Woodlawn Hospital

National Labor Relations Board - Board Decisions

Nov 23, 1977

233 N.L.R.B. 782 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Woodlawn Hospital and Hospital Employees' Labor
Program of Metropolitan Chicago. Case 13-CA-
13539
November 23, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On August 15, 1977, Administrative Law Judge
Josephine H. Klein issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions, a supporting brief, a motion to correct clerical
errors in its exceptions, and an answering brief to
Charging Party's cross-exceptions; the Charging
Party filed cross-exception and a supporting brief;
and the General Counsel filed a brief in support of
the Decision and an answering brief to Respondent's
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions 2 of the Administrative Law
Judge and to adopt her recommended Order,3 except
that the remedy is modified so that interest is to be
computed in the manner prescribed in Florida Steel
Corporation, 231 NLRB 651 (1977).4
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Woodlawn
Hospital, Chicago, Illinois, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
I Certain apparently inadvertent errors appear in the Decision of the
Administrative Law Judge. Accordingly, they are corrected as follows: The
"June 25 'termination tickets' should read "June 23 'termination
tickets' "; the reference to reinstatement offers sent on "November 14,
1972" should read "November 8, 1972"; and the reference to the Union's
unconditional offer to return to work on behalf of the striking employees
should read "August 25" instead of "September 25."
z As the record does not support Respondent's assertion that certain
employees engaged in strike misconduct resulting in their discharge, and as
striking employees. if discharged due to a labor dispute, retain their rights to
preferential reinstatement under the doctrine enunciated in The Laidlaw
Corporation, 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (C.A. 7, 1969), we
deem it unnecessary to rely on the finding of the Administrative Law Judge
that Respondent, by the position it took in settlement negotiations,
rescinded its discharge of the striking employees. In view of the Union's
August 25, 1974, letter which clearly constituted an unconditional offer on
behalf of the strikers to return to work, we also find it unnecessary to rely on
her conclusion that the Union's August 19, 1974, letter "did not state that
233 NLRB No, 117
any reinstated strikers would walk out on September 5 and no such threat
could reasonably be inferred."
I The Charging Party is incorrectly identified in par. I(a) of the
recommended Order. Accordingly, we hereby substitute "Hospital Employ-
ees' Labor Program of Metropolitan Chicago" for "Communications
Workers of America, AFL-CIO" therein.
4 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
DECISION
JOSEPHINE H. KLEIN, Administrative Law Judge: Pursu-
ant to a charge and an amended charge filed on September
3 and 5, 1974, respectively, by Hospital Employees' Labor
Program of Metropolitan Chicago (the Union), a com-
plaint was issued against Woodlawn Hospital (Respon-
dent) on July 13, 1976, alleging that since August 29, 1974,
Respondent has violated Section 8(a)(3) and (1) of the Act '
by failing and refusing to grant striking employees their
statutorily protected rights to reinstatement.
Pursuant to due notice, a hearing on the complaint was
held before me in Chicago, Illinois, on December 13
through 15, 1976. All parties were represented by counsel
and were afforded full opportunity to be heard, to present
oral and written evidence, and to examine and cross-
examine witnesses. The parties waived oral argument at the
conclusion of the hearing. Posttrial briefs have been filed
on behalf of the General Counsel, Respondent and the
Charging Party.
Upon the entire record,2 observation of the witnesses,
and consideration of the briefs, I make the following:
FINDINGS OF FACT
I. PRELIMINARY FINDINGS
A. Respondent, an Illinois not-for-profit corporation, is
engaged in providing health care services in Chicago,
Illinois. During the past year, a representative period,
Respondent, in the course and conduct of its business
operations, received revenues in excess of $250,000, and
purchased and received supplies valued in excess of
$50,000 directly from outside Illinois. Respondent is now,
and has been at all times material herein, an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
B. The Union is now, and has been at all times material
herein, a labor organization within the meaning of Section
2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. The Issues
The basic issue presented is whether Respondent has
violated Section 8(aX3) and (1) of the Act since August 25,
1975, by refusing to grant statutorily protected strikers'
reinstatement rights to employees who had gone out on
strike in 1972. Respondent contends that the employee
status of the strikers had ended before August 25, 1974,
and, therefore, to afford them the protection of the Act, as
striking employees, would constitute impermissible retroac-
National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq.
2 Certain errors in the transcript have been noted and are hereby
corrected.
782
WOODLAWN HOSPITAL
tive application of the 1974 amendment extending the Act
to nonprofit hospitals. 3 Respondent also maintains that the
strikers are not entitled to reinstatement and backpay
because they have not made unconditional offers to return
to work. Respondent also contends that "no back pay
remedy is appropriate in light of . . . the delay and the
change in the law." 4
B. The Facts
In December 1971, after a card check, Respondent
entered into an "Interim Recognition Agreement" with the
Union as representative of Respondent's nurses aides and
dietary and housekeeping employees. In June 1972, after
unsuccessful contract negotiations, the parties invoked
"non-binding fact-finding," as provided in the recognition
agreement. Around 4 or 4:30 a.m., on June 14, 1972, a
strike began. At that time eight nurses aides and an
elevator operator walked off the job, 2-1/2 to 3 hours
before the end of their shift. Many other employees
congregated in front of the hospital. Of the 1 17 employees
in the bargaining unit at that time, 74 went on strike.5
Approximately 50 or more strikers participated in the
picketing and handbilling which began on June 14, 1972,
and continued until August 23, 1974.6
David J. Koszut, then Respondent's administrative
assistant, testified that he instructed Mr. Brookshire,
director of nursing services, to "terminate" the nine
employees who had walked out during their shift. How-
ever, Brookshire did not testify, and there is no evidence
that he took any action pursuant to Koszut's instruction. It
is clear that the employees themselves were not given any
notice of termination at that time.
On June 23, 1972, "Personnel Status Notices," which
were referred to as "termination tickets," were placed in
the personnel files of 13 strikers,7 recording a "termination
date" of June 17, 1972, with the comment: "Resigned
without giving notice." These notices were signed by
Brookshire. Neither the Union nor any of the 13 strikers
was informed of this action.
Strike replacements were hired and as of August or
September 1972 the hospital was operating with 95
employees in the bargaining unit. Koszut testified that,
when hired, the replacements were informed that their jobs
were permanent and that under no circumstances would
they be displaced by returning strikers, who had been
terminated and would not be returning. Most of the
strikers attended part or all of the factfinding hearings,
which were held on August I and 2 and September 15,
1972. At no time during those hearings did Respondent
maintain that any strikers had been discharged, nor was
3 Public Law 93-360, enacted July 26, 1974, effective August 25, 1974.
' In its amended answer to the complaint, Respondent asserted that the
strike was "unprotected" because no timely notice was given pursuant to
Sec. 8(g) of the Act and because the Union was trying to have Respondent
violate the Economic Stabilization Act. In 1975 these contentions had been
submitted to the Board in the form of a charge against the Union. The
Regional Director refused to issue a complaint and his action was sustained
by the Board on appeal. Case 13-CP-293.
s Mary Frances Lee, a nonunit employee, joined the strike. Her situation
is discussed below.
6 Three strikers named in the complaint (Frank Cheers, Alice Jackson.
and Dorothy White) are not listed in Respondent's "Master List of Striking
Employees" as of November 1972. However. other evidence establishes that
any reference made to the June 25 "termination tickets."
However, at that hearing Respondent introduced into
evidence a portion of its personnel manual governing
resignations. That provision reads, in pertinent part:
If an employee is absent for a period of three
consecutive days or longer without being excused by
his department manager, it will be assumed that the
employee has resigned without giving notice and all
benefits will be forfeited.
At the factfinding hearing Respondent stated its position
that the majority of the strikers "have been assumed to
have resigned from the hospital." At that hearing it was
also agreed that on August 4, 1972, a letter was sent to "at
least 34" strikers requesting that they empty their lockers.
Koszut estimated that about 50 letters were sent out. Those
letters began:
Inasmuch as you have resigned your employment in
accordance with established personnel policies of
Woodlawn Hospital, the hospital has found it necessary
to permanently replace you.8
In his decision, issued on October 25, 1972, the impartial
factfinder found, inter alia, that Respondent had under-
mined the Union by granting wage increases to various
unit employees and by initiating organization of an
"Employee-Management Committee to establish a vehicle
of communications between the administration and those
employees who were not members of the Union-including
nonmembers who fell within the unit description." He
further found that Respondent's bad-faith conduct "condi-
tioned a climate" that caused the Union to strike in
apparent violation of a no-strike commitment in the
Interim Recognition Agreement and led to strike miscon-
duct by some union sympathizers in the early days of the
strike. The factfinder recommended, inter alia, that all
strikers be reinstated and an election be held among the
employees on the payroll as of December 15, 1971. He
recommended excluding strike replacements from the
election because "actions of the Hospital conditioned a
climate which tempted strike action" and had undermined
employee support of the Union.9 He proceeded with
recommendations as to the terms of a collective-bargaining
agreement and interest arbitration if the parties could not
agree on a contract within 30 days. The Union accepted
the factfinder's decision but the Respondent rejected it.
On November 14, 1972, Respondent sent letters to 65
strikers. The letters to 46 offered reinstatement, with all
existing benefits and the seniority adjusted by the length of
these persons were strikers. Respondent's brief makes no specific reference
to them.
I These were 13 of a total of 31 nursing department employees listed on
Respondent's master list of strikers as of November 1972.
8 Koszut named the only striker who. so far as he knew, had reported to
clean out his locker. The striker so named is not included in the present
complaint.
9 In effect, he considered the strikers as equivalent to unfair labor
practice strikers, saying: "It is well established in labor relations that
administrative boards and courts have often supported orders that
employees engaged in a strike to protest unfair labor practices have been
granted the right of reinstatement."
