Providence Medical Center

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Providence Medical Center and Northwest Economic Council, ocal No. 900, United Food and Commer- cial Workers International Union, AFL-CIO.' Cases 19-CA-8862, 19-CA 8936, 19-CA 9003, 19-CA-9033, and 19-CA 9430 July 27, 1979 DECISION AND ORDER On March 8, 1978, Administrative Law Judge Jer- rold H. Shapiro issued the attached Decision in this proceeding. Thereafter, Respondent, the Charging Party, and the General Counsel filed exceptions and supporting briefs, the Charging Party and the Gen- eral Counsel filed briefs in answer to Respondent's exceptions, and Respondent filed briefs in answer to the Charging Party's and General Counsel's excep- tions. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs, and has decided to affirm the rulings, findings,2 and I The name of the Charging Party. formerly Northwest Economic Council, Local No. 900, Retail Clerks International Association, AFt. (1(, is amended to reflect the change resulting from the merging of' Retail Clerks International Association and Amalgamated Meatcutters and Butcher Workmen of North America on June 7, 1979. Although the amended name of the Charging Party appears in the caption, fir consistency and historical perspective. we have retained the former name in the discussion herein. 2 Respondent and the Charging Party have excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of' all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Producas, Inc., 91 NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have examined the record carefully and find no basis for reversing his findings. Although we agree with the Administrative Law Judge's findings relating to the discriminatory reinstatement system initiated by Respondent lillow- ing the strikers' unconditional offer to return to work, we believe it necessary to correct several inadvertent factual Inaccuracies in his Decision. The Ad- ministrative Law Judge correctly found that only one striker, Duke, was permanently replaced prior to the strikers' unconditional offer to return to work. However, in one portion of his Decision, he identifies the replacement as Cannon. We correct that reference in accordance with his earlier, correct finding that Duke was permanently replaced by Tanner We additionally note that: I) Copenharve was a registered hematologist. rather than a regis- tered medical technologist, as stated by the Administrative Law Judge; (2) the hiring date reflected on Respondent's seniority list exhibit for Antonio Regala is correct: (3) Ronald Huntley began work for Respondent on June 14, 1976, rather than June 14, 1975, as stated in the Decision; (4) medical technologist Spieth worked on the day shift in microbiology prior to the strike, rather than on the third shift in the satellite laboratory: and (5) Re- spondent's assertion that 37 registered medical technologists were employed by Respondent at the time of the strike, which the Administrative Law Judge found not supported by the record, was based on a posthearing stipulation between the parties. We deem all of these inadvertent errors immaterial for purposes of our analysis and the Administrative Law Judge's resolutions. In his Decision, the Administrative Law Judge cites Hi-Way Billboards, Inc., 206 NLRB 22 (1973), for the proposition that, once a genuine impasse is reached, the duty to bargain becomes dormant until changes in circum- stances indicate that an agreement may be possible. A review of that case reveals that the correct proposition is that, once a genuine impasse is reached, the duty to bargain about the subject rrutter of the impasse becomes dormant until changed circumstances indicate that an agreement may be possible. However, an application of the correct rule of Hi-Wa- Billboards does not alter the ultimate finding that the wage increase granted by Respon- dent in July 1976 did not violate the Act. conclusions of the Administrative Law Judge, as modified below, and to adopt his recommended Or- der, as modified herein. Respondent excepts to the Administrative Law Judge's conclusion that Northwest Economic Coun- cil, Local 900, Retail Clerks International Associ- ation, AFL CIO, herein referred to as Local 900, is the lawful successor to Seattle Chapter, Chapter No. 4, National Economic Council of Associations of' Health Professions, hereinafter called the Seattle Chapter. For the reasons discussed below, we find the exceptions without merit. We agree with the Administrative Law Judge that the affiliation election was conducted with adequate due process. Thus, adequate notice of the election was given members of the consolidated local, mem- bers were given ample opportunity to discuss and consider the question of affiliation before voting, and the voting was orderly and was conducted by a se- cret-ballot mail election supervised by the Public Em- ployment Relations Commission of the State of Washington. Respondent urges that the affiliation be declared invalid because only members of the Seattle chapter were given an opportunity to participate and cast bal- lots, citing Jasper Seating Company, Inc.. 231 NLRB 1025 (1977). However, in A4moco Production Com- pan', 239 NLRB 1195 (1979), we overruled Jasper Seating because: The fact that union merger or affiliation votes are basically internal, organizational matters, coupled with the employees' opportunity to exer- cise their right to choose whether to participate or to refrain rom engaging in concerted activity. persuades us to find that union affiliation votes limited to union members are valid.l In Amoco. we noted also that an affiliation does not create a new labor organization or result in the disso- lution of an already existing organization. Addition- ally, a collective-bargaining agreement remains effec- tive until the stated expiration date, and the status of wages, working conditions, benefits, and grievance procedures is unaffected by the affiliation vote. Thus, we stated that: Since we view an affiliation vote as basically concerned with the organization and structure of the union and not the representational status of employees, it is the sort of internal union matter into which the Board does not ordinarily in- trude.4 In the instant case, notices were posted on bulletin boards and also mailed to those employees for whom Amoco Production (ormpanv. supra 4 d 243 NLRB No. 61 714 PROVIDFNCF MEI)(IC/. ('N FER the Seattle chapter had addresses, informing employ- ees of meetings to be held to discuss affiliation. A representative of the Retail Clerks International As- sociation attended at least one of those meetings, and each member was furnished a copy of the Retail Clerks International constitution. The results of the mail ballot election were 202 for, and 18 against. af- filiation. It is not contended here that any unit em- ployee desiring membership was refused or that any member expressed dissatisfaction with the above pro- cedures. Under these circumstances, we find that the affili- ation vote conducted herein was valid and we affirm the Administrative Law Judge's finding that Local 900 is the lawful successor to the Seattle chapter.5 Accordingly, Respondent was obligated to recognize and bargain with the Union as the exclusive repre- sentative of the employees employed in the profes- sional bargaining unit. The General Counsel and Charging Party except to the Administrative Law Judge's failure to find that Respondent violated Section 8(a)(1) of the Act by so- liciting employees to sign cards indicating that they no longer wished to be represented by the Union. 6 Briefly, the record reveals that, in late October or ear- ly November 1976, Laboratory Director Robert Fouty, an admitted supervisor, observed an employee distributing cards to other employees in Respondent's laboratory. Fouty confiscated the cards from the em- ployee, and gave them to Janiece Sattler, Respon- dent's administrative coordinator and an admitted su- pervisor, to distribute among employees. Although Sattler testified that, in accordance with instructions from Fouty, she said nothing to the employees when she was passing out the cards, it is uncontroverted that on at least one occasion Sattler approached an employee to whom she had given a card and asked if the employee had "completed" the card. Under these circumstances, and in view of Respondent's other contemporaneous and serious unfair labor practices described in the Administrative Law Judge's Deci- 5In view of the rationale set forth in Amoco Production Compan. supra, that affiliation votes are basically internal union matters. we regard as mis- placed the dissent's emphasis on the numbers of nonmembers excluded from participation in the affiliation election 6 The cards read as follows: I. the undersigned professional employee of PROVIDENCE MEDI- CAL CENTER, do not wish to be represented by the Northwest Eco- nomic Council or the Retail Clerks International Assoc. or any local affiliate of that international union. I recognize that my signature, freely given, can be used for any of three purposes: (A) Revocation of the bargaining rights of the Northwest Economic Council and/or the Retail Clerks International Assoc. or its local affili- ates. (B) Obtaining a decertification election from the National Labor Re- lations Board. (C) Obtaining a free secret ballot election to determine the wishes of a majority of the employees outside the auspices of the National Labor Relations Board. sion, we agree with the General Counsel and Charg- ing Party that Sattler's conduct was coercive within the meaning of Section 8(a)( 1) of the Act, and we shall remedy that violation.7 Respondent excepts to the Administrative Law Judge's finding that the reinstatement offer to striker Barry Rhoda was not to a position substantially equivalent to the one he previously occupied, because the offered position involved one-third fewer working hours. As Respondent points out. the reinstatement offer to Rhoda was actually to a position involving several additional working hours. Nevertheless, as the reinstatement offer was to a position involving differ- ent work days and work hours, with the ulterior mo- tive of ridding itself of Rhoda. along with the other strikers, as fully set forth in section IV(D), (11), (c). (4). of the Administrative Law Judge's Decision, his ultimate conclusion that the offer was insufficient re- mains correct. ORDER Pursuant to Section 10(c) of the National Labor Relations Act. as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge. as modified be- low, and hereby orders that the Respondent. Providence Medical Center. Seattle. Washington. its officers, agents. successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: I. Insert the following as paragraph l(i) and re- letter the subsequent paragraph accordingly: "(i) Ordering, directing, instructing, urging, solicit- ing, suggesting. or in any other manner inducing or encouraging employees to repudiate the Union." 2. Substitute the attached notice for that of the Administrative Law Judge. MEMBER JENKINS, dissenting in part: I join in all my colleagues' findings except their adoption of the Administrative Law Judge's finding that Local 900 is the lawful successor to Chapter 4. and that Respondent therefore violated Section 8(a)(5) and (I) of the Act by refusing to bargain with Local 900 as the exclusive representative of Respon- dent's employees. In my view, the majority opinion represents the culmination of a series of erroneously reasoned cases in this area. The facts here are not in dispute. Chapter 4, affili- ated with the National Economic Council of Health Professions (NEC), was a consolidated union, repre- senting employees employed at several health care in- stitutions in the Seattle area, including Respondent. 'See (i F ( orporatiorn, 188 NI.RB 554 (1971): The Deurtih (mpani. Electronic Components Dltlon, 180 NLRB 8 (1969). I)t(ISI()NS ()F NAI IONAI. I.ABOR RELAIIONS BOARD) On April 28. 1975. Chapter 4 was certified by the Board as the representative of Respondent's technical employees. and. on August 5. 1975. was certified as the representative of' its protessional employees. On March 12. 1976. NEC went out ot existence. There- after, Chapter 4 functioned as an independent union until on or about July I. 1976, the date of its formal affiliation with the Retail Clerks International Associ- ation. On March 1,. 1976. prompted by the impending dis- solution of its parent organization. the membership of Chapter 4 authorized its executive board to investi- gate the possibility of affiliating with another national organization. On April 5, 1976. the executive board recommended to the membership that Chapter 4 af- filiate with the Retail Clerks, and that the member- ship be allowed to vote by secret ballot to amend Chapter 4's bylaws accordingly. Following a series of meetings held for the purpose of discussing the affili- ation issue, a mail ballot election was conducted be- tween May 14 and June 14, 1976, by the Public Fm- ployment Relations Committee of' the State of Washington (PERC). As found by the Administrative Law Judge, of the approximately 700 employees rep- iesented by Chapter 4 in several bargaining units, only 307, or less than 44 percent, were members and thus eligible to vote. Of those 307, 220 actually voted, approximately 31 percent of' the represented employ- ees. Those employees ineligible to vote, a majority, were excluded from participation because they were not Chapter 4 members. Chapter 4's treasurer, Sue Duke. testified that in early May 1976, she compiled a list of eligible voters consisting of those members who had paid their dues for the first quarter of 1976, and turned that list over to Elliott Willman. Chapter 4's paid executive direc- tor. However, neither Duke nor any other witness tes- tified as to who determined that eligibility criterion. or when and under what circumstances that decision was made. Chapter 4's dues were payable quarterly, in advance. Inasmuch as the mail balloting began in mid-May, the logical eligibility formula would have been membership during the second quarter of 1976, rather than the first quarter. This anomaly is not ex- plained in the record, although the obvious inference is that setting the eligibility criterion to include paid- up members for the second quarter would have al- lowed nonmembers the opportunity to join and par- ticipate. Nonetheless, my colleagues, relying on Amoco Pro- duction Company, 239 NLRB 1195 (1979) (herein called Amoco 11), find that the affiliation vote con- ducted herein met the minimum strictures of due pro- cess and they conclude that the vote was valid and binding on all unit employees. The majority's ratio- nale for their decision is, essentially, that union affili- ation votes are internal union matters, consideration of which is properly limited to union members only. With this I cannot agree. The troublesome question of' the propriety of "members-onlyv" union affiliation elections has haunted the Board on numerous occasions. With one exception," Board majorities have sanctioned almost every members-only election brought before us. These maiorities, however, utilized varying rationales and created different standards in passing upon each factual situation, only to change their rationale in lat- er cases containing record facts not in accord with their previous reasoning. For example. my colleagues have relied on such factors as: (I1) the exclusion of' nonmembers could not have affected the election re- suts;, (2) the excluded nonmembers were given an opportunity to join the union prior to the election:"' (3) the affiliation election was an internal union mat- ter:'' (4) a majority of unit employees approved the affiliation;'2 (5) the unit employees were not heard to complain of the affiliation;"3 (6) the unit employees did not complain of the affiliation prior to the results being known: 4 and (7) the affiliation procedures were as democratic as possible.'5 Additionally. my colleagues who form the majority herein recently decided Amoco I1, on which they pur- port to rely. In that case, a plurality of Chairman Fanning and Member Murphy stated that: Where the nonmembers have not unwillingly been relegated to the status of onlookers because the membership ranks have been closed to them. we do not find their exclusion trom an affiliation vote disqualifying.'6 In the instant case there can be no question but that nonmembers were "relegated to the status of onlook- ers" by not being permitted to join and vote on the issue of affiliation with the Retail Clerks. Thus, even ' Jasper Seating (Companv. Inc. 231 NI.RB 1025 1977)1. 'Bear Archer, Division of Victor Compometer Corporation. 223 NLRB 1169 (1976)1, enforcement denied 587 F.2d 812 (6th ('r. 1977j1 4onco Pro- du ction (ompany. 220 NLRB 861 (1975)1 (Amoco I1) East Dai ion 7ioi & Dia ('ompuny. 190 NLRB 577 (1971); North Electric (ornparon. 165 NLRB 942 (1967). m Jasper Seating (ompanv, Inc., supra (dissentlng oplnion): A.4rm,o , u- pro, East Da ton Tool d Die Compunv. supra: Aorth Elc(t ri (ompal, upra. 1" The (ua-Cola Bottling Compan of Memphis, 239 NLRB 1 195 1979): The Hamilton Tool Company, 190 NLRB 577 (1971). 'Jasper Seating Company, Inc., supra (dissenting opinlnl). ) Newspapers, Inc.. Publisher of the Austin Americaun and the .4A ulin States- man. 210 NLRB 8 11974). enfd. 515 F.2d 334 (5th ('ir. 1975). East Dayton Tool & Die Company. supra. 15 North Electric C(ompany, supra ,4Amoco IL, suprua Also. see Jasper Seating (ompattn Ic , pra at 1028. where dissenting Chairman Fanning and Member Murphy stated Such nonmember emp!oyees have . . determined not to support the bargaining representative by participatlon in union aftairs. hose who have consciously avoided membership cannot. however. be barred from joining should they change their minds 71h PROVIDENCE MEI)ICAL CENTER under the maority's own recently propounded stan- dards, it would seem that the affiliation vote con- ducted herein is invalid. Despite the foregoing. the majority finds that the due-process strictures applicable to privately con- ducted union affiliation elections were provided by proper notice, an orderly vote. and reasonable pre- cautions to maintain the secrecy of the ballot. While I agree that notice, an orderly vote, and a secret-ballot election are essential to due process, I cannot agree that nonmembers may be excluded from participa- tion in the affiliation vote without violating our due- process requirement. In North Electric Companr, I. joined by then-Mem- ber Zagoria, first enunciated my position on the valid- ity of a "members-only" union affiliation election. I stated there that: If the Board is to accept privately conducted elections as a basis for amending Board certifica- tions, it should be certain that minimal standards of due process be observed lest the very validity of Board certifications be undermined. Granted that employees in a bargaining unit cannot be compelled to vote, they can, at the very least, be afforded the opportunity to vote. It appears basic to the collective-bargaining process that the se- lection of a bargaining representative be made by the employees in the bargaining unit. In our view, therefore, a cardinal prerequisite to any change in designation of the bargaining repre- sentative is that all employvees in the bargaining unit be afforded the opportunity to participate in such selection.'7 1 have consistently followed this position through the many cases involving the issue before us. only to see my colleagues take a curious variety of routes to their ultimate result. Although I have continually dissented in this area, in previous cases I have recognized the arguable validity of my colleagues' position. But here they have carried the rule far beyond all prior bound- aries. In no other case has the Board upheld a union affiliation election where a majority of unit employees have been precluded from joining the union prior to the election and then excluded from voting due to their nonmembership status. We have long recognized that the Board's primary concern in representation issues, and that of the Na- tional Labor Relations Act itself, is the wishes of the employees. 18 The result reached herein by the majority plainly ignores those wishes. I respectfully dissent. ' 165 NLRB at 944 (dissenting opinion). L N.L.RB v. Western & Southern life Insurance Co., 391 F.2d 119. 123 (3d Cir. 1968); Sun Oil Compan of Pennvsania. 228 NLRB 1072. 1075 (1977); Sun Oil Company of Penns,lanoa, 228 NLRB 1063. 1067 (1977); Quemeto Inc. a Suhsidiar o RSR Corporation. 226 NI.RB 1398, 1399 MMBIER PFNI.l.()o. dissenting in part: Although I agree with my colleagues in all other respects, I do not join in their adoption of the Admin- istrative Law Judge's finding that l.ocal 900 is the lawful successor to the Seattle Chapter. Accordinglb, I would not find that Respondent has violated Section 8(a)(5) of the Act by refusing to bargain with l.ocal 900. In my opinion, the affiliation vote conducted herein is invalid because only those unit employees who were members of the Seattle Chapter were al- lowed to vote. This case presents an unusual factual situation be- cause of the 4-month hiatus between the date of dis- solution of the National Economic Council of Health Professions (NEC), with which the Seattle Chapter (also referred to as Chapter 4) was once affiliated. and the date on which Chapter 4 became formall) affili- ated with the Retail Clerks International Association (RCIA). I hesitate to characterize Chapter 4's status during the hiatus period as that of an independent union, which characterization was rejected by the Administrative Law Judge,'9 but accepted bh Mem- ber Jenkins. Likewise, I am reluctant to advance the position that the facts show merely a simple change in affiliation from one International to another. How- ever. I find it unnecessary to resolve this apparent dilemma inasmuch as the facts give me the opportu- nity to restate and clarify my position with regard to affiliation votes, and, under either view of the facts, I would require that all unit employees be permitted to vote in an affiliation election. regardless of their union membership. Where an independent local union seeks to affiliate with an international union, the affiliation contem- plated would not simply result in a change in the name or designation of the local union. Rather, such an affiliation would, in my opinion, effect it substan- tial change in the actual identity of the bargaining representative. Under such circumstances. I would, as clearly noted in my concurring opinion in Jasper Seating Company,2 0 apply the principles set forth in American Bridge Division, United States Steel Corpo- ration v. N.L.R.B. 2' Thus, I would find that the change in identity, which would result from the affili- ation of an independent with an international, raises a question concerning representation which can only be resolved by a Board-conducted election. Accord- ingly, by virtue of such a representation election, all (1976); State Farm Mutual Automobile Insurance Compcnv and Stare Farm Fire and Casualn' Company,. 225 NLRB 966. 967 (1976): Bear 4rcher, Divl- sion f lactor (omplometer Corporation, supra at 1170. 1172: V,plp crs, Inc.. supra at 9. 10. fns. 4 and 13. 