke to Joanne
Anderson; that she then stated: "I was checking to see if
my job was available"; that Anderson "said she could
not answer that, but she would put me on the waiting list
that I was interested in coming back to work"; that a
telephone call was made to her home about August 17
and her husband Warren McKinney took the call and
that the message was that a "Miss Kerr" of surgery
called. Vivian McKinney next testified that she tele-
phoned Nancy Kerr at the Hospital and Kerr "denied
that she had called me." Kerr, the head nurse, said, how-
ever, "hold on and she would check up in the depart-
ment to see if anybody else had called me. She came
back and told me that no one had called me." Later that
same day, Delores Gross, director of nursing, telephoned
the McKinney home and spoke with Warren McKinney.
On cross-examination, Vivian McKinney was asked what
message she had received on August 17 from her hus-
band, Warren, with reference to Gross' call. She testi-
fied, "He [her husband] told me—I asked her if [Vivian]
had been replaced and she said yes. . . . It would be to
[her] advantage to return the call . . . ." Vivian McKin-
ney "saw no need to return" the call "since I had been
replaced."5
Delores Gross, director of nursing, claimed (Tr. 2985-
2989) that she telephoned the McKinney home and told
Vivian's husband "to have Vivian return my call." Gross
claimed that Warren McKinney was mistaken with refer-
ence to the Kerr call; she had placed this earlier call, not
5 ° Warren McKinney credibly related his telephone conversation with
Gross on August 17, in part as follows (Tr 1659-1664):
I said, well I will relay—take a message and then. . . I told her. . .
Mrs. Kerr had called me earher, and she was saying the same thmg
She said no, that wasn't Mrs. Kerr It was myself [Gross] that had
called, and we got into that I said it's not the same voice.. . . I told
her it wasn't the same voice, and I was wondering what kind of a
game they were playing . that was the extent of it
Gross did say m this conversation that his wife was replaced.
TRUMBULL MEMORIAL HOSPITAL 1461
Kerr. Gross assertedly called again and this time said to
Warren McKinney:
This is Ms. Gross, and I'd like to talk to [Vivian
McKinney] about returning to work.
He said, did you replace her. And I said, yes, I did,
that I'd like to offer her some other job, and he said
what are these jobs, and I said, I prefer to talk to
Vivian, would you please have her call me.
Gross claimed: "I don't recall which units I had, but I
did have a full-time job, same salary, same status." Gross
never followed up her telephone conversations to em-
ployee homes "with a letter" (Tr. 2995).
I credit the testimony of Vivian and Warren McKin-
ney. I find them both to be honest and trustworthy wit-
nesses. I am persuaded here that they have accurately
and carefully related what transpired. Insofar as Gross'
testimony conflicts with that of the McKirmeys, I do not
rely on her testimony. She did not here impress me as
reliable. I find that Vivian McKinney made an uncondi-
tional application to return on August 9; that the Hospi-
tal was then made aware of her application; and that her
application was refused, as alleged. I do not believe, and
this record does not credibly show, that Vivian McKin-
ney was later offered substantially equivalent work about
August 17, or that such work would have been offered
to her if she had spoken to Delores Gross. Vivian
McKinney was told that she had been replaced. She was
returned to substantially equivalent work on March 21,
1983.
Sophia Lubich, a full-time nurses aide, credibly testi-
fied (Tr. 1683-1688) that she joined the strike; that she
spoke on the telephone with Supervisor-Lois McLean on
August 13 and "asked if I could come back to work";
that McLean said "there was no job opening"; that
McLean telephoned her on August 20 to offer part-time
work; that Lubich said "I would let her know"; and that
"I never did. . . I didn't want to go back part-time. . .
I wanted to go back as full-time?' Lubich is on the recall
list. Supervisor Lois McLean claimed (Tr. 3039-3040)
that she telephoned Lubich on August 18 to offer her
work and Lubich "was afraid to return." McLean was
"not sure" what job she "would [have] offered her if she
accepted." I credit Lubich as reliable and trustworthy.
On the other hand, I do not credit McLean's testimony.
Her testimony did not impress me as reliable here. I find
that Lubich in fact made an unconditional application on
August 13, which was denied, as alleged.
Donald Nieswanger Sr., a full-time painter, credibly
testified (Tr. 1688-1694) that he joined the strike and, on
August 13, telephoned Supervisor Ernie Potter, his boss,
and "I asked him what my situation was pertaining to
going back to work. He told me I was on hold, and they
were evaluating our job." He is on the recall list. I find
Nieswanger to be credible; he made an unconditional ap-
plication on August 13; and it was refused, as alleged.
Edith Waltermire, a full-time pharmacy clerk, credibly
testified (Tr. 1694-1701) that she joined the strike; that
on August 11 she telephoned Assistant Pharmacy Direc-
tor Rivalsky and "I asked him about coming back to
work"; that Rivalsky said "he would have to get back to
me," "they had filled my position," and "they were
interviewing people"; and that Rivalsky telephoned Wal-
tertnire later that same day to say "he was sorry that ,I
had been replaced . . he could put me on a waiting
list." I credit Waltermire as trustworthy. I find that she
made an unconditional application on August 11, which
was refused, as alleged.
Shirley Lloyd, a full-time record clerk, credibly testi-
fied (Tr. 1702-1710) that she joined the strike; that on
August 11 she telephoned Linda Bridges, director of
medical records, and "asked her if my position was still
open"; and that Bridges "was sure it had been taken" but
she "would call me." Director Bridges telephoned Lloyd
on August 12 to say her "job had been filled." Lloyd
was offered' part-time work, which she declined—"I
didn't watit part-time." Then, on December 9, Director
Bridges 7offered me a full-time Ile clerk job, which I
didn't accept," because "the duties weren't the same and
the pay was less." She is on the list. I credit Lloyd as
trustworthy. I find that she 'made an unconditional appli-
cation to return on August 11 and was refused, as al-
leged.
Karen Paige, a full-time dietary employee, credibly
testified (Tr. 1711-1717) that she joined the strike; that
"about two weeks" after the strike started, she tele-
phoned Director Maloney and finally got to talk to him
a few days later; that "I said Mr. Maloney this is Karen
Paige, I want to know if I could come back to work to
my own job"; and that Maloney said "your job has al-
ready been replaced." She was later offered part-time
work, which she declined; "I want to come back as full-
time." I credit Paige as trustworthy. I find that she made
an unconditional application in mid-August, the exact
date may be determined in compliance if necessary, and
she was refused, as alleged.
Sarah Shick, a full-time dietary employee, credibly tes-
tified (Tr. 1717-1724) that she joined the strike; that
about August 10-12 she telephoned the personnel depart-
ment; that "I talked to some lady there, I told her my
name . . . the department I worked in and she took that
information and said that she would contact Mr. Ma-
loney and tell him that I 'called"; and that Director Ma-
loney telephoned her 2 to 3 days later and "he told me
that he got the message and I had called, and the only
way I could come back is as part-time, that my full-time
job was replaced." She would not accept part-time work.
She is on the "list." I credit Slick as trustworthy. I find
that the Employer had notice of her unconditional appli-
cation when she initially telephoned about August 10,
the exact date can be determined in compliance if neces-
sary, and she was refused, as alleged.
Vanessa Ward, a full-time dietary employee, credibly
testified (Tr. pp. 1724-1733) that she joined the strike;
that during early August she telephoned Director Ma-
loney and "told him that I was calling because I got the
letter and I wanted to know if my job was still avail-
able"; and that "he told me I was already replaced."
Ward acknowledged that "about a month before [the
strike] was Over" she received "two job offers" but
"wouldn't go over the picket line"—they were only part-
time jobs. On cross-examination, Ward recalled the date
1462 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of her conversation with Maloney as August 12. On
cross-examination, she explained "why I turned it [the
part-time job offers] down"—"I would like to have my
own job back." She was also "not interested in crossing
the picket line." I find Ward to be a reliable and trust-
worthy witness. I find that on August 12 she made an
unconditional application to return, which was refused,
as alleged.51
Lydia Lampley, as stipulated (Tr. 1735), made an un-
conditional application to return on August 12, which
was refused, as alleged. She was instead reinstated to her
former position on March 28, 1983.
Phyllis Rogusky, a full-time nursing assistant, credibly
testified (Tr. 1735-1743) that she joined the strike; that
on August 12 she telephoned the nursing office and left a
message; that "somebody from the nursing office" called
back on August 16; that it was Supervisor Lois McLean;
that McLean "asked me if I would come back to work
the following day" for part time; and that Laid "yes I
could." Rogusky also recalled that about August 13 she,
with coworkers Knott and Greene, "went to the nursing
office" at the Hospital and "that's when they told us . . .
or told me there wasn't any opening for full-time, just
part-time." Rogusky returned to work on August 17 as a
part-time worker. She is still a part-time employee. I
credit her testimony as trustworthy. I find here that Ro-
gusky made an unconditional application to return to
work on August 13, when she and coworkers Knott and
Greene went to the nursing office, and she was refused
reinstatement to her former or substantially equivalent
job, as alleged. I am persuaded here that the Employer
was aware of this unconditional application by at least
August 13.