783
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time they were out on strike. Reinstatement was to be
made immediately to the extent of existing vacancies, and
within 30 days to other positions. The remaining letters
were sent to 10 strikers who Respondent maintained had
been guilty of strike misconduct and 9 whom Respondent
accused of "dereliction of duty" by reason of having
walked out during their shift on June 14, 1972. The letters
to these 19 strikers read:
The purpose of this letter is to advise you that based
upon facts within our knowledge you are not eligible
for reinstatement to the job you formerly held.
If you wish to know the basis of this decision not to
offer you reinstatement you may make an early
appointment with Miss Heisse . . . to discuss with her
the specific reasons. If you believe that the grounds for
this decision are unjust you will be provided an
opportunity to present your reasons in writing to the
Employee-Management Committee, for their review
and recommendation to me [the Administrator].
After Respondent's rejection of the factfinder's decision,
the parties engaged in extended negotiations for a settle-
ment of the entire dispute. It was contemplated that the
agreement would include provisions governing reinstate-
ment of the strikers and terms of a collective-bargaining
agreement. Early in the negotiations it was agreed that
reinstatement of the strikers would be effectuated essential-
ly on a seniority basis. From the beginning, Respondent
strenuously objected to reinstating strikers who had been
guilty of strike misconduct. The Union agreed that strikers
who had been guilty of egregious misconduct need not be
reinstated, but the Union objected to Respondent's
unilaterally deciding who was disqualified for such reason.
Although the course of the negotiations was stormy,
substantial agreement was tentatively reached by June 7,
1974, when James H. Lorie, chairman of Respondent's
board of directors, approved the "final draft" prepared by
union counsel. 0° Lorie said he would recommend its
adoption by Respondent, whereupon the representatives of
the two parties shook hands, reflecting a mutual good will
not conspicuous in their prior meetings. In a letter to the
Federal Mediation Service, the Union's counsel asserted
that a final agreement had been reached on a settlement of
the dispute. In cross-examining Edwin H. Conger, Respon-
dent's president and counsel at the time involved, union
counsel also sought to establish that final agreement had
been reached. However, on the present record I find that,
as conceded by counsel for the General Counsel in her
opening statement at the hearing, no legally binding, final
overall agreement was reached.
So far as relevant to this case, the major provisions of the
tentative agreement reached on June 7, 1974, were as
follows. Respondent would recognize the Union as the
collective-bargaining representative of the unit employees.
i0 Edwin Conger, Respondent's president and counsel, testified that he
advised against Respondent's agreeing to it. However, it does not appear
that he expressed such view at the June 7, 1974, meeting with union
representatives.
II The 29 were to be listed in an appendix to the agreement. Apparently
the list was never actually drawn up.
Apparently selected on a seniority basis,'1 29 strikers
would be reinstated immediately. The right of nine strikers
to reinstatement would be submitted to arbitration. 2 The
remaining strikers would be placed on a preferential hiring
list, along with employees displaced by the first group of
reinstatements.
Respondent did not execute the agreement tentatively
reached on June 7, 1974. Instead, on June 17, Respondent
requested further modifications. The most significant
modification proposed was a provision that "[i]f the
National Labor Relations Act is amended so as to make
the Hospital subject to it," the Union would not be
recognized unless it proved its majority again. That last
proposal still provided for reinstatement of the strikers
"without prejudice to seniority rights and all other
benefits," with the rights of nine "misconduct" strikers still
subject to arbitration.
Negotiations for a settlement were finally broken off,
when, on August 1, 1974, Respondent notified the Union
that, because of the amendment of the Act, Respondent
would no longer offer to recognize the Union unless it
established its majority status either by a card check or
through a Board-conducted election. On August 4, 1974,
the Union advised the Federal Mediation and Conciliation
Service of the existence of the strike.
On August 15, 1974, Laura B. Reale, then Respondent's
director of employee relations, placed "termination notic-
es" in the personnel files of 43 strikers, including 9 of the 19
who had received "ineligibility" letters in November 1972.
Reale testified that when she started to work for Respon-
dent in 1973 the strikers' names had already been removed
from the hospital's "cardex" list of employees and had
been placed in the "terminated employees" file. However,
none of the strikers had been informed of these internal
record-keeping moves.
On August 19, 1974, the Union wrote Respondent, in
part, as follows:
[T ]his is to advise you that, pursuant to the terms of
statute ... we hereby notify you that, effective August
25, 1974, as of 12:01 a.m., the strike which has been in
progress at the Woodlawn Hospital shall terminate and
the 7613 employees whose names you have will present
themselves for employment with the Hospital.
In the event you refuse to accord to the strikers the
rights demanded above, the Hospital Employees' Labor
Program will remove pickets on August 25, 1974, but
will distribute leaflets protesting your actions to the
public, consumers and members of labor organiza-
tions. ....
Should you continue to refuse their employment or
should you continue to refuse any individual among
them employment, you are further notified that the
strike shall resume ten days thereafter, on September 5,
1974, at 12:01 a.m., and you shall be held responsible
12 These nine were to be named in an appendix, which does not appear
in the record. However, as discussed below, other evidence shows that they
were those whom Respondent believed to have been guilty of strike
misconduct.
13 The present complaint now lists only 58 or 59.
784
WOODLAWN HOSPITAL
and liable for any and all damages sustained or
accruing to any or all of the individuals.
By letter dated August 22, 1974, Respondent advised the
Union that the hospital would "receive applications for
employment from any striker who wishes to apply" and
applications so filed would "be considered along with any
others on file when there are job vacancies to be filled." On
August 25, 1974, the Union wrote Respondent as follows:
This is to advise you that an unconditional offer to
return to work, effectively immediately, is hereby made
by and on behalf of the following-named employees of
the Woodlawn Hospital.
There followed a list of 64 strikers. This letter was hand-
delivered to a security guard on duty at the hospital at
12:07 a.m., August 26, and a copy was also sent to Samuel
J. Eblen, hospital administrator. While Respondent main-
tains that the hand-delivered letter did not come to the
attention of hospital administration until the next week, it
was stipulated that the copy sent by mail was received on
August 27.
On or about August 26, 1974, 41 strikers appeared
personally at the hospital to request reinstatement. Main-
taining that they wanted reinstatement, they objected to
being required to file job applications. They eventually did
so "under protest." Reflecting its position that the strikers
had no status other than that of job applicants, Respondent
sent letters to many of them stating that their applications
were "incomplete," because they did not contain full
employment histories, including information shown on
their original applications for employment and thus
already known to Respondent. The letters stated that there
were at present only two or three part-time vacancies, and
concluded by saying that if the applicant did not want to
be considered for one of the part-time vacancies, his
"application (would] be put on file for consideration when
vacancies occur in the positions for which you apply."
Five applicants were informed that their applications
would not be considered because they had been informed
of their ineligibility for reinstatement on November 8,
1972, and had not sought review by the Employee-
Management Committee. Respondent's "Master List of
Striking Employees" records Respondent's view that these
five applicants had been guilty of strike misconduct.s4 The
remaining strikers in that class s did not make individual
requests for reinstatement. Such "ineligibility" letters were
not sent to any applicants who had walked out while on
duty on June 14, 1972; such applicants were treated in the
same way as those who had been offered reinstatement on
November 8, 1974.
It was stipulated at the hearing that Respondent dealt
with the strikers as applicants for initial employment, with
no preferred rights over other applicants. Notes of
interview by Respondent's representative report that some
14 Edna Hankins, Shirley Jackson, Ella Wee Johnson. Idella Stewart, and
Johnella Williams.
15 Helen Carter, Marguerite Edwards. Ernestine Lane, Mayfra Humbert,
and Lorraine Dawson.
i6 Alice Jackson, Eddie Mae Johnson, and Adzetter Farr.
17 Juanne McCants, Josie Wells, and Fannie Speight.
of the strikers declined to be considered for any position
other than those they held before the strike; others
indicated varying degrees of flexibility; some stated that
they would consider other jobs "under protest." Three
strikers16 were rehired, but then disqualified when they
failed to pass preemployment physical examinations. Three
strikers returned to work for Respondent as new employ-
ees.17
Respondent sought to establish that, in television
newscasts on the evening of August 26, a nonemployee
who had frequently given instructions to the pickets, said
that the strike would resume in 10 days if Respondent did
not reinstate all the strikers. Respondent's counsel offered
to prove that, on the basis of those telecasts, Respondent's
representatives thereafter operated on the understanding
that any strikers who might be reemployed then would
walk out again on September 5 if not all strikers were
reemployed. In the main, this evidence was rejected on the
grounds that the alleged spokesman was not sufficiently
identified as an agent of the Union or spokesman for the
strikers' 8 and Respondent had not communicated its
"understanding" to the Union or the strikers.
It was stipulated that since August 29, 1974, Respondent
has hired 22 new employees, never previously employed by
Respondent, in the bargaining unit here involved.
C. Discussion and Conclusions
1. Status of the strikers under the Act
So far as here relevant, Section 2(3) of the Act defines the
term "employee" to "include any individual whose work
has ceased as a consequence of, or in connection with, any
current labor dispute ... and who has not obtained any
other regular and substantially equivalent employment."
Respondent advances several reasons for finding that the
strikers here involved do not meet the statutory definition
of "employees" entitled to the protection of the Act.
a. Current labor dispute
Respondent maintains that there is no current labor
dispute because "the strike ended on August 23, 1974,
when the Union ceased picketing, and it is undisputed that
neither the picketing nor any other strike activity recom-
menced after that date." ' 9 In view of the terms of the 1974
amendment, bringing hospitals under the Act, the Union
would reasonably contemplate that it might be required to
give 10-day advance notice of any strike action. At the
same time, it would want to establish that the strikers were
not abandoning their positions, but, on the contrary, were
maintaining their status as employees who were not
working because of a current labor dispute. The Union's
letter of August 19, 1974, was clearly calculated to convey
that message; it advised Respondent that, although it was
giving 10-day notice "before engaging in any strike,
picketing, or other concerted refusal to work," as required
i' Respondent offered excerpts from transcripts of three telecasts. These
transcripts quote statements by "Unidentified Hospital Employee," "Un-
identified Speaker" and "Unidentified Worker."