19 See fn. 10 of the Administrative Law Judge's Decision >°231 NLRB 1025 (1977). 1' 457 F.2d 660 (3d Cir. 1972). 717 I)I('ISI()NS OF NAlIONAL ABOR RELATIONS BOARD unit employees. members and nonmembers. would be entitled to vote for or against affiliation. It appears that some confusion has arisen with re- spect to the position I would take where the facts do not come within those of American Bridge i.e.. where there is no change in the identity of the bargaining representative. In fact, the Administrative Law Judge in the instant case has mischaracterized that position, finding that in Jasper Seating I had expressed my agreement with a "members-only" affiliation vote in circumstances where continuity of the bargaining rep- resentative was assured. That, however, is not an ac- curate summarization of the stance I would take. In Jasper Seating, the Board majority, consisting of myself and Members Jenkins and Walther, agreed on the result; i.e., that the petition to amend certification should be dismissed. The essence of the reasoning be- hind that result was the failure to allow all unit em- ployees, regardless of union membership, to partici- pate in the affiliation vote. Members Jenkins and Walther were of the opinion that the case involved a change in designation of the bargaining representa- tive and concluded that, for the Board to accept a privately conducted affiliation election, minimal stan- dards of due process required that all unit employees be given the chance to vote. In a separate concurring opinion, I parted com- pany with my two colleagues on the majority as to the rationale for the common result, as I found that the proposed affiliation would have resulted in a change in the identity of the bargaining representa- tive. Accordingly, I applied American Bridge princi- ples to require that all unit employees be permitted to vote in a Board-conducted election. However, I ex- pressly noted that "[i]f I could agree with my col- leagues [Members Jenkins and Walther] that [Jasper Seating] involves merely a change in the name of the employees' representative, then I would not hesitate to agree with the conclusions they reach herein."22 Accordingly, where the proposed affiliation would not result in a change in the identity of the bargaining representative. 2 I would not require that the affili- ation vote be conducted under the auspices of the Board, but would accept a privately conducted elec- tion. However, I would sanction the results of such an election only if all unit employees were given the chance to participate in the affiliation vote regardless of union membership. The majority, of course, finds that an affiliation vote limited to members only is appropriate. How- ever, I am not persuaded by their view that an affili- 2 Jasper Seating Company, 231 NLRB at 1027. 1 Such circumstances would include, inter alia, a change in designation of a local union, a change in affiliation from one International to another, and a change from one local to another within the same International. ation vote is an internal union matter strictly con- cerned with the organization and structure of the union. Nor am I persuaded by their view that an af- filiation vote has no impact on the employment rela- tionship. It appears to me that an affiliation vote has direct bearing on a most fundamental question: Who will represent the unit employees? And the answer to that question, my colleagues' opinion to the contrary notwithstanding, does indeed have a direct impact on the employment relationship, for the identity of the collective-bargaining representative has the potential for great influence on the employment interests of all employees, not just union members. In an initial rep- resentation election held to determine if employees desire union representation and, if so, by whom, the Board does not, of course, require union membership. An affiliation vote, seeking to answer the same ques- tion, should be accorded similar status. In Amoco Production Company,2 4 my colleagues had the foresight to admit that "[a]ny change in the collective-bargaining representative has the potential to affect the interests of all employees."2 However, in the next breath, they retreated from this obvious premise by declaring that "the representative's mem- bers are directly affected."26 While I agreed in that case that a union's members would be more directly affected by., for example, a new constitution, I noted there, and it bears repeating here, that a union has the obligation to fairly represent the interests not only of its members, but also of nonmembers in the unit. Without the power to express an opinion on a matter of fundamental importance, the rights of unit em- ployees who are not members are subjected to, and affected by, the voting rights of others. Accordingly, whether by virtue of a Board-con- ducted election to resolve a question concerning rep- resentation arising from a change in the identity of the collective-bargaining representative or by virtue of a privately conducted election to effectuate what is, in essence, a technical, nonsubstantive change in des- ignation, I would require that all unit employees, re- gardless of union membership, be entitled to vote. Since my position is now clear and the practical effect thereof is to require the same result, I would dismiss the 8(a)(5) allegation in this proceeding because it is abundantly clear that only members of the Seattle Chapter were entitled to vote for or against affiliation with RCIA. As a direct result of the members-only requirement herein, less than a majority of the consolidated local's employees actually voted-a fact cavalierly dismissed by the majority. Chapter 4 represented approximately 24239 NLRB 1195 (1979). 25 Id 26 Id 718 PROVIDENCE MEDICAL CENTER 700 employees in a consolidated local, 307 of which, or less than 44 percent, were members. The parties stipulated that 55 percent of the unit employees were not eligible to vote because they were not members of Chapter 4. It appears that only 220 employees actu- ally voted. Furthermore, although Respondent's technical unit consisted of 108 employees, less than 10 percent of them were actually members of Chapter 4. In addi- tion, out of 69 employees in the professional unit, only 11 were members and thus entitled to vote. The majority's attitude towards what may, at first blush, appear to be only a numbers game, is disturb- ing to me in light of its reliance on a due-process argument to conclude that the election conducted herein was fair and regular. I fail to see how due process is served by the fact that the wishes of less than a majority will now be imposed on a majority which was not allowed to express an opinion. To say that nonmembers were given the chance to become members before the vote is not a satisfactory resolu- tion to this problem, as Member Jenkins has made it clear that the chance they were given was hardly fair. Therefore, it is my opinion that the majority herein has compounded their error by paying only lip ser- vice to due process and to the fundamental right of employees to select their own bargaining agent. APPENDIX NOTICE To EMPI.OYEES POSTED BY ORDER OF THE NATIONAL LABOR REILATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively with Northwest Economic Council, Local No. 900, United Food and Commercial Workers In- ternational Association, AFL CIO., as the exclu- sive collective-bargaining representative of our employees in the following appropriate bargain- ing unit: All pharmacists, surgical assistants, physical therapists, dieticians, nuclear medicine/ultra- sound technologists, registered medical tech- nologists, occupational therapists, and recrea- tional therapists employed by us at 500- 17th Avenue, Seattle, Washington; excluding of- fice/clerical employees, guards and supervi- sors as defined in the Act, and all other em- ployees. WE WILL NOT discourage membership in the above-named Union or any other labor organi- zation of our employees by discriminating in re- gard to our employees' hire, tenure of employ- ment, or any term or condition of employment. WE WILl. NOT terminate or attempt to termi- nate the seniority and preferential hiring rights of economic strikers who have applied for rein- statement. WE, WILL NOT discriminatorily refuse to recall and reinstate economic strikers, who have ap- plied for reinstatement, to jobs as they become available. WE Wll. N notify employees in the afore- said bargaining unit that Respondent does not intend to recognize and bargain with the above- named Union as their bargaining representative and will deal with the employees as if then were not represented by the Union. WE WILL NOI threaten you with loss of em- ployment if you support the Union by engaging in an economic strike. WE WIl.L Nor notify job applicants that the\ will not be considered for jobs because they have supported the Union by engaging in an eco- nomic strike. WE WILl. NOI notity- employees that they are prohibited from talking about the Union during working hours on our premises. WU WILlI. NO1 order, direct. instruct, urge, so- licit, suggest. or in anv other manner induce or encourage our employees to repudiate the Union. Wl WI1.1. NOI. in any other manner, interfere with, restrain, or coerce our employees in the ex- ercise of their right to selt-organization. to form, join, or assist any labor organization to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. WE WiLL, upon request, bargain collectively concerning rates of pa,. hours of employment. wages, and other conditions of employment with Northwest Economic Council, Local No. 900. United Food and Commercial Workers Interna- tional Association, AFL CIO, as the exclusive representative of all the employees in the appro- priate unit described above and. if an agreement is reached, embody it in a signed contract. Wk Wli.i. offer Karen Kiehn immediate em- ployment as a registered medical technologist. full time, in the laboratory's hematology section which was discriminatorily denied her, without prejudice to her seniority and other rights and privileges she would have acquired on this job and make her whole for any loss of earnings suf- fered by reason of the discrimination against her. with interest. 719 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE wiit.., in accordance with the Decision is- sued in this proceeding and subject to any sup- plementary proceedings that may be had in this case, ofler immediate and full reinstatement to such of the economic strikers named below, whose former positions or substantially equiv- alent ones have been available since they offered to return to work, without prejudice to any se- niority or other rights and privileges previously enjoyed, Deborah Konma Mike Turpin Rose Yoda Cynthia Chandler Barry Rhoda Ronald Huntley Marilyn Spieth Jeanette Davidson Karen Kiehn Carol Nusbaum Kristine McBride Susan Duke Antonio Regala Deborah Hayes Darlene Copenharve Michael Dattilo WtI WI.l. make those of the above named eco- nomic strikers who have been improperly denied reinstatement whole, with interest, for any loss of earnings they may have suffered by reason of our discriminatory failure to reinstate them. PRO)VIl)I.N('L MDI)I('AI CENIER DECISION SIAI EMEN I OF 1it CASE JERROLD H. SHAPIRO, Administrative Law Judge: The consolidated hearing in these cases, which was held October 17, 1977, through October 21. 1977. is based upon charges' filed by the above-named labor organization and a consoli- dated complaint issued June 17, 1977, which was amended October 6, 1977, in which the General Counsel of the Na- tional Labor Relations Board alleges that Providence Medi- cal Center, Respondent, has engaged in unfair labor prac- tices within the meaning of Section 8(a)(1), (3), and (5) of the National Labor Relations Act, herein called the Act. Respondent filed an answer and an amended answer deny- ing the commission of the alleged unfair labor practices. Upon the entire record, from my observation of the de- meanor of the witnesses, and having considered the post- hearing briefs, I make the following: FINDINGS OF FACJ I. THE BUSINESS OF RESPONDENT Respondent, Providence Medical Center, is a corporation licensed by the State of Washington, which does business in Seattle, Washington, where it provides health care services. Respondent's gross volume of business is annually in excess I The charges were filed on the following dates: Case 19-CA-8862, August 30. 1976: Case 19 CA-8936, October 4. 1976: Case 19-CA-9003, November 2, 1976; Case 19 CA 9033, November 15, 1976; and Case 19 CA 9430. April 28, 1977. of $1 million, and it annually purchases and causes to be transferred and delivered to its Seattle facility goods and materials valued in excess of $50.000 directly from States other than the State of Washington. It is admitted. and I find, that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. IHE LABOR OR(iANIZA I ION IN\()I.V II) Northwest Economic Council. Local 900. Retail Clerks International Association. AFL ('IO, herein the Union or Local 900. is admittedly a labor organization within the meaning of Section 2(5) of the Act. III. i HE SETiIN(i AND 11E QI'-S l(ONS I'RFISENIII) FOR I)I (I SIt( )N In 1975. Seattle Chapter. Chapter No. 4. National Eco- nomic Council of Associations of Health Professions, herein called the Seattle chapter, was certified by the Board as the collective-bargaining representative of Respondent's techni- cal and professional employees in separate bargaining units. In late March 1976, the Seattle Chapter's parent organiza- tion, The National Economic Council of Associations of Health Professions, herein called the NECt. dissolved, and in June 1976. the Seattle chapter's membership voted to affiliate with the Retail Clerks International Association herein called the RCIA. In July 1976, the Seattle Chapter was issued a charter by the RCIA in the name of Northwcst Economic Council. Local 900, the Union herein. The collective-bargaining negotiations between Respon- dent and the Seattle chapter failed to result in an agreement fior either bargaining unit. Employees employed in the pro- fessional bargaining unit ceased work July 20. 1976. and engaged in a strike which lasted until September 30(). 1976. Shortly prior to the strike, Respondent unilaterally in- creased the wages of a substantial number of the employees employed in the technical and professional bargaining units. Subsequent to the strike's termination, Respondent withdrew recognition from the Union and refused to bar- gain with the Union as the representative of the employees in the professional unit. The questions to be decided, as posed by the pleadings and litigated at the hearing, are: I. Whether Respondent was obligated to recognize and bargain with Local 900 as the successor to the Seattle Chap- ter. and, if so, did Respondent refuse to bargain with Local 900, in violation of Section 8(a)(5) and (I) of the Act by unilaterally granting employees' wage increases and by withdrawing recognition from Local 900 as the professional employees' bargaining representative. 2. If Respondent's unilateral wage increase granted to the professional employees constitutes an unlawful refusal to bargain, did this conduct cause the professional employ- ees to strike. 3. In offering reinstatement to the 21 strikers who, at the strike's conclusion, requested reinstatement, did Respon- dent discriminate against them because they engaged in the strike and, even absent evidence of illegal motivation. whether Respondent discriminated against these strikers in violation of Section 8(a)(l) and (3) of the Act. 720 PROVIDENCE ME.I)AIA (CENT-IIR 4. Whether Respondent violated Section 8(a)(1) and (3) hb refusing to consider the employment application of striker Karen Kichn and hire Kiehn because she engaged in the strike. 5. Whether. in violation of Section 8(a)(1) of the Act. representatives of Respondent told employees that the em- ployees who participated in the strike had lost their jobs and/or would not be reinstated because theN: had engaged in the strike. 6. Whether. in violation of Section 8(a)( ) of the Act. a representative of Respondent informed a striker who had been reinstated that she was prohibited from discussing the subject of the Union during working hours. 7. Whether, in violation of Section 8(a)( 1) of the Act. a representative of Respondent told an applicant for emploN- ment that she would not be hired if Respondent discovered she sympathized with the strikers. 8. Whether, in violation of Section 8(a)( I) of the Act. a representative of Respondent solicited employees to sign union-repudiating cards. IV. t1i A .i(iEl) IUNFAIR AB()R PRA('II(ES A. The Union ke Staltus a the Successor to the Seattle Chapter 1. The relitigation issue Since the complaint alleges in substance that Respon- dent, in violation of Section 8(a)(5) and (1) of the Act, has refused to bargain with the Union as the employees' repre- sentative in the professional and technical bargaining units. I must first examine the General Counsel and Charging Party's contention, opposed by Respondent, that Respon- dent was obligated to bargain with the Union as the em- ployees' bargaining representative. even though the Seattle Chapter was their certified bargaining representative, be- cause the Union is the Seattle chapter's successor. In con- nection with this contention, the General Counsel and Charging Party argue that Respondent is precluded from litigating the successorship issue because the matter already has been settled on Case 19 RD 933. The facts pertinent to this argument are stated briefly. On April 28, 1975, the Seattle Chapter was certified by the Board as the representative of Respondent's technical employees and on August 5, 1975, as the representative of its professional employees. In June 1976. the Seattle Chap- ter's membership voted in effect to affiliate with the Retail Clerks International Association (RCIA). and on or about July 2, 1976. the RCIA issued a charter to the Seattle Chap- ter effective July I. 1976. On June 25. 1976, an employee in the technical unit filed a decertification petition with the Board's Regional Director in Case 19-RD-933 seeking an election to determine whether the Seattle chapter continued to be the majority representative of this unit. A hearing was conducted in this matter on July 30 and August 10, 1976. The Union intervened, taking the position that it was the successor to the Seattle Chapter in the technical bargaining unit. Respondent was also a party to this proceeding. The record in Case 19 RD 933 reveals that the question of the Union's status as the successor to the Seattle Chapter was full litigated.: On September 3. 1976. the Board's Rcgionil Director issued a Decision and [)Drection of [:lection im Ilie decertificattion proceeding. T'he Regional l)irector con- cluded that the petition raised a question concerning repre- sentation. and that the Union was the successor to the Seat- tie Chapter in the technical bargaining unit and ordered that the certification issue for this unit be amended to name the Union, rather than the Seattle ('hapter. as the cmplo - ees' exclusive collective-bargaining representative. In ddi- tion, the Regional Director directed that an election he scheduled in the technical unit. Neither the Petitioner nor Respondent requested that the Board review the Regional [)irector's Decision and Direction of Election. The election never took place, however. inasmuch as the Regional )irec- tor on October 14, 1976. dismissed the decertification peti- tion on the ground that Respondent's alleged illegal unlat- eral wage increase granted to the technical unit emploNees precluded a question of representation fronm being raised. On January 13, 1977. the Board reversed the Regional I)i- rector's dismissal and reinstated the petition. but on Jul 6. 1977, the petition was once again dismissed b the D[irector on the ground that the unfair labor practices raised in the instant unfair labor practice proceeding precluded a ques- tion concerning representation from being raised. I he Board, upon appeal, affirmed the dismissal. I reject the General Counsel and Charging l'art!s con- tention that the determination of the [Union's successorship status by the Regional Director in the decertification pro- ceeding involving the technical bargaining unit. ('ase 19 RD 933 precludes Respondent from litigating the issue in this unfair labor practice proceeding.3 It is settled that an issue litigated by the parties in a prior representation case may be relitigated in a subsequent un- fair labor proceeding where "sufficiently changed circum- stances exist." Cior Motor (Comnpan. Inc.. 214 NI.RB 298 (1974). In the instant case the circumstances, as the, existed when Respondent litigated the Union's status ais a successor union in the decertification proceeding and ifailed to appeal the Regional Director's decision, have changed so signifi- cantly that it would be unfair to preclude Respondent from litigating the successorship issue. The successorship ques- tion posed by the pleadings in this unfair labor practice proceeding is not the same as the question posed in the decertification proceeding. There the question litigated was whether the Union was entitled to represent the employees in the technical unit as the successor to the Seattle chapter. whereas, in the instant case the issue is whether Respondent is the successor union in the professional unit, as well as in the technical unit. In addition, at the time of the decertifica- tion hearing and when the Regional Director issued her 2 Indeed. virtually all of the relevant evidence ntroduced h Respondent in this unfair labor practice proceeding pertaining to the successorship issue is included in the record of the decertificaion proceeding. I likewise reject their contention that Respondent ha, ass.ied an leg.al right to refuse to recognize the Union as the successor to the Seattle (haplter by recognizing and bargaining with the t nion. The record esitablihes that at all times material the representatives of Respondent, in their dealings uith the representatives of the Union. took the position that the Sealtle (hapter was the emplo)ees' bargaining representative and retused to recognize the Union as the employees' representative 7'21 I)2F(ISIONS OF NATIONAL LABOR RELATIONS BOAR[) decision, there was a likelihood that the results of the elec- tion directed by the Regional Director would moot the suc- cessorship issue, which would then be a matter for litigation in a subsequent proceeding.4 Indeed, during the decertifica- tion proceeding involving the technical unit, Case 19- RD 933, an employee employed in the professional unit filed another decertification petition in Case 19- RD-947, thereby covering the professional unit. When Respondent in the hearing concerning the technical unit sought to liti- gate the Union's status as a successor to the Seattle chapter in both the professional and technical units, the Union ob- jected on the ground that the sole issue being litigated in- volved the technical employees' unit and that Respondent would have a full opportunity to litigate the Union's status as a successor in the professional unit during the decertifica- tion proceeding involving the professional unit. The hearing officer sustained the Union's objection and precluded Re- spondent from litigating the Union's successorship status in the professional unit. Based upon the foregoing. I am persuaded that the Re- gional Director's determination that the Union was the suc- cessor to the Seattle chapter in the technical unit did not preclude Respondent from litigating this issue when, in this unfair labor practice proceeding, it was charged with refus- ing to bargain with the Union in the professional, as well as the technical, bargaining unit and Respondent's failure to appeal the Regional Director's decision was caused by the likelihood that the results of the decertification election di- rected by the Regional Director would moot the successor- ship issue, thus allowing Respondent to litigate the issue in another proceeding involving the professional unit. It would not be fair, under these circumstances, to preclude Respondent from litigating the successorship question in this unfair labor practice proceeding. 