Cordellia Marks, a full-time employee in central
supply, credibly testified (Tr. 1743-1759) that she joined
the strike; that on August 9 she telephoned the Hospital;
that she spoke with Mary Potts from personne1; 52 and
that she told Potts "I would like to come back to work
and she [Potts] told me there was no job available."
Marks is on the hiring list. Delores Gross, director of
nursing, generally claimed (Tr. 2990) that, to her knowl-
edge, Marks did not communicate with anyone in her de-
partment about returning to work. Potts, an interviewer
works in the personnel office, testified that she did not
have any telephone conversation with Marks (Tr. 3101-
3105). She claimed, inter alia, that she was on vacation
until August 16. I credit Marks as a trustworthy witness.
I am persuaded here, on this record, that her recollection
of calling the Hospital during August is trustworthy. In-
sofar as Gross and Potts deny such a call was made, I
find that Marks is credibly relating what in fact oc-
curred. I am also persuaded here, however, that Marks
has her dates confused. I find that some time on or after
the third week in August she made her unconditional ap-
51 Although not without some difficulty, I am persuaded here that
Ward declined the part-time* job offers weeks later because she wanted
full-tame work—her prior job. In short, she had made an unconditional
application, which was denied, and was waiting for her former or sub-
stantially equivalent work. See Tr, 1732.
52 Marks recalled how Potts interviews new employees and "handled
my transfer from housekeeping aide to nurses aide"—"Mrs Potts is in
charge of job assignments and what have you." See Tr 1750-1752
plication to return, the exact date can be determined in
compliance if necessary, and was refused, as alleged.
Irene Powroznyk, a full-time housekeeping employee,
credibly testified (Tr. 1759-1766) that she joined the
strike; and that on August 12 she telephoned the Hospital
"to find out about my job . . . I wanted it back." She
spoke to Andrea Crawford, the secretary; and "I asked
her about my job, could I have it back as a full-time em-
ployee . . . she said no." Powroznyk was offered, but
never accepted, part-time work. She was later reinstated
to her former or substantially equivalent work on Janu-
ary 24, 1983. She explained that she did not want part-
time work. I credit Powroznyk as trustworthy. I fmd
that the Employer had knowledge of her unconditional
application on August 12 and refused it, as alleged.
Patricia Flavell, as full-time nurses aide, credibly testi-
fied (Tr. 1766-1771) that she joined the strike; that she
telephoned the Hospital on August 15; that she then
placed her call to the nursing office and spoke to a secre-
tary named Nora, that she then told Nora that "I wanted
to return to work"; 53 and that Nora apprised her "that
she would put [Flavell's] name down on the list and
someone would get back to her." A "couple of days
later," Supervisor Lois McLean telephoned Flavell; ad-
vised the employee that her former job "had been
filled"; and that there "were no full-time positions avail-
able." Flavell was offered part-time work that she ulti-
mately accepted. She is still a part-time employee. I find
Flavell to be credible and trustworthy. I find that on
August 15 she made an unconditional application to
return; that the Hospital had notice of this application;
and that her application was refused, as alleged.
Arveda Whetstone, a full-time nursing assistant, credi-
bly testified (Tr. 1771-1785) that she telephoned the Hos-
pital "around August 4" and "asked them if my job . . .
was available"; that she then "talked to a secretary" in
the nursing office; that "this person in the nursing office"
replied "that she could not divulge that information" and
Whetstone "could call the next day and talk to Ted
Harvey," another secretary in the nursing office; and
that on the next day, August 5, "I called her [Ted
Harvey] and told her about coming back if my job were
available. She said, we'll have to put you on the priority
list." In the past, before the strike, Whetstone would
telephone Harvey about being available for work. She is
not currently working at the Hospital. I credit Whet-
stone as a reliable and trustworthy witness. I find that
about August 5—the exact date can be determined in
compliance if necessary—she made an unconditional ap-
plication to return; that the Hospital in fact had notice of
this call; and that she was refused, as alleged.
Anna Baxter, a full-time nurses assistant, credibly testi-
fied (Tr. 1785-1789) that she joined the strike; that on
August 16 she telephoned the nursing office and spoke
with Supervisor Lois McLean; and that "I asked her if I
could go back to work, and she told me that my full-
time position had been filled, and all she had left was
part-time." Baxter later took part-time work and is still
52 Flavell, like other strikers, explained that they called the nursing
office because in the past "if I had any questions or problems or what-
ever, I would call the nursing office."
TRUMBULL MEMORIAL HOSPITAL 1463
working part time. I credit Baxter as trustworthy. I find
that she made an unconditional application to return on
August 16, which was refused, as alleged.
Mary Lee Williams, a full-time housekeeping employ-
ee, credibly testified (Tr. 1797-1801) that she joined the
strike; that she telephoned about August 12 or 13 "the
executive housekeeping office and spoke to . . . secre-
tary . . . Crawford"; and that "I told her I was calling
about my job; she said she would look into it and call me
back later that day." Later that day, Crawford tele-
phoned Williams and said "they had part-time call-in
jobs." She declined. She is not back at work. It was stip-
ulated that she is on the preferential list. I credit Wil-
liams as trustworthy. I find that she too made an uncon-
ditional application about August 12 or 13—the exact
date can be determined in compliance if necessary—and
the Hospital had notice of this application, and she was
refused, as alleged.
George Quiggle, as stipulated (Tr. 1813), a striking em-
ployee, made an "unconditional offer of reinstatement on
August 13" and was not returned "to his former posi-
tion" until August 23, 1982. I find that Quiggle therefore
made an unconditional application, which was denied, as
alleged. He was later reinstated on August 23.
Thomas Crump, a full-time orderly, credibly testified
(Tr. 1813-1817) that he joined the strike; that he tele-
phoned his supervisor, Helen Banks, on August 9 and
stated, "I was interested in my job and was willing to
come back to work"; that Banks said "there were no
full-time positions, but there was a part-time position";
and that Crump took part-time work and later was given
full-time work. I credit Crump as trustworthy. He made
an unconditional application on August 9 and was re-
fused, as alleged.
Helen Smith, a full-time dietary department worker,
credibly testified (Tr. 1817-1821) that she joined the
strike; that she telephoned Director Maloney about
August 15 and "asked him if my job was open"; that Di-
rector Maloney said her job "was taken"; that she took
part-time work with the Hospital; and that subsequently
she was made full-time. On cross-examination, it was es-
tablished that she in fact made her application on August
12 and, later, on August 18, she was returned to "full-
time" work. I credit Smith as trustworthy. I find that she
made an unconditional application to return on August
12, which was refused, as alleged.
Marie Leposky, a full-time cashier, credibly testified
(Tr. 1821-1830) that she joined the strike; that about 2
weeks later she telephoned Director Maloney and "I told
him I wanted to come back to work"; that Maloney then
offered her "part-time" work because her job "was
taken"; that she took part-time work; that later he of-
fered her full-time work in the dishroom which was
physically more difficult and different than her cashier
job; and that she was listed part-time until about October
17 when she was restored to full-time status. I credit Le-
posky as trustworthy. I find that she made an uncondi-
tional application to return about August 15—the exact
date can be determined in compliance if necessary—
which was rejected, as alleged. Her final restoration to
substantially equivalent full-time status will also be estab-
lished in compliance.
Linda Schultz, a full-time dietary worker, credibly tes-
tified (Tr. 1837-1841) that she joined the strike; that
about 1 week later she telephoned Director Maloney and
said, "I was interested in my job"; that Maloney said her
job was not available; that she took part-time work; and
that about September 19 she was given full-time employ-
ment. I credit Schultz as trustworthy. I find that she
made an unconditional application about August 10 or
11—the exact date can be ascertained in compliance—
and that she was refused, as alleged.
Mary Harrington, as stipulated (Tr. 1850), "made an
unconditional offer to return to work On August 10. . .
and she was returned to her former position . . . on
August 19." I find she made an unconditional application
on August 10, which was then denied, as alleged.
Pamela Uchrinsko, as stipulated (Tr. 1850), made her
unconditional application to return on August 7. She was
reinstated on August 19. I find that her unconditional ap-
plication was denied as alleged.