'9 At another point, however, in arguing that the strikers did not make
unconditional offers to return to work, Respondent says that "the record
evidence is unclear, when, if ever, the strike ended."
785
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by Section 8(g), it would continue to distribute leaflets and
would resume the strike if the continuing dispute was not
resolved by the end of the notice period. Thus, there clearly
was "a running dispute between the ... employees and the
company." N.L.R.B. v. Washington Aluminum Co., 370 U.S.
9, 15 (1962).
As it turned out, the legal fiction of a I-minute strike at
12:01 a.m., on August 25, followed by a 10-day respite, was
an unnecessary charade, since the Board later ruled that
hospital employees who were on strike when the statutory
amendment became effective were not required to give
notice of strike. Methodist Hospital of Kentucky, Inc., 221
NLRB 692 (1975), now pending on review and enforce-
ment in the Court of Appeals for the Sixth Circuit (No. 77-
1057). The Union cannot be faulted for having, out of an
excess of caution, declined to gamble that the Board and
the courts would ultimately hold that no strike notice was
required.
Whatever other effect the Union's letter may have had, it
clearly informed Respondent that the Union and the
strikers were not abandoning their claimed rights. Since
Respondent had not acceded to the demands, there clearly
was a continuing current labor dispute.
That the Union did not thereafter resume picketing does
not affect the result. "I[TIhe determination of whether a
'labor dispute' exists does not depend on the manner in
which the employees choose to press the dispute, but rather
on the matter they are protesting." Plastilite Corporation,
153 NLRB 180, 184 (1965), enfd. in pertinent part 375 F.2d
343 (C.A. 8, 1967). The very day after the statute became
effective the Union again asserted the strikers' statutory
right to reinstatement. With Respondent asserting that the
strikers had no rights, clearly there was a continuing
current labor dispute between the parties.
b. Alleged termination of the strikers
The Board has definitively ruled that hospital employees
who were involved in a labor dispute when the 1974
statutory amendment became effective are "employees"
entitled to the protection of the Act. Methodist Hospital of
Kentucky, Inc., 227 NLRB 1392 (1977), pending in the
Sixth Circuit along with 221 NLRB 692, supra (No. 77-
1057). The facts in Methodist Hospital are similar to those
in the present case: the strike had begun in 1972 and was
continuing on August 25, 1974; a personnel manual
contained a provision requiring 2 weeks' notice of resigna-
tion; before the strike began, the employees were notified
that strikers would be considered as having resigned and
replacements would be sought and those who picketed
"would necessarily be considered as having withdrawn
from their employment"; after the strike began, termina-
tion notices were placed in the strikers' personnel files,
showing the reason of the termination as "Failed to return
to work; did not give notice"; strikers were not given
copies or informed of the termination notices; the respon-
dent solicited the strikers to return to work "on a selective
basis"; and some strikers were reemployed. The Board
adopted Administrative Law Judge Herbert Silberman's
holding that the strikers were employees on August 25,
1974, and thus entitled to the protection of the Act.
Administrative Law Judge Silberman held that the strikers
had not been discharged because they had not been
notified of their discharge; the notices to the employees
were purely prospective and the strikers were not informed
of the termination notices allegedly placed in their files.
The policy provision in the personnel manual was held
inapplicable because "by its terms [it] relates only to
resignations and has no applicability to strikes." As fully
discussed in Methodist Hospital, supra at 1399-1400, the
foregoing rulings are supported by numerous decisions
concerning the employee status of persons who were on
strike when the original Wagner Act became effective. See,
e.g., N.LR.B. v. Carlisle Lumber Co., 94 F.2d 138 (C.A. 9,
1937), cert. denied 304 U.S. 575 (1938); Jeffrey-DeWitt
Insulator Co. v. N.LR.B., 91 F.2d 134 (C.A. 4, 1937), cert.
denied 302 U.S. 731; Phelps Dodge Corp. v. N.L.R.B., 113
F.2d 202 (C.A. 2, 1940), affd. 313 U.S. 117 (1941); and
Eagle-Picher Mining and Smelting Company et al. v.
N.LR.B., 119 F.2d 903 (C.A. 8, 1941), all discussed in
Methodist Hospital, 227 NLRB 1392, 1399-1400. See also
C. H. Guenther & Sons, Inc. d/b/a Pioneer Flour Mills v.
N.L.R.B. 427 F.2d 983, 985 (C.A. 5, 1970): "Economic
strikers retain their employee status and are entitled to
reinstatement upon departure of their permanent replace-
ments."
Respondent seeks to distinguish Methodist Hospital on
the ground that in the present case, unlike Methodist
Hospital, the strikers were in fact terminated. Respondent
relies initially on the "locker" letters sent to between 34
and 50 unidentified strikers on August 4, 1972, advising
them that they were deemed to have resigned and had been
replaced. Prior Board and court decisions support Respon-
dent's contention. Most closely in point is Comfort, Inc.,
152 NLRB 1074 (1965), enfd. in pertinent part 365 F.2d
867, 874-875 (C.A. 8, 1966). In that case, after a strike
began, the employer wrote to the strikers, noting their
absence and saying that the employer "must therefore
assume that you have voluntarily quit your employment."
The letters also advised that, unless the strikers returned to
work by a specified date, the employer would "have no
choice but to believe that you have voluntarily quit your
employment with [us], without notice, and your employ-
ment record will be so marked and our file closed on your
employment." Thereafter, when the striking employees
appeared to get their paychecks, they were given copies of
notices of change in employment status, reciting that the
"employee is considered a voluntary quit, without notice,
since he failed to report for regularly scheduled work on
[specified dates]. Employee failed to notify company of
any reason for absence." Trial Examiner Frederick U.
Reel, affirmed by the Board, held (152 NLRB at 1086):
On these facts it seems clear that the Company violated
Section 8(aXl1) of the Act by threatening to discharge
employees for continuing to strike and violated Section
8(a)(3) of the Act by discharging them for striking
.... The discharge of the strikers prior to their
replacement was an unfair labor practice, whether the
strike be viewed as an economic strike or a strike
caused in part by unfair labor practices.
In enforcing the relevant portion of the Board's order, the
court said (365 F.2d at 875):
786
WOODLAWN HOSPITAL
The issue before us thus narrows to the question
whether Respondent's letter of November 5 and its
"notice of change in employment status," dated the
same day, were tantamount to a discharge of Respon-
dent's employees. We hold that such is the legal effect
of Respondent's action notwithstanding the nomencla-
ture used to describe the termination of the employ-
ment relationship. The fact that Respondent's employ-
ees received no formal notice of discharge, as was
Respondent's customary practice, is immaterial, if they
could logically infer that their employment status had
been terminated at that point.... Irrespective of
employer connotations, other courts have similarly
construed such "voluntary quit" notices as having the
legal effect of a discharge. [Citations omitted.]
Comfort was followed in N.L.R.B. v. Hilton Mobile Homes,
387 F.2d 7, 9 (C.A. 8, 1967), enfg. in part 155 NLRB 873
(1965). The court there set down the rule that: "Whether
[the employer's] statements constituted an unlawful dis-
charge depends on whether they would reasonably lead the
employees to believe they had been discharged."
The Comfort line of cases are clearly distinguishable from
Methodist Hospital, in which the employees were warned of
possible future replacement or termination but were never
notified of afait accompli.
But acceptance of Respondent's contention that some of
the strikers20 were in effect discharged on August 4, 1972,
when the "locker" letters were sent, does not end the
matter. In Methodist Hospital, supra, 1392, 1399, it is said
that "even had the Hospital given the striking employees
notice of termination, their purported discharges ...
would not have affected their rights to reinstatement."
Whether considered as "dictum," as Respondent contends,
or as an alternative basis of decision, the statement is fully
supported by prior decisions. See N.L R.B. v. Carlisle
Lumber Co., supra, 145:
It is clear here, that at the time of the unfair labor
practices, there was a current labor dispute, in that
there was a controversy.... It is likewise clear that
the individuals, that is, the union employees, ceased
their work in order to sustain their position in the
controversy. Under the Act, therefore, the union
members were "employees."
* *
There is no limitation in the statute that individuals
whose work has ceased as a consequence of a current
labor dispute are employees only if they were not
discharged prior to the effective date of the act. The
reading into the statute of such a limitation would
constitute an abuse of power.
Respondent would distinguish Jeffrey-Dewitt Insulator
Co. v. N.L.R.B., supra.; Phelps Dodge Corp. v. N.L.R.B.,
supra., and Eagle-Picher Mining and Smelting Co. v.
20 The precise number and identity of these strikers do not appear. It
may be that additional strikers might be deemed to have been discharged
since most of the stnkers attended at least some of the fact-finding hearings,
at which Respondent apparently made clear its position that the strikers had
resigned, pursuant to the resignation rule in the personnel manual.
N.LR.B., supra, on the ground that they did not involve "a
factual situation in which the strikers had been affirmative-
ly terminated prior to the effective date of the Act."
However, in Jeffrey-Dewitt the employer had announced
that employees who desired to work must report on a
specified date prior to the effective date of the Act, and in
Phelps Dodge the employees had been replaced before the
effective date of the Act. In his concurring opinion in
Carlisle, Judge Stephens specifically noted that Jeffrey-
Dewitt "is practically upon all fours with" Carlisle, in that
"[t]here is present in each case the element of discharge
through affirmative action of the employer." 94 F.2d at
148. Respondent contends that "Carlisle was substantially
overturned by Fansteel,21 when the Supreme Court con-
cluded that strikers could lose their status as employees by
virtue of a lawful discharge." However, there is no
inconsistency between Carlisle and Fansteel. Carlisle and
other cases cited above establish that an employee who is
discharged for the mere act of engaging in a lawful strike
does not lose his employee status but, on the contrary,
continues to have the status of a striking employee.