2. The facts pertinent to the Union's status as a "successor union" In April 1975, a majority of Respondent's technical and professional employees voted in a Board-conducted elec- tion to select the Seattle chapter as their collective-bargain- ing representative in separate units. The Board certified the Seattle Chapter in the technical unit on April 28, 1975, and on August 5, 1975, in the professional unit. The Seattle Chapter was a consolidated local. In addition to Respondent's employees, it represented employees em- ployed by several health care facilities. It was not an in- dependent union, rather it was affiliated with the National Economic Council of Health Professions, herein called NEC, a national organization with offices in the State of Texas, which existed for the purpose of providing organiz- ing and collective-bargaining assistance to its several local affiliates. Early in 1975, NEC's viability as an organization began to deteriorate and progressively deteriorated until March 12, 1976. when it went out of existence. The Seattle Chapter's membership. because of NEC's in- 4This was the reason for the Respondent's failure to request that the Board review the Regional Director's decision. However, as described supru, the election was never conducted because the petition was dismissed. ability to continue furnishing them with aid and support,5 instructed the Seattle Chapter's executive board, at a mem- bership meeting held on March I. 1976, to investigate the possibility of having the Chapter affiliate with another na- tional organization. The executive board, after investigating several national unions, recommended to the membership, at a membership meeting held on April 5, 1976, that the Seattle Chapter obtain a charter from the RCIA and affili- ate with that organization. They also recommended that the membership be given an opportunity to vote, by secret bal- lot, to amend the Seattle Chapter's bylaws to accomplish that object. Between May 14, 1976, and June 14. 1976. The Public Employment Relations Commission (PERC). an agency of the State of Washington, conducted a secret mail ballot election in which the members of the Seattle chapter were asked to vote whether or not they wanted "to amend the bylaws of the Seattle chapter. NEC to reflect the issuance of a charter to the Seattle chapter NEC by the Retail Clerks International Association; and further authorize the pres- ident and executive board to take such necessary steps as to consummate such a chartering." The record establishes that the members of the Seattle Chapter were given ample no- tice of the pending affiliation vote and also were given am- ple opportunity to discuss and intelligently consider the question.' Likewise. the vote accorded with the procedures set forth in the bylaws of the Seattle Chapter. Of the approximately 700 employees employed in the several bargaining units represented by the Seattle chapter. 307 were members and were thus eligible to vote.7 Of the 307. 220 voted. 202 in favor and 18 against amending the Seattle Chapter's bylaws so as to affiliate with the RCIA. The parties stipulated that approximately 55 percent of the approximately 700 employees represented by the Seattle Chapter were not eligible to vote because they were not members. Also. the record establishes that less then 10 per- cent of the 108 employees employed by Respondent in the technical unit were eligible to vote, and of the 69 employees in the professional unit, II were eligible to vote. The election results were communicated by PERC's let- ter dated June 16, 1976, to the president of the Seattle Chapter, Dolores Sherman. who, by letter dated June 18. 1976, applied to RCIA for a charter on behalf of the Seattle chapter. On July 2. 1976. RCIA's president wrote Sherman acknowledging receipt of the application and advised her that the RCIA "has issued a new charter for the Northwest Economic Council, Local 900, with an effective date of July 1. 1976," and that Local 900 should adopt bylaws as early as practical and in the meantime should abide by the RCIA's constitution.B 5 On or about April 26, 1975, the NEC's field representatives, who assisted the several local chapters affiliated with the NEC in the northwestern part of the United States in organizing and collective-bargaining activities, were terminated by the NEC due to lack of funds. I In this last regard I note that. among other things, each member was furnished with a copy of the RCIA's constitution. Voting eligibility was conditioned upon an employee being a member of the Seattle Chapter current in his or her dues for the first quarter of 1976. ' Local 900's membership during July or August 1976 adopted new by- laws, but in the interim the local union was governed by the terms of the RCIA constitution to the extent that they conflicted with the Union's exist- ing bylaws. 722 PROVII)NCE MED)ICAL CEN-I ER The affiliation of the Seattle Chapter with the RCIA made no essential difference in the officers or the executive hoard of that organization. inasmuch as the officers and executive board continued in this capacity with Local 900.9 The Seattle Chapter's only paid employee, its business man- ager, remained in this position with Local 900. Also, the bank account of the Seattle chapter was taken over by Lo- cal 900, which continued to represent the same employees in essentially the same geographic area as the Seattle chap- ter. In fact, Respondent was the sole employer which re- fused to recognize Local 900 as the exclusive bargaining representative of its employees. 3. Ultimate findings and discussion I reject Respondent's contention that Local 900's only recourse, when faced with Respondent's refusal to recog- nize it as the Seattle chapter's successor, was to institute an amendment of certification proceeding. It is settled that. although the question of whether a local union has suc- ceeded to the bargaining rights of a predecessor local union is frequently raised in the context of an amendment of cer- tification proceeding, it can also be raised in an unfair labor practice refusal-to-bargain proceeding and the tests used to resolve the issue are identical: e.g., New England Foundn Corporation, 192 NLRB 785, 788-789 (1971). The test to determine whether Respondent's bargaining obligation to the Seattle chapter survived the chapter's change of name and affiliation with the RCIA is twofold: (1) Did a majority of voting Seattle chapter members ap- prove the structural change in an election affording all eligi- ble members the opportunity to participate and in which the procedures used were sufficient to render the vote an accurate reflection of the participating memberships' con- temporaneous desires; (2) did the representational identity of the Seattle chapter remain fundamentally unchanged. notwithstanding the structural adjustments attendant upon its affiliation with the RCIA. See N.L.R.B. v. Pearly Book Binding Company, Inc.. 517 F.2d 1108 (Ist Cir. 1975); N.L.R.B. v. Newspapers, Inc., 515 F.2d 334 (5th Cir. 1975): N.L.R.B. v. Commercial Letter, Inc., 496 F.2d 35 (8th Cir. 1974); East Dayton Tool & Die Company, 190 NLRB 577 (1971); The Hamilton Tool Company, 190 NLRB 571 (1971); The East Ohio Gas Company, 140 NLRB 1269 (1963). In the instant case the affiliation election was properly noticed and conducted and established the desire of the eligible voters to affiliate with the RCIA. Respondent does not dispute, and the record shows, that: (1) the affiliation procedure confirmed fully with the Seattle chapter's by- laws; (2) the eligible voters were granted ample opportunity to discuss and intelligently consider the question of affili- ation before voting; and (3) the election itself was con- ducted in an orderly fashion in an atmosphere free from restraint or coercion and with sufficient procedural safe- guards to insure a democratic vote. Respondent's conten- tion that the election was invalid because the votes were not segregated by bargaining unit is without merit. There is no The Seattle Chapter did not, however. have a "recorder," whereas Local 900 has such an officer. requirement that a majoritt of the eligible ,oters in each individual bargaining unit in a consolidated local union must separately approve an affiliation. See. e.g.. M.:,inigoni- en Ward & C(.. 188 NI.RB 551 (1971); cf....R.B. B .x. ('ornmmercial Letter. Ir1., 496 F:.2d 35. 38 42: Retail (lcrs.v Ilnternational .ssociation. .41. (10 \;. .L.R.B.. 373 F.2d 655. 657, (D.C. Cir. 1967) enfg. 154 NLRB 1197. 1251 (1965). Likewise lacking in merit is Respondent's further contention that the affiliation ote was void because the Seattle chapter's officers. in accordance with its b laws, per- mitted only members to vote. It is settled that limiting the electorate to union members does not render an affiliation vote invalid: "As the subject matter oted upon invol ed an internal union matter relating to the affiliation of the in- cumbent union rather than to the employees selection of a bargaining representative. the preclusion of nonmembers from voting did not affect the regularit3 of the election." Hamilton Tool C(om,,prn 190 NRB 571 574. Accord: N. L. R.B. v. Commercial .etter. Inrc. 496 i.2d 35. 40 N. L R. B. v. Pearl Bookbinding (onmpat, Ic., 5 17 F.2d 1108. 1111 12; cf. V.I. R B. v. Nectspaper, Ins. . 515 F.2d 334. 339. Respondent mistakenly contends that the Board in Jasper Seating Co(mpan) /n,., 231 NI. RB 1025 (19771. has overturned Htiailton fool and held that all unit employees. nonunion members as well its members. must he afforded an opportunity to vote in an affiliation election. In Jasper Seating. Board Members Jenkins and Walthers adopted this proposition, but Members Fanning and Murphx re- jected it. Member Penello., who cast the deciding vote, con- curred with Walthers and Jenkins in invalidating the affili- ation vote. but for a different reason. He concluded that the affiliation election was invalid because the affiliation in- volved "a substantial change in the actual identity of the bargaining representative," hence. it raised a question con- cerning representation which could only be resolved by a Board-conducted election in which all unit employees would be eligible to vote. Explicit in Member Penello's con- currence is that in a situation where there is no substantial change in the local union's representational identit . he would adhere to the principles enunciated in Hamillon Tool. In short, in Ja.sper Seating. a majority of the Board indicated that where there is a continuity in the identity of the bargaining representative. the exclusion of' nonmembers from voting will not affect the regularity of the affiliation election. I am also of the opinion that the Seattle Chapter's disaf- filiation from the NEC and its affiliation with the RCIA did not substantially change the identity and continuity of the Seattle Chapter for representational purposes.'0 The Seattle Chapter's response to the disintegration of the NEC as a viable organization and its eventual dissolution was to hold fast to its own local union and to merely change its national union connection, substituting RICA for the NEC. The Se- attle Chapter did not merge with any' other local union nor to Respondent urges that this case involves the affiliation of an indepen- dent local union with an international union. I disagree. The record estab- lishes that, at the time of the representation election and the resultant certn- fication by the Board of the Seattle Chapter as the bargaining representative of Respondent's employees. it was affiliated with the NEC. a national organi- zation. Indeed. the voters in the representation electron did not cast their ballots for the Seattle Chapter as an independent local union, but as a local that was affiliated with the NEC. 723 I)L(CISIONS OF NATIONAI LABOR RELATIONS BOARI) was there any significant administrative changes within the local after its affiliation with the RCIA. The local union's officers, executive hoard members, and business manager remained the same. Nor did the affiliation affect the local's size or territorial jurisdiction. Nor is there evidence that the autonomy. within the local union, of the bargaining unit employees involved in this case was affected by virtue of the affiliation. Also, the local's collective-hargaining relation- ship with employers, including Respondent (whose employ- ees it represented). remained essentially the same. Thus. when affiliated with NEEC, the representatives of the local union, with the assistance of representatives from the NEC. negotiated with the representatives of the employers. whereas. subsequent to the affiliation, representatives of the local union. with the assistance of a representative from the RCIA.'` continued to negotiate with the same employers. Prior to the affiliation, the local union was precluded from negotiating collective-bargaining agreements and from en- gaging in strikes in support of such negotiations without the approval of the NEC. whereas, subsequent to the affiliation, the local remained bound by essentially the same restric- tions pursuant to the terms of the RCIA constitution. It is for all of' the airesaid reasons that I am persuaded that the Seattle chapter's disaffiliation from the NEC and its affili- ation with the RCIA did not substantially change the repre- sentational identity and continuity of the certified union. Respondent urges that there has been a substantial change in the representational identity of the Seattle chap- ter. and in support of this contention relies upon the court's decision in American Bridge Division, United States Steel Corporation v. N.L.R.B.. 457 F.2d 660 (3d Cir. 1972).12 See also N.L. R.B. v. Bernard Gloekler North East Co., 540 F.2d 197 (C.A. 3). In American Bridge, the local union, by virtue of its affiliation with an International union, became subject to the international union's constitution and by virtue of its provisions, was stripped of several fundamental powers which affected its status as the employees' bargaining repre- sentative. Specifically, the affiliation stripped the local of its fundamental powers to fix and collect dues, strike, adminis- ter collective-bargaining agreements, bargaining collec- tively. and sign contracts with employers, which powers were transferred to the International union. Here, the Seat- tle chapter, as an affiliate of the NEC, pursuant to NEC's rules and regulations, was subject to essentially the same kinds of limitations. In these circumstances, unlike the situ- ation in American Bridge, "It]he very act of affiliation here is [not a commitment to change in the fulcrum of union control and representation." N.L.R.B. v. American Bridge Diision. United States Steel Corporation, 457 F.2d 660, 664. Based upon the foregoing, I find that there has been com- pliance with the Board's requirements as to notice of the pending affiliation vote and the opportunity on the part of the members to cast a secret ballot on the issue, and that the identity of the certified bargaining representative has tl One of the reasons for the Seattle Chapter's affiliation with the RCIA was the inability of the NEC to continue to provide it with collective-bar- gaining assistance so that it could effectively service the employees it repre- sented. 12 A majonty of the Board recently has declined in Jasper Searing Com- pany Inc., 231 NLRB 1025 (1977), to follow the court's decision in American Bridge remained essentially unchanged for purposes of' collective bargaining. Accordingly. I further find that the Union is the lawful successor to the Seattle Chapter and that Respon- dent at all times material herein was obligated to recognize and bargain with the Union as the representative of the employees employed in the technical and professional bar- gaining units. B. Independent 8(a)(1 I liom ' I. Conduct attributed to Supervisor Ileimbach The supervisor of the satellite lab. Al tleimbach. is ad- mittedly a statutory supervisor and an agent of Respon- dent. The complaint alleges that. during the strike. Ileim- bach. in essence told employees that the emploees on strike would not be reemployed because of their participa- tion in the strike. thus violating Section 8(a)( I ) of the Act. In support of this allegation, the General Counsel presented two witnesses, medical technologists Rita Selin and Terr\ Rowe. who did not engage in the strike and who were em- ployed in the satellite lab under teimbach's immediate su- pervision. Selin and Rowe gave their testimony in a con- vincing and straightforward manner and in bearing and demeanor they impressed me as credible witnesses. Their testimony is as follows. On or about July 21, 1976, the second day of the strike. Heimbach told Selin. who was wearing armbands which indicated she sympathized with the strikers, that she should not wear the armbands in the vicinity of the hospital's pa- tients because the armbands were a reminder of death. Heimbach also told Selin that he would not have the strik- ers back in his lab because by striking they had abandoned critical patients. In the latter part of August 1976. Selin asked Heimbach how he felt about strikers Davidson and Yoda. who had worked for him prior to the strike, returning to work. Heim- bach stated that both Davidson and Yoda would be advised "to go elsewhere" even though management prior to the strike seriously had considered promoting Davidson to an assistant supervisor's position. Heimbach explained to Selin that Davidson was harassing people. that Yoda was follow- ing Davidson like a lamb, and that Heimbach could not understand why Davidson and Yoda had gotten involved with the Clerks Union. In late July or early August 1976. medical technologists Rowe and Inglehart, who worked on the midnight shift un- der Heimbach's supervision. were asked by him to change their work schedules and rotate between the midnight and the second shift. They asked for time to consider the re- 13 In connection with several of these allegations. Respondent argues that. since the evidence fails to establish actual interference. restraint. or coercion. the allegations must be dismissed. I disagree. IT]he illegality of an employ- er's conduct under Section 8(aX I) does not depend upon evidence that the employees were intact coerced in the exercise of their section 7 rights. Where the conduct was coercive . . .it is not necessary to show that the coercise conduct had its desired or intended effect." Russell Sover Candies Inc. N.L.R.B., 94 LRRM 3036. 3037-3038 (8th Cir. 1977). Sec also Time-O-Ma- ic. nc. v. N.L.R.B., 264 F.2d 96. 99 (7th Cir. 1959) ("No proof of coercise intent or effect is necessary under Section 8(a)(l) of' the Act. the test being whether the employer engaged in conduct which, it may reasonably be said tends to interfere with the free exercise of employees rights under the Act.") 724 PROVI )EN(E I- )l('AI. (ENIER quest. explaining to Heimbach that if they worked on the second shift it would mean working in positions formerly occupied by strikers. Heimbach stated that he wanted the second shift covered and they could either do it or take an extended leave of absence and. in answer to their concern about taking strikers' positions, told them that the strikers had deserted the critical care patients by striking and that Heimbach "did not ever want [the strikers] back in the laboratory." About 2 weeks later. Ileimbach told Rowe that "he never wanted [the strikers] back in the laborator 3 again" because they had harassed emploxees employed by another hospital.? In summary. as described in detail supra, the record es- tablishes that Respondent. through Supervisor leimbach. informed nonstriking employees that strikers would not be reinstated and that strikers Davidson and Yoda in particu- lar would not be reinstated. These statements were uttered in the context of Heimbach's hostile comments pertaining to the strike and to the activities of the strikers.' ' Uinder the circumstances. I am persuaded that these statements were reasonably calculated to lead the employees. to whom they were voiced, to conclude that the strikers would suffer the loss of their jobs because they had supported the strike. BY engaging in this conduct. Respondent violated Section 8(a)( ) of the Act. 2. Conduct attributed to Laboratory Director Fouty (a) The complaint alleges that Robert Fouty. the director of the laboratory, told employees that Respondent did not want to reinstate employees who participated in the strike. thus, violating Section 8(a)(I) of' the Act. Terry Rowe. a medical technologist, testified for the General Counsel. Robert Fouty. who is admittedly a statutory supervisor and an agent of Respondent, testified for Respondent. Late in July 1976 or early August 1976, as found supra. Supervisor Heimbach asked nonstrikers Rowe and Ingle- hart to rearrange their work schedules, which meant they would be occupying strikers' positions. They objected and spoke with Laboratory Director Fouty who was Heim- bach's supervisor. about the matter. During their conversa- tion, it is undisputed that Rowe explained that she and Inglehart did not want to change their work schedule, as requested by Heimbach, because it would mean taking strikers' positions. It is also undisputed that Fouty was an- noyed and visibly indicated his anger when he spoke to Rowe. The testimony of Rowe and Fouty about the re- mainder of their conversation is in sharp conflict. Rowe testified that Fouty stated he did not believe the strikers would ever "get back in" the hospital and was "fed up" and did not ever want the strikers back in his lab. Fouty also stated, according to Rowe. that he had spoken to several medical technologists to persuade them not to "There is no contention or evidence that any of the strikers. including Davidson and Yoda. engaged in impermissible harassment or other strike- related misconduct sufficient to deny them reinstatement. ' I also note that the record establishes that Heimbach is authorized to hire and fire the employees in his section of the laboratory. Although this authority had been curtailed for the duration of the strike and the period immediately thereafter, there is no evidence that the employees under Heim- bach's supervision had knowledge of this. strike and had even done favors for several of the strikers