Allen Bauman, it was stipulated (Tr. 1854), made his
unconditional application on August 3 and was not re-
turned until August 13. I find that his application was
denied as alleged.
Alma Jefferies, a full-time central supply assistant, cre-
dibly testified (Tr. 1855-1859) that she joined the strike;
that she spoke to Head Nurse Delores Gross on August
16; that "I told Ms. Gross that the reason why I came in
was I wanted to come back to work"; and that Gross
told her that "they didn't have any full-time jobs." Jef-
feries took part-time work and is still on part time. I
credit Jefferies as trustworthy. I find that she made an
unconditional application on August 16 and was refused,
as alleged.
Donald Sowers, a full-time orderly, credibly testified
(Tr. 1859-1865) that he joined the strike; that on August
12 he telephoned Supervisor Micky Wilson and "I told
her I was ready to come back— she said I would have
to call in the morning to the staffing office"; that he
called again on August 13 and told Supervisor Martha
Howell that "I would like to come back"; and that
Howell said the position was filled. He was later offered
part-time work, which he declined. He returned to full-
time work on October 4. I credit Sowers as trustworthy;
he made an unconditional application to return on
August 12; the Employer had notice of this application;
he was refused, as alleged; and he was reinstated to his
former or substantially equivalent position on October 4.
Panagioto Dills, a full-time dietary employer, credibly
testified (Tr. 1903-1909) that she joined the strike; that
she telephoned Director Maloney about August 15 and
ultimately spoke to him that day; that she asked to come
back; that Maloney had no full-time work; and that she
declined part-time work. Dills is on the preferential
hiring list. I credit her testimony; she made an uncondi-
tional application about August 15—the exact date can
be determined in compliance if necessary—which was re-
jected, as alleged.
There remains for consideration whether Denise Price,
wife of Union President Delbert Price and also an execu-
tive board member, and whether Dorothy Martina, an
executive board member, made unconditional applica-
1464 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tions to return before strike's end, as alleged. Their testi-
mony is summarized at length in section I, supra. Price
credibly recalled asking Supervisor Sophia Millich on
August 12 "if my job was available" and being told "all
positions had been filled." Price acknowledged on cross-
examination that she in effect did not state that she was
available; "no, I was asking her. . . whether my job was
available." (See Tr. 779-780, 785-786). Martina credibly
recalled asking Supervisor Barbara Thomas about her
job and anything else available on August 12 and having
a similar exchange with Director Maloney the next day.
She was, like the others, told she was replaced. (See Tr.
646-647.)
Although I find Price and Martina to be trustworthy
and credible, I am not persuaded here that they were in
fact making unconditional applications to return about
August 12, before the strike's end. Instead, assessed in
the context of this full record and the active and consist-
ent involvement and participation of Price and Martina
in the Union's effort, I find they were simply making an
inquiry; that they did intend to apply unconditionally for
or accept such reinstatement; and that the Employer,
under the circumstances, did not reasonably understand
them to be unconditionally applying for their former or
substantially equivalent jobs. They will be included in-
stead in the Union's December 17 application, at strike's
end.
In sum, I find and conclude that the above striking
employees, listed in Schedule A annexed infra, either
made, or in certain cases the Union made on their behalf,
unconditional applications to return to work, which were
refused, in violation of Section 8(a)(1) and (3) of the
Act.54
III. THE HOSPITAL'S DISCRIMINATORY REFUSAL TO
REINSTATE EMPLOYEES ON SICK LEAVE AND ON
VACATION STATUS
Ana Buckner, a full-time employee at the Hospital,
credibly testified (Tr. 915-935) that she started her em-
ployment there in November 1975; that on June 21, 1982,
she was rushed to the hospital for surgery; that she was
on sick leave from June 21 until August 9, 1982; that on
August 9 "I went to work and there was a strike and
therefore I couldn't cross the picket line . . . and I
called my supervisor" Martha Howell; that she, Buckner,
explained to Howell "I was afraid of the picket line" and
Howell said "okay"; and that on August 12
I went . . . to my supervisor . . . at the surgery
. . . in the Hospital [Supervisor Howell] . . . and I
told her that I was ready to come back to work.
She told me to go downstairs to nurses office . . . .
54 As noted above, I have found that certain striking employees did
not in fact make early unconditional applications to return, as alleged
Nevertheless, those striking employees would be covered by the Union's
December application made at strike's end I therefore have left those
employees' names in Schedule "A," infra The General Counsel, at the
hearing, deleted various strikers' names from this and other sections of
the amended complaint The General Counsel, by motion dated Septem-
ber 19, 1983, moves to dismiss 15 more names from this section, as well
as from other sections of the amended complaint The motion, which is
unopposed, is granted
I see supervisor, which I can't remember the names,
but they took my name and telephone number.
Later that same day, August 12, Buckner telephoned Su-
pervisor Howell at her house, and they had the follow-
ing conversation:
I said this is Ana Buckner, Ms. Howell, I want to
go back to work tomorrow. She says, like I told
you before, go to nurses office. . . . I ask her I
want to come back to work, and she told me I'm
being replaced. . . sorry Ana your job is taken.
On cross-examination, Buckner further explained that, on
August 9, "I attempt to go to work, and I went back
home, and I called Ms. Howell and I tell her there was
strike and that I would be coming to work later on the
day." Buckner denied that she was scheduled to have an
appointment with Delores Gross, director of nursing.
She explained: "Ms. Gross was supposed to be in touch
with me, and she never did."55
As noted supra, I find Buckner to be a credible and
trustworthy witness. Although she experienced some lan-
guage problems while testifying here, she impressed me
as a candid and truthful witness. I find that she attempt-
ed to return to work from sick leave status on August 9;
that picket line conduct frightened her and she was
afraid; that she later apprised her supervisor and other
Hospital personnel that she was prepared to cross the
picket line on August 12; and that she was informed in-
stead that she had been replaced. I find, on this record,
that she had not joined the strike, as claimed by Re-
spondent. Accordingly, I find and conclude that Re-
spondent violated Section 8(a)(3) and (1) of the Act by
treating Buckner as a striker rather than a nonstriker on
sick leave trying to return to work. Respondent discri-
minatorily refused to reinstate her to her former position
on August 12 because of her suspected union activities.
Cf. Texaco, Inc., 260 NLRB 1192, 1196-1198 (1982);
Conoco, Inc., 265 NLRB 819 (1982).56
55 Counsel for Respondent argues (Br 190) . "Although Buckner
denied having any recollection that she was scheduled for an appoint-
ment to meet with Delores Gross on August 16 . Gross and her
secretary Marilyn Burks testified that Buckner had such an appointment
. [and] Buckner did not keep her scheduled appointment" However,
Gross (Tr 2969-2978) acknowledged that she did not "personally talk to
Ana Buckner" Burks claimed (Tr 2998-3000) that she telephoned
Buckner and notified her of the appointment, and recorded it. Burks was
asked on cross-examination (Tr 3012)
Q About approximately how many did you call?
A I have no—I do not remember
I'm sure it was less than 50 people that I called myself
Q. Approximately how many calls did you make the day you
called Buckner?
A I'd say at the most 12 calls At the most
Q Have you ever talked to her before the telephone call
A I don't know for sure I may not have
I am persuaded here that Buckner's testimony is more reliable and trust-
worthy than the assertions of Gross and Burks cited above Gross and
Burks did not impress me as candid and reliable witnesses Supervisor
Howell did not testify
56 Assuming I found here that Buckner in fact Joined this strike and
supported it, as Respondent would seem to contend, I would also find on
Continued
TRUMBULL MEMORIAL HOSPITAL 1465
Sophia Bournias, a full-time housekeeping employee,
credibly testified (Tr. 1011-1028) that she started her em-
ployment in 1968; that she went on vacation July 11,
1982; that her vacation was to end on August 23, 1982;
and that on August 22, 1982,
I called the Hospital. . . . I was sick, I was unable
to work. . . . I spoke to June. . . she's a supervisor
[in housekeeping]. I told June I was sick . . . . It
was a [Sunday] and she told me to call the House-
keeping Office on Monday.
Bournias telephoned housekeeping Monday, August 23,
and spoke to secretary Andrea Crawford; "I told her I
was sick" and "unable to work"; "she knew I was on va-
cation." 57 Bournias then testified that, after she ex-
plained to secretary Andrea that she was sick, the secre-
tary responded: "I was replaced of my job." Bournias
asked: "Do you want doctor's proof I am sick"; and the
secretary responded, "No." Bournias was returned to her
job in March 1983. I find Bournias to be a trustworthy
and reliable witness. I find that she, like Buckner, had
not joined the strike; she was attempting to go on sick
leave after her vacation ended; she was discriminatorily
refused sick leave and told she was replaced. Respondent
treated her as a striker, discnminated against her, and
violated Section 8(a)(3) and (1) of the Act. Cf. Texaco,
supra. 5 8
Karen Bennett, a part-time laundry aide, credibly testi-
fied (Tr. 1154-1167, 1492-1498) that at the time of the
strike, August 1, she was on pregnancy leave; that her
pregnancy leave started on March 16 and would go
through September 15, 1982; and that she telephoned Su-
pervisor Tom Husk on August 4 and they had the fol-
lowing conversation:
I [Bennett] just wonder, will my job be there when
I get off pregnancy leave. He told me they couldn't
hold anybody's job. If I wanted my job I would
have to come back for it in a few days.
