Waterbury Hospital

National Labor Relations Board - Board Decisions

Dec 21, 1990

300 N.L.R.B. 992 (N.L.R.B. 1990)

992
300 NLRB No. 140
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 No exceptions have been filed to the judge’s finding that the Respondent
violated Sec. 8(a)(3) and (1) of the Act by granting strike replacements and
crossovers superseniority for a 12-month period following the conclusion of
the strike, and his findings that the complaint allegations are neither barred
by Sec. 10(b) nor appropriate for deferral to the grievance-arbitration machin-
ery of the parties’ collective-bargaining agreement.
1 On November 19, 1987, in response to a motion for more definite state-
ment filed by the Respondent, the General Counsel identified the strikers al-
leged to have been unlawfully denied reinstatement as those strikers whose
prestrike positions at the hospital were awarded to nonstriking employees who
were not physically performing the duties of the position on a permanent basis
as of the conclusion of the strike.
2 The Union filed a brief statement adopting ‘‘verbatim the post-hearing
brief submitted by the General Counsel.’’
The Waterbury Hospital and Connecticut Health
Care Associates, District 1199, National Union
of Hospital & Health Care Employees, AFL–
CIO. Case 39–CA–3315
December 21, 1990
DECISION AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT
On March 22, 1990, Administrative Law Judge
Jesse Kleiman issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed an answering brief.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the judge’s recommended Order
as modified.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, the
Waterbury Hospital, Waterbury, Connecticut, its offi-
cers, agents, successors, and assigns, shall take the ac-
tion set forth in the Order as modified.
Substitute the following for paragraph 2(c).
‘‘(c) Post at its hospital facility in Waterbury, Con-
necticut, copies of the attached notice marked ‘‘Appen-
dix.’’104 Copies of the notice, on forms provided by
the Regional Director for Region 34, after being signed
by the Respondent’s authorized representative, shall be
posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
Michael A. Marcionese, Esq., for the General Counsel.
G. Bradford Palmer, Esq. and Floyd J. Dugas, Esq.
(Carmody & Torrance, Esqs.), of Waterbury, Connecticut,
for the Respondent.
Barbara J. Collins, Esq. (Gagne & Associates), of Hartford,
Connecticut, for the Union.
DECISION
STATEMENT OF THE CASE
JESSE KLEIMAN, Administrative Law Judge. On the basis
of a charge filed with the Board on December 31, 1986, by
Connecticut Health Care Associates, District 1199, National
Union of Hospital & Health Care Employees, AFL–CIO (the
Union), the General Counsel of the National Labor Relations
Board, by the Officer-In-Charge for Subregion 39, Hartford,
Connecticut, issued a complaint and notice of hearing on Oc-
tober 29, 1987, against The Waterbury Hospital (the Re-
spondent) alleging that the Respondent engaged in certain
unfair labor practices within the meaning of Section 8(a)(1)
and (3) of the National Labor Relations Act (the Act).1 On
November 30, 1987, the Respondent, by counsel, filed an an-
swer denying the material allegations in the complaint.
A hearing was held before me in Hartford, Connecticut, on
April 11, 12, 13, 14, 15, 26, and 27, 1988. All parties were
afforded full opportunity to appear, to introduce evidence, to
examine and cross-examine witnesses, to argue orally on the
record, and to file briefs. At the hearing, the complaint was
amended to delete the General Counsel’s request for the in-
clusion of a visitatorial provision as part of any remedial
order issued in this case. Counsel for the General Counsel
moved to amend the complaint further, to specifically allege
that the Respondent discriminatorily awarded preference in
scheduling hours of work and shifts to nonstriking employees
in the hemodialysis department. I denied this motion. More-
over, at the opening of the hearing the Respondent, in writ-
ing, moved for ‘‘ Dismissal and/or Partial Summary Judg-
ment’’ of paragraph 11 of the complaint, on the grounds that
the alleged denial of reinstatement to strikers was barred by
Section 10(b) of the Act, and of paragraph 9 of the com-
plaint on the grounds that the alleged grant of superseniority
to nonstrikers was moot. I reserved decision on these mo-
tions. At the conclusion of the hearing the Respondent re-
newed its previous motions and additionally moved to dis-
miss the complaint for failure to state a cause of action and
for the Board to defer to arbitration in this matter. I reserved
decision on these motions as well. Thereafter the General
Counsel and the Respondent filed briefs.2 For the reasons ap-
pearing hereinafter, I deny the Respondent’s above motion in
their entirety. On the entire record and the briefs of the par-
ties, and on my observation of the witnesses, I make the fol-
lowing
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, at all times material, has been a Con-
necticut corporation with its office and principal place of
business in Waterbury, Connecticut, engaged as a health care
institution in the operation of a hospital providing inpatient
and outpatient medical and professional care services. In the
993WATERBURY HOSPITAL
3 At the time of the commencement of this hearing, Norma Shidlovsky had
retired from the Respondent’s employ, effective November 13, 1987.
4 In its answer, the Respondent alleges that:
[S]ince on or about October 4, 1986, Respondent has not reinstated to
their former positions of employment certain striking employees (at most
two and each of whom was offered and accepted another comparable po-
sition) whose pre-strike positions had been awarded to replacements (in-
cluding employees who abandoned the strike), who were not physically
performing the duties of said position on a permanent basis as of the con-
clusion of the strike.
Moreover, the Respondent also asserts in its answer that the alleged grant
of superseniority was part of a strike settlement agreement on October 3, 1986,
which provided that ‘‘any employees permanently employed and working in
the nursing bargaining units on such date would not be subject to being
bumped during the recall period of 12 months from the ratification date,’’ and
that such provision ‘‘is now moot since the 12-month period has expired and
no employee was laid off as a result of the operation.’’
5 Historically, the Union and the Respondent have negotiated collective-bar-
gaining agreements for these two units concurrently with many items common
to both contracts.
6 Since the Respondent’s final offer was conditioned on the immediate re-
turn to work of the RNs and LPNs, notwithstanding that agreement had not
yet been reached with NEHCEU regarding the service and maintenance em-
ployees, the Union’s acceptance of the offer would have required the RNs and
LPNs to cross the picket lines of these employees in order to comply.
7 According to the Respondent’s witnesses, when the Union rejected its final
offer of June 23, 1986, and indicated that the RNs and LPNs would not return
to work until agreement was also reached with the service and maintenance
employees, the Respondent ‘‘turned its attention’’ to the NEHCEU negotia-
tions solely. There being no progress thereafter in the negotiations between the
Respondent and NEHCEU despite government mediation efforts, in early July
1986 the Respondent declared an impasse in bargaining with both Unions. Ac-
cording to the General Counsel’s witnesses the Respondent rejected efforts by
the Union in July 1986 to resume negotiations with the Union.
8 Norma Shidlovsky, the associate director of nursing at the time, testified
that the Respondent’s plan for reopening the hospital was first to reopen the
Continued
course and conduct of its business operations during the pre-
ceding 12 months, these operations being representative of its
operations at all times material, the Respondent derived gross
revenues in excess of $250,000, and purchased and received
at its hospital facility products, goods, and materials valued
in excess of $250,000 directly from points outside the State
of Connecticut. The complaint alleges, the Respondent ad-
mits, and I find that the Respondent is now, and has been
at all times material, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
The complaint also alleges, the Respondent admits, and I
find that Paul Hefferman, director of human resources, Janice
H. Riding, assistant director of human resources, and Norma
Shidlovsky, associate director of nursing, are now,3 and have
been at all times material, supervisors of the Respondent
within the meaning of Section 2(11) of the Act, and agents
of the Respondent within the meaning of Section 2(13) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the Respondent admits, and I find
that Connecticut Health Care Associates, District 1199, Na-
tional Union of Hospital & Health Care Employees, AFL–
CIO, is a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges that the Respondent violated Section
8(a)(1) and (3) of the Act by failing and refusing to reinstate
to their former positions of employment certain of its em-
ployees who had engaged in a strike and on whose behalf
the Union had made an unconditional offer to return to work,
and by granting superseniority benefits in the form of pref-
erences in terms and conditions of employment to employees
who either did not engage in or abandoned the strike en-
gaged in by employees represented by the Union. The Re-
spondent denies these allegations.4
A. The Evidence
The Respondent operates a nonprofit community hospital
(Waterbury Hospital) with a 505-bed capacity, providing a
wide range of inpatient and outpatient services in Waterbury,
Connecticut. The Union has represented the Respondents
nursing employees for many years in two separate bargaining
units—one consisting of registered nurses (RNs), including
assistant head nurses (AHNs), and the other consisting of all
licensed practical nurses (LPNs).5 The Respondent’s service
and maintenance employees are represented by a different af-
filiate of the same International Union, New England Health
Care Employees Union, District 1199 (NEHCEU). In May
1986, the Respondent employed approximately 1800 employ-
ees, including 450 RNs, 150 LPNs, 500 service and mainte-
nance workers with the remainder being nonunion employ-
ees. The patient census at Waterbury Hospital in the spring
of 1986 was approximately 350–360 persons.
In early March 1986, the Respondent and the two unions
commenced negotiations for new collective-bargaining agree-
ments to replace the contracts due to terminate on May 31,
1986, but the parties were unable to reach agreement before
these contracts expired. After strike notices were served on
the Respondent by the Union and NEHCEU, the Respondent
decided to close the hospital, transferring its patients to other
facilities or sending them home where applicable, canceling
surgical procedures and outpatient services, and laying off all
its employees. When the contracts expired on May 31, 1986,
the hospital was effectually ‘‘fully shut down.’’ NEHCEU
commenced a strike against the Respondent on June 1, 1986
and the Union followed suit on June 4, 1986. However, ne-
gotiations between the parties continued and on June 23,
1986 the Respondent presented the Union with its final offer
contingent upon the RNs and LPNs agreeing to return to
work immediately. This offer was rejected by the Union and
the strike continued.6 Thereafter, no negotiation sessions
were held between the parties until August 13, 1986, by
which time the Respondent had reached agreement with
NEHCEU for a bargaining contract covering the service and
maintenance employees.7 This agreement did not require the
service and maintenance employees to return to work until
the Respondent reached agreement with the Union regarding
the RNs and LPNs.
Responding to concern for patients in need of prenatal care
and prescription renewals and for those who did not have
their own physicians, the Respondent opened its Chase Clinic
sometime in mid-June 1986, and the following week, its One
Day Surgery unit because of community need for surgical
services. Both these units were staffed by managerial and/or
supervisory nursing employees. Subsequently, in or about
July 4, 1986, in response to pressure from its own staff doc-
tors and continuing concern for the medical needs of the
community, the Respondent decided to reopen the hospital
completely.8 Denise Shanahan, the Respondent’s director of
994 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
surgical-medical floors known as the Pomeroy wing (first Pomeroy 7, then sur-
gical beds on other Pomeroy floors), then obstetrics/gynecology and pediatrics,
with the operating room and critical care areas being expanded as more beds
opened and patient census increased.
9 The Respondent did not advertise at all for service and maintenance re-
placements although these employees were also still on strike at the time.
10 Nursing employees who abandoned the strike and returned to work will
subsequently be referred to as ‘‘crossovers,’’ and newly hired nursing employ-
ees and crossovers will be collectively referred to as ‘‘nonstrikers’’ or non-
striking employees. Shidlovsky testified that the majority of nurses working
during the strike were crossovers and not newly hired nursing employees.
11 The Respondent’s witnesses identified these nursing employees as Sandy
Stewart, Betty Karas, and Joan Brierly. Apparently none of these nurses were
working on July 14, 1986. Stewart returned to work on July 28, 1986, and
Karas and Brierly sometime in August 1986.
12 Prior to the strike the Respondent utilized an ‘‘Agreement of Appoint-
ment’’ form for newly hired employees. In comparing the two forms I noted
a substantial difference in the scope of the information sought and the under-
lying purpose for these documents. The ‘‘Agreement of Appointment’’ is a
fairly comprehensive employment agreement listing the terms and conditions
of employment while the ‘‘individual contracts’’ used during the strike merely
sets forth the job the nursing employee was hired for with an assurance of
continued employment after the strike ends, this latter purpose being the most
obvious reason for the document.
13 On August 11, 1986, the Respondent and NEHCEU negotiated a settle-
ment of that strike regarding the service and maintenance employees.
14 The Respondent had proposed a similar return to work provision on June
23, 1986, before it commenced advertising for replacements.
15 This meant that hospital units would be reopened and striking nursing em-
ployees recalled only as needed and based on patient census.
16 463 U.S. 491 (1983). The Supreme Court held that permanent replace-
ments for strikers could sue an employer for breach of contract and misrepre-
sentation if they were terminated at the end of an economic strike. Heffernan
testified that the Belknap decision was the basis for the Respondent’s position
that the ‘‘individual contracts’’ were legally binding on the Respondent as re-
gards the nonstriking employees.
17 Heffernan testified that he had been made aware of the Belknap decision
before the Respondent began advertising for replacements on July 13, 1986,
and before the drafting of the ‘‘individual contracts.’’ This would also have
been prior to any nurses having expressed their ‘‘concerns’’ regarding the
Union’s July 14, 1986 newsletter.
nurses at the time, testified that although the Respondent
wanted its own nursing staff back at the hospital on reopen-
ing, because of the lack of progress in ending the strike in
the foreseeable future the Respondent began advertising for
RNs on July 13, 1986, and on September 3, 1986, for
LPNs.9
On or about July 3 or 4, 1986, some of the striking nurs-
ing employees crossed the picket line and returned to work
and the Respondent began hiring new nurses in mid-July
1986. The evidence indicates that the new nursing employees
were hired for, and the crossovers were transferred to, what-
ever positions they requested or on whatever shifts they
wanted, and although each nonstriking employee was hired
for a specific job, they were told that if their hospital unit
or department was not yet opened, or where hospital staffing
needs dictated otherwise, they would be temporarily utilized
in a different area or position until their specific job became
available or the need ended.10
During the strike the Union published a strike newsletter
and in its July 14, 1986 issue asserted that all the striking
employees would be returned to their former positions at the
end of the strike, bumping any newly hired employee or
crossover who had taken their job during the strike. Accord-
ing to the Respondent’s witnesses, both replacement nurses
and some of the crossover nurses expressed concern to man-
agement regarding the permanency of their new positions
after the strike ended.11 In response to the Union’s newsletter
and employee concern, the Respondent issued its own letter
dated July 16, 1986, to all nursing employees in which it as-
sured the nonstrikers that their jobs were permanent and that
they would not be displaced by the returning strikers at the
conclusion of the strike.
Moreover, the Respondent required each newly hired or
crossover employee to sign a letter of employment referred
to as an ‘‘individual contract’’ in which it assured these non-
striking employees that their continuing employment was for
a permanent designated position which they would retain
‘‘regardless of how the labor dispute is finally resolved.’’12
The Respondent’s witnesses conceded that some of these in-
dividual contracts were for positions in areas of the hospital
which were not yet open.