who. nevertheless, had repaid him by going out on strike. In this last respect. Fouty mentioned the names of one or two strikers, one of whom was Rose Yoda. whom he said had been allowed to take a leave of' absence after the death of her husband. Fouty testified that he told Rowe and Inglehart to join the strikers if they wanted to strike, but he had a lab to operate and so long as they were not striking. he expected them to obey their supervisor's orders and perform the work assigned to them or new hires would he employed to do their work, but that Respondent was making every effort not to hire new employees to do the work previously done by the strikers. Fouty specifically denies saying that he did not want the strikers back in his lab. In this respect. he testified: "I have got enough experience in this business not to make a statement like that. I may have been fed up. but I also realized my responsibility." Fouty also testified that while he did state in substance that the strikers would never get back in the lab, the statement was made in the context of his remark that the strike was a suicide strike. and if the employees continued to strike. probably none of them "will have any jobs left, would not have their jobs back." Rowe who at the time of the hearing was employed by Respondent. impressed me as a more credible and reliable witness than Fouty. It is for this reason that I have credited her version. Based upon the foregoing. I find that L.aboratory [)irec- tor Fouty told employees Rowe and Inglehart that he doubted whether the strikers would ever again work fir the hospital and was "fed up" and did not want the strikers working in his lab. This statement was voiced in the context of Fouty's other remarks which indicated he was antagonis- tic toward the strikers for having engaged in the strike. In these circumstances, I am persuaded that Fouty's statement was reasonably calculated to lead the nonstrikers. to whom it was uttered, to believe that the strikers would suffer the loss of their jobs because they had supported the strike.' By engaging in this conduct. Respondent violated Section 8(a)( I) of the Act. (b) The complaint. as amended, alleges that in January 1977. Laboratory Director Fouty told medical technologist Karen Kiehn, in essence, that she would not be employed by Respondent because of her participation in the strike. It is undisputed that Kiehn. one of the medical technologists who participated in the strike, filled out an employment application on January 12, 1977. and that on or about the next day, met with Fouty to discuss her application. At this point, the testimony of Fouty and Kiehn is in sharp con- flict. Kiehn testified that she told Fouty she would like to be considered for employment for the medical technologist's position which was then posted for the hematology section. Before addressing himself to this inquiry, Fouty first spoke about other subjects. including the strike. Fouty stated that I reject Respondent's contention that Fouty's statement was merely a noncoercive expression of opinion and. as such, not proscribed by Sec 8(aXI). am of the view that Fouty's statement constitutes a none-too-subtle threat that employees who were supporting the strike would lose their jobs. This is a threat to take action solely within the power of Respondent and ohviousl) was not based upon any economic prediction 725 7[)6(CISIONS OF: NATIONAl. LABOR RELAl IONS BOARI) he had done many favors fir several of the strikers, Net they had been disloyal toward him by supporting the strike. Also, he stated that each one of the strikers reinstated since the end of the strike had caused trouble after their reinstate- ment and that he, Fouty "was just thoroughly disgusted with the strikers." Kiehn eventually steered the conversa- tion back to the purpose of her visit. She asked "what about the job in hematology." Fouty answered that Kiehn was a "top notch tech" and Fouty would give her a recommenda- tion for a job with another hospital, but he did not want to employ her in Respondent's lab because, since the strike, management had finally begun "to build some good feel- ings" in the laboratory. Continuing, Fouty told Kiehn that he did not want "to introduce a striker into the situation" because he was "afraid that might cause trouble." Kiehn stated she sympathized with the nonstrikers and promised she would not start any trouble, but just wanted to return to work. Fouty answered that even if Kiehn was sincere, Fouty did not know how the nonstrikers felt and that per- haps Kiehn's mere presence in the lab would make the non- strikers feel uncomfortable. The conversation ended with Fouty indicating he would give the matter some further thought, but that he did not think he wanted to reemploy Kiehn. Fouty's version is completely different than Kiehn's. He testified that he did not "think" Kiehn mentioned she was applying for a position in the hematology department, but understood she was applying for one in chemistry where she had worked prior to the strike. Fouty told her that at that time no position was available in chemistry and the employment complement in that department appeared to be fairly stable and because of this, while Kiehn could ap- ply for a job, he suggested she look elsewhere for work. Fouty denies indicating that the reinstated strikers had given him trouble or that he felt the employees had been disloyal by supporting the strike. However, he admits he may have told Kiehn that "if she did not make trouble herself, her presence would make others uncomfortable," but testified he voiced this sentiment in a context different from that attributed to him by Kiehn. In her demeanor and the manner in which she presented her testimony, Kiehn, generally speaking, and in particular in connection with her testimony about the conversation with Fouty, was a very impressive witness. She testified in a straightforward and convincing manner. I received the im- pression that she was making a sincere effort to recall hon- estly and accurately what took place. Fouty, in general, and while testifying about the conversation in question, did not impress me as a trustworthy witness. Accordingly, I have accepted Kiehn's version. Based upon the foregoing I find that in January 1977, Respondent, through Fouty, told Kiehn that the reason Re- spondent did not desire to employ her as a medical tech- nologist in the hematology section of the lab was that it was afraid that, as a former striker, Kiehn would cause friction among the employees who had not participated in the strike. In short, Respondent stated it was refusing to con- sider Kiehn for employment because she had supported the strike. By engaging in this conduct Respondent violated Section 8(a)(1) of the Act. 3. Conduct attributed to Supervisor Chesnak The complaint alleges that Supervisor Harold Chesnak. admittedly a statutory supervisor and an agent of Respon- dent, told an employee not to discuss the Union during work hours, thus violating Section 8(a)( 1 ) of the Act. Deborah Hayes, one of the strikers. credibly testified that on October 4. 1976. immediately upon her reinstatement at the strike's conclusion, her supervisor, (Chesnak, called her into his office, and while discussing her work schedule, stated that he wanted the strikers to work in harmon? with the nonstrikers and then, without any explanation, specifi- cally instructed Hayes not to talk about the Union during working hours. ('hesnak admits he warned Hayes not to talk about the Union, but was unable to remember the words he used and testified, in effect. that in warning IHayes, he could just as easily have used the phrase "work- ing hours" instead of "working time" because he uses the phrases interchangeably. Based upon the foregoing. I find that Respondent, through Chesnak, warned employee Hayes not to talk about the Union on Respondent's premises during working hours. This constitutes an impermissible limitation upon Hayes' statutory right to solicit for the Union or otherwise engage in union activities during those working hours she is not actively at work. Essex- lnernmtional Inc.., 211 NLRB 749, 750 (1974): Accord: McBride's ol Nalor Road, 229 NLRB 795 (1977). By engaging in this conduct, Respon- dent violated Section 8(a)( I) of the Act. 4. Conduct attributed to Administrative Coordinator Sattler The complaint alleges that in November 1976, Respon- dent, through its administrative coordinator, Janiece Satt- ler, who is admittedly a statutory supervisor and an agent of Respondent, "told employees to sign statements that they wished to renounce the Union." The evidence perti- nent to this allegation is undisputed. During the last week of October 1976 and the first 2 days of November 1976, employees distributed among the pro- fessional and technical employees cards which, in essence, indicated that an employee who signed a card did not wish to be represented by the Union. When Respondent's Labo- ratory Director Fouty discovered an employee distributing these cards in the lab, he took the cards, approximately 10, and gave them to Sattler with instructions to hand them out without comment. Sattler passed out between four and seven of the cards. There is no evidence she indicated to the employees that Respondent wanted them to sign the cards or threatened or offered benefits to induce them to sign the cards or asked that the cards be returned to Respondent. Quite the contrary, Sharon Wuest, the only employee who gave testimony concerning this allegation. testified that Sattler told her to read the card, and that she was free to do whatever she wanted and could either sign or reject the card. In sum, the record establishes that Respondent handed out union-repudiating cards to between 4 and 7 of the ap- proximately 177 professional and technical employees rep- resented by the Union. There was no promise of benefit or 726 PROVIDIN('tE MEDICAI. (CENTlR threat of reprisal directed toward employees to persuade them to sign the cards. Respondent did not even ask that the cards be signed or returned to a representative of Re- spondent so that Respondent could determine whether the employees signed them. Quite the contrary, the testimony of employee Wuest indicates that Respondent did not ask that the cards be returned to Respondent, and employees were advised they were free not to sign the card. In view of the foregoing. I am of the opinion that Respondent's con- duct in connection with the distribution of the union repu- diating cards falls short of that kind of interference, re- straint, or coercion which is proscribed by Section 8(a)( I ) of the Act. 5. Conduct attributed to Supervisor Scotti (a) The complaint, as amended, alleges that in Septem- ber 1976, Respondent. through Supervisor Anthony Scotti, threatened to keep an employee under surveillance to deter- mine whether the employee sympathized with the strikers and threatened to discharge the employee for sympathizing with the strikers. This allegation pertains to an employment interview between Scotti. Respondent's microbiology sec- tion supervisor, and Jeanne Scott. an applicant for employ- ment. Their testimony about what occurred is in sharp con- flict. Scott testified that she applied for a job in Respondent's microbiology section in late August 1976. or early Septem- ber 1976, and was interviewed by Scotti who, after ques- tioning her about her qualifications, offered her the job. At this point, Scott asked Supervisor Scotti whether she would be taking the position of a striker, whereupon Scotti warned her that he intended to watch her closely and, if he ob- served she was sympathetic toward the strikers, would place her on probation: if she continued to sympathize with the strikers, she would be terminated. Scotti told her to con- sider the matter and speak to him the next day. The next day Scott turned down the job. Scotti testified that he and Scott discussed the job for which she was applying, but the job was not offered to her. Scotti further testified that at one point during the job inter- view, he asked whether Scotti realized that Respondent was involved in a strike. In response. Scott expressed some con- cern about walking through a picket line and replacing a striker. Scotti told her that she would, in fact, be taking a striker's job, and if this bothered her, suggested she speak with the strikers before deciding whether she wanted to work for Respondent; after talking with the strikers, if she still was interested in the position, they would continue the interview. Of the two witnesses, Supervisor Scotti impressed me as the more credible one; thus, I have accepted his version of this conversation. It is for this reason that I shall recom- mend that this allegation be dismissed. (b) The General Counsel contends that in late October 1976 or early November 1976. Supervisor Scotti, in viola- tion of Section 8(a)(1) of the Act, told medical technologist Huntley that medical technologist Susan Duke would not be reinstated because of her union activities. This allegation was included in the complaint as the result of an amend- ment 10 days prior to the hearing in this case, which opened October 17. 1977. Respondent urges that this allegation be dismissed for the reason that "where the Board amends a complaint so close to the commencement of a scheduled unfair labor practice proceeding, the burden of proof should be on the Board to establish that it could not reason- abhl have included the new allegations earlier, otherwise the potential for abuse of process is too great." I do not agree. There is no evidence that the General Counsel had the evidence pertinent to this allegation in his possession for an unreasonable length of time prior to amending the com- plaint or otherwise deliberately delayed placing Respon- dent on notice about this allegation so as to make it difficult for Respondent to defend. In any event, the allegation is well within the scope of the charges upon which the com- plaint is based and. as Respondent concedes, the Act's stat- ute of limitations does not preclude the amendment. Ac- cordingly. I shall reject Respondent's contention that because of laches this allegation should be dismissed. Scotti is the supervisor in charge of the lab's microbiol- ogy section and is admittedly a statutory supervisor and an agent of Respondent. Huntley is one of the strikers who. prior to the strike, worked under Scotti's supervision in mi- crobiology. but following the strike's conclusion initially was reinstated into the lab's hematology section. Duke, also one of the strikers, prior to the strike worked under Scotti's supervision in microbiology and was the department's assistant supervisor. Following the strike's conclusion, Duke was not offered a job in microbiology. The record also reveals that before the strike, Duke was a union acti,- ist. She was the Union's secretary-treasurer. Super, isor Scotti was opposed openly to the Union. Huntley, upon whose testimony this allegation is based. either in late October 1976 or the first week in November 1976, initiated a conversation with Scotti to determine whether he could be transferred back to the microbiology section. Scotti, according to Huntley., advised him to speak to Laboratory Director Fouty about a transfer. HuntleN testified that during this conversation he explained his rea- sons to Scotti for supporting the strike, which lead to a discussion about the strike and its consequences for the em- ployees. During this part of the conversation, Huntley testi- fied. Duke's name was mentioned and Huntley commented that she was a "very good" medical technologist. Scotti agreed with Huntley's evaluation of Duke's ability, but commented, in effect, that he. Scotti, would never employ Duke in his laboratory because of her activities on behalf of the Union. Scotti, who testified about this conversation, acknowl- edged that Huntley asked him about transferring back to microbiology. Scotti testified he assured Huntley that. while it might take some time, he eventually would be returned to this department. Scotti was unable, however. to remember. so he testified. whether Duke's name was mentioned during this conversation or whether Duke was discussed. Scotti did not specifically deny making the remarks with regard to Duke that were attributed to him by Huntley. When Huntley, who at the time of the hearing worked under Scotti's immediate supervision, testified about this particular conversation, he impressed me as a conscientious witness making a sincere efiort to recall Scotti's words accu- rately. Scotti, in regard to this conversation, was unimpres- 727 D)EC(ISIONS O() NA IONAI. IABOR RILAI IONS BOARI) sive. When he testified. he was without a recollection of whether or not Duke was discussed. I received the impres- sion. based upon my observation of' him while testi'ing. that his loss of memory was not merely the result of the passage of time, but that Scotti was simply being evasise in an effort to conceal the truth. Under the circumstances. I have credited Huntley's version of' the conversation. This credibility determination is not based upon the fact that an essential part of Huntley's testimony was not denied: rather it rests upon my conviction, based upon an observation of the witnesses, that Huntley was an honest and reliable wit- ness. In so concluding, I have considered carefully that in August 1977, when Duke asked Scotti whether she should accept an offer of reinstatement to a position in a section of the lab other than microbiology. Scotti urged her to accept the offer, explaining to her that it was only a matter of' time before he would have her reinstated into his department. However. the fact that Scotti spoke encouragingly to Duke in August 1977 about her chances of being reinstated into Scotti's department does not impugn Huntley's testimony that 10 months earlier, shortly after the end of the strike. Scotti, behind Duke's back, expressed an entirely different attitude toward Duke's returning to work in his depart- ment. Based upon the foregoing, I find that Respondent. through Supervisor Scotti, violated Section 8(a)( I) of the Act by informing Huntley that Duke would never be em- ployed in his department because of her union activities. C. Respondent Unilaterally Grants a Wage lIcrease I. The facts During the time material herein. Respondent's employees were eligible to receive several types of wage increases each year. There was a cost-of-living raise, a merit raise, and a competitive wage adjustment. The merit wage increases are based upon employees' job performances and are added to the cost-of-living adjustment. The competitive wage adjust- ment is based upon the results of a survey conducted by the Seattle Area Hospital Council and is given to employees whose job classifications are below the prevailing area wage. If the wage scale for a particular classification is ad- justed upward, all employees within the classification re- ceive the increase. The cost-of-living and merit increases have always been given at the end of the year and, before 1975, the competi- tive wage adjustments were granted at about the same time. But, based upon a decision made in the fall of 1974, Re- spondent, in 1975, began to make such wage adjustments semiannually if the survey indicated an adjustment was warranted. The decision to grant a mid-year wage adjust- ment, as well as one at the end of the year, was announced publicly in the April I 1. 1975, edition of the hospital's newsletter, and the pay raises which resulted from the ad- justments were granted at the end of that month to employ- ees in several job classifications. The employee's handbook issued by Respondent during the time material herein stated that Respondent's wage program was based upon. among other things, competitive wage rates determined by local wage surveys conducted twice yearly. In earls July 1976. pursuant to its aforesaid wage adjust- ment policy, Respondent granted employees. including those represented by the Union, a pay raise retroactive to June 27. 1976. The complaint. in substance alleges that this increase violated Section 8(a( I) and (5) of the Act because it was granted unilaterally without bargaining with the Union and was granted to undermine the LUnion's repre- sentative status. Ihe relevant evidence pertinent to ealuat- ing this allegation is presented below. In July 1975, collective-hargaining negotiations hegan for the technical employees. and in August 1975. negotiations began for the professional employees. Respondent's nego- tiators throughout negotiations were Mark I lutcheson an attorney. and George Mauer. Respondent's assistailt ad- ministrator. Ilutcheson was the spokesperson. Ihe t nion. in addition to having employee negotiating teams lir each unit, was represented by Robert Kin on. who. until May 1975. was its spokesperson. At that time. he was replaced by Elliott Willman, who, at the meeting held on July 2, 1976. was assisted by Ivan Rosenberry. a representative of the Retail Clerks International Association. 'he parties negotiated for separate contracts to cver the professional and technical employees. but the terms of' the contract proposals for the separate units essentially were identical. and starting in December 1975. when a Federal mediator entered the negotiations, bargaining for both units wvas conducted at the same bargaining sessions. During the summer and fall of 1975, the parties held bargaining sessions regularly and on numerous occasions. In December 1975. at the suggestion of Ilutcheson. a Fed- eral mediator joined the negotiators for the purpose of help- ing them reach agreement. On December 30. 1975. Respon- dent submitted its final contract proposals for both units. The Union's membership employed in the respective units rejected these proposals. On January 7. 1976, Kinyon in- formed Hutcheson that Respondent's final oflers had been overwhelmingly rejected by the membership. Hlutcheson asked. "where do we go from here?" Kinyon answered. "I don't know. I guess we are at an impasse." Hutcheson stated that under the circumstances, Respondent would im- plement its final offers. Kinyon indicated he understood what Hlutcheson was saying. In January 1976, shortly after Kinyon informed Hutche- son that the membership had rejected Respondent's final offers, Respondent granted a combined cost-oflliving and merit raise to all of its employees, including those repre- sented by the Union. This increase was granted pursuant to its usual policy of giving such increases either in December or January. It was not an across-the-board increase. Some employees represented by the Union received more. and others less, than a 10-percent raise. The wage provisions of Respondent's final offer sub- mitted to the Union. in pertinent part. read as follows: Article VII 7.1 Employees covered by this Agreement shall be paid in accordance with the guidelines contained herein and the applicable wage and salary ranges in Appendix A attached hereto and hereby made a part of this agreement. [Appendix A specifies the job classi- 728 PROVI l)l N(t l Ml 1I)I(AI ( N I R R fications, and next to each classilication, lists "pax ranges' " for "minimum'' "Mdpt" and "Maxinium'" wages. ] 7.3 No employee shall he paid less than the mini- mum of the range for his or her job classification. 