Bennett, however, had delivered her child on July 14
and could not on August 4 return to work. She explained
this to Supervisor Husk and he "said that they could not
hold anybody's job . . . if you wanted your job bad
enough you would come back for it." Husk told Bennett
to call back when the head of the whole laundry, Barker,
came back—Barker was out of town. Later, before Sep-
tember 15, Bennett called and spoke to Barker. She
"wanted to find out about my job." Barker told Bennett:
this record that on August 12 Buckner made a clear unconditional offer
to return to work, which was refused, in violation of Sec 8(a)(3) and (1)
of the Act.
57 Bournias would, in the past, call secretary Andrea Crawford when
she was sick It was stipulated that Andrea Crawford "works in that
office" and is a secretary
58 I note here that the Hospital was, at all times pertinent, aware of
Andrea Crawford's role in relaying information and messages back and
forth during this strike penod Crawford was an agent of Respondent at
least for purposes of receiving and communicating the above and related
information See sec II, above.
"I'm sorry, there's nothing at this time." Bennett is not
working at the Hospita1.59
Karen Bennett testified twice in this proceeding. See
section II, supra. I find her to be a trustworthy and reli-
able witness. On the other hand, I do not credit Husk or
Barker. I am persuaded instead, on this full record, that
Bennett did speak on the telephone with Supervisor
Husk during early August and with Director Barker
during the first 2 weeks of September. I am also persuad-
ed here that they—Husk and Barker—both made the
statements attributed to them by Bennett. In sum, Husk
made clear to Bennett that "they couldn't hold any-
body's job" and Barker later confirmed in early Septem-
ber: "there's nothing at this time." Barker was treating
Bennett as a striker who had been replaced. I find here,
however, that Bennett had not joined or participated in
the strike. She was on sick leave." Respondent, by
treating Bennett as a striker who had been replaced, and
by discriminating against her, violated Section 8(a)(3)
and (1), as alleged.
Ruth Prugh employed by the Hospital for 17 years,
credibly testified (Tr. 1269-1275) that she went on sick
leave on July 27; that there was no "termination date"
for her sick leave—her doctor "didn't know how long
[she] would be off" since she was suffering from "asth-
matic bronchitis and severe pulmonary disease"; that on
August 11 she was "released" by her doctor; that she
then telephoned Director Maloney and ultimately spoke
to him; and that "I told him I was calling about my job.
He said I had been replaced. I told him, do you under-
stand I have been on sick leave. He said all sick leave
has been cancelled." Maloney then offered Prugh part-
time work, which she refused. She eventually returned
to her former job on December 6. I do not find that
Prugh joined or participated in the strike. I credit Prugh.
She impressed me as trustworthy and reliable. Counsel
for Respondent asserts (Br. 329-330) that there "is no
evidence that the Hospital discriminated against
Prugh"—she did "not inform the Hospital of her medical
release until late November." I reject this and related as-
sertions as plainly pretextual and contrary to the credible
evidence of record. Director Maloney, as Prugh credibly
59 Bennett acknowledged that she had an automobile accident about
August 16, and she was later hospitalized during September as a result of
this accident. She was in the Hospital for over a week and had to stay
home for about 4 to 6 weeks after the middle of September
Timothy Husk (Tr 2941), laundry supervisor, claimed that Bennett
was on sick leave as of August 1; she was to return from maternity on
September 15, he did not speak to Bennett during the first 2 weeks of the
strike, and he denied various statements attributed to him by Bennett
Husk assertedly saw Bennett about September 10 in the parking lot with
a neck brace on. She assertedly told him "she wouldn't be able to return"
because of an accident Husk further testified that he later spoke to
Barker, he told Barker he had seen Bennett; and she was going to have a
doctor send a slip to him Bennett has not provided such a sick leave slip
for the period after September 15.
Gerald Barker, director of the laundry department, claimed (Tr. 2961-
2966) that Bennett was scheduled to return on September 17, Husk never
told him about a conversation with Bennett before September 17, Bennett
telephoned in late September asking Barker "if [he] had received any-
thing from her doctor" and he said no, he never received anything from
her doctor He, too, denied various statements attributed to him by Ben-
nett He claimed "We assumed she was on strike"
60 When Bennett could in fact resume her duties, and related ques-
tions, are matters that can be best resolved in compliance proceedings
1466 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
related, treated her in effect aslia striker who had been
replaced, and discriminated against her, in violation of
Section 8(a)(3) and (1) of the Act.
Klara Gonia, a full-time housekeeping employee for 21
years, credibly testified (Tr. 1331-1338) that during Sep-
tember 1982, she spoke on the telephone to secretary
Andrea Crawford; that "I said my sick leave was ending
and I want to return to work"; and that Crawford re-
sponded: "No you have just been replaced." Crawford
offered part-time work to Gonia, which she declined.
She was recalled on January 10, 1984, to "almost the
same" job. On cross-examination, Gonia acknowledged
that when she called, her sick leave "was over." Andrea
Crawford, departmental secretary, claimed (Tr. 3136-
3144) that Gonia's sick leave had been extended to Sep-
tember 15, and that when Gonia had not reported in by
September 18:
Mr. Washington [the department head] came back
to the office and said he had discussed it with Mr.
Carlson, and they were going to give Klara the
benefit of the doubt, and not terminate her, but con-
sider her a striking employee.
Gonia was not a participant in any strike activity.
I credit Gonia as a reliable and trustworthy witness.
Insofar as Crawford's testimony conflicts with Gonia's
testimony, on this record, I am persuaded here that
Gonia is more credible and trustworthy. I reject Re-
spondent's assertion that Gonia was really an employee
who could have been terminated for not following re-
porting-in procedures. Instead, I fmd that Crawford,
Washington, and Carlson regarded Gonia as a striking
employee and she was replaced. Gonia had not partici-
pated in strike activity. I find that Respondent, by this
conduct, discriminated against Gonia and violated Sec-
tion 8(a)(3) and (1) of the Act."
Marilyn Jewell, a part-time dietary worker, credibly
testified (Tr. 1885-1903, 1915-1932) that she went on
sick leave about July 17, 1982; that she returned about
August 17 and worked 3 days; that she then asked Su-
pervisor Mary Bacon for time off because of difficulties
connected with family problems; that she later saw a
doctor who furnished her a sick-leave slip for a virus in-
fection; that she submitted this slip to Supervisor Bacon;
that other sick slips were submitted to the Hospital cov-
ering a period up to October 20; that sick slips for Octo-
ber and November were submitted to the Hospital; and
61 Goma was listed as a striker denied recall under sec. 13(a) of the
amended complaint The General Counsel, after the hearing closed,
moved to amend the complaint to have her considered as an employee on
sick leave under par. 12(a). Gonia, as noted, testified about her conversa-
tion with Crawford. Crawford fully testified here about her treatment of
Gonia The pertinent facts were fully developed and, under the circum-
stances, Goma's status as a discrimmatee under 12(a), instead of 13(a),
will not in any way prejudice Respondent. The General Counsel's motion
to make this correcting amendment is reasonable here in view of the
nature and size of this record and the types of issues thus raised The
motion, opposed by Respondent, to amend the complaint is granted.
Indeed, as Respondent notes in its opposition, Gonia m fact was listed
earlier in this proceeding under sec. 12(a) and then was moved to sec.
13(a) of the complaint. It would be unreasonable to preclude the General
Counsel, even at this stage in these proceedings, from correcting such an
error
that Director Maloney told her that the October and No-
vember slips were lost and, as a result, she provided on
December 14 a doctor's sick slip covering the period
from October 20 to December 14. Jewell explained that
she did not go on strike; however, she acknowledged
visiting the picket line on two occasions, once in Septem-
ber and once in October. Jewell recalled that about De-
cember 15, she discussed with Director Maloney her
"return back to work." Maloney said that he would have
"to talk to Carlson." Later, Maloney notified Jewell that
Carlson had stated that Jewell "had to go on the waiting
list." Jewell insisted that she was not on strike; Maloney
said: "sorry . . . that's the way it is." She has not yet
been returned to work.