Employees unlawfully discharged after a protest demon-
stration "never ceased being employees." Shelly & Ander-
son Furniture Manufacturing Company, Inc. v. N.LR.B., 497
F.2d 1200, 1205 (C.A. 9, 1974); Ridgely Manufacturing
Company v. N.LR.B. 510 F.2d 185, 188 (C.A.D.C., 1975).
Fansteel and numerous similar cases hold that strikers are
not insulated from discharge and may lose their employee
status if discharged for unlawful conduct, even if such
misconduct was engaged in as an incident to the strike. In
the Fansteel situation, the discharges are based not on the
act of striking but on the unlawful conduct, a separate
matter. Cf. N.LRB. v. Crimptex, Inc., et al., 517 F.2d 501,
505 (C.A. 1, 1975). Raleigh Water Heater Mfg. Co., Inc.,
136 NLRB 76, 80 (1962), and Acrylic Optics Corp., 222
NLRB 1105, 1106 (1976), upon which Respondent relies,
fall within the Fansteel class, i.e., they involve discharges
for conduct which would not have been lawful or tolerated
if the employees had remained at work.
In this connection it should be noted that, while
Respondent maintains that the strike was "unprotected,"
because it did not come under the protection of the Act,
there is no contention that it was "unlawful." 22 Specifical-
ly, in its affirmative defenses Respondent did not plead and
does not argue in its brief that the strike was "unlawful"
because it was in apparent contravention of a no-strike
clause in the original Interim Recognition Agreement. No
such issue was raised or litigated in this proceeding. So far
as appears Respondent has never made such a claim.
In the present case, the "locker" letters on their face
purported to effectuate discharges solely for the employees'
absence from work. That absence was occasioned solely by
the lawful strike. Thus, under the unequivocal holding in
Carlisle, as recently followed in Methodist Hospital, the
locker letters did not end the employee status of the strikers
here involved.
21 N.L R.B. v. Fansteel Metallurgical Corp.. 306 U.S. 240 (1939).
22 See N.LR.B. v. Crinmprex, Inc., supra, 505: "Although the strike was
unprotected because of the end at which it was directed, it is clear that this is
not alone enough to make it unlawful or illegal."
787
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This conclusion concerning the locker letters is support-
ed by additional evidence. The letters were prompted by
the hospital's need for lockers for strike replacements and
the number of letters sent was apparently limited to the
number of lockers needed. Additionally, as previously set
forth, on November 8, 1972, more than 3 months after the
locker letters, Respondent offered reinstatement to 46
strikers. 23 The total number of strikers was such that at
least some of the persons offered reinstatement must have
previously received locker letters. Additionally, in the
extended negotiations for a complete settlement of the
dispute, both Respondent's and the Union's proposals
called for immediate reinstatement or preferential hiring of
all the strikers, except for nine, whose rights to reinstate-
ment were to be submitted to arbitration. (These nine are
discussed below.) In view of these subsequent events, the
locker letters, though tantamount to discharges in their
wording, must be viewed as, at most, tactical maneuvers
designed to lead the strikers to return to work. N.L.R.B. v.
European Cars Ypsilanti, Inc., 324 F.2d 606 (C.A. 6, 1963);
Shopmen's Local Union No. 733, International Association of
Bridge, Structural and Ornamental Iron Workers A.F.L., v.
N.L.R.B., 219 F.2d 874 (C.A. 6, 1955), cert. denied 350 U.S.
835; N.L.R.B. v. Associated Wholesale Grocery of Dallas,
Inc., 262 F.2d 281 (C.A. 5, 1959); Matlock Truck Body &
Trailer Corp. and its Agent Roy L. Matlock, 217 NLRB 346
(1975); Maxville Stone Company, 166 NLRB 888 (1967);
Crookston Times Printing Company, 125 NLRB 304, 305,
317-318 (1959).
On the foregoing considerations, it is here found and
concluded that the 46 strikers who were offered reinstate-
ment on November 8, 1972, retained their employee status
and are entitled to reinstatement in accordance with The
Laidlaw Corporation, 171 NLRB 1366 (1968). However,
there remains some question as to the status of the 19
strikers who on November 8, 1972, were informed that they
were ineligible for reinstatement.
Since the General Counsel and the Union basically
contend that Methodist Hospital is dispositive of all the
issues here involved, their briefs do not deal in detail with
the specific situation of the 19 strikers who were notified of
their ineligibility for reinstatement. Accordingly, the
ensuing discussion of their status is directed to Respon-
dent's arguments essentially without the benefit of the
views of the General Counsel and the Union. Presumably
they can present their views to the Board if exceptions to
this Decision are filed.
As stated above, the ineligibility letters sent to 19 strikers
did not specify the ground of the ineligibility, but advised
the addressees that they could learn the ground by talking
to Respondent's personnel officer and could then appeal to
the Employee-Management Committee if they "believe[d]
that the grounds for this decision are unjust." None of the
23 Listed in the present complaint are 36 of them.
24 The impartial factfinder noted that membership on the committee was
limited to management representatives and nonunion employees. He further
was "convinced that the Hospital must have realized that ... setting up the
Employee-Management Committee would have a strong tendency to
undermine the Union."
25 Helen Carter. Marguerite Edwards, Edna Hankins, Lucille Willis.
Barbara Butler, Tina Harris, Ella Wee Johnson, Rosabell Moore, and
Johnella Williams.
19 sought such appeal. Their failure to do so appears
reasonable, not only because the strikers did not then want
to abandon the strike and return to work (American
Manufacturing Concern, 7 NLRB 753, 759 (1938)), but also
because the committee was composed of management
representatives and nonstriking, and therefore presumably
antiunion, employees.24 Nonetheless, the ineligibility let-
ters, particularly when contrasted with the simultaneous
offers of reinstatement to the remaining strikers, amount to
discharges. Cf. Burnup and Sims, Inc., 137 NLRB 766, 771
(1962), affd. 379 U.S. 21 (1964). Respondent's internal
records disclose that 9 strikers were declared ineligible for
"dereliction of duty," which consisted of walking out
before the end of their shift, without arranging for
replacements; the remaining 10 were believed to have
engaged in misconduct in the course of the strike.
If Respondent had adhered to its discharge of the 19
strikers declared ineligible for reinstatement on November
8, 1972, the Fansteel line of cases, rather than Carlisle and
Methodist Hospital, would be relevant, since these strikers
were purportedly discharged for misconduct rather than
merely for engaging in a strike. But the fact is that
Respondent did not stand by the discharges in all respects.
Respondent continued to treat the "ineligibles" as strikers.
Respondent's internal records failed to note the "termina-
tion" of nine of them2 5 until June 25, 1974. And the
records at that time state the reason for the discharges as:
"Resigned without notice in accordance with hospital
policy concerning 3 days of unexcused absence," the same
reason stated for the termination of strikers who had been
offered reinstatement in November 1972. Of the 19 strikers
declared ineligible for reinstatement in November 1972, 13
individually requested reinstatement on or about August
26, 1974. Respondent accepted such applications from 8
who had been declared ineligible because of "dereliction of
duty."26 Respondent rejected the application of 5 strikers
whom Respondent's master list of strikers shows as having
been guilty of strike misconduct.27
As previously set forth, during the settlement negotia-
tions between June 1972 and the middle of June 1974, the
parties were in basic agreement that all the strikers would
be reinstated except those who had been guilty of strike
misconduct which would disqualify them for reinstatement.
It was agreed that the rights of these strikers would be
submitted to arbitration.2 8 The evidence concerning the
settlement negotiations clearly establishes that both parties
contemplated reinstatement of all strikers except those who
an arbitrator might find had been properly discharged for
strike misconduct. Respondent's last settlement proposal,
around June 18, 1974, so provided. The evidence shows
that the ultimate failure of the parties to reach a total
settlement of the dispute was not influenced by any
disagreement as to who was to be reinstated. The
28 Lucille Willis, Josephine Collins, Tina Harris, Shirley Maddox.
Rosabell Moore, Arcurtis Parker, Airlean Robinson, and Verlean Thomas.
27 Edna Hankins, Shirley Jackson, Ella Wee Johnson, Idella Stewart, and
Johnella Williams.
28 Respondent's master list of strikers designates 10 accused of strike
misconduct. The settlement proposals, however, indicate that only nine
cases were to be submitted to arbitration. The record contains no
explanation of this minor discrepancy.
788
WOODLAWN HOSPITAL
breakdown of the negotiations was caused by Respon-
dent's withdrawal of its agreement to recognize the Union.
That withdrawal came on June 18, 1974, when Respondent
took the position that, if the National Labor Relations Act
became applicable, Respondent would not recognize the
Union unless it established its majority through a Board
election or a card check.
At least as to the nine "dereliction-of-duty" strikers, who
were included in those to be offered immediate reinstate-
ment or preferential hiring, the postdischarge negotiations
created changed conditions within the principles adopted
in Lee A. Consaul Co. Inc., 192 NLRB 1130, 1150-60
(1971), enforcement denied 469 F.2d 84 (C.A. 9, 1972). In
that case the full Board adopted a Trial Examiner's holding
that a charge alleging failure to reinstate strikers within the
preceding 6 months was timely even though the validity of
the discharges could not be litigated because barred by
Section 10(b). The Trial Examiner noted (192 NLRB at
1160) that more than 6 months before the charge was filed
the strikers had been discharged with finality. 29 However,
the parties had thereafter executed a "memorandum of
understanding" which acknowledged the possibility that
the respondent might, but was not obligated to, reinstate
some strikers. It was held that after the respondent
recognized "the possibility, however slight" that some or all
of the strikers might be reemployed, "not as a matter of
obligation but as a matter of grace or because it suited the
particular work and employment situation of the employ-
er," failure to reinstate any of the previously discharged
strikers might violate the Act. 192 NLRB at 1161. The
agreement acknowledging the possibility of reinstatement
of discharged strikers constituted "changed circumstanc-
es," amounting, in effect, to rescission of the discharges
and restoration of the status of striking employees. 30
It is true that in Consaul the parties had reached final
agreement on a strike settlement, whereas in the present
case the negotiations were aborted before any overall set
agreement was finally reached. However, it was not the
agreement as such which was decisive in Consaul; that
agreement expressly provided that the employer was not
obligated to reinstate any strikers; the decisive factor was
the employer's recognition of the possibility of reinstate-
ment. So far as here relevant, the Board's decision in
Consaul reaffirms the established principle that a striker's
right to reinstatement is to be determined on the basis of
the situation prevailing when he offers to return to work.