7.4 Progression within pas ranges is primariln a function of'job performance and merit as evidenced by the employee's performance evaluation and merit re- view. To the extent justified hb' the most recent evalu- ation and review, each employee's pan rate will be in- creased effective on and after January 1. 1977, and annually thereafter in accordance with the following schedule: Outstanding performance Superior performance Good performance Acceptable performance 12'% merit increase 7'i merit increase 4',; merit increase no merit increase 7.10 Effective January 1. 1976, or the effective date of this agreement, whichever is later, the wage rates then being paid to employees covered by this agree- ment will be increased by 10'. 21.3 Nothing contained herein shall prohibit the Employer, at its sole discretion from paying wages and/or benefits in excess of those provided herein. During the 1975 negotiations, the parties' bargaining po- sitions on the subject of wages. expressed at the bargaining table, were as follows: Hutcheson took the position that during the term of the 3-year agreement proposed by Respondent, it expected to be able to maintain its existing wage program of merit and cost-of-living and competitive wage adjustments, which Hutcheson described to the Union's negotiators. Hutcheson maintained this position throughout negotiations, except that in the first year of Respondent's contract proposal he offered a 10 percent, across-the-board pay raise in lieu of Respondent's usual wage program. Kinyon stated that the Union, which was proposing a I-year contract, wanted a minimum wage rate for each job classification, with step increases based solely on seniority. Hutcheson indicated Respondent would consider this proposal. but did not in- tend to continue granting merit raises if it agreed to the Union's proposal. Kinyon apparently then dropped the Union's initial wage proposal and instead proposed that Respondent continue to use a merit system to raise employ- ees' wages. but agree to certain guarantees which would in effect, curtail Respondent's discretion in granting such in- creases. In response. Respondent offered article 7.4. supra, which would go into effect during the second year of its proposed 3-year contract. Kinyon rejected this proposal, stating it was unsatisfactory because it lacked sufficient guarantees. With regard to the first year of Respondent's proposed 3- year agreement, Hutcheson told the Union's negotiators that Respondent was able to allot 10 percent of the wages currently being paid to the represented employees in the form of a wage increase and did not care how this amount was spent. It could be granted to the employees in the form oft a I) percent, across-the-board increase or paid out pur- suant to the C'ompany's normal end-ol-the-year polic of combined cost-ol-living and merit and competitive wage adjustments. Kinson rejected this proposal. but indicated that the Union would prefer an across-the-board increase. Regarding article 21.3. upra. utcheson infoirmd the Union's negotiators that Respondent's intent in ad ancing this proposal was to make sure that it was clear that the pay ranges described in article 7.1. .tq;ra. were onl,, minimum rates applicable to new hires and that Respondent retained the right to grant merit increases, cost-of-living increases, and competitive wage adjustments even though it meant paying employees more than the rates set forth in the con- tract. Kinyon reluctantly agreed to accept this provision. but expressed the fear that without further contractual guarantees. Respondent would utilize article 21.3 to unilat- eraIly set employees' wages in disregard of the contractual rates. At the hearing. Kinyon admitted thati it waas clear to him from Hutcheson's statements concerning article 21.3 that Respondent's intent in proposing this provision was to retain the right to increase employees' Aages above the wage rates set forth in article 7.1. The next bargaining session. ater the U nion in early January 1976 rejected Respondent's final contract propos- als. took place on an unspecified date later in January 1976. at which time neither party changed its bargaining posi- tion.1 The next bargaining session took place March 8, 1976. at which time Kinyon indicated that the Union was now ask- ing tbr a 2-year rather than a -year contract and, on the subject of wages. indicated that the Union had no objection to the Januars 1976 pay increases" so tfar as hey went. but wanted Respondent to grant an additional increase to those employees who did not receive a full 10 percent increase, retroactive to January 1976. so that all of the employees received at least a 10-percent pay raise. In addition. Kinyon proposed that, during the second year of the contract. Re- spondent grant a 10 percent, across-the-board pay raise plus the merit increases proposed in article 7.4 of Respon- dent's final proposal. It appears that at this meeting the Union, in addition to modifying the duration of its pro- posed contract from I to 2 years. made other concessions which are not set forth in the record. Hutcheson indicated Respondent was still offering the terms contained in its final offers, except that it was withdrawing article 7. 10 because it already had implemented the wage increase which was pro- vided for in this provision. The next bargaining session was held on April I, 1976. at which time Kinyon made a wage proposal which was sub- stantially identical to the one advanced by the Union at the previous bargaining session. Hutcheson rejected it. Other 7 The record reseals that, when the Union rejected the Respondent's final contract proposals. the parties were apart on at leaat the tllowing ssue, wages. management rights: zipper clause: paid hohda>s; and duration of he agreements. And, with respect to) only the professional unit. he' were apart oser the number of dass of lease taken without the los.s of pas, whether an employee was entitled to attend educational meetings. ancd employees' were eligihble tr coverage under Respondent's health insurance program 18 As indicated pra, in Januar) 1976. Respondent had granted com- bined cost-of-li" ing and merit raise to all of its emploC ees hut. contrar to its tinnal wage proposal, some of the employees represented h the t nion re- celied more. and others less, than a IO-percent pas raise 729 DECISIONS OF NATIONAL LABOR RELATIONS BOAR[) than this, it appears that the parties' positions on the other issues in dispute remained unchanged. Following the April 1 meeting, neither party made an effort to renew negotiations until late May 1976 when, as described infira Willman, who had replaced Kinyon as the Union's principal negotiator, contacted Hutcheson. When Willman replaced Kinyon. he was informed by Kinson that there had been a lack of progress in the bargaining and that, in Kinyon's opinion, negotiations were at an impasse. During the latter part of May 1976, Willman phoned Hutcheson, introduced himself as Kinyon's replacement. and indicated he expected to eventually resume collective- bargaining negotiations and would be meeting in the imme- diate future with the employees. Willman asked for a nego- tiation meeting and for a statement from Hutcheson con- cerning the status of the negotiations. Willman indicated there was some confusion in his mind about the bargaining issues which were in dispute and suggested a meeting with Hutcheson, prior to negotiations, to determine which issues were still in dispute. Hutcheson stated Respondent already had spent a lot of time and money on the negotiations and was not willing to meet unless there was some indication from the Union that a further meeting would be fruitful. By letter dated June 1, 1976, Hutcheson brought Will- man up to date about the status of the negotiations and concluded with the statement that Respondent felt that ne- gotiations were at an impasse, and that because of this it knew of no reason why the parties should spend additional time and money on further negotiation meetings. He asked Willman to transmit any communications through the Fed- eral mediator who had been assisting the parties in the ne- gotiations. By letter dated June 2, 1976, Willman asked the Federal mediator to schedule a negotiation meeting and informed the mediator that the Union thought negotiations "could prove fruitful as there appears to be several areas that are yet unresolved" and "with the number of loose issues, there certainly should be room for compromise on both sides in an effort to resolve these negotiations." The result was the mediator scheduled a negotiation meeting which was held July 2, 1976. At the outset of the July 2 negotiation meeting, Hutche- son indicated that Respondent recognized the certified union, the Seattle chapter, rather than Local 900. as the employees' collective-bargaining representative and stated that if the Seattle Chapter desired to change its name or affiliation, the proper procedure would be to file a petition with the Board to amend its certification. The Union's negotiators opened the meeting by reading a list of approximately 12 issues which they stated still were unresolved and had prevented agreement. Several of these items had been tentatively agreed upon by the parties previ- ously and had not been in dispute since 1975. Respondent's negotiators objected to the Union's repudiation of these tentative agreements. At this point, the Federal mediator separated the parties and Rosenberry, for the Union, visited the room where Hutcheson and Mauer were caucused. He apologized for the Union's lack of preparation and stated that he and Willman were having difficulty determining the items that previously had been agreed upon by the parties; he asked if they could have access to Hutcheson's files to bring themselves up to date. Hutcheson suggested that Willman and Rosenberry use the Federal mediator's file or speak to the employees who were members of the Union's negotiating teams and who had been present during nego- tiations. In sum, it is undisputed that nothing of substance was accomplished at the July 2, 1976, negotiation meeting. As Willman testified: "The only thing accomplished at that meeting of July 2 was to determine whch issues in the em- ployer's final offer were still open, i.e., not agreed upon." T'he parties' respective bargaining positions remained un- changed except that on the subject of wages, Willman, while not making any specific proposal, indicated that the Union, for the first year of its proposed contract, was "in- terested" in a wage scale based strictly on seniority rather than pure merit, as proposed by Respondent, and wanted a guaranteed wage increase for the second year, rather than a merit increase, as proposed by Respondent. On July 7, 1976, Willman had business with another law- yer associated with the law firm which employed Hutche- son and unexpectedly visited him. Willman asked for cer- tain information pertaining to the employees' wages. which Hutcheson agreed to furnish. With regard to the negotia- tions. Willman apologized for the Union's lack of organiza- tion and the lack of progress at the July 2 bargaining ses- sion, but stated that, despite this lack of progress, he felt there were really just two difficult matters preventing agree- ment. i.e., the duration of the contract and the problem of wages. Willman told Hutcheson that he thought that if the parties could reach agreement on these two items, then the rest of the disputed matters would be resolved. Willman asked what Hutcheson thought the Union would have to do to secure some movement in Respondent's bargaining posi- tion. Hutcheson stated that, short of a strike, he did not feel Respondent was amenable to modifying its current posi- tion. Willman admitted that the Union had lost consider- able support among the employees in both bargaining units, but stated that in one of the units, he felt the Union still had considerable employee support and "he was going to see what they could do." On July 9, 1976. the Union wrote Respondent that, com- mencing July 20, 1976, it intended to call Respondent's pro- fessional employees out on strike. The strike began as promised and ended on September 30. 1976. The parties did not meet after July 2, 1976, until November 3, 1976, at which time Respondent, as described injia, withdrew recog- nition from the Union. On approximately July 16. 1976, pursuant to Respon- dent's policy of adjusting employees' wages upward if the semiannual wage survey conducted by the Seattle Area Hospital Council indicated they were being underpaid, Re- spondent's employees, including those represented by the Union, received pay raises retroactively to June 27, 1976. Not all of the employees received this increase, only those employed in job classifications that Respondent. based upon the wage survey, decided were underpaid. 2. Ultimate findings and discussion The General Counsel takes the position that the July 1976 wage increase granted to the employees represented 730 PROVIIDENCE MEDI)CAL (ENI'tlFR by the Union constitutes an unlawful refusal to bargain within the meaning of Section 8a)(5) and (I) of the Act because it was granted unilaterally without affording the Union a reasonable opportunit' to bargain. Such a unilat- eral change in employees' wages is violative of the Act: See N.L.R.B. v. Kat:. et al.. 369 U.S. 736 (1962). Respondent defends its conduct by asserting, among other defenses, that negotiations had reached an impasse. thus allowing it to unilaterally change the wages of the employees by granting them the same competitive wage adjustment as was granted to its other employees.' The general criteria for determining impasse are set forth in Taft Broadcasting Co., WDA4F A M-FM TI' 163 NLRB 475, 478 (1967). enfd. 395 F.2d 622 (D.C. Cir. 1968). where the Board held: An employer violates his duty to bargain if, when negotiations are sought or are in progress, he unilater- ally institutes changes in existing terms and conditions of employment. On the other hand, after bargaining to an impasse. that is, after good-faith negotiations have exhausted the prospects of concluding an agreement, an employer does not violate the Act by making unilat- eral changes that are reasonably comprehended within his pre-impasse proposals. Whether a bargaining impasse exists is a matter of judgment. The bargaining history. the good faith of the parties in negotiations, the length of the negotiations, the importance of the issue or issues as to which there is disagreement, the contemporaneous understanding of the parties as to the state of negotiations are all relevant factors to be considered in deciding whether an impasse in bargaining existed. In enforcing the Board's decision in Taft Broadcasting, the court defined impasse as the point in negotiations where there is "no realistic possibility that continuation of discus- sion at that time would have been fruitful." Id. at 628. Guided by the aforesaid principles, it is my opinion that the record establishes that negotiations reached a point of im- passe by at least January 1976, and that the circumstances thereafter did not change sufficiently so as to break this impasse. In January 1976. after numerous bargaining sessions. 5 months of bargaining in the professional unit, and 6 months in the technical unit, the parties, despite the assistance of a Federal mediator, were still apart on a number of issues, including the important issues of wages and the duration of the contract. There is no evidence that either party indi- cated a willingness to compromise their bargaining posi- tion. On the issue of wages, which was a major obstacle to agreement, the parties were far apart. It is no surprise that in January 1976, the Union's membership, in both bargain- ing units, overwhelmingly rejected Respondent's final con- tract proposals and that thereafter, still in January 1976, the Union's principal negotiator informed Respondent's princi- pal negotiator that, in his opinion, negotiations had reached an impasse. This conclusion was reinforced when, at the 9" In view of my conclusion that this defense is meritorious, I have not considered the several other affirmative defenses raised by Respondent to justify its unilateral conduct. next bargaining session held later in January 1976, neither party modified ts position or indicated a willingness to con- cede on any one of the disputed issues. In view of these circumstances, the record overwhelmingly establishes that b' at least January 1976, there was no realistic possibility that a continuation of negotiations for a contract at that time would have been fruitful. It is settled that once a genuine impasse is reached, the duty to bargain becomes dormant until changes in circum- stances indicate that an agreement may be possible: See Ili- Wa , Billboards. Inc., 206 NLRB 22. 23 (1973. The ques- tion is whether the conditions which resulted in the January 1976 bargaining impasse remained substantially unchanged in July 1976 so as to allow Respondent to unilaterally in- crease the wages of the employees represented by the Union without iolating the Act. I am of the opinion that this question must be answered in the affirmative. Although at the negotiation meeting held in March 1976 the Union made certain concessions, it is clear that on the important subject of wages, which the parties regarded as a major stumbling block preventing agreement. the negotia- tions remained hopelessly deadlocked. This was still the posture of the negotiations at the conclusion of the next bargaining session held April 1. 1976. Any doubt that nego- tiations at this time were still caught in the doldrums with- out any realistic possibility that continuation of discussion would have been fruitful is removed by the failure for a period of approximately 6 or 7 weeks of either the Union, Respondent. or the Federal mediator to seek further nego- tiation meetings. and by the admission of the Union's prin- cipal negotiator that the negotiations were at an impasse.2 " Nor did the assignment of Willman as a new negotiator and the lengthy lapse of time since the last bargaining session create a situation sufficient to break the impasse where, as here, Willman, in his initial conversation with Respondent's principal negotiator, Hutcheson, failed to indicate that the renewal of negotiations would be fruitful, but instead indi- cated that he. Willman, was ignorant about the current sta- tus of the negotiations. Thereafter, when bargaining re- sumed July 2, 1976. neither the Union's nor Respondent's negotiators indicated they were amenable to modifying their respective bargaining positions. To the contrary. the Union reneged on several items which had previously been agreed upon, which was conduct calculated to reinforce the Respondent's belief that further bargaining would be an exercise in futility. Obviously, at the conclusion of the July 2 meeting, negotiations remained hopelessly deadlocked. The only relevant communication between the parties after this meeting was the Union's July 9 notification to Respon- dent that the professional employees intended to strike July 20, and Willman's July 7 remark to Hutcheson that he thought that if the parties could reach agreement on the duration of the contract and wages that the remaining dis- puted issues would resolve themselves. With regard to the Union's strike declaration, it was the kind of statement cal- culated to reinforce Respondent's belief that a bargaining impasse existed. Pertaining to Willman's statement, that if agreement could be reached on the duration of the contract 20 As found upra, when Willman replaced Kinyon in May 1976 as the Union's principal negotiator. Kinyon informed Willman that, in his opinion. the negotiations were at an impasse 731 I)I('ISI()NS O()F: NAIIONAL LABOR RELATIONS BOARI) and wages he thought the other items in dispute could be resolved, such a general statement, in the circumstances of this case, including the nature of the past bargaining and the clearly defined positions of the parties with respect to the major issue of wages, was not sufficient to break the impasse. See (he)mical Producers Corporation. 