Director Maloney testified (Tr. 2870-2879) that Jewell
was on sick leave until August 15; she returned and
worked several days; she then requested a leave of ab-
sence, which was granted; Jewell's husband later brought
in a doctor's sick-leave slip; Maloney telephoned the
doctor to verify the information; Jewell was "permitted
to take personal leave until the middle of September"; a
later sick slip was provided up to about October 20; it
was reported to him that Jewell had been observed on
the "strike picket lines on two occasions"; he spoke to
Jewell about December 15 and she then provided him
with sick slips for the above period; Maloney reviewed
this with Carlson; and
Mr. Carlson then said, you know, if she went out
on strike, or she had been seen on the strike line,
then she would have to be considered a striker, and
we would treat her as such. And so, his recommen-
dation was not to terminate her [for violating leave-
of-absence procedures], but we would put her on
the recall list, which we did.
Also see the testimony of Supervisor Mary Bacon (Tr.
3069-3072); and secretary Marilyn Hiles (Tr. 3055, 3061).
I credit Jewell's testimony as summarized above. I
note her failure to recall totally the chronology here,
however, her recitation is substantiated in significant part
by Maloney. Nevertheless, insofar as Maloney's, Bacon's,
and Hiles' testimony differs from the testimony of Jewell,
I am persuaded here that Jewell's version of this scenario
is more reliable and trustworthy. I find that she did not
strike or join the strike. I have taken into account her
relatively brief visits on two occasions to the picket line
and her participation in a union meeting; nevertheless, on
this record, I credit her assertion that she did not join or
participate in the strike. I find here that Maloney and
Carlson did not fire her or take any disciplinary action
against her because of her cited failure to follow leave
procedures. They, instead, believed that she was a striker
and, about December 15, discriminatonly denied her
recall because they believed she was a striker. She was
placed on the preferential hiring list. Respondent, by dis-
criminatorily denying her reinstatement on December 15,
violated Section 8(a)(3) and (1) of the Act, as alleged. Cf.
Texaco, Inc., supra; Conoco, Inc., supra.62
62 I note that, alternatively, if I found Jewell to be a striker as Re-
spondent would seem to contend, she too would, on her unconditional
Continued
TRUMBULL MEMORIAL HOSPITAL 1467
Finally, Alice Mullen credibly testified that she was on
vacation on August 1; that she attempted to return to her
full-time job when her vacation ended; that she, instead,
was only offered part-time work; that the Hospital later
acknowledged its error; and that she was then given her
full-time job. Mullen was to return from vacation on
August 12 and the Hospital corrected this error on
August 18. (See Tr. 1576-1581 and Hospital Br. 330-
331.) Mullen credibly recalled how Director Maloney
told her on August 12 "he had a part-time floor girl job
if I wanted it . . . I told him I would take it, but I told
him I was entitled to my own job." Later, she declined
the part-time work. Then, on August 16, Director Ma-
loney said "he made a mistake." I find here, too, that Di-
rector Maloney was mistakenly treating Mullen like a
striking employee, thus discriminatorily denying her rein-
statement, in violation of Section 8(a)(3) and (1). Al-
though the period was brief, Mullen is nonetheless enti-
tled to be made whole for such losses resulting from the
Employer's unlawful conduct.
In sum, I find here that Respondent Hospital violated
Section 8(a)(3) and (1) of the Act by its discriminatory
treatment of the seven employees, listed in Schedule B,
infra. Respondent treated these employees—on vacation
or sick leave status—in a disparate and discriminatory
manner because it mistakenly believed they were strikers.
As the credited evidence pertaining to Mullen illustrates,
the Employer would have treated such employees differ-
ently but for this mistake.
IV. THE EMPLOYER'S STATEMENTS TO EMPLOYEES
GIANAKOS, WALLACE, AND ADKINS, AND RELATED
CONDUCT
The General Counsel argues (Br. 78) that Respondent
violated Section 8(a)(1) and (3) of the Act by terminating
employees Gianakos, Wallace, and Adkins. The General
Counsel cites the testimony of Gianakos and Wallace to
the effect that "they were told by Supervisor Luella
Agler on July 31, the day before the strike, that they
were terminated." As for Adkins, the General Counsel
notes that Adkins testified to the effect that, later, "he
was terminated by Jerry Barker when he asked if he
could return to work after the strike." Respondent denies
these allegations (Br. 331-334). The pertinent evidence is
summarized and discussed below:
Beatrice Wallace testified (Tr. 1306-1322) that she was
a full-time employee at the Hospital prior to the strike;
that about 3:30 p.m. on July 31, 1982, she was near the
kitchen area beside the supervisors' office; that she then
heard Supervisor Luella Agler state that "we are no
longer employees"; that she subsequently joined the
strike that commenced that evening; and that she was re-
called by the Hospital on March 20, 1983, to "substan-
tially equivalent employment" after being on the prefer-
ential hiring list. On cross-examination, Wallace ex-
plained that there were a number of employees "standing
on line" when Agler's statement was made; this took
place "around the end of [her] shift" on July 31; and the
application on December 15, and the Union's unconditional application
on December 17, have been entitled to immediate reinstatement, which
was denied, in violation of Section 8(a)(3) and (1) of the Act
employees were checking out. Wallace subsequently re-
ceived from Hospital Chief Executive Officer Johns a
letter (G.C. Exh. 5), dated August 1, 1982, stating, inter
alia,
While employees who participate in the strike have
the legal right to do so, the Hospital has the legal
right to continue to care for its patients.
To this end it may become necessary for us to hire
replacements for striking employees.
Strikers who are replaced would have their names
put on a preferential hiring list with the right to
return to work as and when replacement employees
leave.
. . . .
If you wish to return to work, you should immedi-
ately contact your supervisor for your work sched-
ule.
Wallace was in fact offered part-time work by the Hospi-
tal, after she later telephoned the Employer during the
strike. She testified:
Q. You were aware you had not been fired, that
you were just out on strike?
A. Right.
Wallace, at the end of the strike, "received a letter from
the Hospital asking that, if you were interested in return-
ing to work in your former position, to fill out a letter of
intent and return it to the Hospital"; she filled it out; and
she returned it.
Margo Gianakos testified (Tr. 1322-1331) that she was
a full-time employee at the Hospital; that she too heard
Supervisor Agler state "we're going to be no longer em-
ployees at TMH"; that there were other employees in
the area; and that they were then "checking out" on July
31. On cross-examination, she acknowledged that she
never had an "exit interview"; that she went to the Hos-
pital on August 1 "with the intention of reporting to
work" and "did not cross the picket line"; that she re-
ceived a letter from the Hospital at strike's end, like Wal-
lace, and "I did send it in"; and that "as far as [she]
knows, [she] is on that list."
Supervisor Luella B. Agler testified (Tr. 3083-3099)
that, inter alia, she told employees checking out on July
31: "I'd see them on Monday." She denied saying any-
thing else, Director Richard Maloney testified (Tr. 2906-
2911) that Wallace telephoned him during the strike; that
he returned her call about August 12; that he offered her
a part-time job; and that she responded: "if I can't have
my Own job back I don't want anything." He told her
she was "replaced." Maloney also denied that Gianakos
was "terminated."
Randall Adkins testified (Tr. pp. 884-894) that he did
not report for work after the strike commenced; that on
August 26 he spoke to Director of Linen Services Jerry
Barker on the telephone; and that
I said, when the strike's over can I come back to
work. And he [Barker] goes no, you've been perma-
1468 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
nently replaced. I go, does that mean I'm fired. He
goes, yes, it does.
Later, Adkins telephoned personnel. The General Coun-
sel notes, in his brief (pp. 64-65): "Adkins was on the
preferential hiring list and he received a letter from the
Hospital confirming his rejection of reinstatement on or
about January 11, 1983 (Resp. Exh. 16)."
Gerald Barker, director of laundry and linen at the
Hospital, testified (Tr. 2952-2966), inter aim, that he
spoke to Adkins during the strike when Adkins "brought
his uniforms in" and Adkins said "it's been nice working
for you." Later, according to Barker, Adkins told Barker
on the telephone, "that he had quit," and Barker said:
"You haven't officially quit because we haven't taken
you off the list." Barker denied telling Adkins that he
was fired or terminated.