The present record establishes that before August 25, 1974,
when the strikers requested reinstatement, Respondent had
effectively rescinded the discharge of those strikers previ-
ously terminated for claimed dereliction of duty. Respon-
dent's conduct was such as to affirm their continuing status
as striking employees.
29 It was specifically found "that the terminations or discharges of the
strikers . . . were actual and not tactical discharges." 192 NLRB at 1153.
30 Originally the Trial Examiner had found that the strike was an
unprotected, wildcat strike, but the Board reversed and remanded to the
Examiner for decision of the other issues presented. 175 NLRB 547. On
review of both decisions, the Ninth Circuit agreed with the Trial Examiner's
holding that the strike was unprotected and thus dismissed the case without
considering the other issues. 469 F.2d 84. However, in the Board's
established view, the unprotected nature of the strike would not be decisive
if the employer had condoned participation therein. Marquette Cement
Manufacturing Company. 219 NLRB 549, 555 (1975); Bentex Mills, 213
What was referred to as "changed circumstances" in
Consaul in effect amounts to condonation of the alleged
dereliction of duty for which the strikers had been
discharged. See The Colonial Press, Inc., 207 NLRB 673
(1973), enforcement denied in part 509 F.2d 850 (C.A. 8,
1975), cert. denied 423 U.S. 833. In that case six employees
were lawfully discharged for misconduct. Thereafter other
employees struck and the dischargees joined the strike.
Finding that the employer thereafter offered to reinstate
the strikers, the Board held that the company violated the
Act by refusing to reinstate the six dischargees. In reaching
its decision, the Board said (207 NLRB at 674):
[W]hen the employer, by his statements or conduct,
evidences a lack of genuine concern about such
misconduct by forgiving it or by offering reemployment
despite the prior misconduct, we will not permit him
subsequently to reassert the condoned conduct as a
basis for refusing reemployment. For, once he has
indicated that the misconduct on which he relied for
severing the employment relationship is no longer his
true reason for denying reemployment to those who
have protested his unlawful acts, there can remain only
the discriminatory reason for denying such reemploy-
ment-i.e., retaliation against such persons for having
struck or picketed in protest against the employer's
unlawful interference with employee rights.
The employer's statements were held "to evidence a clear
intent to continue the employer-employee relationship and
in legal effect constituted a rescission of the previous
discharges." This holding is fully apropos in the present
case.3 1
In denying enforcement of the Board's Order, a divided
panel of the Eighth Circuit held that the employer had not
actually manifested its forgiveness but rather had made
only "nebulous and preliminary overtures toward former
employees." In the present case, Respondent's settlement
proposals unequivocally provided for reinstatement of all
but nine strikers. In Colonial Press the court further
emphasized that the discharged employees had done
nothing to register their acceptance of reinstatement. In the
present case the discharged strikers made unequivocal
offers to return to work. It is also significant that in
Colonial Press the strikers involved had been discharged
before the strike began, whereas in the present case the
employees involved were purportedly discharged for strike-
related conduct. The grounds for the judicial reversal of the
NLRB 296 (1974). In any event, as previously found, the strike in the
present case, although not "protected" under the Act before August 25.
1974, was lawful. Further, to the extent of any conflict between the Board
and the Court of Appeals. I am bound by the Board's decision. Ford Motor
Company (Chicago Stamping Plant), 230 NLRB 716. 718, fn. 12 (1977).
3' No relevant distinction inheres in the fact that Colonial Press
concerned unfair labor practice strikers whereas the strikers here are
economic strikers. Both types of strike activity are lawful and participants in
both types have statutorily protected reinstatement rights. The only relevant
difference is the extent of such rights, which is not in dispute here.
789
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board's decision in Colonial Press thus are not present in
the instant case. 32 The court reaffirmed the basic principle
of condonation, saying (509 F.2d at 854):
[I]f after an employee commits acts of misconduct
lawfully justifying his discharge, and thereafter the
employer, fully cognizant of the acts, agrees not to
discipline him, the employer may not thereafter rely on
the same misconduct as the basis for discharging or
refusing to reinstate the employee.
See Jones & McKnight, Inc. v. N.LR.B., 445 F.2d 97, 103
(C.A. 7, 1971):
The key element of condonation is a clearly evidenced
intention and commitment on the part of the employer
to overlook the misconduct and to permit a continua-
tion or resumption of the company-employee relation-
ship as though no misconduct had occurred.
On all the evidence, I find and conclude that Respondent
condoned the claimed "dereliction of duty" for which nine
strikers were purportedly discharged on November 8, 1972.
Accordingly, it may not rely on those discharges or the
conduct on which they were based as justification for
refusing to reinstate after August 25, 1974.
As set forth above, in the settlement negotiations the
parties were in substantial agreement that the reinstate-
ment rights of strikers accused of strike misconduct would
be submitted to arbitration and Respondent would rein-
state only those who the arbitrator found had not been
properly discharged. It thus cannot be said that Respon-
dent fully condoned any strike misconduct which would
constitute grounds for refusal to reinstate. However, since
Respondent recognized the possibility of reinstatement of
such strikers, under Consaul, their discharges had been
rescinded and their employee status restored. This view is
supported by the fact that no termination tickets were
placed in their files showing discharge for strike miscon-
duct; the termination reports eventually placed in their
files, like all the others, showed termination under the
"Resignation" provision in the personnel manual; i.e.,
failure to report for 3 consecutive days. The strikers
purportedly discharged for strike misconduct thus retained
their status as employees at least for the purpose of having
32 If the court's decision conflicted with the Board's decision in any
manner relevant to the present case, I should be bound by the Board's
decision. Ford Motor Company, supra at fn. 12.
33 The only relevant "evidence" is the "non-binding" decision issued by
the impartial fact-finder on October 25, 1972. That decision reads, in part:
In the early stages of the strike improper tactics of force and
harassment were employed which Union officials made no meaningful
effort to stop.
The tactics used did cause some employees to fear to cross the
picket line and probably induced others to desert the Union.
I was convinced that the Union sympathizers did at the beginning of
the strike engage in improper tactics and that the Union officials made
no realistic effort to halt such activity but again I cannot completely
their alleged disqualification for reinstatement determined.
It was only on August 26, 1974, after the Union's request
for reinstatement of all the strikers, that Respondent
reasserted the ineligibility of some, by refusing to accept
individual applications from them. Their rights, however,
are to be determined as of August 25, when the original
request was made. At that time they had at least
conditional employee status.
Since the strike settlement negotiations were ultimately
unsuccessful, the rights of these strikers were never
submitted to arbitration. In the present proceeding none of
the parties presented evidence as to whether the strikers in
question had, as a matter of fact, engaged in misconduct
which would warrant Respondent's refusal to reinstate
them.3 3
Since it has been found that the "strike-misconduct"
strikers retained their status as striking employees on
August 25, 1974, when they requested reinstatement, the
burden was on Respondent to establish that they were
guilty of misconduct disqualifying them for reinstatement.
Burnup and Sims, Inc., supra, 772-773; Moore Business
Forms, Inc., 224 NLRB 393, 395-396 (1976).34
In the present case Respondent failed to meet that
burden. As in Methodist Hospital, supra at 1401 "there is no
evidence that the Union was responsible for any such
misconduct nor that any of the striking employees had
engaged in any ... acts of misconduct." See J. H. Rutter-
Rex Manufacturing Company, Inc., 158 NLRB 1414, 1419
(1966), affd. 396 U.S. 258 (1969); N.LR.B. v. Wichita
Television Corporation Incorporatedc d/b/a KARD-TV, 277
F.2d 579, 585 (C.A. 10, 1960).
Accordingly, on the record as a whole, I find and
conclude that all the strikers listed in the complaint, as
amended at the hearing,35 were striking employees entitled
to reinstatement in accordance with The Laidlaw Corpora-
tion, 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (C.A. 7,
1969), cert. denied 397 U.S. 920 (1970), upon unconditional
offers to return to work.
c. Other employment
Respondent maintains that the strikers are not entitled to
reinstatement because the General Counsel failed to
establish that each of them had not obtained "regular and
forget that the Hospital had conditioned a climate which tempted such
regrettable activity.
Recommendations
Since I feel that the actions of the Hospital conditioned a climate
which tempted strike action I am not willing to fully support the
concept that employees hired to carry on the work during the strike
should be considered permanent employees replacing strikers.
34 Respondent relies on a presumption that the discharges were proper. It
is undoubtedly true that the discharges were not unlawful, since, absent the
protection of the Act, employees presumably could be lawfully discharged
for any reason, or, indeed, for no reason. However, this case does not
involve the original discharges, but rather failure to reinstate under the Act.
35 Mary Frances Lee is discussed below.
790
WOODLAWN HOSPITAL
substantially equivalent employment" within the terms of
Section 2(3) of the Act.