When negotiations between the parties resumed on August
13, 1986,13 the return to work of the striking nursing em-
ployees became a paramount issue because of the hiring of
‘‘replacements’’ by the Respondent. The Union proposed that
all employees be returned to their prestrike positions.14
Under this proposal, nursing employees who crossed the
picket line and returned to work would be treated the same
as the striking employees. The Union maintained that there
were sufficient vacancies, both prestrike and those resulting
from nurse resignations during the strike, to accommodate all
of the newly hired employees. The Respondent would not
agree to the Union’s proposal asserting that it had a ‘‘legal
and moral’’ commitment to the nonstriking nursing employ-
ees and therefore would not allow the ‘‘bumping’’ of any of
these employees by the returning strikers. Paul Hefferman,
the Respondent’s director of human resources at the time and
a member of its negotiating committee testified that this
‘‘commitment’’ extended to all nonstriking employees in-
cluding those who had taken jobs in which they were not yet
working, as well as to any future nonstriker hired while the
strike was still in progress. The Union indicated that there
would be no strike settlement without the Respondent’s
agreement to the Union’s ‘‘amnesty’’ proposal.
The parties met again on August 18, 1986, with the Re-
spondent submitting a return to work proposal providing for
the recall of strikers on a ‘‘census-driven’’ basis.15 This pro-
posal also included a provision indicating that nothing in the
settlement agreement would constitute a waiver of the par-
ties’ legal rights, nor preclude them from pursuing any civil
or criminal remedies they may have in connection with the
strike, a ‘‘no waiver of rights’’ clause. Representatives of the
Respondent and the Union met again on August 19, 1986,
and on that same day the Respondent’s president, John
Tobin, sent letters to all the nursing employees, both striking
and nonstriking, with a copy of the U.S. Supreme Court’s
decision in Belknap, Inc. v. Hale,16 and a copy of its ‘‘free-
dom of choice’’ proposal allowing nonstriking nurses to re-
sign from the Union under the union-security provision of
the collective-bargaining agreement.17
The Respondent and the Union met again on August 25,
1986. According to the Union’s witnesses, at this meeting the
Union requested that the return to work issue be set aside
and discussion of other contract issues go forward. Heffernan
testified that because it was the Union’s position that it
would reject any proposed contract package which did not
include the return of the strikers to their prestrike jobs (am-
nesty demand), the Respondent rejected the Union’s request
995WATERBURY HOSPITAL
18 As indicated by the record evidence, the Respondent’s plan was to open
Pomeroy 5, i.e., the surgical floor, the critical care units, the maternal/child
unit which includes postpartum and pediatrics, and to offer ‘‘full services’’ in
the emergency room, which according to the Respondent’s proposal depended
on availability of critical care beds. Next would be the expansion of hospital
areas such as Pomeroy 7, the recovery room, one-day surgery, hemodialysis,
and Nerriman II, i.e., the second floor in the psychiatry department, which at
that time had been opened on a limited basis only. The Respondent maintained
throughout the return to work discussions that the recall of strikers, ‘‘is subject
to change depending on patient census and work load requirements.’’
19 These lists identified positions as being committed to RNs and/or LPNs
in areas such as Pomeroy 5, Pomeroy 3 (pediatrics), and postpartum (west
wing 3 (WW3)), areas of the hospital which were not opened until after the
strike ended. In addition, positions are identified as ‘‘committed’’ to RNs in
areas such as the recovery room (RR), the emergency room (ER), hemo-
dialysis, cardiology, and vascular which were opened on a limited basis and
with a significantly reduced patient load.
20 Denise Shanahan, a recovery room supervisor, testified that during the
strike the Respondent employed seven nurses, including a head nurse, in the
recovery area to handle a census of 3–4 cases per day, including four newly
hired day-shift nurses alleged to be inexperienced, Maria Rogue, Carole
Ademek, Cheryl Angel, and Theodora Hamilton. The prestrike census aver-
aged 25–30 patients daily covered by a staff of 5 experienced nurses, including
the head nurse. However, Ann Collins, a witness for the General Counsel testi-
fied that when she returned to work in the recovery room after the strike
ended in October 1986, some of these newly hired nurses were in attendance
at training classes and therefore not performing duties in this area.
21 The ‘‘Return to Work Procedures and Timetables’’ proposal also provided
that when a displaced striker’s former position reopened, it would be offered
to her before being put up for bid.
and insisted that the parties resolve the return to work issues
first. The Union also proposed that the bargaining agreement
be modified to give probationary employees hired during the
strike job-bidding and recall rights to ensure their ‘‘contin-
uous employment.’’ The Respondent rejected this proposal
on the basis that its commitment to nonstriking nursing em-
ployees was for specific positions and that these positions
were therefore not available to returning strikers.
Also at the August 25, 1986 meeting the Respondent sub-
mitted a document to the Union entitled ‘‘Return to Work
Priorities As of August 25’’ which it asserted was a plan for
reopening the hospital rather than a proposal, and was not
negotiable. Under this plan the Respondent would recall
striking nursing employees to ‘‘available’’ positions in their
prestrike hospital unit according to seniority, ‘‘available’’ po-
sitions being defined as those not committed to nonstriking
employees.18 The Union was told at this and prior meetings
by the Respondent’s legal counsel and spokesman, G. Brad-
ford Palmer, that it was uncertain whether some of the strik-
ers would ever be recalled to jobs because the Respondent
did not know if its census would ever return to prestrike lev-
els or how long it would take to reopen all hospital areas.
Barbara Larson, the Union’s secretary-treasurer, testified
that during the August meetings between the parties, the
Union had requested information from the Respondent which
it needed in order to be able to bargain with the Respondent
concerning the return to work issue. Specifically, the Union
requested copies of the ‘‘individual contracts’’ which the Re-
spondent had signed with nonstriking nursing employees, and
a list of the positions occupied by such employees, further
identifying the crossovers who had taken positions different
from those they held before the strike. On September 12,
1986, the Respondent gave the Union lists identifying those
positions committed to new hires and to crossovers,19 and
during the last week of negotiations, September 29–October
3, 1986, furnished the Union with a copy of the ‘‘individual
contract’’ form used during the strike to hire nonstriking em-
ployees.
Witnesses for the General Counsel testified that during the
first 2 weeks in September 1986 the parties held several sub-
committee meetings at Attorney Palmer’s office to try to re-
solve the return to work issue, which had become the major
obstacle to settlement of the strike. Representatives of both
parties sought to find positions for both the striking and non-
striking nursing employees. It would appear that during these
meetings the Union’s representatives sought to have the
striking employees returned to their prestrike positions while
nursing employees hired during the strike would be moved
into vacancies created by employee resignations occurring
during the strike. However, Palmer insisted during these
meetings that it was the striking nursing employees and not
the newly hired and crossover employees who would have to
make the accommodation to available jobs. Moreover, during
late August and through September 1986, the Respondent
had accelerated its efforts to reopen the hospital by recruiting
nursing employees for all positions. However, it appears
from the evidence that such recruitment and assignment of
nonstriking employees continued notwithstanding that the as-
signed hospital unit was still actually closed or that the hos-
pital area had a significantly reduced patient census at the
time.20
Full negotiations between the Respondent and the Union
resumed on September 17, 1986. The Respondent informed
the Union that Pomeroy 5, Pomeroy 3 (pediatrics),
postpartum (WW3), and the IV therapy departments of the
hospital had not as yet reopened, and that some of the non-
striking nurses were not working in the positions for which
they had been hired. They were ‘‘rotating’’ through the areas
in which their jobs were located, but would be working in
these jobs soon. The Union suggested that the Respondent
cease hiring any new nursing employees since it already had
trained, experienced employees on strike who could return to
their jobs once the strike was settled. The Respondent re-
jected this suggestion.
Connecticut State Labor Commissioner, Joseph Peraro, en-
tered the negotiations as mediator on September 29, 1986.
During that final week of the strike Peraro shuttled between
the parties respective caucus rooms with various proposals,
information, and suggestions in a round of intense negotia-
tions to facilitate an agreement and settle the strike. At the
September 29, 1986 negotiations the Respondent agreed to a
hiring moratorium, a freeze on the hiring of any new RNs
or LPNs. Heffernan testified that at this time the Respondent
employed 109 staff nurses at the hospital; 28 newly hired
nurses, 62 crossovers who had returned to their prestrike po-
sitions, and 19 crossovers who had taken different jobs. At
this meeting, the Respondent submitted to the Union a list
of the outstanding issues to be resolved and a ‘‘Return to
Work Procedures and Timetables’’ proposal. These latter
procedures were applicable only to nursing employees re-
maining out on strike since the Respondent consistently
maintained the position from August 13, 1986, on that the
jobs committed to the nonstriking nurses would not be avail-
able to the striking nurses and LPNs at the conclusion of the
strike.21 The Respondent had also given the Union, at this
meeting or shortly before, a document showing how the re-
turn to work would proceed. This document was also pre-
mised on the view that strikers would be returning only to
996 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
22 Heffernan testified that 40 additional hours were added in the emergency
room day shift and 80 additional hours in the one-day surgery department.
23 The Respondent asserts in its brief:
Respondent’s Exhibit 10 created the possibility that nurses who had not
been reinstated might have the opportunity to ‘‘bump out’’ permanent re-
placements even though no such rights existed under the normal seniority
provisions of Article XVI of the Union Agreement. . . . The twelve
month rule was discussed in the context of the negotiation of the return
to work procedures. Its purpose was to assure that those nurses to whom
permanent commitments of employment were made would not be subject
to being replaced by virtue of the proposed Return to Work Procedures
and Timetables, R. Exh. 10.
The Respondent continues in its brief that the 12-month period was chosen
because, ‘‘First it was expected that twelve months would be the maximum
length of the recall period, and that all uncertainties would be resolved one
way or the other by then. Secondly, the standard seniority recall period under
both past and the new Collective Bargaining Agreement was Twelve months.’’
24 Larson testified that she had make this offer based on her belief that if
Peraro pulled out of the negotiations, the Respondent would rescind its hiring
freeze on strike replacements, and the strike might continue on thereafter in-
definitely. The testimony of Shidlovsky, a witness for the Respondent, appears
to corroborate Larson’s version of what occurred at this meeting. Moreover,
Shidlovsky acknowledged that the Union opposed the 12-month rule proposal
throughout the remainder of the negotiations.
25 In its final proposal the Respondent had changed the language ‘‘any union
employee’’ to ‘‘any employee in the bargaining unit.’’
26 This provision refers to the Respondent’s return to work procedures and
timetables dated September 29, 1986, which identified procedures under the
positions not yet committed to new hires or crossover nurses.
The Union’s position regarding the return of the striking
nurses was also consistent in that it wanted all striking nurs-
ing employees returned to their prestrike positions and that
new hires would bid on any remaining vacancies .
On September 30, 1986, the Respondent submitted to the
Union an ‘‘Alternate Job List’’ proposal which Heffernan
testified constituted an attempt by the Respondent to provide
each displaced striker with an equivalent position to the job
she/he held prior to the strike. Heffernan testified that the
Respondent offered to create additional hours in the emer-
gency room and one-day surgery units as a way of rehiring
some of the displaced strikers to their former departments
and shifts.22
On October 1, 1986, the Respondent proposed for the first
time, through Peraro, the so-called 12-month rule. This rule
provided for a 12-month period within which nonstriking
nursing employees could not be replaced or ‘‘bumped’’ from
their ‘‘permanently committed’’ positions.23 Larson testified
that on October 2, 1986, she and Dan Stewart, an Inter-
national Union representative, representing the Union, and
Palmer and Shidlovsky for the Respondent met to discuss the
12-month rule proposal. Larson told the Respondent that the
12-month no-bumping proposal was totally unacceptable.
Larson stated that in or about this time, October 1 or 2,
1986, Peraro had told the Union’s negotiators that he would
withdraw from the negotiations if the parties had not reached
an agreement by the end of that week. Larson related that
in an attempt to work out a settlement, she offered a shorter
period, from 1 day to 6 months, but Palmer advised the
Union that the Respondent would insist on the 12-month pe-
riod.24 At the conclusion of the negotiations on October 2,
1986, with the parties having failed to reach agreement on
settling the strike, Peraro suggested that each side prepare a
final written proposal on all the unresolved issues for sub-
mission the following day.
The Respondent submitted a final proposal to the Union
on October 3, 1986, containing a 12-month no-bumping pro-
vision as follows:
A position will not be considered available where a per-
manent employment commitment to the position has
been made by the Hospital to an individual prior to the
date of ratification of the new nurses contract. Any
such permanent employee shall not be subject to being
bumped during the recall period of twelve (12) months
from the ratification date; his/her own benefit, bidding,
and bumping rights shall be determined by his/her reg-
ular seniority. For a period of ten days after the ratifica-
tion date each individual in the bargaining unit who has
returned to work prior to the ratification date, shall
have the right to elect not to be required to join and/or
thereafter to maintain membership in Unit #10 (CHCA)
in good standing as a condition of continued employ-
ment with the Hospital under Article XXVIII. Any indi-
vidual not so electing within the ten (10) days period
shall be subject to all the provisions of Article XXVIII.
Any such election shall be in writing with copies sent
or delivered to the Union and the Hospital.
In addition, the Respondent’s final proposal incorporated
by reference the return to work procedure and timetables
dated September 29, 1986, submitted to the Union earlier
that week, and its return to work proposal dated August 15,
1986. Thus, the Respondent’s final proposal also included
the following provisions.
C. Nothing in this agreement shall constitute a waiv-
er of any legal rights which the Hospital or the Union
may have, (1) to appeal any decision as to the payment
of employment compensation benefits; (2) to pursue
any claims regarding short term disability, worker’s
compensation, group insurance benefits or any notices
or recoveries relating thereto; or (3) with regard to em-
ployees not represented by the Union.
D. The Hospital and the Union agree, except as oth-
erwise provided for in their Return to Work under-
standings that they shall not discriminate against or pe-
nalize any union employee25 who participated or did
not participate in the strike. The Hospital agrees that it
will not discipline employees for activities taking place
during the strike and prior to recall; provided, however,
that it retains the right to discipline any such activity
which is determined to constitute a felony under
Federal/State Law. Nothing herein shall preclude either
Party, or any individual from pursuing any other civil
or criminal rights they may have.
The Union’s return to work proposal submitted to the Re-
spondent on October 3, 1986, provided, inter alia:
1. Strikers and working nurses shall be returned to
their prestrike position, unit and shift.
2. No currently working employee shall experience
an interruption of employment as a result of this settle-
ment.
4. Hospital proposal re: Return to Work, ‘‘II. End of
30 Days’’ shall govern return to work procedures.
‘‘Bumping’’ is recognized as a last report and currently
working employees shall be exempt from this for six
(6) months.26
997WATERBURY HOSPITAL
contract, such as the voluntary reduction in hours, shift cancellations, sharing
hours, etc., which could be used to return to work the striking nurses.
27 The ‘‘individual employee contracts’’ in this proposal refers to the ‘‘indi-
vidual contracts’’ which the Respondent used to employ nonstriking employees
during the strike.
