Woodlawn Hospital

National Labor Relations Board - Board Decisions

Sep 28, 1979

245 N.L.R.B. 975 (N.L.R.B. 1979)

WOODLAWN HIOSPITALI
Woodlawn Hospital and Hospital Employees' Labor
Program of Metropolitan Chicago. Case 13 CA-
13539
September 28, 1979
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN, FANNING AND MEMBERS JENKINS
AND PENELLO
On November 23, 1977, the National Labor Rela-
tions Board issued its Decision and Order' in the
above-entitled proceeding, finding, inter alia, that Re-
spondent violated Section 8(a)(3) and (1) of the Na-
tional Labor Relations Act, as amended, by failing to
reinstate its striking employees as vacancies arose af-
ter an unconditional request for their reinstatement
was made and by hiring three strikers as new. employ-
ees, without their accrued seniority and other rights
and privileges. The Board ordered, inter alia, that Re-
spondent offer 59 employees2 reinstatement to their
former or substantially equivalent positions, to make
them whole for any loss of earnings, and to accord
full accrued benefits to the strikers who were reinstat-
ed.
On May 2, 1979, pursuant to a petition for review
and cross-application for enforcement of the Board's
Order, the United States Court of Appeals for the
Seventh Circuit issued its opinion.3 The court held,
contrary to the Board, that any striking employees
who were discharged before August 25, 1974, the ef-
fective date of the health care amendments of the Na-
tional Labor Relations Act, lost their status as em-
ployees within the meaning of Section 2(3) of the Act
and are not therefore entitled to reinstatement. The
court added, however, that in order to be effective the
intent to discharge must be communicated to the em-
ployee. Addressing this question, the court concluded
that 19 of the 59 strikers received effective notice of
their termination in the November 8, 1972, letter
from Respondent informing them of their ineligibility
for reinstatement. The court therefore denied enforce-
ment of that portion of the Board's Order pertaining
to these 19 individuals.4 Regarding the remaining 40
strikers, the court remanded this case to the Board for
a determination of which of these individuals were
informed of their discharge by Respondent, "denying
233 NLRB 782 (1977).
2 The names of the 59 employees are listed in "Appendix A" of the
Board's Decision. 233 NLRB at 7%.
1596 F.2d 1330.
'The 19 strikers affected are Helen Carter, Lorraine Dawson, Marguerite
Edwards, Edna Hankins, Ernestine Lane, Lucille Willis, Barbara Butler.
Josephine Collins, Tina Hams, Shirley Jackson, Ella Wee Johnson, Mayfra
Humbert, Shirley Maddox, Rosabell Moore, Arcurtis Parker. Idella Stewart,
Velean Thomas, and Johnella Williams.
reinstatement to those who were so informed and af-
firming the order of reinstatement to those who were
not."5 The court also vacated for further consider-
ation the portion of the Board's Order requiring Re-
spondent to accord full accrued benefits to the strik-
ers who were reinstated,' noting that this adjustment
is only required if the three individuals rehired were
never effectively discharged.
On June 22, 1979, Respondent filed a motion to
transfer the proceedings to an administrative law
judge.7 By letter dated June 25. 1979. the Charging
Party filed a response to Respondent's motion. There-
after, the General Counsel filed an opposition to Re-
spondent's motion to transfer the proceedings to the
Administrative Law Judge and the statement of posi-
tion on issues raised by the remand, and Respondent
filed a statement of position. Respondent also filed a
response to the General Counsel's opposition and
statement of position."
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board, having accepted the remand, respect-
fully recognizes the above-mentioned court opinion
as a binding guide in its recommendation. Accord-
ingly, we shall order that the complaint be dismissed
insofar as it alleges that Respondent violated Section
8(a)(3) and (I) by failing to reinstate the 19 strikers
who received effective notice of their discharge on
November 8, 1972.
Regarding the other 40 strikers whose status re-
mains in question 9 the issue is which of those individ-
uals were informed of their discharge b Respondent
before August 25. 1974, the effective date of' the