In her opening statement at the hearing, counsel for the
General Counsel "request[ed] that the issues of specifically
who should have been offered reinstatement and when...
be deferred to the compliance stage." Initially I agreed and
stated that I should reject any evidence concerning the
employees' interim or subsequent employment. Later,
however, Respondent's counsel sought to cross-examine
Union Staff Organizer Vera Williams concerning the
picketing activities and other employment of each of the
strikers. At that point, accepting Respondent's position, I
reversed my prior ruling to the extent of saying that I
would receive evidence of other employment obtained by
the strikers before the amendment of the Act, since the
acceptance of other regular and substantially equivalent
employment might terminate a striker's employee status
and thus prevent his ever coming under the protection of
the Act. Citing American Machinery Corporation, 174
NLRB 130 (1969), enfd. 424 F.2d 1321 (C.A. 5, 1970), the
General Counsel's brief reasserts the position that "the
issue of which strikers should have been offered reinstate-
ment and when is an issue appropriately and routinely
deferred by the Board to the compliance stage." So far as
here germane, in American Machinery the Board deferred
to the compliance stage only the question of "when
openings and vacancies arose after [the employees'] request
for reinstatement" (174 NLRB at 135) and the order
specifically listed the employees who were entitled to
reinstatement when jobs became available after their
requests. Employment obtained after reinstatement is
denied, like postdischarge employment, affects only the
reinstatement and backpay remedies. But a striker's
obtaining alternative employment before requesting rein-
statement to his former job could, under the statutory
language, end his right to reinstatement and thus foreclose
a violation by the rejection of the employee's subsequent
request. Accordingly, I reaffirm my prior ruling.
While rejecting the General Counsel's position, I also
reject the Respondent's contention that the burden is on
the General Counsel to establish affirmatively that each
striker had not obtained other regular employment sub-
stantially equivalent to his prestrike job. The burden of
proof clearly was on Respondent. Little Rock Airmotive,
Inc., 182 NLRB 666, 672 (1970), enfd. in major part 455
F.2d 163 (C.A. 8, 1972), citing Duncan Foundry and
Machine Works, Inc., 176 NLRB 263, 271 (1969), enfd., 435
F.2d 612 (C.A. 7, 1970).36 See also Duncan Foundry and
Machine Works, Inc., 222 NLRB 768, 769 (1976). Cf.
Pacific Tile and Porcelain Company, 137 NLRB 1358, 1359
(1962):
[W]e will presume that an economic striker continues
in such status and, hence, is eligible to vote under
Section 9(c)(3). To rebut the presumption, the party
challenging his vote must affirmatively show by
objective evidence that he has abandoned his interest in
his struck job. . . . [A ]cceptance of other employment,
even without informing the new employer that only
3 "[PJermanent employment elsewhere, violence on the picket line,
voluntary resignation or permanent change in Respondent's business, are
temporary employment is sought, will not of itself be
evidence of abandonment of the struck job so as to
render the economic striker ineligible to vote.
Pacific Tile and Porcelain has been approved by the courts
(Bio-Science Laboratories v. N.LRB., 542 F.2d 505, 508
(C.A. 9, 1976), and cases there cited) and recently
reaffirmed by the Board (Stimson Lumber Company, 224
NLRB 567, 568 (1976)).
Respondent's attempt to establish its "other-employ-
ment" defense was limited to cross-examination of Union
Organizer Williams. In its brief Respondent states that the
cross-examination of Williams revealed that "several
[strikers] obtained other employment . . . others ...
moved away several years before, and . . . many persons
. . . ceased picketing entirely long before the Board had
jurisdiction." As to most of those strikers who had other
jobs during the strike, Williams testified that they had held
second jobs while working for Respondent. Williams did
not know if any strikers had obtained employment during
the strike which in effect substituted for their work with
Respondent. One striker had done private duty nursing
during the strike, but there was no evidence that such work
was "regular" or "substantially equivalent" to the striker's
job with Respondent. Respondent did not inquire as to the
permanency of employment taken by any strikers during
the strike. That two strikers had moved away from Chicago
does not establish that they had obtained "regular and
substantially equivalent employment" within the terms of
Section 2(3) of the Act nor does discontinuance of
picketing establish that the striker has obtained alternative
employment or has abandoned the strike. The General
Counsel's brief accurately states that "[t]he record . . .
indicates that only two of the fifty-eight strikers, Helen
Carter and Larry Johnson, obtained any type of employ-
ment during the so-called interim period above and beyond
jobs they already held prior to the strike" and the evidence
fails to establish that the employment obtained by them
was "regular and substantially equivalent" to their jobs
with Respondent.
Many considerations go into a determination of whether
a striking employee has obtained regular and substantially
equivalent employment. The striker's desire to resume his
struck job is a significant factor. Little Rock Airmotive, Inc.,
supra. On August 25, 1974, the Union unequivocally
requested reinstatement on behalf of every striker listed in
the complaint. Respondent raises no question concerning
the Union's authority to take such action.
Respondent has failed to rebut the presumption that all
the strikers here involved retained their employee status.
Accordingly, on all the evidence, I find and conclude that
they were striking employees on August 25, 1974, when the
Act became effective as to them.
2. Unconditional offers to return to work
The Union's letter of August 19, 1974, stated that the
strike would end and the strikers would all "present
themselves for employment" on August 25, but the strike
would be resumed on September 5 if Respondent should
defenses to the application of the remedy against discrirmnation . . . and
are the burden of Respondent and not of the General Counsel."
791
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"continue to refuse any individual among them employ-
ment." Respondent maintains that this letter was not an
unconditional offer because of the threat to resume the
strike unless all strikers were reinstated.
First it should be noted that the threat of a future strike
would not necessarily be ground for discharging any
employees. See Newbery Energy Corporation, 227 NLRB
436, 437 (1976): "Employers are not entitled to discharge
employees merely to obtain a work complement less likely
to engage in protected concerted activities." Refusal to hire
or to reinstate is legally equivalent to discharge within the
foregoing rule.
The threat of resumption was obviously keyed to the
notice provision of Section 8(g) of the Act. Unless such
notice was given, the Union ran the risk of possibly being
unable to resume striking and picketing to protest the
continued refusal to reinstate some of the strikers. The
August 19 letter did not state that any reinstated strikers
would walk out on September 5. And under the circum-
stances presented no such threat could reasonably be
inferred.
In any event, the August 19 letter was not itself an offer
to return to work, but rather was advance notice that the
employees would cease striking and would seek reinstate-
ment after the Act became effective as to them. It served to
give notice that the labor dispute was still in existence and
the Union intended to comply strictly with the statute. It
was the September 25 letter that constituted an offer on
behalf of all the strikers to return to work. That letter, on
its face, was unconditional. See N.LR.B. v. W. C.
McQuaide, Inc., 552 F.2d 519, 529 (C.A. 3, 1977). Upon
receipt thereof, "the burden [was] on the employer to offer
reinstatement to employees for whom positions [were]
available." Colonial Haven Nursing Home, Inc., supra, 218
NLRB 1007, 1011 (1975). At no time thereafter did the
Union or any employees make any statements or take any
action inconsistent with unconditional offers to return to
work. Cf. W. C. McQuaide, Inc., 220 NLRB 593, 608-609
(1975), enfd. in pertinent part 552 F.2d at 529.
In attacking the August 25 letter as a good-faith
unconditional request for reinstatement, Respondent as-
serts that the letter, delivered to a security guard who was
not a direct employee of the hospital, did not reach the
hospital administrator until the next week. Respondent
argues that "the delay in the delivery of the letter until a
week later, and its delivery to a security guard after hours,
suggests that the Union wanted to insist to the hospital that
it take back all or none, while preserving sub silentio its
legal position of an unconditional offer." The Union was
not responsible for any delay in the receipt of the letter by
the hospital administrator. Since the security guard was the
apparent agent and representative of the hospital at the
time, the Union could reasonably deal with him as such.3 7
It is unlikely that the hospital's management personnel
were on the premises at midnight. Certainly the Union
could not anticipate that the letter left with the security
guard would not be promptly transmitted to the proper
37 Presumably new patients and persons accompanying them would be
subject to the direction and guidance of the security officer as at least the
apparent agent of the hospital.
38 This is not a case like Atlanta Daily World 192 NLRH 159 (1971).
hospital personnel. Cf. N.LRB. v. Regal Aluminum, Inc.,
436 F.2d 525, 527 (C.A. 8, 1971). Nor does the timing of
delivery suggest any sinister or ulterior motive. The Union
was adhering to a legal fiction in an attempt to avoid the
possible consequences of noncompliance with the notice
requirement of Section 8(g) of the Act. It was thus
reasonable for it to attempt to make its offer immediately
after the "I-minute strike," at 12:01 a.m., to retain the
strikers' employee status under the Act. That the Union
was not attempting to "hide" its unconditional offer on
behalf of all the strikers is demonstrated by its promptly
mailing a copy to the hospital and by the fact that on the
morning of the next day, August 26, a majority of the
strikers personally appeared to request reinstatement.
Respondent maintains that the August 19 and 25 letters
from the Union must be read together and that, when so
read, "the second letter only supplemented the first by
providing the names of the former employees whom [sic]
the Union thought should be reinstated." Respondent
further argues that the August 25 letter "is no more than a
legalistic statement which was belied by both the Union's
actions, and by its first letter of August 19." These
contentions are without merit.
If either of the letters was merely "a legalistic statement,"
it was the first, which announced the Union's intention to
engage in a I-minute strike beginning 1 minute after
midnight. The second letter was conspicuously devoid of
any "legalistic" (or nonlegalistic) ifs, buts, or whereases; it
unequivocally requested the immediate reinstatement of
identified persons. The request was not rendered "condi-
tional" by the fact that it covered all the strikers as a group.
Containair Systems Corporation, 218 NLRB 956, 959-960
(1975); The Barnsider, Inc., 195 NLRB 754, 764 (1972).38
None of the 41 strikers who personally requested
reinstatement the next day remotely suggested that his or
her request was conditioned on the reinstatement of any
other strikers. Indeed, the few strikers who were offered
employment accepted.