28 However, in its brief the Respondent asserts that the ‘‘twelve month rule’’
had a ‘‘limited effect,’’ and that the Union recognized this as evidenced in
a letter from Larson to Hefferman dated November 18, 1986. It should be
noted that Larson’s letter does acknowledge the Union’s belief as to such
‘‘limited effect,’’ but alleges that the Respondent was not applying the rule
as limited in some instances. The Respondent acknowledges in its brief that:
95. Specifically, the twelve month rule provided only limited protection
to new hires and crossovers against the possibility of being bumped dur-
ing the recall period by operation of the recall provisions. The new hires
and crossovers were subject to all other fluctuating economic conditions
and contractual provisions as the strikers were, including those governing
floating, reallocation of the unit, temporary layoff, permanent layoff (the
nurse could not be ‘‘bumped’’ for 12 months but she could bump another
nurse if she were laid off for any reason), rotation, voluntary and perma-
nent reduction of hours, hours of work and conditions of employment,
temporary reassignments, and shift cancellations.
96. Furthermore, CHCA understood that the twelve month rule ceased,
inter alia, upon a job bid or upon any permanent change in the position
occupied at the time of ratification.
I am not sure that this was the Union’s understanding of this provision.
29 In an affidavit dated November 14, 1986, given to a Board agent during
the investigative stage of these proceedings, Heffernan had indicated that this
was the way the 12-month no-bumping provision would work. Hefferman tes-
tified that the purpose of this proposal was to ensure that a permanent replace-
ment would not be rendered temporary by activation of the procedures speci-
fied in the Respondent’s September 29, 1986 proposal (return to work proce-
dures and timetables) which were to occur after 30 days. However, witnesses
who testified as to what occurred at the September 29, 1986 negotiations, re-
called that the Respondent had clearly indicated, when it proposed these proce-
dures such as bumping, that they would not be applicable to the permanent
replacements.
30 One of the unfair labor practice charges pending at the time, Case 39–
CA–3200, included allegations concerning these ‘‘individual contracts,’’ and
subsequent to the negotiations’ conclusion, the Union amended the charge to
allege that the assignment of specific jobs to nonstriking nurses through these
individual contracts violated Sec. 8(a)(1), (3), and (5) of the Act.
31 The Union’s final settlement proposals on October 3, 1986, contains the
following:
The return to work Settlement Agreement does not constitute a waiver
of CHCA’s right to seek judicial and administrative legal relief as may
be available, specifically, Unfair Labor Practice charges filed related to
individual employee contracts executed by the Hospital during the strike.
5. The return to work Settlement Agreement does not
constitute a waiver of CHCA’s right to seek judicial
and administrative legal relief as may be available, spe-
cifically, Unfair Labor Practice charges currently filed
related to individual employee contracts executed by
the Hospital during the strike.27
The Respondent and the Union exchanged their final pro-
posals during the morning of October 3, 1986. Later that day
the parties full negotiating committees met, Palmer reviewed
each of the Respondent’s final proposals with a great deal of
discussion arising with regard to the Respondent’s return to
work provision of the offer. According to the Union’s wit-
nesses, Larson and other members of the Union’s committee
questioned the 12-month no-bumping proposal and how it
would work. Palmer explained that any nurse who worked
during the strike could not be bumped from her job no mat-
ter what during the 12-month period. This included layoff
situations and the closing or reallocation of a hospital depart-
mental unit.28 Thus, an RN or LPN with greater seniority
who worked in a closed or reallocated unit could not exercise
contractual bumping rights under article XVI(a) of the bar-
gaining agreement to replace a less senior nurse who had
worked during the strike.29 The Union’s committee rep-
resentatives, including Larson, raised objections to this provi-
sion as creating superseniority status for the nonstriking nurs-
ing employees.
After the Respondent’s proposals had been modified with
Peraro’s assistance, the parties met again during the evening
of October 3, 1986, and discussed the proposals submitted.
Larson testified that during the discussions and on the issue
of the return to work proposal, the Union had maintained its
position that the 12-month rule provision was illegal, that the
individual contracts of employment between the Respondent
and the nonstriking employees were also illegal, and that the
Union would continue to pursue the unfair labor practice
charges it had filed with the Board previously. Larson stated
that Palmer told the Union that the language he had included
in the Respondent’s proposals preserved the rights of both
parties regarding any outstanding legal issues and the pursuit
thereof. The employee-members of the Union’s negotiating
committee called as witnesses testified, in substance, that
during their final meeting with the Respondent, the Union
vehemently opposed the 12-month proposal, told the Re-
spondent’s representatives that it would not accept this pro-
posal, and that in accepting the Respondent’s final offer, as
modified, the Union was not waiving its right to maintain the
charges it had filed with the Board.
The testimony of the Respondent’s witnesses, Heffernan
and Shidlovsky, differs in some aspects to that given by the
Union’s witnesses. Shidlovsky testified that she did not recall
any discussion of the 12-month no-bumping provision at the
final meeting between the parties. However, Shidlovsky also
acknowledged that she had no clear memory of that meeting.
Shidlovsky did recall that the Union had objected to any
preference for nonstriking nurses throughout the negotiations
and that there had been some discussion regarding whether
the pending ‘‘unfair labor practice claims’’ would be with-
drawn. Heffernan at first could not recall any discussion of
the 12-month no-bumping rule with the Union’s representa-
tives on October 3, 1986. After Heffernan was referred to his
notes taken during the negotiation sessions which reflected
that a discussion of the no-bumping provision had been en-
gaged in, he recalled that the Union did tell the Respondent
on October 3, 1986, that it would not accept the Respond-
ent’s 12-month rule. Heffernan also testified that at this
meeting, the Union objected to the Respondent’s use of the
‘‘individual contracts’’ with nonstriking nursing employees
and indicated that it would pursue the unfair labor practice
charge filed with the Board regarding this issue.30 However,
Heffernan also testified that the Union indicated that it was
going to pursue the unfair labor practice charges filed relat-
ing only to the ‘‘individual contracts.’’31
On October 4, 1986, the Union presented the final pro-
posal to its membership for consideration noting that it was
not accepting the 12-month no-bumping proposal and was
pursuing unfair labor practice charges regarding the ‘‘indi-
vidual contracts’’ with the nonstrikers. The union members
ratified the proposed contract and the Union notified the Re-
spondent that the striking employees would be returning to
work. Heffernan testified that as of that date there were 109
nurses working at the hospital.
Larson testified that she and Heffernan continued to meet
to discuss the return to work proposal even though some
998 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
32 In mid-October 1986 soon after the contract had been ratified a summary
of the agreement was distributed to union members at a union meeting. The
summary states, inter alia, that:
A permanent replacement nurse given an ‘‘employment contract’’ during
the strike can not be bumped for a period of 12 mo. after ratification,
subject to decision of NLRB. All other provisions of article 16 seniority
apply.
Moreover, a summary of the return to work procedures also given to union
members at the same time contains at its conclusion, in caps:
The Union has not waived its right to pursue pending unfair labor prac-
tices on individual contracts to permanent replacements and any other
legal actions that remain unresolved.
33 6 a.m. to 2:30 p.m. and 9:30 a.m. to 6 p.m.
34 Morton testified that the normal ratio of nurses to patients should be one
staff nurse to three stable patients. The Respondent advertised for permanent
replacements for the striking hemodialysis nurses during the summer of 1986.
35 The parties stipulated that no ‘‘individual contract’’ of employment had
been executed between the Respondent and Mancini when the transfer to
hemodialysis took place.
36 Shidlovsky testified that she decided at this time to reinstate all the hemo-
dialysis nurses who had gone out on strike and who had not as yet returned
to work, so as not to lose their skills for the hospital. Interestingly, Morton
testified, in effect, that she would not have called back DeVito or two other
hemodialysis nurses after the strike ended, Elizabeth Kaminski and Mary Ellen
Griffin, because the patient census in hemodialysis was not sufficient to war-
rant their recall based on the number of nurses working in that unit. However,
Mancini had been hired toward the end of the strike despite a somewhat lower
patient census but admittedly with an adequate number of nurses already on
hand and working.
striking employees had already returned to work after the
strike had ended.32 Additionally, the Union commenced arbi-
tration proceedings against the Respondent alleging violation
of the terms of the return to work and recall agreement be-
tween the parties. In January 1988, Heffernan sent the Union
a ‘‘final return to work agreement.’’ Larson related that she
called Heffernan and told him that she was still concerned
about the agreement and wanted to consult the Union’s attor-
ney about its provisions. Heffernan asked if she was referring
to the unfair labor practices and Larson answered, ‘‘yes.’’
After discussion with the Union’s legal counsel, Larson made
changes reflecting the Union’s position as taken at the final
meeting on October 3, 1986, that the Union was not waiving
its rights to challenge the 12-month no-bumping provision
and the ‘‘individual contracts’’ with the nonstriking nursing
employees. Larson then signed the agreement and returned it
to Heffernan.
B. Striker Replacement and Recall
The record evidence shows that various areas of the hos-
pital such as Pomeroy 5, Pomeroy 3 (pediatrics), postpartum
(WW3), Merriman 2 (psychiatry), and the IV therapy depart-
ment, were not opened until after October 4, 1986, when the
strike ended. Other areas of the hospital such as
hemodialysis, the emergency room and the recovery room,
which were opened during the strike on a limited basis, con-
tinued serving a reduced patient census, when the striking
nursing employees began to return to work on October 5,
1986.
1. Hemodialysis
In May 1986 the census of the hemodialysis unit was 42
basic patients. At that time all the staff in hemodialysis were
on rotating day shifts33 except for two nurses, Jackie
Ashwood and Elizabeth Kaminski, who worked the evening
shift. The nurses on the day shifts were Head Nurse Jose-
phine Morton, Irene Marone, Nancy Banno, Elaine Purcaro,
Patricia DeVito, Jane Ann Cross, and Mary Ellen Griffin.
Additionally, Helen Brickel, an experienced hemodialysis
nurse, had bid into the unit from another hospital department
prior to the strike and was scheduled to begin working in
hemodialysis on June 2, 1986. After the strike began on June
4, 1986, and the hospital closed down, it was not until July
2, 1986, that the hemodialysis unit reopened on a limited
basis. Head Nurse Morton and four staff nurses, Marone,
Ashwood, Banno, and Purcaro, crossed the picket line and
returned to work. In mid-July 1986 Brickel also joined the
hemodialysis unit. Also working in hemodialysis were two
nursing supervisors, Joanne Valente and Celeste Williams,
who had dialysis experience and worked full time in the
hemodialysis unit during the strike. Morton testified that
when the hemodialysis unit first reopened the patient census
was 6 and increased to 12–15 by the end of July 1986. Thus,
a total of 8 nurses were covering a patient load of from 6–
15 patients during that month. Prior to the strike, 10 nurses
serviced an average daily census of 42 patients, including se-
vere acuity cases, which were not treated at the hospital dur-
ing the strike.34
Effective September 21, 1986, although she did not actu-
ally begin working there until approximately September 29,
1986, toward the end of the negotiations the Respondent
transferred nurse Rosemary Mancini, who had been em-
ployed full time on the night shift in Pomeroy 6 during the
strike, to a 32-hour part-time day position in the hemo-
dialysis unit.35 Mancini had no prior dialysis experience, al-
though Morton testified that she was fully qualified for the
hemodialysis position. At the time of Mancini’s transfer, the
hemodialysis unit had 22 patients and was staffed by 6 expe-
rienced nurses and 2 supervisors. By the end of the strike
there were still 26 patients being cared for in this hospital
unit. Moreover, because of the reduced patient census during
the strike the hemodialysis unit operated on a 12-hour, 3-
day-per-week schedule and an 8-hour evening shift. Morton
testified that the nurse staffing during the strike was suffi-
cient to handle the reduced poststrike patient census, which
was about 50 percent of what it had been prior to the strike.
Morton added that at no time after the strike did the hemo-
dialysis unit reach its prestrike patient census.
Both Morton, a witness for the Respondent, and Patricia
DeVito, a witness for the General Counsel, testified that
nurses who were hired for the hemodialysis unit were given
at least 3 to 6 months of specialized training in the work of
that unit as the abilities of the nurse required. Morton main-
tained that following her transfer into hemodialysis, Mancini
was in ‘‘orientation’’ or training status. DeVito, a nurse with
16 years of dialysis experience, testified that after the strike
ended, Morton told her that the patient census was not high
enough to allow her reinstatement to her job but that she
would be returned to work when her ‘‘turn came up.’’
DeVito was reinstated in late November 1986, after a griev-
ance was filed and a meeting held between the Union and
Norma Shidlovsky.36
The evidence shows that other striking nurses were not
fully reinstated to their prestrike shifts in hemodialysis be-
cause of a preference in scheduling hours for nonstriking
nurses. For example, Jane Ann Cross, who was reinstated on
October 10, 1986, to a different shift than she had worked
prior to the strike, was told by Morton that nonstriking
999WATERBURY HOSPITAL
37 Both Cross and Morton had more seniority than the other nonstrikers in
hemodialysis.
38 As set forth above, the General Counsel moved at the hearing to amend
the complaint to allege that the Respondent had violated Section 8(a)(1) and
(3) of the Act by discriminatorily awarding preference in scheduling hours of
work and shifts to nonstriking employees in the hemodialysis unit. I denied
this motion. The General Counsel renewed the motion in the brief and in the
alternative alleges that, ‘‘[A] finding of a violation based on this conduct, even
absent amendment of the complaint, is warranted, inasmuch as the issue was
fully litigated at the hearing.’’ I agree that the issue was fully litigated at the
hearing through evidence submitted by all the parties, and I will therefore con-
sider whether the Respondent’s acts in this connection constituted a violation
of the Act in the ‘‘Analysis and Conclusions’’ portion of this deci-
sion. A–1 Schmidlen Plumbing Co., 284 NLRB 1506 (1987).
39 The walk-in clinic treats patients with minor injuries, sprains, colds, stom-
ach ailments, and other non-life-threatening conditions. The normal staffing for
the walk-in clinic prior to the strike was one RN and a physician.
40 The emergency room records for the period August 31–October 4, 1986,
the period during the strike when the emergency room was open 24 hours
daily, shows that an average of 27 patients were treated during the 24 daily
hours.
41 Stewart is listed as having worked on the day shift on September 15 and
16, 1986, but on those days she actually appeared at a court injunction hearing
regarding the Union’s picketing activities.
42 During the first 4 weeks of her return to work, Stewart worked only one
evening a week in the emergency room. Thereafter, Stewart spent approxi-
mately one evening each week, until the end of the strike, working on either
Pomeroy 7 or in one of the ICUs.
43 Karas is listed on the day shift for September 15 and 16, those dates
being the days she appeared as a witness for the Respondent in the aforemen-
tioned injunction proceeding.
44 Kaminski also appeared at the injunction hearing on September 15 and
16, 1986. The Pomeroy 7 timesheets for the week of September 14, 1986, in-
dicate that these dates were the only days on which Kaminski is listed as hav-
ing worked on the day shift before September 29, 1986.
45 According to the testimony of nurses who had worked in the emergency
room, a new nurse would require a 2-week orientation, followed by on-site
training with an experienced nurse in addition to these classes before she could
work alone in the emergency room. Thus Kaminski was attending classes to
qualify as an emergency room nurse even after the striking nurses returned
to work.