Health Care Amendments. Based upon our examina-
tion of the entire record, we cannot determine with
certainty which of these remaining 40 strikers did re-
596 F.2d at 1344.
"The three strikers who went back to work for Respondent after August
25, 1974. are Josie Wells, Fannie Speight. and Juarine McCants. These 3
individuals are included within the group of 40 strikers whose status will
remain in question after issuance of this Supplemental Decision and Order.
? Insofar as Respondent's motion requests that this case be remanded to an
administrative law judge other than Josephine Klein, it is hereby denied
There is no evidence on the record whatsoever of bias or prejudice on the
part of Administrative Law Judge Klein in her handling f this case
It is unnecessary to pass upon Respondent's other requests in light of our
disposition of the case here
I By telegram filed with the Board on September 6. 1979, the General
Counsel moved that sec. IV of Respondent's response and the affidait of
Jeffrey S Goldman attached thereto be stricken The General Counsel's re-
quest is hereby denied. In light of our determination here that a further
heanng is necessary to resolve the issues left open by the appellate courl's
decision, we find that the General Counsel's position is not prejudiced b the
newly' discovered material. An) newt) discosered material and arguments
relating to its admissibility should be addressed to the Administrative las
Judge at the hearing covered pursuant to this Order
' The names of these 40 individuals are easily ascertainable from the rec-
ord in this case. Compare. for example, the list of names In our Order herein
with the list contained in Appendix A, 33 NLRB at 796
245 NLRB No. 125
975
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ceive such notification of their termination. Accord-
ingly, we shall remand this matter to Administrative
Law Judge Josephine H. Klein. who heard it origi-
nally, for the purpose of conducting a further hearing
and issuing a Supplemental Decision.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the complaint be dis-
missed insofar as it alleges that Respondent violated
Section 8(a)(3) and (1) by failing to reinstate the fol-
lowing 19 individuals, all of whom received effective
notice of their termination on November 8, 1972, be-
fore the effective date of the health care amendments:
10 In the court's opinion, the "locker" letters sent to employees on August
4, 1972, "clearly communicated to the employees that they had been dis-
charged." 596 F.2d 1340. As the court recognized, however, while between
34 and 50 of the strikers received these letters, the precise number and iden-
tity of these strikers are not apparent. The same uncertainty exists regarding
which individuals attended 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." 233 NLRB at 787, fn. 20.
Because it was unnecessary to her initial Decision, the issue of who received
effective notice was not resolved by Administrative Law Judge Klein: nor
was it addressed in our initial Decision.
Helen Carter, Lorraine Dawson, Marguerite Ed-
wards, Edna Hankins, Ernestine Lane, Lucille Willis,
Barbara Butler, Josephine Collins, Tina Harris, Shir-
ley Jackson, Ella Wee Johnson, Mayfra Humbert,
Shirley Maddox, Rosabell Moore, Arcurtis Parker,
Airlean Robinson, Idella Stewart, Verlean Thomas,
and Johnella Williams.
IT IS FURTHER ORDERED that this proceeding be re-
manded to Administrative Law Judge Josephine H.
Klein for the purpose of holding a further hearing to
receive evidence as to which, if any, of the remaining
40 strikers were effectively notified of their termina-
tion by Respondent before April 25, 1974, the effec-
tive date of the health care amendments of the Na-
tional Labor Relations Act.
IT IS FURTHER ORDERED that, upon the conclusion
of such hearing, Administrative Law Judge Klein
shall prepare and serve on the parties a Supplemental
Decision containing findings of fact based upon the
evidence received pursuant to the provisions of this
Order, conclusions of law, and recommendations;
and that following the service of such Supplemental
Decision on the parties the provisions of Section
102.46 of the Board's Rules and Regulations, Series 8,
as amended, shall be applicable.
976