As stated above, Respondent offered to prove that the
Hospital's management "operated on the understanding
that the Union's position was that all the people should be
returned to work at that time or they were going out on
strike in ten days." Whether or not Respondent would have
been justified in refusing to reinstate strikers if Respon-
dent's "understanding" was correct, the fact is that at no
time did Respondent inform the Union or any of the
employees of this "understanding" or advance the alleged
"conditional" nature of the offer to return as a reason for
denying reinstatement. If that had been the reason, the
logical time to mention it was on August 22, when, in reply
to the Union's August 19 letter, Respondent said it would
"receive applications for employment from any striker who
wishes to apply."
If Respondent had actually "operated on the under-
standing that the union's" request was for reinstatement on
an all-or-none basis, the least it could do was to so advise
the Union and seek clarification. Perhaps the most
cited by Respondent. in which it was found as a fact that the requests for
reinstatement were conditioned on removal of the cause of the strike; i.e., on
reinstatement of an employee allegedly discharged in violation of Sec.
8(a)3).
792
WOODLAWN HOSPITAL
effective measure would have been to call the Union's bluff
by offering reinstatement to some of the strikers.3 9 The
present contention is clearly an afterthought raised for the
first time at or shortly before the present hearing, more
than 2 years after the Union requested reinstatement and
filed the present charge.
Respondent further contends that, pursuant to the
Union's letter of August 19, the strike recommenced on
September 5, and such resumption nullified the offer to
return to work made in the August 25 letter.40 The record
establishes that the picketing ended around August 23 and
was never resumed.4 ' Nor is there any other evidence that
a strike was in progress thereafter.
But even a resumption of the strike on September 5, as
originally threatened, would not change the reinstatement
rights of the individual strikers. See, e.g., Hawaii Meat
Company, Limitead 139 NLRB 966, 971 (1962), enforcement
denied on other grounds 321 F.2d 397 (C.A. 9, 1963):
An unconditional request for reinstatement of strikers
must carry with it, as the instant request does, an
undertaking to abandon the strike, if the request is
granted; it does not require that the employees forfeit
their right to continue the strike, if the request is
denied. All that is required is that the Union or the
employees unconditionally offer to return to the status
they occupied before the strike began.
The Board cited Marathon-Clark Cooperative Dairy Associ-
ation, 137 NLRB 882 (1962), "where the Board ordered the
reinstatement of strikers upon their unconditional request
even though the strike continued upon the employer's
refusal to reinstate them." (139 NLRB at 971, fn. 9.) See
also Seminole Asphalt Refining, Inc., 207 NLRB 167, 179
(1973), enfd. in pertinent part 497 F.2d 247, 248 (C.A. 5,
1974).
Finally, Respondent contends that many of the strikers
were not entitled to reinstatement because when they
applied individually they "stated that they would accept
only certain shifts and/or work in only certain posi-
tions." 4 2 Initially it should be noted that, in view of the
Union's request on behalf of all of the strikers, individual
applications were unnecessary. Further, Respondent re-
fused to accept any strikers' applications for reinstatement;
it required applications for new employment, which the
strikers filed under protest, asserting their rights to
reinstatement in their former jobs. Under the circumstanc-
es, the individual applications may be ignored and reliance
placed solely on the Union's blanket request, which
contained no limitations.
S9 As recently as mid-June 1974 Respondent had been proposing
immediate reinstatement of up to 29 stnkers. Thus it appears most probable
that reinstatement for some was feasible in August.
'O In this connection. Respondent says. "the record evidence is unclear
when, if ever, the strike ended." However, as previously noted, at another
point Respondent maintains that there was no "current labor dispute" on or
after August 25 because of "the actions of the Union in ceasing picketing
and the candid testimony of the Union that the strike ended on August 23.
1974."
" On April 3, 1975, the Regional Director refused to issue a complaint
on the hospital's charge, apparently based on the August 19, 1974, letter.
that the Union had engaged in unlawful recognitional picketing. Case 13-
CP-293.
42 Respondent states that 32 of 40 strikers so stated. The record does not
In any event the strikers were entitled to reinstatement to
their former jobs if and when available. Clinch Valley Clinic
Hospital, A Division of Bluefield Sanitarium, Inc., 213
NLRB 515 (1974), enfd. 516 F.2d 996 (C.A. 4, 1975);
Ramona's Mexican Food Products, Inc., 203 NLRB 663, 679
(1973), enfd. 531 F.2d 390 (C.A. 9, 1975). Respondent cites
neither reason nor authority for holding that the strikers
imposed disqualifying conditions by asserting their legal
right to reinstatement to their former jobs. It is perhaps
appropriate to note in addition that, until such vacancies
arose after August 25, 1974, Respondent would be under
no backpay obligation. Matlock Truck Body & Trailer
Corporation, supra at 349. The propriety of Respondent's
conduct with respect to reinstatement of individual
employees after August 25, 1974, was not litigated in this
proceeding, having been left to the compliance stage. If
and when any employees reject offers of reinstatement, the
sufficiency of the offers and the effect of the rejections can
be determined.43
3. Individual situations
a. Mary Frances Lee
Although the record is sparse, and neither the General
Counsel's nor Respondent's brief discusses the matter, the
evidence and stipulations of counsel establish that Mary
Lee Frances was an employee of Respondent outside the
bargaining unit here involved and that she joined the strike
at its inception and did not thereafter return to work. Vera
Williams testified that at some point during the strike Lee
moved away from Chicago.
It appears clear that Lee was at least a sympathy striker
and as such entitled to the same reinstatement rights as the
other strikers. As previously held, her leaving the Chicago
area did not of itself end her rights as a striker.
The problem concerning Lee arises from the fact that at
the outset of the hearing counsel for the General Counsel
moved to delete Lee's name from the list of strikers covered
by the complaint. The General Counsel did not reveal the
reason for Lee's elimination." While agreeing with the
General Counsel's motion to delete the names of six
strikers, counsel for the Charging Party objected to the
elimination of Lee.
In view of the substantive facts, the only question
presented is whether a charging party has standing to
object to the General Counsel's motion to amend or
partially withdraw a complaint. While recognizing that the
fully support these figures. But, in view of the conclusion here reached, they
are immatenal.
43 Respondent would be relieved of any monetary liability for failure to
offer other available vacancies to strikers who had limited their requests for
reinstatement to precisely their former jobs. Pleasant View Rest Home, 194
NLRB 426, 431, fn. 9(1971).
44 Because the elimination of persons for whom reinstatement was being
sought was to Respondent's advantage, I denied the request by Respon-
dent's counsel that the General Counsel be required to explain the deletions.
Respondent's counsel were advised that they could present evidence
concerning the reason for the eliminations if they believed it relevant. They
presented no such evidence. Union counsel did not request any explanation
of the deletion of Lee's name.
793
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Charging Party may not successfully move to expand a
complaint over the General Counsel's objection,45 union
counsel cites Leeds & Northrup Company v. N.LR.B., 357
F.2d 527 (C.A. 3, 1966), as authority that "the charging
party has the right to challenge the full or partial
withdrawal of the complaint in a hearing." Unlike the
present case, Leeds & Northrup dealt with a settlement
agreement reached before hearing on the complaint was
begun. The rule in Leeds & Northrup is the subject of
controversy among the circuits. Cf. N.L R.B. v. Oil,
Chemical & Atomic Workers International Union, AFL-
CIO, 476 F.2d 1031 (C.A. 1, 1973). However, in Watkins
Furniture Company, et al., 160 NLRB 188, 194, fn. 8 (1966),
Trial Examiner Reel cited Leeds & Northrup as fortifying
his denial of the General Counsel's motion, over the
charging party's objection, to withdraw an allegation of a
complaint. Although disagreeing with the Trial Examiner's
substantive finding of a violation under the allegation
involved, the Board made no comment on his procedural
ruling.
Section 102.17 of the Board's Regulations confers on the
Administrative Law Judge discretion to pass on motions to
amend complaints. Having tentatively denied the General
Counsel's motion to delete Mary Frances Lee's name from
the list of strikers entitled to reinstatement, I hereby
reaffirm that ruling.
On the record, including stipulations of counsel, I find
that Lee is entitled to Laidlaw rights just as striking
members of the bargaining unit are. As ruled above, the
fact that Lee moved away from the Chicago area did not
automatically end her right to reinstatement.
b. Rehired strikers
As set forth above, three strikers went back to work for
Respondent after August 25, 1974.46 It was stipulated that
they were treated as new hires, with none of their
previously accrued seniority and other rights and privileg-
es.
It is well established that an employer violates the Act
when he "has refused to credit reinstated economic strikers
with past service and has not shown that this action was
justified by substantial and legitimate business considera-
tions." Globe Molded Plastics Company, Inc., 204 NLRB
1041, fn. 1 (1973); C. H. Guenther & Son, Inc. d/b/a Pioneer
Flour Mills v. N.L.R.B., 427 F.2d 983, 986; Laher Spring &
Electric Car Corp., 192 NLRB 464, 466 (1971). According-
ly, the three rehired strikers will be included among those
entitled to full reinstatement and backpay.4 7
Additionally, three strikers were offered reemployment
but then disqualified by failure to pass preemployment
physical examinations.4 8 The evidence clearly indicates
that such physical examinations are normally required only
of new employees. Respondent adduced no evidence of
any economic or business justification for imposing the
requirement on strikers seeking reinstatement. By treating
these strikers as new employees Respondent violated the
Act. Globe Molded Plastics Co., supra. Cf. General Electric
45 See United Steelworkers of America, AFL-CIO v. N. L R.B., 393 F.2d
661, 664 (C.A.D.C., 1968), and cases cited in fn. 4.