46 Although Curtis’ ‘‘individual contract,’’ which is unsigned, indicates a
September 22, 1986 effective date for her transfer into the emergency room,
her personnel change record shows a September 28, 1986 effective date.
nurses were guaranteed their hours first. Cross testified that
she was required to fill in her hours with vacation days in
order to ‘‘get my forty hours.’’ Mary Ellen Griffin, who
prior to the strike held a full-time position in hemodialysis,
was reinstated approximately 1 month after the strike ended,
to a part-time position (16 hours). Griffin testified that Mor-
ton had told her that this was because the patient census was
down and the nonstriking nurses would receive their work
hours first.37 Morton did not specifically deny making such
statements and admitted that after the strike, her priority was
to give the worktime to the nurses who worked during the
strike, and then to the reinstated strikers by seniority, based
on census need and requirements.38 Morton related that prior
to the strike, if the census declined, the Respondent would
not reduce the hours of work of the nurses in the unit but
would use the extra time for additional educational program
opportunities for these nurses. Morton also testified that with
the exception of Kaminski who took maternity leave in Janu-
ary 1987, and who subsequently returned as a per diem
nurse, all the striking hemodialysis nurses have returned to
their prestrike hours.
2. The emergency room
The evidence shows that prior to the strike the emergency
room treated 130–135 patients on an average day, including
20–25 patients in its walk-in clinic. In June 1986 and after
the hospital had closed, the walk-in-clinic portion of the
emergency room was reopened on evenings and weekends.39
By the end of the strike, the clinic was open 24 hours, but
not accepting trauma cases normally treated in the emer-
gency room. The Respondent’s witnesses testified that full
emergency room services were not offered during the strike
because of the lack of critical care beds, this being attributed
to the shortage of staff nurses in those units to cover the
evening and night shifts. The total nursing staff in the emer-
gency room, prior to the strike was five RNs per shift on the
day and evening shifts and two RNs on the night shift.40
During the strike, the Respondent awarded full-time day-
shift positions in the emergency room to four RNs, replacing
four striking nurses. Sandra Stewart, a crossover who pre-
viously worked evenings in the emergency room, was award-
ed a day-shift position on July 28, 1986. Crossover Mary
Ann Kaminski, who previously worked as a float nurse on
the evening shift, signed for a day-shift position on July 31,
1986. Betty Karas, another crossover who previously worked
in the IV therapy department, was awarded a day-shift posi-
tion in the emergency room on August 10, 1986. Claudia
Curtis, who did not sign her individual contract and who had
been hired during the strike to work in the intensive care
unit, was given a day-shift position in the emergency room
on September 22, 1986. None of these four nurses started
working these day-shift positions on a permanent basis until
after the strike had ended. The Respondent’s timesheets for
the period of the strike show that Stewart continued to work
her prestrike evening shift from the time she returned to
work during the strike on July 28, 1986, until October 8,
1986, the date striking nurses were first recalled to positions
in the emergency room.41 Additionally, the timesheets show
that Stewart usually worked elsewhere, such as Pomeroy 7
and the intensive care unit (ICU), during the strike, even
though carried on the emergency room records.42
Karas signed an ‘‘individual contract with the Respondent
on August 10, 1986. Her name does not appear on the emer-
gency room timesheets until September 7, 1986, and from
that date until October 8, 1986, after the strike ended, Karas
worked the evening shift only.43 Prior to September 29,
1986, when Kaminski’s name appears on the emergency
room timesheets, she worked the evening shift on Pomeroy
7, the only medical/surgical floor open during the strike.44
Moreover, the emergency room timesheet for the week of
September 29, 1986, indicates that Kaminski was undergoing
orientation training while working on the day shift that week.
This timesheet also shows that at least one and sometimes
two experienced nurses, including the head nurse, Gladys
Benson, worked with Kaminski in the emergency room that
week.45 Curtis was hired by the Respondent during the strike
to work in the critical care unit and with the exception of
3 days, September 24, 25, and 26, 1986, when she was in
the emergency room on day-shift ‘‘orientation,’’ she worked
in the critical care unit during the strike.46 As testified to by
the Respondent’s witnesses, the critical care unit was one of
the areas that the Respondent had difficulty in opening dur-
ing the strike because of a lack of nurses.
The four striking nurses who were displaced by the award-
ing of day-shift positions in the emergency room unit to the
above nonstriking nurses were, Cathy Neri, Kathy Meehan,
Pat Krok, and Marge Anderson, all of whom had worked in
1000 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
47 Anderson is listed as one of the four striking nurses replaced by a non-
striker in the emergency room, in the General Counsel’s brief. Anderson is
also listed as a striking RN who was returned to a full-time evening-shift posi-
tion in the emergency room (R. Exh. 4).
48 Bacchiochi signed an ‘‘individual contract’’ for the alternating weekend
day-shift position on July 26, 1986. She did not begin working a day-shift
weekend position until the weekend of September 13 and 14, 1986. Actually
the record evidence indicates that Kaminski and a new hire, Imad Hamzi, who
had not signed an ‘‘individual contract’’ with the Respondent, covered the al-
ternate weekend hours that would have constituted Swiderski’s shift had she
been reinstated after the strike ended. Moreover, it was with Kaminski, not
Bacchiochi, whose switch of hours on the weekend day shift allowed
Swiderski to return to her prestrike position. Additionally when Swiderski re-
turned to working the weekends that her husband did not, she worked the op-
posite weekend from Bacchiochi instead of the same weekend as Bacchiochi.
49 Weigold testified that she had been assistant head nurse in the emergency
room, for 4-1/2 years before the strike with a total of 21 years’ emergency
room experience overall. According to Weigold, the assistant head nurse works
on the day shift, filling in for the head nurse in her absence and does not ro-
tate to other shifts.
50 Although the timesheet for the week after the strike has Semple listed as
the ‘‘AHN’’ for the first time, this timesheet is a revised one. The original
timesheet for that week has Semple listed as a staff nurse on the night shift.
51 Required would be a 4–6 week coronary care course and some additional
assistance to adapt to working as the assistant head nurse in that unit.
52 Shahen also listed the following nurses as part-time staff nurses in the
recovery room: Mary Jo Skiba, Donna Tragillia, Nancy Nisenti, Diane Martin,
Debbie Corangelo, Mary Campion, and Carolyn Povilaitis.
53 Shahen testified that staffing in the recovery room is based on patient
census with a desired patient/nurse ratio of 3 to 1.
this unit prior to the strike as day-shift staff nurses. Neri,
Meehan, and Krok were offered full-time positions in the
emergency room unit on the evening shift. Anderson was fi-
nally given a full-time day-shift position in the emergency
room when such an additional position was created by the
Respondent in an attempt to resolve the return to work
issue.47
Additionally, Leslie Swiderski, a striking staff nurse in the
emergency room working part time every other weekend on
the day shift prior to the strike, was not reinstated after the
strike. Swiderski testified that the alternate weekends she
scheduled for work were arranged so that she and her hus-
band could cover their child care needs. During the strike
Swiderski was a member of the Union’s negotiating com-
mittee and arranged a well publicized meeting between the
striking nurses and the doctors who use the hospital facilities,
including also the Respondent’s chief of staff, Dr. Amatruda.
She related that despite her offer to work nights and evenings
after the strike ended, she was told that her services were not
needed because her former position had been taken by a non-
striking crossover nurse, Elizabeth Bacchiochi, who had pre-
viously worked evenings at the hospital.48 Swiderski declined
the offer of different weekend hours because of her child
care scheduling problem. Swiderski returned to her prestrike
alternate weekend work schedule in the emergency room
when Mary Ann Kaminski, a nonstriking replacement nurse
agreed to relinquish these weekend hours to Swiderski, in
early December 1986.
In addition to the above striking staff nurses in the emer-
gency room displaced from their day-shift positions by re-
placement nurses, Dorothy Weigold, the assistant head nurse
of this unit was also not reinstated to her former position
after the strike ended.49 On August 10, 1986, Respondent
signed an ‘‘individual contract’’ with Donita Semple as the
assistant head nurse in the emergency room unit, Semple
having previously worked as a staff nurse on the day shift
in the emergency room. The evidence shows that on her re-
turn to work during the strike, Semple worked on the
evening shift, mostly in Pomeroy 7. On Semple’s appoint-
ment to assistant head nurse in the emergency room she was
working the day shift on Pomeroy 7. Between the weeks of
August 17 through August 30, 1986, Semple worked in the
emergency room on the day shift for 4 or 5 days, but during
this time she was not identified as the ‘‘Assistant Head
Nurse’’ on the timesheets. From August 29, 1986, until Oc-
tober 10, 1986, Semple worked exclusively on the night shift
in the emergency room.50 After October 10, 1986, Semple
worked as the assistant head nurse in the emergency room.
At the end of the strike not having reinstated Weigold to
her prestrike position as assistant head nurse in the emer-
gency room the Respondent offered Weigold the assistant
head nurse’s position in the coronary care unit. Weigold de-
clined this job offer because, as testified to by her, she
lacked the experience in this department necessary to per-
form the duties of assistant head nurse/coronary care unit and
because of the differences in the nature of the work between
the emergency room and coronary care units. However, the
Respondent’s witness, Shidlovsky, testified that Weigold
with some orientation would be qualified for the coronary
care position.51
3. Recovery room
According to the testimony of the Respondent’s witness,
Janet Shaken, the clinical supervisor of the recovery and the
operating rooms, the recovery room is the area of the hos-
pital where patients who received operative procedures are
kept after the operation and before their return to their
rooms. Prior to the strike, the recovery room shared space
with the one-day surgery unit which handled patients whose
surgery procedures did not require in-house preparation, re-
covery, and stay. One head nurse, Betty Ciriello, covered
both these units and one-day surgery had its own staff of
eight part-time staff nurses. The recovery room was staffed
by four full-time nurses, Ann Collins, Pat Angel, Shirley
Shannon, and Donna DaPonte, and on alternating days, part-
time staff nurses Anita Baldino and Carolyn Povilaitis during
the day-shift hours.52 While the Respondent had decided to
separate these two units with a head nurse for each, Ciriello
for one-day surgery and Virginia Napolitano for the recovery
room, during the strike the staff of the two units worked to-
gether and were listed on the same timesheet.
The recovery room reopened during the strike in mid-June
1986 to handle one-day surgery patients and started caring
for in-house surgical patients in July 1986. Shahen testified
that the recovery room processed 47 non-one-day surgery pa-
tients in July, 98 in August, and 120 in September 1986, an
average of 4 recovery patients per day. Prior to the strike,
the patient census in the recovery room, exclusive of one-day
surgery patients, was 25 per day.53
During the strike one of the full-time day-shift nurses,
Donna DaPonte, crossed the picket line and returned to her
prestrike position in the recovery room. Also during the
strike, the Respondent hired replacements for the other strik-
ing recovery room nurses, Barbara Lobdell, Carol Adamak,
and Maria Rongue for the full-time day-shift positions and
Cheryl Angel and Theodora Hamilton for the part-time alter-
nate day shifts. Shahen testified that by the end of the strike
and because of the low patient census then existing in the
1001WATERBURY HOSPITAL
54 The seniority lists for the assistant head nurse position, in evidence, show
that Cofrancesco was still identified as the assistant head nurse for Merriman
2, the floor not yet opened, in October, November, and December 1986. These
records also indicate that Stec is senior to Cofrancesco.
55 Actually, Cruz signed an ‘‘individual contract’’ with the Respondent on
September 22, 1986, for the assistant head nurse’s position in ‘‘Psychiatry in-
patient unit’’ effective August 25, 1986. However, the Respondent’s personnel
change record for Cruz indicates that she was hired for the assistant head
nurse’s position in Merriman 3, the unit that was open during the strike. Addi-
tionally, the timesheets used in the psychiatry department during the strike
identify neither Cofrancesco nor Cruz, as the assistant head nurse.
56 While Cindy Barrere, supervisor of the vascular lab, testified that Gee and
Baldwin each worked 20 hours in the vascular lab, with Gee working an addi-
tional 20 hours in the medical outpatient area of the hospital and that between
them Gee and Baldwin constituted the vascular lab’s ‘‘full-time equivalent,’’
she also testified that prior to the strike she had trouble justifying 60 hours
of nursing work in the vascular lab, which would indicate one full-time and
one part-time position, because of insufficient volume of testing work required.
57 Barrere was not trained to perform carotid studies using the machines in-
volved in the procedure and did not perform such work as had Gee.
58 The ‘‘individual contract’’ between Sugrue and the Respondent is dated
July 29, 1986.
recovery room, the Respondent had adequate staffing in this
unit.
Lobdell had been working as head nurse in the surgical in-
tensive care unit prior to her acceptance of a full-time day-
shift position in the recovery room. Adamak was an evening-
shift float nurse on the medical/surgical floors before and
during the strike before coming to the recovery room. She
signed an ‘‘individual contract’’ with the Respondent regard-
ing the recovery room on July 30, 1986, but does not appear
on the recovery room timesheets unit September 8, 1986.
Rogue, who bad worked the day shift on Pomeroy 5 (one of
the medical/surgical floors) and Pomeroy 7 both prior to and
during the strike, respectively, signed an ‘‘individual con-
tract’’ for the recovery room on August 14, 1986, and ap-
pears on the recovery room timesheets on August 18, 1986,
on ‘‘orientation.’’ Angel and Hamilton, private duty nurses
before the strike, signed ‘‘individual contracts’’ with the Re-
spondent for the two part-time positions in the recovery room
on September 8 and 26, 1986, respectively.
According to the testimony of the various witnesses, a
nurse must have a coronary care course and orientation train-
ing in the recovery room before being able to function ade-
quately as a staff nurse in that unit. It takes 6 to 8 weeks
of training in the recovery room and months overall for a
new or inexperienced nurse to become a recovery room
nurse. Baldino, a striking nurse who was not reinstated to her
previous recovery room position testified that after her return
to work at the hospital in November 1986, wherein she was
given a position in the one-day surgery unit, she often was
required to assist the inexperienced nurses who had been
hired during the strike as recovery room replacements.
4. Inpatient psychiatry department
Prior to the strike, the Respondent’s inpatient psychiatry
unit consisted of two 24-bed floors known as Merriman 2
and Merriman 3, each floor with its own staff and head
nurse. At that time Paula Stec and Thelma Cofrancesco were
assistant head nurses on Merriman 3 and Merriman 2, re-
spectively. During the strike, the Respondent reopened
Merriman 3. Stec joined the striking nurses while
Cofrancesco crossed the picket line to return to work. On
July 23, 1986, Cofrancesco signed an ‘‘individual contract’’
with the Respondent with an effective date of June 2, 1986,
for the assistant head nurse position in Merriman 3, the floor
that was open.54 According to the Respondent’s brief, ‘‘Then
in an attempt to staff Merriman-2 in order to open it, the as-
sistant head nurse position for Merriman-2 was offered to
and accepted by Nerida Cruz in September of 1986.’’55 The
Respondent’s witness, Doreen Elnitsky, the psychiatry de-
partment nursing supervisor, testified that Merriman 2
opened on December 6, 1986, approximately 2 months after
the strike ended. At the conclusion of the strike Stec was not
reinstated to her prestrike position.