183 NlRB 141 (1970). Based upon the foregoing. I find that a bona fide impasse existed when Respondent, in July 1976. increased the wages of the employees represented by the Union. I further find that the wage increase was reasonably comprehended within Respondent's preimpasse bargaining proposals. The wage increase was granted pursuant to Respondent's policy of adjusting employees' wages so as to raise them to the level of the wages being paid by other hospitals for compa- rable work. During the negotiations, Respondent's negotia- tors, as described in detail supra, in discussing the wage proposal with the Union's negotiators, made it perfectly clear that under its proposal (in particular, article 21.3), it expected to be able to continue to grant the employees rep- resented by the Union the same competitive wage adjust- ments it granted its other employees. even though it would mean raising their wages above the progressive wage scale set forth in article 7.1 of Respondent's proposal. In view of this. I find that the competitive wage adjustment granted to the technical and professional employees by Respondent in July 1976 was reasonably comprehended within the Union's pre-impasse bargaining proposal. In conclusion, Respondent was privileged to unilaterally institute the July 1976 wage increases, I have considered the Charging Party's contention carefully that no honafida im- passe existed because any impasse was the product of Re- spondent's overall bad-faith bargaining. The complaint does not allege that Respondent was guilty of overall bad- faith bargaining; rather it simply charges it with improper unilateral conduct. In any event, assuming that this issue has been fully and fairly litigated, there is insufficient evi- dence to establish that Respondent engaged in overall bad- faith bargaining or negotiated without a sincere desire to reach agreement or that its position with respect to wages was simply a gambit intended to frustrate bargaining. Nor, as contended by the Charging Party, is Respondent's delay in furnishing the Union with information for bargaining purposes sufficient to impugn Respondent's entire course of bargaining." Nor is the fact that in January 1976, Respon- dent granted a unilateral wage increase to the employees represented by the Union whch was not reasonably com- prehended within its preimpasse proposal sufficient to pre- clude Respondent from raising the defense of impasse in connection with its July 1976 pay raise. In this regard, in January 1976, after an impasse in bargaining, Respondent granted all of its employees, including those represented by the Union, a 7-1/2 percent cost-of-living increase which was combined with a merit increase. The result was that the employees received significantly different raises than they would have been granted pursuant to Respondent's final wage proposal which, in pertinent part, provided that each employee receive a 10 percent pay raise. Some of the em- ployees received significantly more and others significantly 2 I note that Respondent's delay in furnishing the information was not alleged as an unfair labor practice. less than a 10 percent pay raise. This conduct is not alleged as an unfair labor practice and is outside of the Act's stat- ute of limitations. Nonetheless. I have considered it insofar as it sheds light upon Respondent's overall bargaining con- duct within the limitations period. I am of the opinion that. when coupled with other conduct which occurred within the limitations period, it is not sulticient to taint Respon- dent's conduct at the bargaining table so as to preclude it from raising the defense of impasse in connection with the July 1976 unilateral pay raises. here is not the slightest indication that in using the cost-of-living and merit formula rather than a straight 10 percent, across-the-board formula in granting the January 1976 increases. Respondent was motivated by a desire to embarrass or otherwise undermine the Utnion. Respondent previousl? had offered the cost-of- living and merit proposal to the [Union and when it wvas rejected, then proposed that the employees be given an across-the-board, 10 percent pay raise. When this proposal also was rejected by the Union, Respondent did not imple- ment it, but instead used the cost-of-living and merit for- mula in granting the January 1976 pay raises because this formula was consistent with its usual practice of handling employees' wage increases. and all of its employees would receive increases based upon this formula: the Union had been offered an opportunity to accept this formula. but had rejected it. In short, I cannot ascribe any impermissible ul- terior motive to the manner in which Respondent handled the January 1976 wage increase, nor does this conduct indi- cate Respondent was not bargaining in good faith with the Union.2 Based upon the foregoing, I shall recommend the dis- missal of that part of the complaint which alleges, in es- sence that by virtue of unilaterally increasing employees' wages in July 1976. Respondent refused to bargain with the Union in violation of Section 8(a)(5) and (1}) of the Act." I also shall recommend dismissal of that part of the com- plaint which, in essence, alleges that the July 1976 wage increase constitutes an independent violation of Section 8(a)(I) of the Act because Respondent granted it for the purpose of undermining the Union's representative status. The record does not support this allegation. The increase was granted to all of Respondent's employees, not just those represented by the Union. In addition, the increase was given for legitimate business reasons pursuant to Re- spondent's preexisting policy of adjusting employees' wages so as to raise them to the wage level being paid by other hospitals which compete in the same labor market. Nor is there extrinsic evidence in the form of statements made by representatives of management who impugn Respondent's motivation for granting the wage increase or its timing. Fi- 22 I recognize that the vice inherent in an impermissible unilateral change in working conditions is not cured simply because the employer acted in good faith. However, as I have previously indicated. Respondent's unilateral conduct in January 1976 is pertinent to this proceeding only insofar as it establishes Respondent was guilty of overall bad-faith bargaining. In these unusual circumstances, it is Respondent's motivation in making the January 1976 unilateral change in wages that is relevant. 23 In view of my dismissal of this allegation. I also shall recommend dis- missal of that part of the complaint which alleges that the strike in the professional unit, which began on July 20, 1976. was caused and prolonged b) this alleged unfair labor practice. Under the circumstances I have not considered whether the strike, as alleged. was, in fact. caused or prolonged b) the unilateral wage increase. 732 PROVIDI)IN(CE. M1)IAL. CENTER nally. in connection with the timing of the increase, I note that the evidence reveals that the decision to grant the em- plovees represented h the UInion this increase as made prior to Respondent's knowledge that the Union intended to call a strike. I). he .4lliged Disr.v inaiion 4gainer tle Striker. 1. The lfacts It is undisputed that employees employed in the Respon- dent's clinical laboratory ceased work and engaged in a strike which lasted from July 20. 1976. through September 30. 1976. and that thereafter, 21 of the strikers sought rein- statement. As indicated supra, I have concluded that the strike was not caused by unfair labor practices: rather it was an economic strike, and thus the strikers have the rights of economic strikers. The complaint alleges that Respon- dent failed and refused to reinstate these strikers to their former or substantially equivalent positions because of their union or protected concerted activities. Respondent's laboratory consists of three specialty de- partments hematology. chemistry, and microbiology and two general departments the p.m. shift and the satel- lite laboratory. The employees employed in hematology and chemistry work two shifts. 7 a.m. to 3:30 p.m. and 3:30 p.m. to 11 p.m. The employees employed in microbiology work days. 7 a.m. to 3:30 p.m. The p.m. shift operates from 3:30 p.m. to 11 p.m.. and the satellite lab operates three shifts: 7 a.m. to 3:30 p.m.. 3:30 p.m. to I I p.m.. and I I p.m. to 7:30 a.m. The lab employs three classifications of employees: regis- tered medical technologists: nonregistered medical tech- nologists: and laboratory assistants. The great majority of the lab's workers are registered medical technologists who are a part of the professional bargaining unit represented by the Union. The nonregistered medical technologists are in- cluded in the technical bargaining unit represented by the Union. It does not appear that the laboratory assistants are included in either bargaining unit'4 Following the certification, the parties met in numerous bargaining sessions, as described supra. and when no agree- ment was reached, the Union called a strike in the profes- sional unit: it began on July 20. 1976. and continued until September 30. 1976. The record reveals that, at the start of the strike, there were approximately 45 persons. including 5 supervisors, working in the laboratory." The record also establishes that during the strike. Respondent hired 14 laboratory employees.26 The names of these employees and the positions they occupied are: 24 The record does not show the number of registered medical echnolo- gists employed at the time of the strike. Respondent's assertion, made in its post-hearing brief, that there were a total of 37 is without support in the record. 25 This was based upon the testimony of Laboratory Director Fouty who noted that approximately 60 percent of the personnel employed in the lab. including supervisors, ceased work and engaged in the July 20 strike The record reveals that 27 laboratory employees went out on strike. 2, Resp. Exh. 13 lists 15 new employees: however, it is clear that one of these employees. Tamara Westbrook, was not new, but had been employed in the lab prior to the strike as a laboratory assistant in microbiology and after the stnke commenced was reclassified as a nonregistered technologist. It is undisputed that Westbrook did not replace any one of the strikers. Sherin (registered medical technologist, second shift), Applot' (registered medical technologist, chemistry first shift). Haves. (registered medical technologist, hematology first shift). Reinsvol I registered medical technologist, satel- lite lab first shift). and Fischer (registered medical technolo- gist. satellite lab second shift) were hired to take the places of nonstrikers who resigned during the strike: Peters (registered medical technologist, satellite first shift) and Sensen (registered medical technologist, satellite sec- ond shift) were hired to fill the positions which were vacant prior to the start of the strike: Tanner was a permanent replacement for striker l)uke who was the assistant supervisor in microbiology; McCarhiv. a student in the hospital's microbiology train- ing program. was advanced to the position of laborators assistant in the microbiology department: Paru/oli was hired on a temporary basis as a nonregistered medical technologist on the first shift in the satellite labora- tory: With regard to the remaining fur new employees an- non (registered medical technologist. microbiology .Martin (registered medical technologist, hematology first shift), Mlichgelbrink (registered medical technologist, chemistry second shift) and Frederick.von nonregistered medical tech- nologist, chemistry first shift)-- Respondent urges that I conclude that they were hired as permanent replacements for four of the strikers who requested reinstatement. The sole evidence concerning the status of these four employees is the testimony of Fouty, Respondent's laboratory director. He testified that Cannon and Martin were hired as perma- nent replacements for strikers, but failed to indicate the names of the strikers they replaced, nor did he indicate whether Cannon or Martin or both were replacements for strikers who resigned during the strike, rather than of strik- ers who had requested reinstatement. With regard to Mich- gelbrink and Frederickson, Fouty testified that when Mar- tin began work September 13. 1976. Respondent had begun to hire permanent striker replacements. Respondent urges that since Michgelbrink and Frederickson did not start work until after September 13. 1976. it follows that they were permanent replacements for strikers. Assuming. argu- endo, this is a permissible inference, there is no evidence that either one of them replaced strikers who have re- quested reinstatement, as contrasted to strikers who re- signed during the strike. In short, I am not persuaded that the skimpy evidence adduced through Fouty is sufficient to warrant the conclusion that Cannon. Martin, Michgelbrink. and Frederickson were hired as permanent replacements for strikers who have requested reinstatement. Any doubt that Respondent failed to meet its burden in this respect is removed by the contradictory nature of Fouty's testimony. as well as his unconvincing demeanor as a witness. Thus, after presenting the aforesaid testimony concerning the hir- ing of striker replacements, Fouty, without equivocation. testified that only two permanent replacements for strikers were hired during the strike. Then. upon being prompted by counsel. Fouty qualified this testimony, now testifying that two were hired early during the strike. However. Fouty lat- er changed this testimony and reverted back to his earlier spontaneous testimony. He again unequivocally gave testi- mony to the effect that only two of the employees hired 733 I)DECISIONS Of: NA IONAI. I.ABOR RELATIO)NS BOARI) during the strike were permanent striker replacements. Un- der all of these circumstances, including my conviction that Fouty was not a reliable witness on the subject of perma- nent replacements. I find that, in connection with the 21 strikers who have requested reinstatement. Respondent has established only that one of them had been replaced perma- nently: Cannon replaced Duke. On September 30. 1976, the Union notified Respondent that it was terminating the strike and unconditionally re- questing reinstatement of all 21 of the employees who were still supporting the strike. There is evidence that only I of the 21 strikers covered by the Union's request for reinstate- ment, namely Linda Gray, had secured regular and sub- stantially equivalent employment with another employer.2? All of the other strikers who were requesting reinstatement were eligible. On Friday, October 1, 1976, a group of the strikers vis- ited the hospital to indicate that they desired to return to work. Fouty advised them that it was too early for him to talk with them about returning to work, explaining that he had no opportunity to draft work schedules because he had only been told the previous night that the strike had ended. He told the strikers to return the next morning. The next morning, October 2, all but two of the strikers who had requested reinstatement met with Fouty and the hospital's assistant administrator, Mauer. Mauer told the strikers that the hospital thought the strike was an economic, rather than an unfair labor practice strike, and that all of the strik- ers would be accepted back unconditionally. but would be notified when to return to work since there were insufficient positions at that time for all of them. Mauer circulated a sheet of paper, which the strikers signed, indicating their desire to return to work. During the months of October and November 1976, Re- spondent made the following job offers to strikers who had requested reinstatement: On October 2, a medical technolo- gist's position on the second shift in the satellite laboratory was offered to Yoda, who rejected the offer, and to David- son, who accepted it; on October 2, a medical technologist's position on the second shift in hematology was offered to Gray, Konma, and Turpin, who each, in turn, rejected the offer and to Huntley, who accepted it: on October 2, Hayes was offered and accepted a medical technologist's position on the second shift in chemistry, and Spieth was offered and accepted a medical technologist's position on the second shift in the satellite laboratory; on October 6, Chandler re- jected and Copenharve accepted an offer to work as a medi- cal technologist on the first shift in hematology; on October 19, Rhoda rejected an offer of a part-time medical technolo- gist's position on the first shift in chemistry, and Kiehn like- wise rejected this identical offer; on October 21, Dattilo accepted an offer to work as a medical technologist on the first shift in chemistry; on October 26. Nusbaum and McBride rejected an offer to work as medical technologists on the third shift in the satellite lab; on November 23, Duke 27 The record, as described infra, establishes that on October 2, 1976, when Respondent offered Gray reinstatement, she rejected the offer and, in effect, advised Respondent she had a satisfactory job with another employer and did not desire to return to work for Respondent. Under the circumstances, I shall recommend that the part of the complaint which alleges that Respon- dent discriminated against Gray be dismissed. rejected an offer of a medical technologist position on either the second or third shift in the satellite lab: and on Novem- ber 29, Regala rejected an offier of a medical technologist position on the second shift in the satellite lab. In summation. of the 21 strikers who had asked to be reinstated. 17 were offered positions and only 6 accepted. The I I who rejected the offers, immediately upon their re- jection, were removed from the preferential hiring list which Respondent had established for the returning strikers and were thereafter treated as nonemploees. In fact. each of the employees who rejected an offer of employment were notified by Respondent in writing that, in view of their re- jection of Respondent's offer. Respondent assumed they did not want to return to work. With regard to the four strikers who received no offers of reinstatement. Respondent urges that there was no work available for three of them, and that the fourth would have been terminated during the normal course of business, even absent the strike. The relevant circumstances concerning each one of the 21 strikers whose reinstatement is in issue are set forth as follow1s: Deborah Konma Konma. employed by Respondent since July 1973, was a registered medical technologist in hematology on the first shift. 7 a.m. to 3:30 p.m. On October 2, 1976, Mauer offered Konma a medical technologist's position in hematology, working the second shift, 3:30 p.m. to II p.m. Konma rejected the offer. ex- plaining to Mauer that she had obligations in the evening which prevented her from accepting the position. On November 30, 1976, Konma wrote Respondent, "this is to inform you that I am terminating my employment with you effective as of December 1, 1976. 1 would like you to remit my accrued vacation pay to the above address." Mike Turpin Turpin, a registered medical technologist employed by Respondent since September 1974, worked in the satellite lab on the third shift from 12 midnight to 7 a.m. On October 2, 1976. Turpin rejected an offer from Re- spondent to work as a medical technologist in hematology on the second shift, from 3:30 p.m. to 11 p.m. On November 16, 1976, Turpin tendered his resignation to Respondent. Linda Gray Gray', a registered medical technologist, began working for Respondent on April 5, 1976, and was employed in he- matology. She worked the first shift, 7 a.m. to 3:30 p.m. On October 2, Mauer offered her a position as a medical technologist in hematology on the second shift, working from 3 p.m. to II p.m. Gray rejected the offer. She in- formed Mauer that she was terminating her employment with Respondent. Gray testified that the reason she termi- nated her employment was unrelated to the job offer, but was based upon the fact that she had a satisfactory job with 734 PROV IDEN('E M EI)I(AI. CENTER another employer and did not desire to return to work tor Respondent. Ronald Huntley Huntley, who began work fior Respondent on June 14. 1975, was employed as a nonregistered medical technologist in microbiology on the first shift. 7 a.m. to 3:30 p.m. Prior to June 14, 1975, Huntley had been a student trainee for 15 weeks, during which period he had trained for 5 weeks at Respondent's lab in microbiology and at other hospital laboratories for 5 weeks in hematology and 5 weeks in chemistry. On October 2, 1976, Mauer offered Huntley a medical technologist's position in hematology on the second shift. Mauer told him that if he rejected this offer. Respondent would treat his rejection as an indication that he no longer desired reinstatement, and he would be treated as having resigned. Huntley accepted the offer. On July 5 1977, Huntley was transferred by Respondent back to his prestrike position microbiology on the day shift. Marilyn Spieth Spieth. a registered medical technologist, began work for Respondent in August 1972 and at the time of the strike had been employed for 3 months in microbiology on the first shift, working from 7:30 a.m. to 3 p.m. Previously she had worked for over a year in the lab's chemistry section on the first shift and prior to that in the satellite lab, again on the first shift. On October 2. 1976, Mauer offered her a job in the satel- lite lab on the second shift, working from 3:30 p.m. to 12 midnight. Spieth asked if the job was permanent in the sense that she would have to work this particular shift for the rest of her employment with Respondent. Mauer stated he only had the authority to offer her this particular posi- tion and did not know if she would be able to change shifts. Spieth accepted the job. She worked until October 6. 1976. at which time she wrote Respondent that she intended to terminate her employment effective October 22. 1976. Spieth testified that her reason for doing this was that she had two small children 7 and 9 years of age--and her husband was a full-time student, which made it impossible for her to work evenings. Rose Yoda Yoda started work for Respondent in August 1964 as a full-time registered medical technologist. In 1968. she changed her work schedule to that of a part-time technolo- gist and then in January 1976, began once again to work full time in the satellite lab on the first shift from 7:30 a.m. to 4 p.m.. where she was working at the time of the strike. On October 2. Mauer offered her a job in the satellite lab on the third shift from II p.m. to 7 a.m. Yoda rejected this offer, explaining to Mauer that she had a young daughter who could not be left home alone at night. 28 21 Yoda, a widow, has a 10-year-old daughter Jeanette Da idson Da. idson, a registered medical technologist, began work for Respondent in October 1975 and was emplosed in the satellite lab on the second shift working from 3 to 11:30 p.m. On October 2. after offering the third shift position in the satellite lab to Yoda, Mauer made the same offer to David- son, who reluctantly accepted it. The same day Mauer. bY letter. confirmed Dax idson's acceptance and. in essence. told her that if she failed to accept the position which had been offered to her. Respondent would assume she was not interested in reinstatement. On October 4, Davidson began work on the third shift in the satellite lab. She observed that she was working in medical technologist Turpin's prestrike position, and that medical technologist Spieth had been reinstated into David- son's prestrike position. On October 6. Spieth gave Respon- dent notice that she intended to terminate her employment effective October 22. Davidson learned about this and promptly asked the hospital's administrative coordinator Sattler. if she could be transferred back to her prestrike position when Spieth finished working. Sattler denied the request. She explained to Davidson that there were some 20 people to reinstate with more seniority than Davidson, and that once an employee such as Davidson accepted a job on a certain shift, the employee was not eligible to transfer to another shift for 9 months. Davidson replied that under the seniority standard enunciated by Sattler. Turpin should have been offered the position Davidson was offered inas- much as Turpin had been employed in that position prior to the strike and had more seniority than Davidson. With regard to the 9-month rule, which Sattler had mentioned, Davidson stated that this applied only to transfers between departments and not between shifts. Sattler. in response to Davidson's remarks, stated that Turpin already had been offered a job and that there had been some changes made in the 9-month rule.2? In October 1976. shortly after requesting a transfer back to her former position, Davidson told the supervisor of the satellite lab. Heimbach, that she had spoken to Sattler about such a transfer. Heimbach, as Davidson credibly tes- tified, informed her that Respondent was not replacing Spieth with a medical technologist but with an MLT.w° Da- vidson also credibly testified that when Spieth left, her posi- tion was taken by Helen Thayer, an MLT who only' worked for a couple of weeks, and that it was the first time Respon- dent employed an MLT to perform work formerly done by a medical technologist. Sattler denied the position left va- cant by Spieth's departure was filled by Helen Thayer. In bearing and demeanor, Sattler did not impress me as being as trustworthy a witness as Davidson. In addition. Sattler's testimony that Davidson was not offered her former posi- 29 he description of the consersation between Sattler and Davidson is based upon he testimony of Davidson. who impressed me as a more credible witness than Saltier I have rejected Sattler's ersion of this conversation to the extent it is not consistent with Davidson's. 2o An MI.T is not required to meet the more stringent academic and in- ternship requirements necessary for medical technologists and In perfiorming the kind of work done by a medical technologist an MLT must be closely supervised. 735 I)l('ISI()NS OF NA IONAL ABOR RELAtIONS BOARI) tion when Spieth vacated it because Respondent wanted to make an offer of this job to other strikers. who had not been offered reinstatement, rings false. Spieth vacated this posi- tion on October 22. 