I credit the testimony of employees Gianakos and
Wallace as recited above. Their testimony is in signifi-
cant part mutually corroborative and they impressed me
as trustworthy witnesses. I do not credit Supervisor
Agler's denial. As for Director Maloney, his recitation of
what transpired is in significant part uncontroverted and,
in context, is reasonable and reliable here. I find, on this
record, that Supervisor Agler in fact admonished em-
ployees, as they were checking out on July 31, they "are
no longer employees" or they are "going to be no longer
employees." Agler was clearly referring to the impend-
ing strike. Agler's statement was, in effect, a threat of job
loss if the employees exercised their statutory right to
strike, in violation of Section 8(a)(1) of the Act. In sum,
I find and conclude that Supervisor Agler's July 31
warning to the employees constituted an unlawful threat,
"designed merely to dissuade the employees from persist-
ing in their [protected] course of conduct." Cf. Crookston
Times Printing Co., 125 NLRB 304 (1959) ("you men
must realize that if you leave your jobs in this manner
you can no longer be in the employ of this company").
However, I do not find and conclude that Agler's state-
ment, assessed in context, also constituted a firing, or the
employees were reasonably led to believe that they were
fired, as alleged. (See G.C. Exh. 5, the Employer's letter
to its striking employees, quoted above.)63
As for Adkins, I find his testimony to be incomplete,
vague, and unclear. While I was not impressed with the
trustworthiness or reliability of the testimony of Barker,
as noted elsewhere in this decision, I find here his recol-
lection of the pertinent sequence to be more reasonable. I
fmd Adkins was neither threatened nor fired, as alleged.
63 Nevertheless, Johns' August 1 letter, as quoted above (G.C. Ea& 5),
treated the employees as economic strikers who could be replaced, and
they were. The employees, as found, were throughout the pertinent
period unfair labor practice strikers, entitled to immediate reinstatement
on their unconditional applications to return. Johns' letter substantially
misstated the employees' statutory rights and, consequently, tended to
mterfere with and impinge on employee protected activities, m violation
of Sec 8(a)(1) of the Act. Cf. Leonardo Truck Lines, 237 NLRB 1221,
1232 (1978); Fire Alert Co., 207 NLRB 885 (1973).
V. THE EMPLOYER'S ALLEGED DISCRIMINATORY
TREATMENT OF PROBATIONARY EMPLOYEES
The General Counsel argues (Br. 78-79) that Supervi-
sor Luella Agler also threatened a group of probationary
employees on July 31, 1982, that "they had the option of
crossing the picket line if a strike occurred or faced the
possibility of being fired." Further, the General Counsel
argues that the Employer "affected seniority by chang-
ing dates of hire for probationary employees in violation
of Section 8(a)(3) of the Act." Respondent denies this as-
sertion (Br. 334-338). The pertinent evidence is summa-
rized and discussed below.
Tammy Dressel testified (Tr. 839-883) that she was
hired by the Hospital into the dietary department on July
12, 1982, at a rate of $5.05 per hour; that when she first
started on July 12 "there was a 90-day probationary
period"; that "about the time the strike started" she was
"on a part-time schedule so [she] could train"; that she
was told by her supervisor that "after [her] training was
over" she would have been on "about a 15-hour week";
that she was in fact scheduled to report for work at the
Hospital on August 3; that about August 2 she tele-
phoned Dietary Director Maloney; and that, during this
conversation, she expressed concern over the strike and
"didn't know what to do." Later, about August 5, she
again telephoned Maloney. She asked about her sched-
ule. Maloney said he would get back to her. Maloney,
however, did not call her and, on August 10, she tele-
phoned Maloney again. Maloney then apprised Dressel,
inter alia, "we have to terminate you [Dressel] . . . first
reason, was I [Dressel] was on a 90-day probationary
period . . . the second reason was you [Dressel] never
returned to work. Later, about December 13, Dressel
spoke to Marjorie Potts in personnel. Potts then told
Dressel "that there would be a job and the rate of pay
was $4.95, and it would be less because [her prior rate]
was $5.05." The job Potts was referring to would have
been for "about 12 hours" per week.
Dressel, on cross-examination, agreed that, after her
probationary training period, she was "expecting to work
no more than 15 hours a week." Dressel further ac-
knowledged that she submitted to the Employer at
strike's end "the letter of intention to return to work"
and she was placed on the preferential hiring list. She
also noted that, earlier, on December 13, at the Hospital,
Potts, had offered her a job. Dressel claimed that she
never turned this "down." She told Potts instead "there
would be no problem" even though she apparently had
another job with another employer. There was a discus-
sion between Dressel and the Hospital over Dressel's
availability under such circumstances. She also acknowl-
edged that she understood Maloney to be stating, on
August 10, that she had been replaced. (Cf. G.C. Exh 5)
Elsewhere, she claimed that she had been told she was
terminated.
Director Maloney testified (Tr. 2911-2940) that Dres-
sel was a part-time probationary employee; that she
joined the strike on August 1; and that about August 3
she telephoned him and said "she was going to come
into work and she didn't show, and she was saying, I
tried to come through the line . . . but I couldn't get
TRUMBULL MEMORIAL HOSPITAL 1469
through." Dressel was scheduled to work on August 3.
She had not reported then or thereafter, during the
strike. Later, Maloney was apprised that Dressel was
seeking reinstatement. Maloney denied that he had termi-
nated Dressel.
Marjorie Potts from personnel testified (Tr. 3108-3122)
that Dressel refused a position offered by Potts on De-
cember 13. Dressel assertedly stated: "she would like to
come back but she already had a job at Red Lobster. . .
she said the hours you have are not really compatible for
me unless they can be rearranged," and she refused. (Cf.
R. Exh 56.) Potts acknowledged that the job she offered
Dressel on December 13 paid about 10 cents less per
hour than Dressel's earlier rate
Nancy Scoffield testified (Tr. 349-364) that she started
working at the Hospital about July 24, 1982, "between
15 and 18 hours a week," that Supervisors Luella Agler
and Margaret Gillespie called a meeting during the
evening of July 31; that her coworkers were present at
this meeting; that Scoffield and the other employees
present were probationary, or in their 90-day probation-
ary periods; and that Supervisor Agler
told each and everyone of us that if there was to be
a strike that evening at midnight, that we were on
probation, and that we were to return back to work
the next day, or there was a possibility we would
lose our job.
Scoffield, on cross-examination, acknowledged that ini-
tially she did not cross the picket line; later, however,
she did cross the picket line about August 15, and com-
pleted her 90-day probationary penod. 64 She is now reg-
ular part-time.
Supervisor Luella Agler denied (Tr. 3083-3099) that
she ever stated to employees on July 31 "that if these
employees went on strike they would no longer be em-
ployees of the Hospital." See section IV, above. Agler
admitted meeting with five probationary employees on
July 31 and "I told them that if the strike went off that
they would still have their jobs there if they so desired
to cross the picket line." Supervisor Susan Gitko asserted
(Tr. 3263-3271) that she was present when Agler told
five probationary employees" that "they could cross the
picket line if there was a strike." The employees general-
ly indicated that they would not cross the picket line.
Pitko denied that Agler said that the employees would
be discharged if they did not cross the picket line.
The parties stipulated (Tr. 1678-1681) that the Hospi-
tal maintains on a monthly basis "seniority lists of unit
employees," of over some 900 names, which it sends to
the Union. Tammy Dressel, a probationary employee,
was omitted from the January 1983 seniority list. She
was included in the February and March 1983 seniority
lists which reflect her seniority date starting on July 12,
1982. Bonnie Clouser, a probationary employee, was in-
correctly noted on the January and February lists as
having a starting date of August 20, 1982. This date for
64 Scoffield made an unconditional application to return about August
10
65 Leonora Mickey, Nancy Scoffield, Bonnie Calhoun, Sheryl Gmnert,
and Sugarmne Crawford
Clouser was corrected on the March list "to show her
correct starting date of employment as May 11, 1982."
Sugarnine Crawford, another probationary employee, is
"correctly shown on the January, February, and March
1983 seniority lists as having a starting date of employ-
ment as July 14, 1982." Probationary employee Nancy
Scoffield was "incorrectly shown on January and Febru-
ary 1983 seniority lists as having a starting date of em-
ployment which was August 19, 1982." "That was cor-
rected on the March 1983 seniority list to . . . July 21,
1982." And Leonora Mickey, another probationary em-
ployee, was "correctly shown on January, February, and
March 1983 seniority lists as having a starting date of
employment of June 20, 1982." Further, it was stipulated
that Sugarnine Crawford is currently on the preferential
hiring list; and Leonora Mickey returned to work to a
substantially equivalent position on August 7, 1982.66
I am persuaded here that Dressel, who I find on this
record to be a trustworthy witness, was mistaken in her
recollection of her conversations with Maloney. In short,
although I find Dressel to be a more candid and trust-
worthy witness here than Director Maloney or secretary
Potts, whose testimony is discussed at length above, I do
not believe that Malone:, in fact told Dressel or reason-
ably led her to believe :.at she was fired or terminated
as claimed. Indeed, the entire sequence here, as reflected
with Dressel and the other strikers, undermines this con-
tention. Maloney and Potts were treating Dressel as an
economic striker. They were not discharging the strikers.