Additionally, Grace Labriola, who was employed prestrike
as a part-time nurse on Merriman 3 was not recalled to this
position until December 1986, although she had been given
some per diem work in November 1986. The record evidence
shows that nonstriking nurses who signed ‘‘individual con-
tracts’’ for part-time day-shift or evening-shift positions were
working hours in and above the usual part-time hours they
would normally work. For example: Sandra Santasiero, a
part-time day-shift nurse worked 40 hours during the week
of October 12, 1986, though her normal work week was 24
hours; Frances Liquinoli, a part-time evening-shift nurse,
worked on the day shift twice during the week of October
12 and once each in the weeks of October 19 and 26, 1986,
in addition to her regular evening-shift hours; and Nancy
Saluzzo, a part-time day-shift nurse, stopped work on leave
of absence after October 18, 1986. Labriola was not offered
any of these extra work hours.
5. The vascular lab
The vascular laboratory is part of the clinical services de-
partment and performs noninvasive testing for occlusive
blood disease. A substantial amount of training is required
for any nurse assigned to this area, including attendance at
classes given outside the hospital to learn the operation of
the highly technical equipment/machines used in the testing.
Prior to the strike the vascular lab was staffed by one full-
time nurse, Angela Gee and a part-time nurse (20 hours)
Robin Baldwin.56 Both Gee and Baldwin joined the strike
and remained out until the strike ended and neither was rein-
stated to their former prestrike positions.
At the beginning of July 1986 during the strike, the vas-
cular lab reopened with Barrere performing the arterial and
venous studies previously done by Gee and Baldwin.57 Only
five tests were done weekly compared to the prestrike testing
of from four to six patients daily. Effective August 18, 1986,
the Respondent hired Linda Sugrue to the full-time nursing
position in the vascular lab.58 According to the Respondent’s
records, Sugrue did not physically start working for the Re-
spondent until the week ending August 30, 1986. Sugrue un-
derwent orientation and training throughout the remainder of
the strike. The Respondent’s records also show that a total
of eight arterial and venous studies were done in the vascular
lab from the time Sugrue was hired until the strike ended.
Sugrue also attended a seminar during the week ending Sep-
tember 20, 1986.
At the conclusion of the strike the Respondent offered An-
gela Gee a full-time position at the same pay and on a simi-
lar shift to the one she previously had in the vascular lab,
on a medical/surgical floor which Gee accepted. When
1002 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
59 Skrip acknowledged that EKGs constituted a substantial amount of the
work performed in cardiology during the strike.
60 Keane was a member of the Union’s negotiating committee.
61 L. E. Myers Co., 270 NLRB 1010 fn. 2 (1984). Also see E. I. du Pont
& Co., 293 NLRB 896 (1989), and cases cited in fn. 2.
Sugrue resigned in December 1986, the Respondent offered
Gee her former job back, which she accepted.
6. Cardiology
The cardiology department is composed of various labora-
tories and units including: the cardiac catheterization labora-
tory (referred to as the cath lab), the stress and thalium test-
ing laboratory, the cardiac rehabilitation exercise laboratory
(referred to as rehab), the pacemaker clinic, and halter moni-
toring (transmissions from a patient’s home to the hospital
for monitoring of the patient’s condition). Roseanne Skrip,
the cardiology manager, supervises this department. Prior to
the strike, the cardiology department was staffed by four
part-time nurses and one per diem nurse, Dawn Smith, who
filled in as needed in all units except the pacemaker clinic.
Adrienne Caverley worked 32 hours weekly in all areas of
cardiology; Carolyn Poulin held a 24-hour position and
worked in the cardiac cath lab, the pacemaker clinic, and the
stress and thalium testing lab; Gerry True worked 20 hours
on the evening shift in the cardiac rehabilitation lab; and
Donna Seraphin worked 20 hours on the day shift in rehab.
Seraphin’s position had been awarded to Monica Giacomi ef-
fective in early June 1986 due to Seraphin’s projected mater-
nity leave.
During the strike, the cath lab and rehab remained closed,
but the other areas were open. In addition, EKGs normally
done by EKG technicians who were on strike were now done
in cardiology by cardiology nurses.59 The positions held by
striking nurses, Caverly, Poulin, True, and Giacomi were
awarded to new hires Patty Lacoviello and Dawn Smith, and
crossover Eileen Bartolini. These nonstriking nurses received
full-time 40-hour positions in cardiology.
7. IV therapy department
The IV therapy department nurses perform work in regard
to starting IVs, blood transfusions, and arterial blood gases
throughout the hospital. The IV therapy department was
closed during the strike and crossover nurses who had
worked there prior to the strike were assigned to other units
in the hospital during the strike. The evidence shows that
these IV nurses performed some IV therapy work during the
time they worked in these other units, functioned as staff
nurses there, and were listed on the timesheets of the unit
for which they worked. The Respondent asserts that was nec-
essary ‘‘Because of the strike conditions and the need . . .
to shift nurses around in order to meet its unpredictable staff-
ing needs.’’
Prior to the strike, the IV therapy department consisted of
a head nurse, Elise Jones, and four staff nurses, Lori Neave,
Betty Rill, Betty Karas, and Barbara Keane. Keane was the
only nurse of the four that did not cross the picket line and
return to work during the strike.60 There were also five part-
time nurses, including Joan Brierly who worked the evening
shift. Brierly, a crossover, returned to work on or about Au-
gust 12, 1986. The Respondent awarded her a full-time day
position in IV therapy that day. However, Brierly did not
begin working in IV therapy until October 13, 1986, and
after the strike had ended. From the date she returned to
work until the strike ended Brierly appears on the Pomeroy
7 timesheets for the evening shift except for two day-shifts
in one-day surgery.
8. Medical-surgical floors
The only medical-surgical floor open during the strike was
Pomeroy 7, a surgical teaching floor. On July 23, 1986, the
Respondent promoted Ralph Proulx who had crossed the
picket line, from a staff nurse to the assistant head nurse on
Pomeroy 5. However, since Pomery 5 was closed, Proulx
performed the duties of AHN on Pomeroy 7. When Pomeroy
5 opened, Proulx assumed the AHN position in that unit.
Striker Kay Walling was not returned to this position, which
she had held prior to the strike, after the strike ended.
Also, on July 22, 1986, Phyllis Barth, a crossover LPN
was transferred from a full-time day position to a part-time
32-hour evening position in pediatrics (Pomeroy 3). Barth
did not commence working in pediatrics until after the strike
ended and Pomeroy 3 reopened. Since July 22, she had been
working on Pomeroy 7. Marion Waller, who remained out on
strike until the conclusion thereof, had held the position prior
to the strike.
9. West wing 3
The Respondent awarded a full-time night position in west
wing 3, the postpartum unit in obstetrics-gynecology to
crossover LPN Elizabeth Shypinka on August 31, 1986, al-
though this unit did not reopen until October 8, 1986, after
the strike ended. Prior to October 8, 1986 when Shypinka
started working in west wing 3, she worked nights on Pom-
eroy 207. Striker, Carolyn Fagnand, had held this position in
west wing 3 prior to the strike.
C. Analysis and Conclusions
1. Deferral to arbitration
The Respondent seeks deferral to arbitration of the issues
in this case stating in its brief that:
It is clear that the issues regarding whether strikers
were returned in the proper order and whether some are
entitled to backpay are within the scope of the arbitra-
tion pending between the parties and should be deferred
in accordance with the Board’s Collyer [192 NLRB 837
(1971)] policy.
Initially, whether deferral is appropriate is a threshold
question which must be decided in the negative before the
merits of the unfair labor practice allegations can be consid-
ered.61 In Collyer Insulated Wire, 192 NLRB 837 (1971), the
Board established the following criteria for prearbitral defer-
ral: Where the dispute arose ‘‘within the confines of a long
and productive collective bargaining relationship’’; where
there is no claim of ‘‘enmity by Respondent to employee’s
exercise of protected rights’’; Where ‘‘Respondent has . . .
credibly asserted its willingness to resort to arbitration under
a clause providing for arbitration in a very broad range of
disputes and unquestionably broad enough to embrace ‘the
dispute before the Board’’’; where the contract and its mean-
1003WATERBURY HOSPITAL
62 Collyer Insulated Wire, supra at 842.
63 United Technologies Corp., supra, overruled General American Transpor-
tation Corp., 228 NLRB 808 (1977).
64 American Commercial Lines, 291 NLRB 1066 (1988).
65 Du Pont, supra.
66 United Technologies, supra at 560. The General Counsel apparently also
recognizes that some of the factors set forth in Collyer as supporting the impo-
sition of the Board’s deferral policy exist here.
67 United Technologies Corp., supra.
68 American Commercial Lines, supra.
69 S.O.I. Roofing, 271 NLRB 1 (1984); Sheet Metal Workers Local 17
(George Koch Sons), 199 NLRB 166 (1972).
70 United Technologies Corp., supra; Collyer Insulated Wire, supra.
71 The Respondent moves for dismissal and/or summary judgment on this
ground with respect to par. 11 of the complaint which alleges in substance
that the Respondent unlawfully failed and refused to reinstate certain striking
employees whose jobs had been awarded to nonstrikers who were not phys-
ically performing the job at the conclusion of the strike.
ing ‘‘lie at the center of this dispute’’; and where the dispute
is eminently well suited to resolution by arbitration.62
Thereafter in United Technologies Corp., 268 NLRB 557
(1984), the Board in affirming the deferral policy in
Collyer63 stated that it would defer to arbitration those com-
plaints alleging violations of Section 8(a)(1), (3), or (5) of
the Act when the underlying issues are cognizable under the
grievance-arbitration provisions of the parties’ collective-bar-
gaining agreement. However, when an allegation for which
deferral is sought is inextricably related to other complaint
allegations that are either inappropriate for deferral or for
which deferral is not sought, a party’s request for deferral
must be denied.64 Moreover, the Board will defer unfair
labor practice allegations to the arbitral process as long as it
is reasonable to anticipate that resolution of the contract dis-
pute would also resolve the unfair labor practice dispute.65
The General Counsel acknowledges that there is ‘‘some
similarity’’ between the grievances filed by the Union and
the allegations in the complaint in that:
[I]t appears the issues raised by the grievances involved
whether Respondent breached the return to work agree-
ments by not offering available hours to nurses await-
ing reinstatement; by utilizing floats, rotations, per diam
nurses and overtime before offering positions to
unreinstated strikers; and by not offering available alter-
native positions to nurses who had been displaced from
their regular positions during the strike. Many of the
nurses alleged to have been denied reinstatement under
the complaint’s allegations are also named by the
Union in connection with the grievances filed. There
are also some similarities between the grievances and
the allegations raised in the complaint with respect to
preferential scheduling of hours in the hemodialysis de-
partment and the use of nonstriking part-time nurses in
Psychiatry to work hours which could have been of-
fered to striker Grace Labriola.
However, the General Counsel asserts that nevertheless, de-
ferral is inappropriate in this case because two of the pre-
requisites to deferral under Collyer are missing: (1) that the
unfair labor practice allegation is subject to resolution
through the grievance procedure; and (2) that the Respondent
indicates a willingness to have the unfair labor practice re-
solved through the grievance procedure, waiving any contrac-
tual time limits if necessary.66
The allegations in the complaint raise the issues as to
whether positions awarded to nonstriking employees were, in
fact, filled by permanent strike replacements, thus justifying
the denial of reinstatement to striking employees, and as to
whether the Respondent granted preferential treatment under
the 12-month no-bumping provision to nonstriking employ-
ees. The issues raised by the grievances involve, in sub-
stance, the Respondent’s compliance with the mechanics of
the return to work agreement, such as order of recall and the
offer of alternative positions to displaced striking employees.
However, the evidence here shows that the Respondent ex-
cluded from application of the return to work procedures
those positions awarded to nonstriking nursing employees
pursuant to the ‘‘individual contracts,’’ thus the question as
to whether a striker was properly denied reinstatement be-
cause of the Respondent’s award to a nonstriker of a position
in a closed hospital unit not reopened until after the strike
ended would not be arbitrable under the return to work
agreement. Moreover, according to the testimony of its own
witnesses, the Respondent would not agree to arbitrate any
grievance involving whether the nonstriking nurses were en-
titled to these positions because they are allegedly ‘‘perma-
nent replacements.’’
Furthermore, the issue of the legality of the 12-month no-
bumping rule accorded nonstrikers is one grounded solely in
the Act and is inextricably related to the other complaint al-
legations which I found above to be inappropriate for defer-
ral,67 and it appears that the Respondent does not seek defer-
ral of this issue under Collyer. Under these circumstances de-
ferral would not only result in ‘‘disorderly 30 proceedings
and confusion,’’68 but there is also lacking a ‘‘compelling
reason for deferring one aspect of the dispute to the griev-
ance arbitration machinery’’ while necessarily deciding other
complaint allegations.69
From all the above, I find and conclude that deferral to
the grievance-arbitration machinery in this case is inappro-
priate and therefore I deny the Respondent’s motion ‘‘to
defer to arbitration.’’70
2. The 10(b) defense
Section 10(b) of the Act provides:
That no complaint shall issue based upon any unfair
labor practice occurring more than six months prior to
the filing of the charge with the Board and the service
of a copy thereof upon the person against whom such
charge is made . . . .
The Respondent contends that certain allegations of the com-
plaint are time-barred under Section 10(b) of the Act because
the conduct alleged was not specifically set forth in a timely
filed charge.71 The General Counsel asserts that the com-
plaint allegations, ‘‘while perhaps not alleged verbatim in the
charge, is ‘closely related’ to and grows out of the charge
alleging that the individual contracts for these positions con-
stituted direct dealing and that superseniority and other bene-
fits were discriminatorily granted to strike replacements as a
result of these commitments.’’ The charge on which the in-
stant complaint was issued was filed on December 31, 1986,
and alleges, inter alia, that the Respondent, since on or about
July 15, 1986, violated the Act by: ‘‘Bypassing the Union to
negotiate with individual employees of the Hospital’’ and by
1004 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
72 Advertiser’s Mfg. Co., 294 NLRB 740 (1989); Davis Electrical Construc-
tors, 291 NLRB 115 (1988); Redd-I, Inc., supra.
‘‘Discriminating against strikers by implementing super se-
niority and other benefits for strike replacements.’’ The com-
plaint issued on October 29, 1987, alleges that, ‘‘Since on
or about October 4, 1986, the Respondent has failed and re-
fused to reinstate to their former positions of employment,
certain of its employees . . . who had engaged in the strike
. . . and on whose behalf the Union had made the uncondi-
tional offer to return to work.’’