1976. yet it was not offered to anyone until I month later when the position was offered to Duke, infra. This is consistent with Davidson's testimony that Thayer occupied the vacancy fr a short interval. Respon- dent failed to explain this hiatus. Moreover, upon cross- examination. Sattler reluctantly admitted Thayer was, in fact, hired to work in a section of the laboratory immedi- ately adjacent to the satellite lab, but further testified that Thayer never came to work. I do not believe her. I find it difficult to believe that Davidson. who impressed me as a sincere witness, would have been able to testify that a per- son named Thayer had, in fact. worked in the satellite lab. if in fact that person never showed up for work, but wats merely a name in Respondent's personnel files.' Deborah Hayes Hayes began work for Respondent in July 1973 and was employed as a registered medical technologist in the lab's chemistry section on the day shift. 8 a.m. to 4:30 p.m. On October 2. 1976, Mauer offered Hayes a position in the chemistry Section, working the second shift, 3 to II p.m. Hayes asked what had happened to her former job on the day shift. Mauer stated he did not know. Hayes ac- cepted the job and worked until December 28. 1976. when she terminated her employment for a position with another employer. Hayes told the person in charge of the lab's chemistry section that her reason for terminating her em- ployment with Respondent was that working nights was causing her marital problems. I)arlene Copenharve ('openharve was employed b Respondent as a medical technologist since October 1974. first as a nonregistered technologist and then, as of Februars 1976. as a registered medical technologist. She was employed in the lab's p.m. shift which operates 3:30 p.m. to 12 midnight.? She worked weekdays, Monday through Friday. and rotated working weekends with the other personnel employed in that sec- tion. The technologists employed on the p.m. shift are ex- pected to perform tasks that are normally performed in the three specialty sections of the laboratory (hematology, mi- crobiology, and chemistry'). .As laboratory director. outy testified: "hey have to have a greater fexibility ... and knowledge of what is going on than the people on the day." Ihus, while working on the p.m. shift. ('openharve regu- larly performed work in several areas: hematology, micro- biology, and urinalysis. er work performance was so com- petent, that in 1975. when the p.m. shift supervisor was absent from work for a substantial period of' time due to illness. openharve was appointed bhy outy to be acting supervisor. On October 11. 1976. Sattler offered (openharve a medi- cal technologist position in hematology, working the first shift, 7 a.m. to 3:30 p.m., Thursday through Monday. ('openharve accepted the offer. She worked until l)ecember 10, 1976. when she quit because it was not possible for her to continue working days because her husband worked eve- nings, thus creating marital problems. The record establishes that the assignment of a full-time medical technologist to work every weekend was contrary to Respondent's prestrike policy of having full-time tech- nologists rotate working weekends, unless a technologist voluntarily agreed to work weekends regularly. Barry Rhoda Cynthia Chandler Chandler was employed by Respondent since September 1974 as a registered medical technologist in the lab's micro- biology section. She was designated as the assistant supervi- sor of serology, an operation performed within microbiol- ogy. She worked on the day shift, Monday through Friday, and rotated working weekends with the other personnel in the microbiology department. In Chandler's approximately 22 months of employment with Respondent, except for 4 days when she had worked in the lab's hematology section, she had spent her entire working time employed in microbi- ology. On October 6, 1976, Sattler offered Chandler a registered medical technologist's position in hematology on the first shift working Thursday through Monday. Chandler re- jected this position, explaining to Sattler she did not want to work every weekend or work in hematology since it was not the section she had worked in during her employment with Respondent. I] In concluding that Thayer worked for Respondent. I have taken into account the absence of her name in Resp. Exh. 13. a list of labratory em- ployees hired after the strike. Nevertheless. I am convinced that the whole record, as found supra, demonstrates that Thayer did work in the laboratory. albeit for a short period, as Davidson testified. Rhoda, a registered medical technologist, was employed by Respondent since October 1964. He worked part time in the lab's chemistry section on the das shift. 3 days weekly Saturday. Sunday, and a weekday. On October 19, 1976. Sattler offered him a medical tech- nologist position in chemistry on the day shift working 2 days weekly. Saturday and Sunday. Rhoda rejected the of- fer. Karen Kiehn Kiehn, a registered medical technologist, began work for Respondent on April 1. 1975. She worked in the lab's chem- istry section approximately 20 hours a week on the day shift." During her employment. Kiehn had never worked a Saturday or Sunday but, beginning the last week in June 1976, when her employment status was changed from "on- 32 Respondent's seniority exhlhit. Resp. Exh. 12, indicates that ('open- harve worked in the lab's hematology section on the second shift. liowever. the credible and uncontradicted testimony of (openhare esiablishes that. as described spra. she worked (on the p m. shift 3" Kiehn also worked in the lab's hemalogy section when a medical tech- nologist in that section was absent because of illness ir (acation. It as understood that she was competent to work n hematology 736 PROVIDENCE MEDICAL CENTER call" to "part-time," it was agreed between Kiehn and man- agement that, if necessarN, she would work one weekend a month. On October 21. Sattler offered Kiehn the above-described part-time position which had been rejected by Rhoda and which would have required that Kiehn work Saturday and Sunday each week. Kiehn rejected this offer. She explained to Sattler that it was impossible for her to accept weekend work as it would conflict with the schedule of the rest of her family, but she would like to be reinstated to her former position if an opening occurred. Michael Dattilo Dattilo. who started work for Respondent in May 1974. was a nonregistered medical technologist in the lab's chem- istry section on the second shift. 3:30 p.m. to 12 midnight. On October 21. 1976. Sattler offered him a job in the lab's chemistry section, working on the first shift Tuesday through Saturday. Dattilo accepted this offer. As described supra, medical technologist Hayes. who prior to the strike had worked on the first shift in the lab's chemistry section, had been reinstated in that section's sec- ond shift. Dattilo's prestrike position. Thus. it was natural for Dattilo soon after his reinstatement to ask Sattler whether he could switch positions with ha;yes so that then would he working the shifts they had worked prior to the strike.? Dattilo's request was denied by Sattler. who ex- plained to Dattilo that such a transfer would disrupt the Employer's plan for reinstating the strikers and. in addition. if the Employer did this for Hases and Dattilo. it would have to do it for others." Carol Nusbaum Nusbaum, a registered medical technologist. began work for Respondent on June 16. 1975. and until approximately May 1976, worked on the first shift in the lab's chemistry section. About 2 months prior to the strike, she was trans- ferred into microbiology where she worked days from 8 a.m. to 4:30 p.m. On October 25, 1976, Sattler offered her a medical tech- nologist position in the satellite lab, working the third shift. I I p.m. to 7:30 a.m. Nusbaum rejected this offer, explaining to Sattler that after considering the matter with her hus- band. they had concluded that it would not be safe for her to travel by bus to work at that time of night. but she wanted to be considered for some other job with Respon- dent. On August 30. 1977. Respondent wrote Nusbaum. stat- ing that on August 29, 1977, she had been offered a medical technologist position in the lab's chemistry section. ` As found supra, Hayes eventually was forced to terminate her employ- ment because she was unable to work the second shift. 5 I recognize that Dattilo expressed some uncertainty about whether he had this conversation with Satiter or Fouty. He testified, in effect. that his best recollection was that the conversation was wilh Satiler. Based upon my impression that Dattilo was a sincere and reliable witness. I am persuaded that the above-described conversation, whether it was between Dattilo and Fouty or Saltier. did occur as Danilo testified. Satiler testified that Dattilo did not speak to her about switching shifts with Hayes. but volunteered "I'm certain that was with Fouty." Fouls did not testify about this matter. Kristine McBride McBride began work for Respondent as a registered medical technologist on April 5. 1976. and worked on the first shift from 8 a.m. to 4:30 p.m. in the lab's chemistry section. On October 27. 1976. Sattler offered her the third shift position in the satellite lab which. as described above, had been offered to. and rejected by. Nusbaum. McBride also rejected the offer, explaining to Sattler that she was not interested in working the graveyard shift. but was interested in working for Respondent in a day-time position. Susan Duke Duke began work for Respondent as a registered medical technologist on June 5. 1972. and at the time of the strike. was employed on the first shift in the lab's microhiolog3 section as an assistant supervisor, a position she had held for approximately 3 years. On November 24, 1976. Sattler offered her a job in the satellite lab on either the second shift (3:30 to II p.m.) or the third shift (11 p.m. to 7:30 a.m.) and told Duke she would receive the salary paid an assistant supervisor. Duke stated she was not able to accept either ottfr because she was attending school in the evening.'" Prior to the strike, Duke had similarly attended school at night. and at one point during her employment, attended school during the day, after receiving permission from management to work a split shift to accommodate her school schedule. On approximately August 25. 1977, Respondent offered Duke a position as a registered medical technologist on the day shift in the lab's chemistry section, which she rejected. The record reveals that Duke was a union supporter. She was an officer of the Union and testified on its behalf in the representation hearing, which resulted in the Union's certi- fication as the professional employees' bargaining repre- sentative. In the first week of January 1977, medical tech- nologist Huntley had a conversation with Lahboratory Director Fouty during which the subject of the conse- quences of the strike was mentioned: in this context. Duke's name was mentioned. Fouty told Huntley that he was "ver high" on Duke's ability as a medical technologist and felt she was very intelligent, but also thought she was a seduc- tive person who liked to be in control of a situation, was "really an instigator of the whole union problems that ex- isted in the lab." and blamed Duke for all of the union activities." Antonio Regala Regala worked for Respondent as a registered medical technologist from 1967 to 1971. when he voluntarily termi- nated his employment. He returned in December 1975, and during the 7 months prior to the strike was employed as a registered medical technologist in the microbiology and he- " The testimony of Sattler and Duke about this conversation is essentially consistent. however, where there s an inconsistenc. I hase credited Duke. who impressed me as the more credible witness. r3 Based upon Huntley's testimony. Huntley. who was emplo,ed h Re- spondent when he testified. impressed me as a sincere ad reliable witness. 737 DECISIONS OF NATIONAL LABOR RELATIONS BOARD matology sections of' the laboratory. He worked in microbi- ology 3 days a week, Monday through Wednesday from 12 noon to 8:30 p.m.. and in hematology 2 days a week, Satur- day and Sunday from 7 a.m. to 3:30 p.m. Respondent's seniority exhibit erroneously lists Regala's latest hiring date as July II. 1976. In this regard, Regala's credible testimony, which is corroborated by Fouty's admission, establishes that prior to the strike, Regala. as described above, worked in the microbiology and hematology sections of the lab. On November 29. 1976, Sattler offered Regala a medical technologist position in the satellite lab working the second shift from 3 to 11 p.m. Regala, who never had worked in the satellite during his 7 years with Respondent, stated that he understood that Copenharve, who had been reinstated into the hematology section on the day shift. Thursday through Monday, was terminating her employment." Regala told Sattler he was interested in Copenharve's posi- tion since it was in a department which he had formerly worked and was similar to his former work schedule. Sat- tler's response was that Copenharve's vacancy would not be open for awhile. Regala indicated that he was willing to wait for it because it was in his line of experience. Sattler. at this point, stated she could only offer him the position in the satellite lab on the second shift. Regala rejected this offer. Ted Holzman Holzman began work for Respondent on March 29, 1976, in the chemistry section of the lab, working the first shift as a registered medical technologist. He had not taken the examination which would qualify him as a registered medical technologist, hence, his employ ment as a registered medical technologist was conditioned upon passing this exam. which was scheduled to be given in August 1976. On or about June 18, 1976, representatives of Respondent and Holzman learned that he was not eligible to take the regis- try examination. Holzman was allowed to continue working in the aforesaid registered medical technologist position which he continued to occupy at the time of the strike. By form letter dated October 13. 1976. Holzman, along with several of the other strikers who had requested rein- statement. were notified by Respondent that there were no vacant positions for medical technologists and they would be placed on a preferential hiring list: they were asked to fill out an enclosed form indicating whether they wanted rein- statement. Holzman completed this form and sent it to Re- spondent. On October 25, 1976, Laboratory Director Fouty wrote Holzman that because he was not eligible to take the registry exam and in view of the fact that his work perform- ance was not that of a registered medical technologist. he was being terminated from his position as a registered medical technologist in chemistry. Fouty also advised him that at present, there were no lesser positions available for Respondent to offer him. On August 22, 1977. Respondent offered Holzman rein- statement to the position of nonregistered medical tech- nologist on the second shift in the satellite lab. Holzman rejected this offer. X As ound supra. Copenharve had given Respondent notice that she in- tended to resign this position effective December 10. 1976. Susan Abel At the time of the strike Abel had worked for Respon- dent since March 1976 in microbiology as a registered medical technologist. She worked 2 days a week, either Thursday-Friday. Friday-Saturday, or Saturday-Sunday. Her work schedule was posted each month. On August 22, 1977, Respondent offered Abel reinstate- ment as a medical technologist in the chemistry section on the day shift as an "on-call" employee. She rejected this offer. Patricia Ryan At the time of the strike Ryan had worked for Respon- dent as a registered medical technologist since November 1974 in the satellite lab (days and nights). She is a student, and Respondent allowed her to work a minimum of 16 and a maximum of 32 hours a week, depending upon her school schedule. In fact. Ryan worked a minimum of 16 hours and a maximum of 32 hours weekly during her entire employ- ment. Respondent, as of the date of the hearing in this proceed- ing. had not offered Ryan reinstatement. Julie Smith At the time of the strike Smith had worked for Respon- dent since May 1975 on the second shift in the satellite lab. She was a student and her work schedule, which was posted monthly. was arranged to meet her school schedule and Respondent's need. The record indicates that, prior to the strike, throughout Smith's 14 months of employment, she regularly worked a substantial number of hours during each biweekly pay period. During the 30 biweekly pay periods immediately prior to the strike. Smith worked the following number of hours: between 10 to 20 hours, one pay period: 20 to 30 hours, two pay periods: 30 to 40 hours, five pay periods: 40 to 50 hours. seven pay periods: 50 to 60 hours, five pay periods: 60 to 70 hours, five pay periods: 70 to 80 hours. two pay periods: and 80 to 90 hours, three pay peri- ods. As of the date of the hearing in this proceeding. Respon- dent had not offered Smith reinstatement. 2. Ultimate findings and analysis I am persuaded that Respondent had a valid basis, in general, for its delay in offering jobs to strikers who re- quested reinstatement. I have reached this conclusion even though the volume of work available in the lab was not reduced by the medical technologists' strike: at the strike's conclusion there were substantially fewer employees em- ployed in the lab than immediately prior to the strike,39 yet "* As described supra. at the start of the strike. Respondent employed 40 laboratory employees. 27 of whom supported the strike. thus leaving 13 to operate the lab. During the strike, Respondent. because of vacancies created by the strike. hired nine employees to work in the lab. In short, at the conclusion of the sthike. Respondent employed 22 employees in the lab. I8 below the lab's prestrike employment complement. 738 PROVII)FNC(' MFDICI' CFNTER in the 2 months following the strike there were only ap- proximately eight positions available to offer the strikers.? It would seem there should have been more than eight a- cancies. The record establishes, however, that immediately prior to the strike, an excessive number of employees worked in the lab. This condition came about because on July 12. 1976. Respondent's nurses struck the hospital. This strike decreased the lab's workload bN at least 50 percent, and it stayed at this reduced level throughout the medical technologists' strike because the nurses' strike continued until the week of September 27. 1976. when. immediately prior to the termination of the medical technologists' strike, the nurses also ended their strike. The end of the nurses' strike, however, did not increase the lab's workload back to where it was prior to the nurses' strike. It was for this rea- son that Respondent was only able to offer four jobs imme- diately to the returning strikers. I recognize that before the medical technologists' strike, even though the lab work had decreased drastically due to the nurses' strike, Respondent did not terminate or contemplate terminating lab employ- ees because of the lack of work. But, at that point, there was every indication that the lack of work was temporary and that this condition would end when the nurses' strike ended. When this did not occur, it was perfectly normal for Re- spondent not to offer to reinstate striking medical technolo- gists until the amount of work warranted their reinstate- ment. I recognize that my conclusion that, despite the end of the nurses' strike. the lab's workload did not increase to what it had been prior to that strike is based upon the uncorroborated verbal testimony of Laboratory Director Fouty, who, in general, did not impress me as a trustworthy witness. His testimony in this respect, however, was not challenged during cross-examination and is bolstered bv other evidence. Thus, it is undisputed that for a period of almost 2-1/2 months after the end of the technologists' strike, Respondent, except for the short-term hire of Thayer described supra, did not hire a single new laboratory em- ployee. In addition, even after it had offered reinstatement to 17 of the 18 full- and part-time technologists who had requested reinstatement' and began to hire new employ- ees,42 Respondent did not raise the lab's complement of em- ployees back to the level it had been prior to the technolo- gists' strike. This further corroborates Fouty's testimony that the workload in the lab had still not returned to its pre- nurses' strike level. 43 Under these circumstances. I am per- 4o During October and November 1976. Respondent offered a total of 8 jobs to 17 of the 21 full-time and part-time technologists who had asked to be reinstated. One. Holzman, as described in detail in/ra, was not offered rein- statement. Likewise, the three "on-call" technologists who had requested reinstatement were not offered reinstatement because. Respondent contends. that there was no work available for on-call employees. 4i The 18th, Holzman, was not offered reinstatement because as described infra, Respondent contends it was not obligated to reinstate him. 42 Between the end of the technologists' strike on September 30. 1976 and September 1977, new employees began work in the lab on these dates: one on December 10. 1976: three in JanuarN 1977: two in Februars 1977. two in March 1977: one in April 1977: one in May 1977: one in June 1977: one in August 1977: and one in September 1977. a The evidence is insufficient to establish that at the conclusion of the strike Respondent contracted out work or increased the hours of work of laboratory personnel so as to avoid having to reinstate the returning strikers. suaded that Respondent has established that its delay in offering reinstatement to the strikers was not excessive. 