However, I am also persuaded here that Supervisor
Agler was again threatening employees with discharge
or termination if they joined the strike on July 31, as
found in section IV, above. Thus, in my view, Nancy
Scoffield credibly related Supervisor Agler's like and re-
lated threats to the probationary employees during the
evening of July 31. I credit Scoffield. I find her to be a
reliable and trustworthy witness. I do not credit Agler or
co-Supervisor Pitko. Their testimony was at times in-
complete and unclear. Agler and Pitko did not impress
me as reliable or trustworthy witnesses. In sum, Supervi-
sor Agler warned the probationary employees, in viola-
tion of Section 8(a)(1) of the Act that if they joined the
strike "there was a possibility [they] would lose [their]
job[s]." Such a statement clearly tends to interfere with
and impinge on employee protected activity.
Finally, although the Employer's cited errors on the
monthly seniority lists furnished to the Union (also see
Tr. 2938) raise some suspicion of attempted discrimina-
tion with respect to the seniority dates of probationary
employees, I am, on balance, not sufficiently persuaded
that this suspicion reaches a prima facie showing here. I
find instead that no 8(a)(3) violation has been proven
here, as alleged.
CONCLUSIONS OF LAW
1. Respondent Hospital is an employer engaged in
commerce as alleged.
66 I note also that Director Maloney denied discharging Dressel and
Scoffield Counsel for Respondent's motion to correct the transcnpt,
which is unopposed, is granted
1470 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2. Charging Party Union is a labor organization as al-
leged.
3. Respondent Hospital violated Section 8(a)(5) and (1)
of the Act by refusing since about June 1, 1982, to bar-
gain in good faith with the Charging Party Union as the
exclusive bargaining agent of its employees in the appro-
priate unit described in footnote 1, supra, by refusing to
discuss economic issues until all noneconomic issues
were resolved; by refusing to furnish the Union with re-
quested relevant information concerning bargaining unit
-Work performed by nonunit personnel; by warning that,
if the Union engaged in a strike at the Hospital, all pend-
ing contract proposals and agreements would be with-
drawn; by announcing, following the commencement of
the strike on midnight of July 31, 1982, that all pending
contract proposals were withdrawn and the parties were
starting from scratch; by refusing again to discuss eco-
nomic issues until all noneconomic issues were resolved,
including the status of the striker replacements; by pro-
posing to eliminate the dues-checkoff provision of the ex-
pired contract between the parties and to modify other
contractual provisions, including those pertaining to
union recognition and union shop; by proposing that
thenceforth the Hospital only be required to reco • ni7e
the Union as bargaining agent solely for those unit em-
ployees who designate in writing that they wish the
Union to represent them; and by related acts and con-
duct during the entire course of the 1982 negotiations for
a renewed contract. Respondent Hospital, by the above
and related acts and conduct, fragmentized the bargain-
ing process and prevented any meaningful bargaining
from taking place, in violation of Section 8(a)(5) and (1)
of the Act, as alleged.
4. The strike, which commenced on midnight of July
31, 1982, was caused and prolonged by Respondent Hos-
pital's unfair labor practices, and remained an unfair
labor practice strike until strike's end on December 17,
1982.
5. Commencing about August 1, 1982, striking employ-
ees made unconditional applications to return to their
former or substantially equivalent positions. Thereafter,
on December 17, 1982, at strike's end, Charging Party
Union made an unconditional application on behalf of
the striking employees to return to their former or sub-
stantially equivalent positions. Respondent Hospital vio-
lated Section 8(a)(3) and (1) of the Act by refusing to re-
instate the striking employees—including but not neces-
sarily limited to those striking employees listed in Sched-
ule A annexed hereto—to their former or substantially
equivalent positions on their unconditional applications
or on the Union's unconditional application.
6. Respondent Hospital violated Section 8(a)(3) and (1)
of the Act by discriminatorily withholding employment' -
from or replacing certain employees listed in schedule B
annexed hereto, who were either on sick leave or vaca-
tion status since about July 31, 1982, because Respondent
suspected employees had joined the above strike.
7. Respondent Hospital violated Section 8(a)(1) of the
Act by threatening employees with discharge or termina-
tion if they engaged in a strike; and by warning employ-
ees who were engaged in a strike to protest the Hospi-
tal's unfair labor practice conduct that they could be re-
placed like economic strikers.
8. Respondent Hospital did not engage in other unfair
labor practice conduct, as alleged.
9. The unfair labor practice conduct found above af-
fects commerce, as alleged.
THE REMEDY
To remedy the unfair labor practices found above, Re-
spondent Hospital will be directed to cease and desist
from engaging in such conduct or like or related conduct
and to post the attached notice. Respondent Hospital, af-
firmatively, will be directed, on request, to bargain in
good faith with the Union and, if an understanding is
reached, embody such understanding in a signed agree-
ment. Respondent Hospital will be directed, on request,
to furnish to the Union in a timely manner requested rel-
evant information pertaining to the performance of unit
work by nonunit personnel.
Respondent Hospital has been found to have violated
Section 8(a)(3) and (1) of the Act by refusing to reinstate
its striking employees—including but not necessarily lim-
ited to those striking employees listed in Schedule "A"
annexed hereto—to their former or substantially equiva-
lent positions, on their individual applications or on the
Union's later unconditional application in their behalf, on
December 17, 1982. Respondent Hospital will therefore
be directed to offer to all of its striking employees—in-
cluding but not necessarily limited to those listed in
Schedule A—immediate and full reinstatement to their
former positions or, if their former positions no longer
exist, to substantially equivalent positions, without preju-
dice to their seniority or other rights and privileges pre-
viously enjoyed, discharging if necessary all persons
hired after midnight, on July 31, 1982, and to make them
whole for any loss of pay that they may have sustained
as a result of the Hospital's unlawful action as found
herein, by making payment to them of a sum of money
equal to what they would have earned but for the Hospi-
tal's unlawful action, from the dates of their earlier un-
conditional applications or the Union's December 17,
1982 unconditional application, to the dates of such
offers of reinstatement, less their net earnings during this
period, to be computed in the manner described in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest to be
computed as set forth in Florida Steel Corp., 231 NLRB
651 (1977). See, generally, Isis Plumbing Co., 138 NLRB
716 (1962). Respondent Hospital has also been found to
have discriminated against the seven employees listed in
Schedule B, annexed hereto. It will similarly be directed,
as described above, to offer immediate and full reinstate-
ment to said employees and to make them whole, with
interest, in accordance with the above-stated formula and
principles. Further, Respondent Hospital will be directed
to preserve and, upon request, make available to the
Board or its agents, for examination and copying, all \
payroll records, social security payment records, time-
cards, personnel records and reports, as well as other
records necessary or useful in analyzing and computing
the amount of backpay due under the terms of this Deci-
sion and Order.
TRUMBULL MEMORIAL HOSPITAL 1471
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed67
ORDER
The Respondent, Trumbull Memorial Hospital,
Warren, Ohio, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing and refusing to bargain in good faith with
respect to rates of pay, wages, hours of employment, and
other terms and conditions of employment, with Ohio
Council 8, American Federation of State, County and
Municipal Employees, AFL-CIO, and its Local 2804, as
the exclusive bargaining agent of the employees in the
unit described below, by refusing to discuss economic
issues until all noneconomic issues are resolved; by refus-
ing to furnish said Union with requested relevant infor-
mation concerning bargaining unit work performed by
nonunit personnel; by warning that if the Union engaged
in a strike all pending contract proposals and agreements
would be withdrawn; by announcing, following the com-
mencement of a strike, that all pending contract propos-
als and agreements are withdrawn and the parties are
starting from scratch; by again refusing to discuss eco-
nomic issues until all noneconomic issues are resolved,
including the status of striker replacements; by proposing
to eliminate the dues-checkoff provision of the expired
contract between the parties and to modify other con-
tractual provisions, including those pertaining to union
recognition and union shop; by proposing that thence-
forth the Hospital only be required to recognize the
Union as bargaining agent solely for those employees
who designate in writing that they wish the Union to
represent them; and by like or related acts or conduct
fragmentizing the bargaining process and preventing any
meaningful bargaining from taking place. The appropri-
ate bargaining unit is, as follows:
All regular full-time and part-time service and main-
tenance employees, including storeroom manager,
all storeroom clerks, EEG and ECG technicians, all
hospital clerical employees, record clerks, recep-
tionists, medical stenographers, medical secretaries,
x-ray and medical transcribers, patient hostesses,
and those clerk typists, cashiers, file clerks, senior
clerks and secretaries who work in areas other than
the Employer's administration, admitting data proc-
essing, accounting, payroll, purchasing, personnel,
and business office departments, employed by the
Employer at its hospital facility located at 1350 East
Market Street, Warren, Ohio, and in the job classifi-
cations of the bargaining unit as set forth in Appen-
dix A (of the collective bargaining agreement be-
tween Respondent and the Union effective August
16, 1979 to July 31, 1982), for the purpose of estab-
lishing rates of pay, wages, hours, and other condi-
67 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
tions of employment, but excluding all professional
employees, office clerical employees, physical ther-
apy assistants, licensed practical nurses, nursing
technicians, medical technicians, x-ray technicians,
respiratory therapy technicians, housekeeping crew
leaders, buyer-dietary, chief transcriber, chief recep-
tionist, laboratory technicians, laboratory technolo-
gists, x-ray technologist, dietitians, registered nurses,
visual arts specialist, physical therapists, administra-
tive personnel, confidential secretaries, security per-
sonnel, temporary employees, and supervisors as de-
fined in the National Labor Relations Act.