The Supreme Court in NLRB v. Fant Milling Co., 360
U.S. 301, 307–308 (1959), held:
A charge filed with the Labor Board is not to be meas-
ured by the standards applicable to a pleading in a pri-
vate lawsuit. Its purpose is merely to set in motion the
machinery of an inquiry. NLRB v. I & M Electric Co.,
318 U.S. 9, 18. The responsibility of making that in-
quiry, and of framing the issues in the case is one that
Congress has imposed upon the Board, not the charging
party. To confine the Board to its inquiry and in fram-
ing the complaint to the specific matters alleged in the
charge would reduce the statutory machinery to a vehi-
cle for the vindication of private rights. This would be
alien to the basic purpose of the Act. The Board was
created not to adjudicate private controversies but to
advance the public interest in eliminating obstructions
to interstate commerce, as this Court has recognized
from the beginning. NLRB v. Jones & Langhlin, 301
U.S. 1. Once its jurisdiction is invoked the Board must
be left free to make full inquiry under its broad inves-
tigatory power in order properly to discharge the duty
of protecting public rights which Congress has imposed
upon it. There can be no justification for confining such
an inquiry to the precise particularizations of a
charge. . . . What has been said is not to imply that
the Board is, in the words of the Court of Appeals, to
be left ‘‘carte blanche to expand the charge as they
miqht please, or to ignore it altogether.’’ [NLRB v. Fant
Milling Co.] 258 F.2d at 856 [5th Cir. 1958]. Here we
hold only that the Board is not precluded from ‘‘deal-
ing adequately with unfair labor practices which are re-
lated to those alleged in the charge and which grow out
of them while the proceeding is pending before the
Board.’’ National Licorice Co. v. NLRB, 309 U.S. 350,
at 369.
In NLRB v. Dinion Coil Co., 201 F.2d 484, 491 (2d Cir.
1952), the Second Circuit held that, ‘‘If a charge was filed
within six months after the violations alleged in the charge,
the complaint (or amended complaint), although filed after
the six months, may allege violations not alleged in the
charge if (a) they are closely related to the violations named
in the charge, and (b) occurred within six months before the
filing of the charge.’’
The Board in discussing the ‘‘closely related’’ test in
Redd-I, Inc., 290 NLRB 1115, 1118 (1988), stated:
First, we shall look at whether the otherwise untimely
allegations are of the same class as the violations al-
leged in the pending timely charge. This means that the
allegations must all involve the same legal theory and
usually the same section of the Act (e.g., 8(a)(3) repris-
als against union activity). Second, we shall look at
whether the otherwise untimely allegations arise from
the same factual situation or sequence of events as the
allegations in the pending timely charge. This means
that the allegations must involve similar conduct, usu-
ally during the same time period with a similar object
(e.g., terminations during the same few months directed
at stopping the same union organizing campaign). Fi-
nally, we may look at whether a respondent would raise
the same or similar defenses to both allegations, and
thus whether a reasonable respondent would have pre-
served similar evidence and prepared a similar case in
defending against the otherwise untimely allegations as
it would in defending against the allegations in the
timely pending charge.
Thus, Section 10(b) of the Act requires a ‘‘factual and
legal nexus between the charge allegations and the otherwise
untimely allegations that looks toward the class of violations
alleged in the pending timely charge, the sequence of events,
and the nature of the defenses raised.72
In applying these principles to the facts in this case, I find
and conclude that the complaint allegations under consider-
ation are not time-barred under Section 10(b) of the Act and
therefore deny the Respondent’s motion for dismissal and/or
summary judgment in this regard. The charge allegations that
the Respondent violated the Act by ‘‘bypassing the Union to
negotiate with individual employees of the hospital’’ and by
‘‘discriminating against strikers by implementing super-
seniority and other benefits for strike replacements,’’ when
considered in the context of what occurred, can only be con-
strued to have reference to the individual contracts entered
into between the Respondent and its nonstriking employees
(crossovers and newly hired employees) for employment at
the hospital. While the allegations in paragraph 11 of the
complaint to the effect that the Respondent has unlawfully
failed and refused to reinstate certain of its striking employ-
ees is broadly worded, yet the record shows that the essence
of this allegation is that the Respondent discriminated against
strikers by entering into the individual contracts with non-
strikers for specific positions which were not yet open, and
for which there was no need at the time, and thereafter using
these contracts or commitments to deny reinstatement to the
striking employees who held the position before the strike.
The evidence in the record shows that ‘‘the otherwise un-
timely allegation [in the complaint is] of the same class as
the violations charged in the pending timely charge,’’ namely
Section 8(a)(1) and (3) of the Act, and involves the same
legal theory as to whether the striking employees were un-
lawfully discriminated against as to their reinstatement or the
lack thereof; the allegations in both the complaint and the
charge arise from the same sequence of events, similar con-
duct during the same time period with a similar object (e.g.,
allegedly to discriminate against striking employees by deny-
ing them reinstatement to their former positions because of
such activity), i.e, the strike, the closing of the hospital, the
hospital’s subsequent reopening and staffing, the strike settle-
ment, etc.; and it would appear that the Respondent would
have and did raise the same defenses and prepared and pre-
sented its case as it would similarly have done in defending
against the allegations in both the complaint and the charge,
1005WATERBURY HOSPITAL
73 NLRB v. Fant Milling Co., supra; Advertiser’s Mfg. Co., supra; Davis
Electrical, supra; Redd-I, Inc., supra; NLRB v. Dinion Coil, supra. Also see
Columbia Textile Services, 293 NLRB 1034 (1989).
74 As the Supreme Court observed in Mackay Radio, at 346:
[T]he assurance by [the employer] to those who accepted employment
during the strike that if they so desired their places might be permanent
was not an unfair labor practice nor was it such to reinstate only so many
of the strikers as there were vacant places to be filled.
75 The Supreme Court in Fleetwood Trailer further stated at 379:
A second basis for justification is suggested by the Board—when the
strikers’ job has been eliminated for substantial and bona fide reasons
other than considerations relating to labor relations: for example, ‘‘the
need to adapt to changes in business conditions or to improve effi-
ciency.’’ We need not consider this claimed justification because in the
present case no changes in methods of production or operation were
shown to have been instituted which might have resulted in eliminating
the striker’s jobs.
76 In Belknap, Inc. v. Hale, supra, the Court also stated:
Indeed, as the Board interprets the law, the employer must reinstate strik-
ers at the conclusion of even a purely economic strike unless it has hired
‘‘permanent’’ replacements, that is, hired in a manner that would show
that the men [and women] who replaced the strikers were regarded by
themselves and the [employer] as having received their jobs on a perma-
nent basis.
77 The inclusion of both new hires and crossovers within the Mackay Radio
rule and the Fleetwood Trailer case also reflects the Board’s position on this
Continued
that the individual contracts it made with nonstriking em-
ployees rendered positions unavailable to returning strikers
and justified the Respondent’s refusal to reinstate them.
Thus, the complaint allegation in issue is ‘‘closely related’’
to the charge allegations that the individual contracts for
these positions constituted direct dealing with employees and
that superseniority and other benefits were discriminatorily
granted to strike replacements as a result of these commit-
ments.73
3. The reinstatement of striking employees
The complaint alleges that the Respondent violated Section
8(a)(1) and (3) of the Act by failing and refusing to reinstate
certain of its striking employees on whose behalf the Union
had made an unconditional offer to return to work. The com-
plaint also alleges that such conduct is inherently destructive
of the rights guaranteed employees by Section 7 of the Act.
The Respondent denies these allegations although it admits
that it did not reinstate to their former positions certain strik-
ing employees (at most two and each of whom was offered
and accepted another comparable position) whose prestrike
positions had been awarded to replacements (including em-
ployees who abandoned the strike) who were not physically
performing the duties of the position on a permanent basis
as of the conclusion of the strike.
In NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333
(1938), the Supreme Court of the United States held that it
was not an unfair labor practice under the Act for an em-
ployer to have replaced striking employees with others ‘‘in
an effort to carry on the business,’’ or to have refused to dis-
charge the replacements in order to make room for the strik-
ers at the conclusion of the strike.74 The Supreme Court re-
affirmed this holding in NLRB v. Fleetwood Trailer Co., 389
U.S. 375 (1967), wherein the Court held that employers have
‘‘‘legitimate and substantial business justification’ for refus-
ing to reinstate employees who engaged in an economic
strike . . . when the jobs claimed by the strikers are occu-
pied by workers hired as permanent replacements during the
strike in order to continue operations.’’ As the Supreme
Court stated in Fleetwood Trailer, at 378:
Section 2(3) of the Act . . . provides that an indi-
vidual whose work has ceased as a consequence of a
labor dispute continues to be an employee if he has not
obtained regular and substantially equivalent employ-
ment. If, after conclusion of the strike, the employer re-
fuses to reinstate striking employees, the effect is to
discourage employees from exercising their rights to or-
ganize and to strike guaranteed by Section 7 and 13 of
the Act. . . . Under Section 8(a)(1) and (3) . . . it is
an unfair labor practice to interfere with the exercise of
these rights. Accordingly, unless the employer who re-
fuses to reinstate strikers can show that his action was
due to ‘‘legitimate and substantial business justifica-
tions,’’ he is guilty of an unfair labor practice. NLRB
v. Great Dane Trailers, 388 U.S. 26, 34 (1967). The
burden of proving justification is on the employer. . . .
In some situations, ‘‘legitimate and substantial busi-
ness justifications’’ for refusing to reinstate employees
in an economic strike has been recognized. One is
when the jobs claimed by the strikers are occupied by
workers hired as permanent replacements during the
strike in order to continue operations.75
Moreover, in Belknap, Inc. v. Hale, 463 U.S. 491, 504 fn.
8 (1983), the Supreme Court stated that, ‘‘The refusal to fire
permanent replacements because of commitments made to
them in the course of an economic strike satisfies the re-
quirement of NLRB v. Fleetwood Trailer Co., [supra], that
the employer have a ‘‘legitimate and substantial justifica-
tion’’ for its refusal to reinstate strikers. The Supreme Court
in Belknap cited the Board’s holding in Hot Shoppes, Inc.,
146 NLRB 802, 805 (1964), as follows:
The refusal to fire permanent replacements because
of commitments made to them in the course of an eco-
nomic strike satisfies the requirement of NLRB v.
Fleetwood Trailer Co., [supra], that the employer have
a ‘‘legitimate and substantial justification’’ for its re-
fusal to reinstate strikers. . . .
We however, disagree with the Trial Examiner’s
premise that an employer may replace economic strik-
ers only if it is shown that he acted to preserve efficient
operation of his business. The Supreme Court’s deci-
sion in Mackay Radio, and cases thereafter, although
referring to an employer’s right to continue his business
during a strike, state that an employer has a legal right
to replace economic strikers at will. We construe these
cases as holding that the motive for such replacements
is immaterial, absent evidence of an independent unlaw-
ful purpose. Therefore, we reject the Trial Examiner’s
conclusion that the plan to replace the economic strik-
ers here was itself improper . . . .
and noted that, ‘‘There are no cases in this Court that require
a different conclusion.’’76
Additionally, in Trans World Airlines v. Flight Attendants,
489 U.S. 426 (1989), the Supreme Court held that crossovers
have the same rights as newly hired employees where they
are permanently hired to replace striking employees during
an economic strike,77 and therefore the employer was not re-
1006 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
issue. See the Board’s brief as amicus curie (pp. 13–15) in Trans World Air-
lines, supra.
78 While Trans World Airlines involved the Railway Labor Act, the Su-
preme Court reviewed its own cases and those of the Board under the National
Labor Relations Act extensively for ‘‘guidance’’ and in support of its rea-
soning therein.
79 Enfd. 414 F.2d 99 (7th Cir. 1969), cert. denied 397 U.S. 920 (1970).
80 NLRB v. Fleetwood Trailer Co., supra; David R. Webb Co., 291 NLRB
236 (1988). As the Board stated in Zapex Corp., 235 NLRB 1237, 1238
(1978), enfd. 621 F.2d 328 (9th Cir. 1980):
The Court in Fleetwood relied on its decision in NLRB v. Great Dane
Trailers, Inc., 388 U.S. 26, 34 (1967), where it held that ‘‘once it has
been proved that the employer engaged in discriminatory conduct which
could have adversely affected employee rights to some extent, the burden
is upon the employer to establish that he was motivated by legitimate ob-
jectives since proof of motivation is most accessible to him.’’ In reevalu-
ating the rights of economic strikers in light of Fleetwood and Great
Dane, the Board in The Laidlaw Corporation, 171 NLRB 1366, 1369
(1968), stated that:
The underlying principle in both Fleetwood and Great Dane, supra,
that certain employer conduct, standing alone, is so inherently destructive
of employee rights that evidence of specific antiunion motivation is not
needed.
Also see SKS Die Casting & Machining, 294 NLRB 372 (1989).
81 In the underlying case, H. & F. Binch Co., 188 NLRB 720 (1971), the
Board stated:
We have held that if an employer makes a commitment to the applicant
for the strikers’ job, we will normally regard that commitment as a legiti-
mate replacement even though the striker requests reinstatement before
the replacement actually begins work.
quired to lay off these employees in order to reinstate more
senior full-term strikers at the conclusion of the strike.78 The
majority of the Court ruled that crossovers who worked dur-
ing the strike and had been promised permanence were enti-
tled to retain their jobs as a matter of law, without further
factual inquiry. Therefore, it would seem that the existence
of a strike and the use by the employer of a promise of per-
manent tenure are the only factual matters that need be estab-
lished to show business justification for turning away full-
term strikers seeking to reclaim their jobs by asserting se-
niority. And, from the Supreme Court’s discussion in
Belknap, Inc. v. Hale, supra, of the Board’s decision in Hot
Shoppe, supra, referred to in the Trans World Airlines case,
it appears that it is not required that offers of permanent ten-
ure to strike replacements must be justified by showing that
the particular form of offer was necessary to keep a business
in operation during a strike.
The Board in Laidlaw Corp., 171 NLRB 1366 (1968)79
defined the status of replaced economic strikers as follows:
[E]conomic strikers who unconditionally apply for rein-
statement at a time when their positions are filled by
permanent replacements: (1) remain employees; (2) are
entitled to full reinstatement upon the departure of re-
placements unless they have in the meantime acquired
regular and substantially equivalent employment, or the
employer can sustain his burden of proof that the fail-
ure to offer full reinstatement was for legitimate and
substantial business reasons.
If an employer fails to sustain his burden of proof, a refusal
to reinstate employees after an economic strike constitutes an
unfair labor practice notwithstanding the absence of animus
or bad faith for such action since this conduct ‘‘discourages
employees from exercising their rights to organize and to
strike guaranteed by Sections 7 and 13 of the Act.’’80
Additionally, in H. & F. Binch Co. v. NLRB, 456 F.2d 357
(2d Cir. 1972), the Second Circuit held:
When strikers have resorted to the economic weapon of
endeavoring to impair production, the employer is enti-
tled to respond with efforts to preserve it and must have
latitude in hiring replacements sufficient, but no more
than sufficient to that end. On the one hand, a mere
offer, unaccepted when the striker seeks reinstatement,
is insufficient to qualify; on the other, actual arrival on
the job should not be required if an understanding has
been reached that this will occur at a reasonably early
date. [Emphasis added.]81
The General Counsel argues that the Respondent’s system
for reinstating the striking employees in the instant case was
discriminatory on its face and inherently destructive of em-
ployee rights and therefore violative of the Act because it
guaranteed to nonstriking employees, jobs which did not
exist until after the strike ended and without regard to the
Respondent’s business needs, while conditioning the rein-
statement of strikers on patient census thereby denying full
reinstatement to the striking employees. As counsel for the
General Counsel asserts in his brief:
In the present case, Respondent set up a discrimina-
tory reinstatement system which is similar to the ‘‘Pref-
erential Reinstatement Plan’’ found unlawful by the
Board and the Court in George Banta Company, Inc.,
256 NLRB 1197, 1218–1220 (1981), enf’d in pertinent
part, 686 F.2d [10, 19 fn. 11 (D.C. Cir. 1982)]. In that
case, the employer utilized a reinstatement plan which
guaranteed crossover strikers the jobs they had before
the strike without regard to what functions the cross-
overs actually performed during the strike and without
regard to the employer’s immediate production needs.