46 Josie Wells, Fannie Speight, and Juarine McCants.
47 Koszut testified that after being rehired Juarine McCants was laid off
Company, 150 NLRB 192, 284, fn. 160 (1964), enfd. 418
F.2d 736 (C.A. 2, 1969), cert. denied 397 U.S. 965; Isaac
and Vinson Security Services, Inc., 208 NLRB 47, 54 (1973).
4. Refusal to reemploy
In its brief, the Union requests a finding that Respondent
further violated the Act "by refusing to hire the strikers as
new employees," as found in Methodist Hospital, supra. No
such allegation is contained in the present complaint.
The fact that since August 29, 1974, Respondent has
hired 22 new employees and only 3 strikers gives rise to
some suspicion of discriminatory motivation. The General
Counsel correctly observes that there is record evidence of
Respondent's animus against the Union. For example, its
offers of reinstatement to 46 strikers in November 1972
were to be "made to the exclusion of union representa-
tion." And in considering the strikers' individual applica-
tions for reinstatement in August 1974, Reale, Respon-
dent's Director of Employee Relations, adopted what
appears to be a hypertechnical and somewhat arbitrary
approach. She disqualified one striker (Bernice Bell)
initially for failing to list her prestrike employment and
then for failing in a supplemental application to list the
poststrike employment disclosed in the first application.
But suspicion as to Respondent's motivation is not
sufficient to warrant a finding of an unfair labor practice.
Neither the General Counsel nor the Union adduced any
evidence which would confirm the suspicion. Accordingly,
I reject the Union's contention.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act, and
it will effectuate the policies of the Act for the Board to
assert jurisdiction.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By failing to reinstate its striking employees as
vacancies arose after an unconditional request for their
reinstatement was made on August 25, 1974, thereby
discriminating with respect to their hire, tenure of employ-
ment, and terms and conditions of their employment and
discouraging membership in the Union, Respondent has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(3) of the Act.
4. By hiring three strikers as new employees, without
their accrued seniority and other rights and privileges,
Respondent has discriminated against employees in con-
travention of Section 8(a)(3) of the Act.
5. By reason of the foregoing, Respondent has inter-
fered with, restrained, and coerced employees in the
exercise of the rights guaranteed in Section 7 of the Act,
and thereby has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
and later rejected a recall offer. The relevant facts can be determined in the
compliance stage.
48 Adzetter Farr, Alice Jackson, and Eddie Mae Johnson.
794
WOODLAWN HOSPITAL
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and that it take certain affirmative action
designed to effectuate the policies of the Act. Because
Respondent's discriminatory conduct strikes at the heart of
the Act, a broad cease-and-desist order will be recom-
mended.
It will also be recommended that, to the extent indicated
in The Laidlaw Corp., 171 NLRB 1366, Respondent be
required to offer the striking employees complete reinstate-
ment to their former positions or, if those positions no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or other rights and privileges,
discharging, if necessary, any employees hired in such
positions since August 25, 1974. Since the present record is
insufficient for a determination of which strikers would
have been reinstated if Respondent had not been guilty of
unlawful discrimination, the identity of such strikers and
the putative dates of their reinstatements will be determina-
ble in a supplemental proceeding if the issues are not
amicably resolved. As said in Methodist Hospital, 227
NLRB 1392, 1402, fn. 24: "Factors such as qualification,
seniority, past practices on the part of the Hospital, etc.,
will be taken into account in determining which striker
would have been reinstated in each job as it became vacant
absent the Hospital's unlawful discrimination." Similar
considerations will govern the reinstatement of strikers in
future vacancies.
Although Respondent does not pursue the matter in its
posttrial brief, some note should be taken of its contention
at the hearing that it would be inequitable to issue a
backpay order against Respondent because of the delay of
over 2 years between the filing of the charge and the
issuance of the complaint and the General Counsel's delay
in stating his legal theory based upon Laidlaw rights of
economic strikers.
The delay in issuance of the complaint is, of course,
unfortunate, though understandable in view of the legal
issues presented by the 1974 amendment of the Act
covering hospitals. But, as the Supreme Court has held, the
Board's delay is not sufficient reason for depriving
employees of their statutory rights. N.L.R.B. v. J. H.
Rutter-Rex Manufacturing Company, Inc. 396 U.S. 258
(1969). As to the General Counsel's delay in revealing his
legal theory, it perhaps is not amiss to note, although this is
not decisive, that Respondent waited at least as long to
articulate its justifications for refusing reinstatement, such
as the "discharge" of all the strikers and the "conditional"
nature of the requests for reinstatement.
49 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations. be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
Accordingly, Respondent will also be required to make
such striking employees whole for any loss of earnings they
may have suffered by reason of Respondent's discriminato-
ry failure to reinstate them by payment to each of a sum of
money equal to that which each normally would have
earned as wages from the date of Respondent's discrimina-
tory failure to reinstate such individual to the date of
Respondent's offer of reinstatement, less net earnings
during such period, in the manner prescribed in F. W.
Woolworth Company, 90 NLRB 289 (1950), with interest in
accordance with Isis Plumbing & Heating Co., 138 NLRB
716 (1962).
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this proceeding, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER 49
The Respondent, Woodlawn Hospital, Chicago, Illinois,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Communications Work-
ers of America, AFL-CIO, or any other labor organization,
by failing to reinstate employees who have engaged in a
lawful strike and have made unconditional applications for
reinstatement to vacant positions as they occur, without
prejudice to their seniority and other rights and privileges,
or by otherwise discriminating against any of its employees
in regard to their hire, tenure of employment, or other
terms or conditions of their employment.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed
in Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Offer to those employees listed in Appendix A
attached hereto, immediate and full reinstatement to their
former positions or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, and make
them whole for any loss of earnings they may have suffered
by reason of discriminatory failure to reinstate them, in the
manner set forth in the section of this Decision entitled
"The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, as well as all other records
necessary to analyze and compute the amount of backpay
due under the terms of this Order.
(c) Post at its hospital, copies of the attached notice
marked "Appendix B."50 Copies of said notice, on forms
provided by the Regional Director for Region 13, after
being duly signed by Respondent's representative, shall be
posted by Respondent immediately upon receipt thereof,
5o In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
795
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and be maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to ensure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 13, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
APPENDIX A
Jimmye Doris Arnold
Helen Carter
Lorraine Dawson
Marguerite Edwards
Edna Hankins
Ernestine Lane
Katie Lyons
Veronica McAdory
Mae E. Smith
Lucille White
Ernestine Ellis
Alice Jackson
Edna Johnson
Pearline King
Trudie Rogers
Betty Ruff
Walter Sawyer
Juarine McCants
Donella Pender
Lucille Willis
Bernice Bell
Barbara Butler
Josephine Collins
Ruby Lee Davis
Rosia Maxine Farr
Tina Harris
Shirley Jackson
Ella Wee Johnson
Bobbie Kimbrough
Mary Francis Lee
Mayfra Humbert
Ann Worthington
Lucinda Badger
Earlie Davis
Louise Hardin
Margaret Hatcher
Larry Johnson
Olean Porter
Fannie Speight
Charles Streater
Jamie Thompson
Frank Cheers
Adzetter Farr
Myrtle Jackson
Eddie Mae Johnson
Carrie Kindred
Elsie Mae Lyons
Angie Lee McFerson
Hattie Johnson
Shirley Maddox
Rosabell Moore
Arcurtis Parker
Mary Lee Payton
Airlean Robinson
Idella Stewart
Verlean Thomas
Josie B. Wells
Dorothy White
Johnella Williams
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in Hospital
Employees' Labor Program of Metropolitan Chicago,
or any other labor organization, by failing or refusing
to reinstate any employees who have engaged in a
lawful strike, after application for reinstatement has
been made, to their former positions as they become
vacant or, if any such positions no longer exist, to
substantially equivalent jobs, without prejudice to such
employees' seniority and other rights and privileges, or
by otherwise discriminating against any of our employ-
ees in regard to their hire, tenure of employment, or
other terms or conditions of their employment.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of the
rights guaranteed in Section 7 of the Act.
WE WILL offer to each of the employees listed below
full reinstatement, without prejudice to his or her
seniority and other rights and privileges, to his or her
former job or, if such job no longer exist, to a
substantially equivalent position, as of the date after
August 25, 1974, on which such position shall have
become, or may in the future become, vacant; and WE
WILL make each such employee whole for any loss of
earnings he or she may have or shall have suffered as a
result of the discrimination against him or her.
Jimmye Doris Arnold
Helen Carter
Lorraine Dawson
Marguerite Edwards
Edna Hankins
Ernestine Lane
Katie Lyons
Veronica McAdory
Mae E. Smith
Lucille White
Ernestine Ellis
Alice Jackson
Edna Johnson
Pearline King
Trudie Rogers
Betty Ruff
Walter Sawyer
Juarine McCants
Donella Pender
Lucille Willis
Bernice Bell
Barbara Butler
Josephine Collins
Ruby Lee Davis
Rosia Maxine Farr
Tina Harris
Shirley Jackson
Ella Wee Johnson
Bobbie Kimbrough
Mary Frances Lee
Mayfra Humbert
Ann Worthington
Lucinda Badger
Earlie Davis
Louise Hardin
Margaret Hatcher
Larry Johnson
Olean Porter
Fannie Speight
Charles Streater
Jamie Thompson
Frank Cheers
Adzetter Farr
Myrtle Jackson
Eddie Mae Johnson
Carrie Kindred
Elsie Mae Lyons
Angie Lee McFerson
Hattie Johnson
Shirley Maddox
Rosebell Moore
Arcurtis Parker
Mary Lee Payton
Airlean Robinson
Idella Stewart
Verlean Thomas
Josie B. Wells
Dorothy White
Johnella Williams
The Act gives all employees these rights
To organize themselves
To form, join, or help unions
To bargain as a group through a representative
of their own choosing
To act together for collective bargaining or
other mutual aid or protection
To refuse to do any or all of these things.
We assure all our employees that we will not do anything
that interferes with these rights.
WOODLAWN HOSPITAL
796