(b) Discharging, refusing to reinstate, or otherwise dis-
criminating against its employees in regard to their hire
or tenure or terms or conditions of employment because
they have engaged in protected concerted activities for
their mutual aid and protection or to discourage mem-
bership in said Union, or any other labor organization,
by refusing to reinstate striking employees engaged in an
unfair labor practice strike to their former or substantial-
ly equivalent positions on their unconditional applica-
tions to return or on the Union's unconditional applica-
tion on their behalf to return to their former or substan-
tially equivalent positions; and, further, by discriminatori-
ly withholding employment from or replacing employees
who were on sick leave or vacation status because the
Hospital suspected employees have engaged in the above
strike or other protected concerted activity.
(c) Threatening employees with discharge or termina-
tion if they engage in a strike and, in addition, warning
employees who have engaged in a strike to protest the
Hospital's unfair labor practice conduct that they could
be replaced like economic strikers.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain in good faith with the Union as
the exclusive bargaining agent of its employees in the
unit with respect to rates of pay, wages, hours of em-
ployment, and other terms and conditions of employment
and, if an understanding is reached, embody such under-
standing in a signed agreement.
(b) On request, furnish the Union in a timely manner
with requested relevant data pertaining to the perform-
ance of unit work by nonunit personnel.
(c) Offer to all of its striking employees—including but
not necessarily limited to those listed in the attached
Schedule A—immediate and full reinstatement to their
former positions or, if their former positions no longer
exist, to substantially equivalent positions, without preju-
dice to their seniority or other rights and privileges pre-
viously enjoyed, discharging if necessary all persons
hired after midnight of July 31, 1982; and make them
whole for any loss of pay that they may have sustained,
as a result of the Hospital's unlawful action, with inter-
est, in the manner set forth in the Board's decision.
(d) Offer to those employees listed in Schedule B an-
nexed hereto immediate and full reinstatement to their
former positions or, if their positions no longer exist, to
1472 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
substantially equivalent positions, without prejudice to
their seniority or other rights and privileges previously
enjoyed, discharging if necessary any persons hired after
midnight of July 31, 1982; and make them whole for all
loss of pay that they may have sustained as a result of
the Hospital's unlawful action, with interest, as provided
in the Board's Decision.
(e) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(f) Post at its Warren, Ohio facility copies of the at-
tached notice marked "Appendix."68 Copies of the
notice, on forms provided by the Regional Director for
Region 8, after being signed by the Respondent's author-
ized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be 1. len by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(g) Notify the Regional Director in writing within 20
days from the dale of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the remaining allegations
of the consolidated complaint, as amended, be dismissed.
66 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al 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."
Schedule B
1.Karen Bennett
2. Sophia Bournias
3.Ana Buckner
4.Klara Gonia
5.Marilyn Jewell
6.Alice Mullen
7.Ruth Prugh
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT fail or refuse to bargain in good faith
with respect to rates of pay, wages, hours of employ-
ment, and other terms and conditions of employment,
with Ohio Council 8, American Federation of State
County and Municipal Employees, AFL-CIO, and its
Local 2804, as the exclusive bargaining agent of our em-
ployees in he unit described below, by refusing to dis-
cuss economic issues until all noneconomic issues are re-
solved; by refusing to furnish the Union with requested
relevant information concerning bargaining unit work
performed by nonunit personnel; by warning that if the
Union engaged in a strike all pending contract proposals
and agreements would be withdrawn; by announcing,
following the commencement of a strike, that all pending
contract proposals and agreements are withdrawn and
the parties are starting from scratch; by again refusing to
discuss economic issues until all noneconomic issues are
resolved, including the status of striker replacements; by
proposing to eliminate the dues-checkoff provision of the
expired contract between the parties and to modify other
contractual provisions, including those pertaining to
union recognition and union shop; by proposing that
thenceforth the Hospital only be required to recognize
the Union as bargaining agent solely for those employees
who designate in writing that they wish the union to rep-
resent them; and by like or related acts or conduct frag-
inentizing the bargaining process and preventing any
meaningful bargaining from taking place. The appropri-
ate bargaining unit is as follows:
All regular full-time and part-time service and main-
tenance employees, including storeroom manager,
all storeroom clerks, EEG and ECG technicians, all
hospital clerical employees, record clerks, recep-
tionists, medical stenographers, medical secretaries,
x-ray and medical transcribers, patient hostesses,
and those clerk typists, cashiers, file clerks, senior
clerks and secretaries who work in areas other than
the Employer's administration, admitting data proc-
essing, accounting, payroll, purchasing, personnel,
and business office departments, employed by the
Employer at its hospital facility located at 1350 Past
Market Street, Warren, Ohio, and in the job classifi-
cations if the bargaining unit as set forth in Appen-
dix A (of the collective bargaining agreement be-
tween Respondent and the Union effective August
16, 1979 to July 31, 1982), for the purpose of estab-
lishing rates of pay, wages, hours, and other condi-
tions of employment, but excluding all professional
employees, _office clerical employees, physical ther-
apy assistants, licensed practical nurses, nursing
technicians, medical technicians, x-ray technicians,
respiratory therapy technicians, housekeeping crew
leaders, buyer-dietary, chief transcriber, chief recep-
tionist, laboratory technicians, laboratory technolo-
gists, x-ray technologist, dietitians, registered nurses,
visual arts specialist, physical therapists, administra-
tive personnel, confidential secretaries, security per-
sonnel, temporary employees, and supervisors as de-
fined in the National Labor Relations Act.
WE WILL NOT discharge, refuse to reinstate, or other-
wise discriminate against our employees in regard to
their hire or tenure or terms or conditions of employ-
ment because they have engaged in protected concerted
activities for their mutual aid and protection or to dis-
courage membership in the Union, or any other labor or-
ganization, by refusing to reinstate striking employees en-
gaged in an unfair labor practice strike to their former or
substantially equivalent positions on their unconditional
applications to return or on the Union's unconditional
TRUMBULL MEMORIAL HOSPITAL 1473
application on their behalf to return to their former or
substantially equivalent positions and, further, by discri-
minatorily withholding employment from or replacing
our employees who were on sick leave or vacation status
because we suspected employees engaged in the above
strike or other protected concerted activity.
WE WILL NOT threaten our employees with discharge
or termination if they engage in a strike and, in addition,
WE WILL NOT warn our employees who engaged in a
strike to protest our unfair labor practice conduct that
they can be replaced like economic strikers.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain in good faith with the
Union as the exclusive bargaining agent of our employ-
ees in the unit with respect to rates of pay, wages, hours
of employment, and other terms and conditions of em-
ployment, and, if an understanding is reached, embody
such understanding in a signed agreement.
WE WILL, on request, furnish the Union in a timely
manner with requested relevant data pertaining to the
performance of unit work by nonunit personnel.
WE WILL offer to all of our striking employees—in-
cluding but not necessarily limited to those listed in
Schedule A—immediate and full reinstatement to their
former positions or, if their former positions no longer
exist, to substantially equivalent positions, without preju-
dice to their seniority or other rights and privileges pre-
viously enjoyed, discharging if necessary all persons
hired after midnight of July 31, 1982; and make them
whole for any loss of pay they may have sustained, as a
result of our unlawful action, with interest.
WE WILL offer to our employees listed in Schedule B
annexed hereto immediate and full reinstatement to their
former positions or, if their positions no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, previously
enjoyed, discharging if necessary any persons hired after
midnight of July 31, 1982; and make them whole for all
loss of pay that they may have sustained as a result of
our unlawful action, with interest.
TRUMBULL MEMORIAL HOSPITAL