As a result, employees who remained on strike for the
duration were relegated to those vacancies left over,
which tended to be low-paying and less desirable. The
Employer’s plan in Banta also protected crossovers
from contractual bumping by more senior strikers for
the term of the contract. The only distinction between
the plan in Banta, supra, and that utilized by the Em-
ployer here is that, in Banta, the employer hired no per-
manent replacements. In the present case, the reinstate-
ment system utilized benefitted replacements, as well as
crossover strikers, by guaranteeing them the jobs and
shifts of their choice without regard to patient census
or other operational needs of Respondent, and without
regard to whether they actually worked those jobs be-
fore the strike ended.16
. . . .
Respondent’s reinstatement plan here was discrimi-
natory on its face.
16Although General Counsel, in Banta, had alleged that the strike
wag an unfair labor practice strike, the judge, the Board and the Court
found that, under the circumstances, it made no difference whether the
strike was an unfair labor practice or economic strike. 256 NLRB supra,
at n. 4 and p. 1221. 686 F.2d supra, at 822.
I do not agree.
1007WATERBURY HOSPITAL
82 Also, contrast Banta with Bio-Science Laboratories, 209 NLRB 796
(1974).
83 NLRB v. Mackay Radio, supra; NLRB v. Fleetwood Trailer Co., supra;
Belknap, Inc. v. Hale, supra. Also see Trans World Airlines v. Flight Attend-
ants, supra.
84 Remanded to the Board on other grounds 864 F.2d 757 (6th Cir. 1989).
Significantly, in Banta no permanent replacements were
hired by the employer during the strike. Therefore, at the end
of the strike the employer was obligated under the law of
Mackay, Fleetwood Trailer, and Laidlaw Corp. to reinstate
the striking employees and the crossovers equally, either by
seniority or on some other fair and nondiscriminatory basis,
or by mutual agreement. Instead, the employer utilized a re-
instatement plan which, as implemented, placed the cross-
overs immediately into jobs they worked before the strike
without regard to what functions they performed during the
strike and the employer’s immediate production needs.
Crossovers retained and received full contractual rate reten-
tion rights to their prestrike jobs and where applicable ‘‘con-
tractual displaced person status.’’ Returning strikers at the
strike’s end were in significant part recalled to lower rated
positions, often required to meet tests of permanency in order
to have rate retention status to higher rated jobs, and denied
displaced persons machine seniority status. Further, returning
strikers were precluded from ‘‘bumping’’ the crossovers
under the reinstatement plan for 3 years. Thus the reinstate-
ment plan in Banta was discriminatory on its face, awarding
substantial priority to crossover employees. Not so in the in-
stant case where various of the striking employees were re-
placed by nonstrikers ‘‘permanently.’’
In George Banta Co. v. NLRB, 686 F.2d 10 (D.C. Cir.
1982), the United States Court of Appeals for the District of
Columbia, sets forth what I perceive is the distinguishing
factor between Banta and the instant case:
The statutory reinstatement rights of economic and
unfair labor practice strikers are identical, with one sig-
nificant exception. During an economic strike—but not
during an unfair labor practice—an employer may hire
permanent replacements for the striking employees.
See, e.g., NLRB v. Fleetwood Trailer Co., 389 U.S.
375, 378; Laidlaw Corp. v. NLRB, 414 F.2d 99, 105
(7th Cir. 1969), cert. denied, 397 U.S. 920 (1970). At
the end of an economic strike, the employer is not re-
quired to discharge or lay off those permanent replace-
ments in order to create vacancies for the employees
seeking reinstatement.
. . . .
The distinction between the two kinds of strike is ir-
relevant, however, if the employer has not hired perma-
nent replacements. In such a situation, both economic
and unfair labor practice strikers have identical entitle-
ments to reinstatement without discrimination on the
basis of relative union activity.82
The General Counsel additionally advances the position
that since the Respondent’s right to hire permanent replace-
ments ‘‘is derivative of its rights to continue its operations
during the strike,’’ if a ‘‘replacement’’ is awarded a job
which the hospital’s current operational needs do not justify,
and is instead utilized in a different capacity during the
strike, then the Respondent would not satisfy its burden of
demonstrating a ‘‘legitimate and substantial business jus-
tification’’ sufficient to deny reinstatement to the striking
employees who held the job before the strike.
The Respondent asserts however, that it had a fundamental
right to hire permanent replacements during the strike under
the rationale of Mackay Radio, supra; that it did in fact hire
permanent replacements for every available position needed
to continue the hospital’s operations and avoid irreversible
damage, i.e., discontinuation of its accreditation and oper-
ating license under Connecticut law and/or improper and in-
adequate care of patients; that it offer permanent employment
to the replacement employees before any of the strikers re-
turned to work; and that, therefore the positions held by the
nonstriking employees at strike’s end were not available to
the strikers for reinstatement.
In the instant case the Respondent assigned nonstriking
employees (new hires and crossovers) the job classifications
and shifts of their choice during the strike, executing ‘‘indi-
vidual contracts’’ with these employees regarding such posi-
tions. However, as the record evidence shows, some of these
positions were in areas of the hospital which were not
opened until after the strike ended, while others were in hos-
pital units with substantially reduced patient census. Addi-
tionally, some nonstriking employees were assigned a par-
ticular job and/or shift in which they did not work until after
the strike ended. Prior to the strike, the hiring of employees
was generally related to the hospital’s patient census needs
and the staffing and patient care requirements of the Con-
necticut Department of Health.
The law is clear that an employer may lawfully hire per-
manent replacements, including new hires and crossover em-
ployees, for striking employees during the course of an eco-
nomic strike and at the end of the strike is not required to
discharge or layoff such permanent replacements in order to
create vacancies for the striking employees seeking reinstate-
ment, the ‘‘legitimate and substantial business justification’’
for this being the need of the employer to continue its oper-
ations or production.83 However, both the Courts and the
Board have recognized some limitation on an employer’s
right to refuse reinstatement to an economic striker under the
‘‘legitimate and substantial business justification ‘‘rationale
on the basis of a consideration of what constitutes a ‘‘perma-
nent replacement.’’ For example, the court in H. & F. Binch
Co. v. NLRB, supra, held that an employer may hire replace-
ments for striking employees ‘‘sufficient, but no more than
sufficient’’ in number to maintain production, and although
actual arrival on the job or the commencement of work by
the replacement is not required upon hire, there must have
been an understanding reached that ‘‘this will occur at a rea-
sonably early date.’’
Moreover, in Kurz-Kasch, Inc., 286 NLRB 876 (1987),84
the Board affirmed the finding of an administrative law judge
that all the replacements hired by the employer during the
strike were ‘‘permanent replacements,’’ notwithstanding that
more replacements had been hired than there were strikers
(33 replacements for 23 strikers), because the employer es-
tablished its need for the greater number of replacements on
the basis of incoming orders (more than there were employ-
ees to fill them), delivery schedules and the lower productive
efficiency and capacity of these new employees for the strike
period. In Atlantic Creosoting Co., 242 NLRB 192 (1979),
1008 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
85 Also see Southwest Engraving Co., 198 NLRB 694 (1972), in which the
Board found that a wife who had been hired in February during a strike, along
with her husband who was hired as a supervisor and whose starting dates were
postponed to accommodate the husband’s vacation schedule on his previous
job, was a ‘‘permanent replacement,’’ although she did not start work until
2 months after the strike ended, apparently because of this accommodation.
Additionally, see Home Insulation Service, 255 NLRB 311 fn. 9 (1981).
86 Since the Respondent could not know when the closed hospital areas
would reopen, if at all, even considering the facts in this case within the con-
text of those cases holding that replacements are to be considered ‘‘perma-
nent’’ even where they are not scheduled to begin work until after the strike
ends, the same would be true since upon hire there could be no understanding
that the employee would commence work on the job ‘‘at a reasonably early
date’’ or be given an actual starting date by the Respondent. H. & F. Binch
Co. v. NLRB, supra; Kurz-Kasch, supra; Superior National Bank, supra. Nor
would any argument that these employees were in training or orientation status
during that time be acceptable in this instance.
87 Lincoln Hills Nursing Home, supra. In the case at bar, the recall of strik-
ers by agreement was to occur on the basis of seniority and predicated upon
patient census needs. Examples of striking employees not reinstated after the
an administrative law judge, affirmed by the Board, found
that approximately 80 replacements hired for about 63 strik-
ing employees, were ‘‘permanent replacements’’ because of
the employer’s ‘‘expectation of an initially high attrition
rate’’ among the replacements, and thus the need for hiring
more replacements than there were strikers in order to main-
tain production.
Additionally, in Kurz-Kasch, supra, the Board also af-
firmed the judge’s ruling that 10 replacements, hired but not
scheduled to begin work until a later date were ‘‘permanent
replacements’’ since the employer scheduled some of the re-
placements for later starting dates because it was unable to
train all the replacements at the same time, and all the start-
ing dates were scheduled before the termination of the strike.
In Superior National Bank Co., 246 NLRB 721 (1979), the
Board held that two replacements hired before a strike was
converted to an unfair labor practice strike and prior to any
striker’s request for reinstatement, but who did not com-
mence working until after the conversion, were ‘‘permanent
replacements,’’ since a mutual understanding had been
reached and a commitment had been made at the time of hire
which included the actual time when these two employees
would start work.85
Thus, the Respondent must show a ‘‘legitimate and sub-
stantial business justification’’ for denying reinstatement to
striking employees after the strike ends where during the
strike, the Respondent hires replacements for the strikers in
areas of the hospital which do not open for business until
after the strike ends, or hires more replacements than would
normally be required under the circumstances (patient cen-
sus), and/or where the nonstriker does not commence work-
ing in the position awarded until after the conclusion of the
strike and the Respondent’s obligation to reinstate the strik-
ers begins.
According to the record evidence, on October 4, 1986, the
Union made an unconditional offer to return to work on be-
half of the striking nurses and licensed practical nurses,
whereupon the strike ended. At that time certain areas of the
hospital such as Pomeroy 5, Pomeroy 3 (pediatrics),
postpartum (WW3), Merriman II (psychiatry), and the IV
therapy department, were not as yet opened. However, during
the strike the Respondent had hired nonstriker replacements
to fill the striker’s positions in these areas and assigned such
nonstriking employees, both new hires and crossovers, to
other work areas and/or work assignments. At the conclusion
of the strike and after the closed areas were reopened, the
Respondent moved the nonstrikers into the awarded positions
they were originally hired for or assigned to during the
strike. I find this somewhat analogous to the circumstances
present in Lincoln Hills Nursing Home, 257 NLRB 1145
(1981), wherein the administrative law judge, as affirmed by
the Board, found:
The Employer citing H. & F. Binch Company, 188
NLRB 30 720 (1971), by analogy urges that the instant
commitment to striker replacements that they would as-
cend from on-call to part-time to full-time positions is
tantamount to the preference permitted a replacement in
the situation where the agreement to hire is made be-
fore the former incumbent striker unconditionally offers
to return to work. I disagree. The attempted equation
ignores a very real factual distinction. In situations
where the preferences have been allowed, the job offer
the replacement actually is vacant concurrent with the
agreement to hire. In the case at bar, the Employer’s
transfer commitment was made for jobs not yet avail-
able. Preferences of the latter type are unlawful [United
Aircraft Corp., 192 NLRB 382 (1971), emphasis
added].
The Respondent seeks to distinguish the Lincoln Hills
Nursing Home case from the instant case in that:
[T]here was no such [on-call] intermediate step, nor
was there a promise as to a future job opening. The
jobs offered to the replacements by the Respondent
were vacant concurrent with the agreement to hire.
Even in those few instances where a department did not
open until the strike concluded, the replacements’ as-
signments to that position was effective immediately.
I disagree. Aside from the ‘‘intermediate step’’ difference,
which is of limited significance, the important and crucial
focus of such a comparison must be job availability. While
it is true that the nonstrikers in the instant case were hired
for positions which had been occupied prior to the strike and
were ostensibly vacant during the strike, these jobs were situ-
ated in areas of the hospital that remained closed during the
strike and nonfunctioning. The Respondent acknowledged, as
evidenced in the record, that it could not predict with any
degree of certainty when these areas would reopen if at all,
thus in all actuality these positions were ‘‘jobs not yet avail-
able.’’ In both Lincoln Hills Nursing Home, supra, and the
case at bar, the nonstriking employee was promised an as yet
unavailable job while being assigned to work at a different
position until that job becomes available.86 Since this did not
happen until after the strike had ended and the strikers had
unconditionally offered to return to work, those nonstrikers
who were then placed in the position they had been awarded
previously should not be considered ‘‘permanent replace-
ments.’’
Therefore, I conclude that it was inherently destructive of
strikers’ reinstated rights for the Respondent to accord striker
replacements preferences by awarding them positions in
areas of the hospital which did not open until after the strike
ended and at a time when there were striking employees with
greater seniority awaiting reinstatement.87
1009WATERBURY HOSPITAL
strike ended because nonstrikers were transferred after the strike ended into
positions awarded them during the strike when these hospital areas were
closed are: Carolyn Fagnand (west wing 3), Marion Waller (Pomeroy 3, pedi-
atrics), Ray Walling (AHN, Pomeroy 5), Paula Stec (Merriman II), Barbara
Keane (IV therapy).
88 Kurz-Kasch, supra; Superior National, supra.
89 H. & F. Binch Co. v. NLRB, supra; Southwest Engineering Co., supra.
90 Contrast Kurz-Kasch, supra; Superior National, supra. Moreover, the Re-
spondent would not be deprived of his right to hire permanent replacements
under Mackay by such a ruling. It could have hired at will new nurses or li-
censed practical nurses or assigned crossovers to any job for which the hos-
pital had a current or reasonably predictable need during the strike. The Re-
spondent offered no proof that it could not successfully recruit nonstriking em-
ployees unless it offered them only those positions it awarded during the
strike. While I am not convinced by the record evidence that the Respondent’s
reinstatement system was discriminatory on its face, I am convinced that by
guaranteeing some of the nonstrikers jobs which the hospital’s operational
needs did not justify and instead using them in a different capacity during the
strike, and after the strike returning them to the awarded position to the exclu-
sion of returning strikers the Respondent did violate the Act.
91 Kurz-Kasch, supra. For example, Ann Collins, a witness for the General
Counsel, testified that at the conclusion of the strike there were more nurses
in the recovery room area than would be justified by the then patient census,
but that some of these nurses were at training classes.
92 NLRB v. Erie Resistor Corp., supra; Great Lakes Carbon Corp. v. NLRB,
360 F.2d 19 (4th Cir. 1966); Bingham Willamette, 282 NLRB 1192 (1987),
enfd. 857 F.2d 661 (9th Cir. 1988); Giddings & Lewis, Inc., 255 NLRB 742
(1981).
Moreover, the same would be true of situations where ‘‘re-
placements’’ are awarded jobs during the strike which the
hospital’s operational needs do not justify and the ‘‘replace-
ment’’ is then utilized in a different capacity during the
strike. In such instances, the Respondent would not satisfy its
burden of demonstrating a ‘‘legitimate and substantial jus-
tification’’ sufficient to deny reinstatement to returning strik-
ing employees. In those cases where the courts and the
Board have not required ‘‘replacements’’ to be on the job
when the strike ends and the strikers seek reinstatement, it
has been found that ‘‘an understanding [had] been reached’’
between the employer and ‘‘replacement’’ that arrival on the
job would occur either at a subsequent fixed date88 or at a
‘‘reasonably early date’’ which might occur after the strike89
as evidenced by the facts of the respective cases. In the in-
stant case I do not believe that such an ‘‘understanding has
been reached.’’ The Respondent acknowledged that it had
not and reasonably could not set an actual date for the re-
opening of the closed hospital areas nor predict with some
reliability when already reopened areas would expand their
services. Therefore, under these circumstances, unless the
‘‘replacement’’ commenced working in the position awarded
during the strike and prior to the striker’s unconditional offer
to return to work, the nonstriking employee would not be a
‘‘permanent replacement’’ justifying the denial of reinstate-
ment to returning strikers.90 Of course this would not include
instances wherein the Respondent awarded positions to more
nonstrikers in a hospital area than the hospital’s operational
needs required and some of these ‘‘replacements’’ were in
training sessions or in orientation in or away from their posi-
tions or areas.91
Accordingly, I find and conclude from all the above that
the Respondent violated Section 8(a)(1) and (3) of the Act
by failing and refusing to reinstate certain of its employees
who had engaged in the strike and on whose behalf the
Union had made an unconditional offer to return to work.
4. The Respondent’s 12-month no-bumping provision
The complaint alleges that the Respondent violted Section
8(a)(1) and (3) of the Act by granting nonstriking employees
superseniority for a 12-month period following the conclu-
sion of the strike thereby awarding them preferences in terms
and conditions of employment. The Respondent denies hav-
ing violated the Act in this respect.
In NLRB v. Erie Resistor Corp., 373 U.S. 221, 230–231
(1963), the Supreme Court struck down an employer’s award
of 20 years’ superseniority to nonstriking employees as an
unfair labor practice within the meaning of Section 8(a)(1)
and (3) of the Act observing:
Super-seniority affects the tenure of all strikers
whereas permanent replacements, proper under Mackay,
affects only those who are, in actuality, replaced. It is
one thing to say that a striker is subject to loss of his
job at the strike’s end but quite another to hold that in
addition to the threat of replacement, all strikers at best
return to their jobs with seniority inferior to that of the
replacements and of those who left the strike.
. . . .
Unlike the replacements granted in Mackay which
ceases to be an issue once the strike is over, the [super-
seniority] plan here creates a cleavage in the plant con-
tinuing long after the strike ended. Employees are
henceforth divided into two camps: those who stayed
with the union and those who returned before the end
of the strike and thereby gained extra seniority. This
breach is reemphasized with each subsequent layoff and
stands as an ever-present reminder of the dangers con-
nected with striking and with union activities in gen-
eral.
The Court noted that the superseniority grant had the inher-
ent affect of unlawfully intimidating strikers by discrimi-
nating against them in favor of nonstrikers and that the un-
lawful consequence could form the basis of an unfair labor
practice even absent a finding of specific illegal intent. The
Court found that the grant of superseniority to nonstriking
employees exceeds what is necessary to protect an employ-
er’s right to continue his business operations by hiring per-
manent replacements and is outweighed by significant em-
ployee rights recognized by the Act, which protect their right
to strike.92
The Respondent in its brief asserts:
The purpose of the Rule was to make sure that perma-
nent replacements were not themselves replaced during
the recall period as a result of the return to work pro-
posals submitted by the Respondent on September 29,
1986. These would have established in Phase II of the
recall a variety of flexible and temporary methods of
sharing hours among employees prior to their actual re-
instatement. The proposal also contained a willingness
to consider ‘‘bumping’’ as a last resort for senior nurses
who had not been recalled in the normal course.
However, the credible evidence indicates that the Respondent
excluded from the operation of these procedures in the return
to work proposals, ‘‘permanent replacements.’’ The 12-
month rule clearly states its purpose and the Union was ex-
plicitly told or led to believe that the rules protected
nonstrikers from bumping for 12 months including at least
1010 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
93 Hefferman, a witness for the Respondent, testified to a limited application
of the 12-month rule. However, this testimony was contradicted by his affi-
davit given to a Board agent during the investigatory stage of these pro-
ceedings, and by the consistent and credible testimony of witnesses for the
General Counsel to the contrary. Moreover, it appears to have been the Re-
spondent’s position throughout the strike and the strike negotiations that ‘‘per-
manent replacements’’ would be protected in their jobs no matter what.
94 NLRB v. Erie Resistor Corp., supra.
95 NLRB v. Methodist Hospital of Gary, 73 F.2d 43, 48 (7th Cir. 1984);
NLRB v. Food Workers Local 1445, 647 F.2d 214 (1st Cir. 1981).
96 Rose Arbor Manor, 242 NLRB 795, 798 (1979).
97 Statler Hilton Hotel, 191 NLRB 283 (1971), and cases cited therein.
98 The Respondent’s attorney at the negotiations, Palmer, advised the union
representatives that this language effectively preserved the Union’s right to
pursue the unfair labor practice charges file and no additional language was
necessary.
99 Compare George Banta Co., supra. Contrast Gem City Ready Mix Co.,
270 NLRB 1260 (1984). The testimony of Barbara Larson, the Union’s main
negotiator, indicates that the Union’s acceptance of the Respondent’s final
offer was for the purpose of ending the strike and getting the striking employ-
ees back to work and only accepting the 12-month no-bumping provision
therein on the basis of the parties understanding that this ‘‘Rule’’ would be
reviewable before the Board.
100 Note the Respondent’s assertion that the 12-month no-bumping provision
was necessary to preserve the ‘‘permanent’’ status of strike replacements
which was guaranteed to them by the ‘‘individual contracts,’’ and the issue
of the legality of the ‘‘contracts’’ had been part of the pending charges to the
Board; the Board agent investigating the charge had questioned Heffernan
about the 12-month no-bumping provision alleged by the Union to be unlaw-
ful; the pending charges had been filed by the Union prior to the Respondent’s
proposal of the 12-month provision on October 1, 1986, as part of its final
offer to the Union, although the Union could have amended its charge or filed
a new one thereafter which it did not do until sometime subsequent.
permanent layoff and perhaps under any circumstances.93
Therefore, it is obvious that the rule’s intended purpose and
design was to insulate nonstriking employees from contracted
bumping, layoffs, or other permanent reductions in force for
12 months after the conclusion of the strike and amounted
to a grant of superseniority during that period based solely
on whether and to what extent the employee participated in
the strike.
The Respondent contends that no violation should be
found based on the 12-month no-bumping provision because
the issue is now moot since the 12-month period expired on
October 4, 1987, and no situation arose during its effective
period which required its application. However, a grant of
superseniority to nonstriking employees over striking em-
ployees has a significant impact on any future collective bar-
gaining and also tends to ‘‘create cleavage’’ between strikers
and nonstrikers in the workplace which ‘‘continues long after
the strike is ended.94 The hospital’s employees were well
aware of the 12-month provision, especially those who had
engaged in the strike and the nonstrikers, and such knowl-
edge would linger even after its expiration and even though
it was never applied, and the so-called ‘‘Rule’’ would serve
as an ever-present reminder to them of the consequences of
engaging in protected activity and even act to chill the em-
ployees exercise of their right to strike at some future time.
Moreover, a finding of a violation and any accompanying re-
medial order would have a strong deterrent effect on the rep-
etition of such illegal practice in the future.95
Additionally, the Respondent asserts as an affirmative de-
fense that the Union waived any right to protest the grant of
superseniority to nonstriking employees embodied in the 12-
month no-bumping provision by accepting the Respondent’s
final offer and submitting it for ratification to the Union’s
membership. In order to establish a waiver of a statutory
right, there must be a clear and unmistakable relinquishment
of that right. Whether there has been such relinquishment is
to be decided on the basis of all the facts and circumstances
surrounding the making of the contract.96 More precisely,
waivers of statutory rights ‘‘must be clearly and unmistak-
ably evidenced either in the terms of the parties’ bargaining
contract or in the nature of the prior contract negotiations.97
While it is true that the 12-month no-bumping provision
was included in the Respondent’s final offer accepted by the
Union and submitted to and ratified by the Union’s member-
ship thereafter, the record evidence does not support the
claim of waiver by the Union to contest the lawfulness of
this provision. The Union opposed the provision when it first
was proposed by the Respondent on October 1, 1986, and
continued to do so until the end of negotiations and insisted
on preserving its rights to pursue the unfair labor practice
charges pending at the time which pertained to the Respond-
ent’s ‘‘individual contracts’’ with nonstriking employees.
However, I am convinced that both the Union and the Re-
spondent were aware that this was meant to also include the
Union’s right to contest the 12-month no-bumping provision
as well.
The agreement which contained the 12-month no-bumping
provision also included the following language:98
Nothing in the agreement shall constitute a waiver of
any legal rights which the hospital or Union may have
. . . with regard to employees not represented by the
Union.
At the ratification meeting, the union membership was told
by its negotiators that the Union was challenging the 12-
month no-bumping provision and the ‘‘individual contracts’’
(the award of jobs to nonstrikers and the reinstatement of the
strikers) before the Board. Certainly these facts are not con-
sistent with finding a waiver by the Union. Moreover, the
Respondent and the Union included language in the agree-
ment not to discriminate against employees based on their
strike activity. Despite acquiescence by the Union to the in-
clusion of the 12-month no-bumping provision in the agree-
ment, the Union maintained throughout the period after the
Respondent proposed it, that the provision was unacceptable
and by actual and/or constructive notice indicated its inten-
tion to test its legality before the Board.99
Moreover, the Respondent relies on the Union’s emphasis
on preserving its right to pursue ‘‘pending charges’’ before
the Board as establishing a waiver of its right to challenge
the 12-month no-bumping provision because there was no
pending charge at the time of the agreement specifically al-
leging this provision to be unlawful. This is an overly restric-
tive consideration of what was intended as evidenced in the
record. While it is true that the pending charges related
mainly to the ‘‘individual contracts’’ issue and did not spe-
cifically allege the unlawfulness of the 12-month no-bumping
provision, there is some interrelation between that allegation
and the pending charge relating to the ‘‘individual con-
tracts.’’100
As the General Counsel asserts in the brief:
In light of the conflicting provisions of the agree-
ment itself, the contemporaneous statements made by
the Union’s negotiator, and the assurances given by the
1011WATERBURY HOSPITAL
101 NLRB v. Mackay Radio & Telegraph Co., supra; NLRB v. Fleetwood
Trailer Co., supra.
102 Gilmore Steel Corp., 291 NLRB 185 fn. 1 (1988).
103 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 purposes.
104 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
Respondent’s negotiator that the language it proposed
preserved the Union’s right with respect to pending un-
fair labor practice charges, a ‘‘clear and unmistakable’’
waiver cannot be found here.
I agree.
From all the above I find and conclude that by granting
nonstriking employees superseniority for a 12-month period
following the conclusion of the strike thereby awarding them
preference in terms and conditions of employment, the Re-
spondent violated Section 8(a)(1) and (3) of the Act.
As regards the General Counsel’s motion alleging that the
Respondent violated Section 8(a)(1) and (3) of the Act by
discriminatorily awarding preference in the scheduling of the
hours of work and shifts to nonstriking employees in the
hemodialysis unit, I find and conclude that the Respondent
did not engage in unlawful conduct in this respect. The Re-
spondent had a right to hire permanent replacements for the
striking employees in the hemodialysis unit and did so.101
These employees were hired on a full-time or part-time basis
with fixed amounts of hours except for overtime if any.
There was therefore no obligation on the Respondent’s part
to lessen the hours of these permanent replacements to ac-
commodate reinstated strikers, unless by agreement between
it and the Union. Under these circumstances, the General
Counsel has failed to sustain his burden of proving violative
conduct on the part of the Respondent.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of the Respondent set forth in section III,
above, found to constitute unfair labor practices occurring in
connection with the operations of the Respondent described
in section I, above, have a close, intimate and substantial re-
lationship to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow thereof.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist and take certain affirmative action designed to effec-
tuate the policies of the Act.
The Respondent shall be ordered to offer reinstatement to
the strikers who, at the compliance stage of this proceeding,
are determined to have been denied reinstatement as a con-
sequence of the Respondent’s failure to reinstate them to
their former or substantially equivalent jobs,102 without prej-
udice to seniority or other rights and privileges, and to make
each such striker whole for any loss of pay and benefits they
may have suffered by reason of the Respondent’s discrimina-
tion against them, such payments to be made in accordance
with F. W. Woolworth Co., 90 NLRB 289 (1950), with inter-
est to be computed as in New Horizons for the Retarded, 283
NLRB 1173 (1987).
CONCLUSIONS OF LAW
1. The Waterbury Hospital is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. Connecticut Health Care Associates, District 1199, Na-
tional Union of Hospital & Health Care Employees, AFL–
CIO is a labor organization within the meaning of Section
2(5) of the Act.
3. The Respondent discriminated against employees in vio-
lation of Section 8(a)(1) and (3) of the Act by failing and
refusing to reinstate striking employees while according job
preferences to nonstrikers over strikers.
4. The Respondent discriminated against employees in vio-
lation of Section 8(a)(1) and (3) of the Act by according job
preference to nonstriking employees (new hires and cross-
overs) by granting these employees superseniority for a 12-
month period following the conclusion of the strike.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended103
ORDER
The Respondent, the Waterbury Hospital, Waterbury, Con-
necticut, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to reinstate striking employees while accord-
ing job preferences to nonstrikers over strikers.
(b) According job preferences to nonstriking employees by
granting them superseniority for a 12-month period following
the conclusion of the strike.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer reinstatement and/or backpay to any striker, who,
at the compliance stage of this proceeding, is determined to
have been denied reinstatement as a consequence of the Re-
spondent’s unlawful conduct in the manner set forth in the
remedy section of this decision.
(b) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(c) Post at its hospital facility in Waterbury, Connecticut,
copies of the attached notice marked ‘‘Appendix.’’104 Copies
of the notice, on forms provided by the Regional Director for
Region 39, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
1012 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT refuse to reinstate striking employees while
according job preferences to nonstrikers over strikers.
WE WILL NOT accord job preferences to nonstriking em-
ployees by granting them superseniority for a 12-month or
any period following the conclusion of a strike.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed by Section 7 of the Act.
WE WILL offer reinstatement and backpay, with interest, to
any strikers who were unlawfully denied reinstatement as a
consequence of our failure to offer reinstatement to them be-
cause we preferred nonstrikers employed during the strike.
THE WATERBURY HOSPITAL