11 Although it was permissible for Respondent to delay of- fering reinstatement to employees until the lab's work in- creased, it was not permissible for Respondent to take ad- vantage of this situation to discriminate against them because they had engaged in the strike. I am persuaded that this is what Respondent did. In my opinion, in offering reinstatement to the employees. Respondent was moti',ated by a desire to rid itself of them because they had engaged in the strike. The tollowing considerations. taken in their en- tiret.y, have led me to this conclusion. (a) The director of the laboratory, Fouty, the person who decided whether business warranted the reinstatement of' the employees and, if so, which ones should be offered rein- statement. was antagonistic toward the employees because they had engaged in the strike. During the strike, he informed nonstrikers Rowe and Inglehart that he doubted whether the strikers would ever work again for the hospital. Foutr declared that he was "fed-up" with the strikers and did not want them working in his laboratory. Likewise Fouty informed striker Kiehn that he was thoroughly disgusted with strikers and. in effect. stated that the reason he did not want to reemploy Kiehn was because she had engaged in the strike. (b) Respondent's offers of reinstatement were made pur- suant to a recall system which was implemented so as to cause the strikers to terminate their employment by forcing them to accept positions which differed significantly from their prestrike positions and which Respondent knew the strikers would consider as being undesirable. I. Since virtually none of the strikers were replaced per- manentls, it would seem that under a recall formula based upon legitimate business considerations. at least I. 2. or 3 of the 21 returning strikers would have been offered reinstate- ment to their ormer positions. Not one, however, was of- fered reinstatement to the position he or she occupied prior to the strike. Specifically. of the 15 full-time employees who engaged in the strike and were asking for reinstatement, not one was offered reinstatement to a position on his or her former shift. In addition, two of them. Chandler and Copenharve, were offered reinstatement to positions which required that they work each weekend, whereas prior to the strike, they had rotated working weekends with the other employees. Although the two part-time employees. Kiehn and Rhoda, were offered reinstatement to positions on their former work shifts, Kiehn was offered Saturday and Sun- day work, whereas prior to the strike, she had not been required to work weekends. Rhoda was offered one-third less work than before the strike. In short, except possibly in the case of Rhoda. Respondent's reinstatement offers, if ac- cepted. would have forced the returning strikers to make substantial changes in their lifestyles, i.e., eating and sleep- ing habits, etc. It is not surprising that the majority of the strikers rejected these offers and that three of the six who did accept were forced to almost immediately terminate their employment. Finally. Respondent required the strik- ers to either accept these onerous job offers or be termi- 739 DECISIONS OF- NA'IIONAL LABOR RELATIONS BOARI) nated as employees." Under the aforesaid circumstances, Respondent must have realized that the great majority, if not all, of the employees would reject its offers, hence, pur- suant to its recall system, they would he terminated as em- ployees and would no longer eligible tfor preferential recall. 2. In addition to requiring the strikers to accept positions inferior to their prestrike positions, as described above. or be terminated, Respondent similarly required 7 of the 16 strikers, whom were offered reinstatement, to accept posi- tions for which they had no prior experience, and thus would have had to undergo substantial amounts of on-the- job training to qualify fr these positions. The record establishes that the medical technologists' work in the different sections of the lab differs significantly. A technologist employed in one section is not competent to work in another area. Rather, it is undisputed that it re- quires substantial on-the-job training for technologists to transfer from one department to another.4 5 Supervisor Smith testified that before a technologist is qualified to work in the various sections of the lab, the following amounts of on-the-job training are necessary: microbiology, over 2 years; chemistry, over I year: hematology. from 4 to 6 months: satellite lab, from 4 to 6 weeks: and p.m. shift, from 6 to 12 months. In view of the foregoing. it would seem logical for Re- spondent to reinstate the returning strikers into their former work areas to avoid the expense and inconvenience of re- training them. Yet 7 of the 16 strikers who sought reinstate- ment and were offered work, were required either to accept reinstatement into positions for which they had no prior work experience or be terminated." I am persuaded this was simply an additional onerous condition of continued employment imposed upon these returning strikers which. coupled with the requirement that they work on shifts dif- ferent than their prestrike shifts, was designed to cause them to terminate their status as employees entitled to pref- erential recall. 3. Respondent's explanation for its failure to offer to re- instate even one striker to the striker's prestrike position4' does not withstand scrutiny, but bolsters the inference that Respondent used its recall system as a device to rid itself of the strikers. I reject Respondent's contention that its failure to offer to reinstate even one employee to the employee's prestrike po- UThere is no evidence that. prior to the strike. Respondent insoluntaril forced employees to transfer from one shift to another. Quite the contrary. Fouty admitted that Respondent "rarely forced anybody to go into an area they did not want" and specifically testified that since employees did not want to work the second and third shifts, they were not required to transfer to those shifts: rather, new employees were hired to fill vacancies on those shifts. "1 Because of this. Respondent has a rule which prohibits transfers be- tween departments for at least 9 months. 4' Huntley. Chandler, and Turpin were required either to accept reinstate- ment in hematology or be terminated. Prior to the strike. Huntley and Chan- dler worked in microbiology, and Turpin worked in the satellite lab. Nus- baum. McBride. Duke. and Regala were required to accept reinstatement into the satellite lab or be terminated. Nusbaum's prestrike work experience was in microbiology and chemistry. McBride's was in chemistry, Duke was in the microbiology department and Regala was in microbiology and hema- tology. 47 Respondent's administrative coordinator, Janiece Saitter. testified "There are two factors in a position. the section that the employees work in and the shift they work on. That constitutes a position." Emphasis supplied.] sition was not a deliberate act, but was the fortuitous result of its nondiscriminatory recall system. Fouty. the labora- tory director, testified that the criteria used to reinstate the strikers were: need. ability. and seniority in that order. First, there had to be a need for a medical technologist tn a particular area on a particular shift. Second. the person of- fered the job had to have "at least some previous recent training in that area." Third, if strikers had the same ability. then the one with the most laboratorywide seniority was offered the position. Finally, an integral part of' this system for recalling the strikers was the requirement that a striker who refused an offer of reinstatement, whatever the offer, was immediately terminated as an employee and thereafter treated as an applicant for employment who was required to submit an employment application to be considered for reemployment. Fouty testified that the aforesaid recall frmula was de- vised by the hospital's assistant administrator, Mauer, who without any explanation, directed Fouty to adhere to it in recalling the strikers. Respondent presented no evidence pertaining to its reason for using this formula. in particular the business justification for that part of' the formula which requires that a striker accept an offer or be terminated as an employee." even though the offer requires that the striker transfer to a different work shift. This, as indicated previ- ously. is at odds with Respondent's practice of not requiring employees to involuntarily transfer to a shift they do not want to work. With regard to the implementation of the aforesaid ss- tem for recalling the strikers, the record reveals that Labo- ratory l)irector Fouty was the person who applied it. In testifying about the manner in which he implemented the formula. Fouty was not a convincing witness. In bearing and demeanor he did not impress me as a trustworthy wit- ness. This is particularly bothersome because Fouty used his personal discretion on countless occasions and deviated from a literal application of the recall formula. It is plain from the record that Fouty. who. as indicated previously. had expressed his animus toward the strikers, was free to manipulate the recall system so as to rid himself of the strikers by making onerous job offers calculated to cause the strikers to terminate their status as employees under the rules of' the recall system."4 In fact, an examination of' the manner in which Fouty applied the recall system in connec- tion with the October 2. 1976. job vacancies provides strong evidence that he used the system to discriminate against the strikers. On October 2 there were four full-time positions vacant: one on the second shift in hematology: another on the sec- ond shift in chemistry; a third on the second shift in the satellite lab: and a fourth on the third shift in the satellite lab. Of the 18 full-time employees who engaged in the strike and requested reinstatement, 5 had occupied these vacan- " Fouty, when questioned about this part of the recall system. testified: "I had nothing to do with that. We werejust told this is the was ol handling the situation, and we complied." 4, As I have found previously. Saltier testified that employees' positions in the lab consist of the employees' work areas and their ,rA hiti Thus. Fouty's testimony that his main concern in recalling the strikers was to place as many effective persons in "the positions the) had been in prsviously" is comnpletely at odds with the manner in which he applied the sstem. 740 I'PROVID)ENC( MEI)I('AI ('ENI ER cies prior to the strike. L)attilo ( orked on the second shift in chemistry Turpin worked on the third shift in the satellite lab. C'openharve and Regala worked on the second shift in hematology. and Davidson worked on the second shift in the satellite lab. Nonetheless, not one of them was offered their former position: instead these \,acancies were tforced upon other strikers. all of whoml had wo(rked different shifts and some of whom were een Without work experience for the job offered. The discriminator, manner in which the recall system was applied is vividly revealed hb the manner in which Fouty treated l'urpin and (openharve in connection with the October 2 vacancies. Turpin, who, prior to the strike, worked for approxi- mately 2 years on the third shift in the satellite lab. vwas not offered reinstatement to fill this vacancy because. ias out, testified. Turpin earlier on October 2 had turned dovwn an offer of employment in hematology on the second shift. Thus, under Respondent's recall formula he had lost his status as an employee and was no longer eligible for prefer- ential recall. However. to reach Turpin on the seniority list so as to have him refuse this job offer and hence be termi- nated. Fouty had to pass Yoda. Duke. Spieth. Konma. Hayes. Dattilo. and Chandler, most of whom. like urpin. had no prior experience working in hematology. Due to their lack of training in hematology, Fouty testified that they were not offered this job. Indeed. in connection with the reason he did not offer other strikers vacant jobs as they arose later in October and November 1976. Fouty similarly testified that they lacked the experience to fill the particular jobs. Yet, on October 2. Turpin, who was without any pre- vious experience in hematology. was offered a position in this section. "' Fouty did not explain his reason tfr this strange conduct which was in complete derogation of the way in which the recall system was supposed to work. Ah- sent any explanation. I am convinced that in light of the whole record a reasonable inference is that Fouty realized that Turpin, who was listed relatively high on the seniority list, stood an excellent chance of being offered his former job, which he would have accepted." Thus. Fouty offered Turpin a job which he knew Turpin was bound to turn down and, as a result, terminate his preferential recall rights. Fouty's discriminatory implementation of Respondent's system for recalling the strikers is further revealed by his unconvincing explanation for his failure on October 2 to offer Copenharve the second-shift hematology vacancy for which she was eminently qualified. Fouty first explained this conduct in these terms: "[Copenharvel had occupied the position prior to the strike but was only accredited in hematology and had no other experience anywhere else in the clinical lab so we decided that we wanted a medical O The record shows that it would have taken Respondent from 4 to 6 months to train Turpin to become a quahfied technologist in hematology. 1i The only person ahead of Turpin in seniority who had worked in the satellite lab was Yoda. who had worked there on the first shift. I think it is a fair inference that Foutl must have realized that Yoda would be adverse to accepting an offer to transfer to the graveyard shift. In this regard, Fout admitted that, prior to the strike. Respondent would hire new employees for the graveyard shift because the employees who worked the other shifts did not want to transfer to the graveyard. technologist who sas tairl 5 close to being a generalist in the area tfor the p.m. shift. which required ability to go into a ,arie of areas. so [('openharve] was not made the offer.'' l.ater. FIout, added another reason or his tfailure to offer ('openharve reinstatement Ito her formier position: "One of the problems we were having was in maintenance of equip- ment. She as not one who could literall 5 tear dow n the Coulture S and put it back together again. We needed somebod who had that kind of experience." ]Iouty's explanation is inconsistent with his other con- duct regarding this position. Thus, as described qlra.l this position as offered to lurpin. whom it would have taken 4 to 6 months to train for the job, and to untle5. a nonreg- istered technologist. who was less than 6 seeks out of school and who had worked in microbiology rather than in hematology. In addition. F:outy's explanation is contra- dicted b Copenharve's credible and undenied testimony that from the start of her employ ment with Respondent in October 1974. she had been employed in the lab's p.m. shift swhere, besides working in the lab's hematolog! section, she regularly performed work in several other sections. In fact. the record establishes that technologists ho,. such as ('openharve. work the p.m. shift. were expected to perform all types of tests normally done in all three of the lab's specialty sections. Copenharve would seem to have been the "generalist" that Fouty was supposedly seeking to fill the hematology acancy.' With regard to Copenharve's alleged inability to main- tain or repair equipment. it is undisputed that Respondent never had any complaints about her work performance in this respect. In tact, before orking for Respondent. ('openharve for over a ear was an assistant supervisor in another hospital's hematology lab and, as such. was respon- sible for the maintenance and repair of the equipment and had informed Respondent's management of this fact when she was hired. In any event. rFouty's contention that Copen- harve lacked the ability to maintain and repair equipment in hematology was not voiced by him initially when he ex- plained his failure to offer her this job and appears to have been adanced as an afterthought. Thus. Turpin, who was offered the position. would appear to hae the same alleged Ftilings regarding equipment maintenance and repair as F'outy attributed to Copenharve. Likewise. Huntley, a re- cent graduate from school who had not even passed his 90- day probationary period, having worked for Respondent less than 6 weeks in microbiology, not hematology, was not qualified to maintain or repair or "trouble-shoot" the equipment in that department inasmuch as Supervisor Smith testified that this type of work was in "no way" learned in school, but was a skill which must be acquired on the job. Finally. when testifying about the types of prob- lems and the extent of the problems involving equipment maintenance and repair which would have required Copen- harve's attention and which Copenharve was not competent to handle. Fouty was vague and evasive and his testimony, as was his testimony in general. was completely without corroboration even though it would seem that corrobora- tion would have been easily available. '2 ('openharve continued working as a "generahlt" on the p m. shift csen aflter recel mine specialtv accreditation n hemriatolog in fehruary 1976. 741 DE(ISIONS OF NATIONAL LABOR RELATIONS BOARI) (c) Respondent's discrimination against returning strik- ers Davidson, Dattilo, Regala. Hayes. Rhoda, and Kiehn is further evidence that Respondent was using its system for recalling strikers as a means to discriminate against them. 1. Prior to the strike medical technologist Davidson worked in the satellite lab on the second shift, hut on Octo- ber 4. 1976. was reinstated on the third shift in this section. Prior to the strike, medical technologist Spieth worked in the satellite lab on the third shift, but on October 2. 1976. was reinstated on the second shift in this section. In other words, Davidson was reinstated into Spieth's prestrike posi- tion and Spieth into Davidson's. On October 6, Spieth gave notice that she intended to terminate her employment effective October 22, 1976. Da- vidson learned of this and asked Sattler for a transfer to her prestrike position when Spieth vacated it. Sattler turned down this request, stating there were other strikers with more seniority waiting to be reinstated, and that once a striker accepted reinstatement on a particular shift, the striker was not eligible for a transfer to another shift for 9 months. Davidson replied that the 9-month rule applied only to transfers between departments and not to transfers between shifts in the same department. Sattler did not dis- pute this, but stated that there had been changes made in the 9-month rule. Thereafter, Respondent, as described in detail supra, temporarily placed a new employee. MLT Thayer. in the vacancy created by Spieth's termination. The position was later offered to Duke and Regala. neither one of whom had any experience working in that position: thus. Respondent would have been required to train them if they had accepted. Sattler's refusal to grant Davidson a transfer to her for- mer position on the second shift in the satellite lab because she had not worked 9 months on the first shift in that sec- tion, where she had been transferred after the strike ended. waas not based upon company policy. Quite the opposite. as indicated by Sattler's answer to Davidson's objection to Sattler's use of the 9-month rule to deny Davidson's re- quest. it seems Respondent, in an effort to make sure that strikers were unable to transfer back to their former work shifts, changed the scope of the 9-month rule from a rule which only affected transfers between departments to one which covered transfers between shifts in the same depart- ment. Medical technologists Duke and Davidson credibly testified that they were informed that the 9-month rule only prohibited transfers between departments, not between shifts in the same department." Also, it is undisputed that Leanne Peters (Brown), who was employed during the strike on the second shift in the satellite lab, after only ap- proximately I month of work, was transferred in October 1976 to the first shift in that section?4 Moreover, it is plain that the 9-month rule, even insofar as it forbade transfers " I have rejected Sattler's and Fouty's testimony that the 9-month rule was meant to apply to both types of transfers. Their testimony is contro- verted by what actually took place with respect to transfers. infra. as well as by the testimony of Duke and Davidson. who impressed me as more trust- worthy witnesses. I reject Sattler's uncorroboraled testimony that Brown's transfer was only a paper one because Brown had always worked on the first shift, even though she was hired to work on the second shift. I credit Davidson's version of what occurred. Davidson impressed me as an honest and reliable witness. Sattler did not. between departments, was frequently breached by Respon- dent. In early 1976. Davidson. who had been employed in the satellite lab for onl 6 months, was asked by manage- ment if she wanted to transfer into chemistry. Likewise. nonstriker Rowe. who worked in the satellite lab on the graveyard shift, was asked in October 1976 by Sattler if she wanted to transfer into chemistry on the das shift." Rowe. who at the time had onls worked in the satellite lab for 4 or 5 months. declined the offer, whereupon Reinswold, who had been working on the first shift in the satellite lab for less than a month, was transferred to this position. In short, the record fails to establish a legitimate business rea- son for Respondent's refusal to allow Davidson to transfer back to her former position, but to the contrary indicates that Davidson was the victim of disparate treatment. 2. On October 4. 1976. medical technologist Hayes. who, prior to the strike, had worked in the chemistry section on the first shift, was reinstated into that section. but on the second shift. On October 21, 1976. medical technologist Dattilo, who, prior to the strike, had worked in chemistry on the second shift. was reinstated into that section, hut on the first shift. In short. Hayes was reinstated into Dattilo's prestrike position and Dattilo into Hayes'. Dattilo, soon after his reinstatement. asked Sattler whether Hayes and himself could switch positions so they would be working their prestrike shifts. Sattler denied the request. explaining to Dattilo that such a transfer would disrupt the Employer's plan for reinstating the strikers and that it management did this tbr Hayes and Dattilo, they would have to do it for others. Respondent's reason for refusing to allow Dattilo and Hayes to switch positions so they would be working in their prestrike positions is completely without substance. As found supra, Respondent has no rule against employees transferring between shifts in the same section. In fact, it permits such transfers. Moreover, the transfers involved here would have required no additional training for either employee. Indeed. allowing the transfer would appear to have been extremely beneficial to Respondent inasmuch as it would place Dattilo and Hayes back into positions in which they had worked substantial periods of time, thus. enabling them to work more efficiently. 3. In late November 1976. medical technologist Copen- harve. who had been reinstated to the day shift in hematol- ogy, gave notice to Respondent that effective December 10, 1976. she intended to terminate her employment. On No- vember 29. 1976. medical technologist Regala, who, prior to the strike, worked 2 days a week on the day shift in hema- tology?57 was offered reinstatement by Sattler to the satellite lab on the second shift. Regala stated that he understood Copenharve had given her termination notice: thus, he was interested in this vacancy since it was a section of the lab in " This was based upon Rowe's credible testimony. I reject Sattler's testi- mony that she did not "remember" speaking to Rowe about such a transfer and did not "recall" the conversation. 6 I reject Sattler's uncorroborated testimony that Reinswold's transfer was not an official one as Reinswold had been assigned to chemistry for training and that at all times Reinswold as considered as being employed in the satellite lab. I accept Davidson's testimony regarding Reinswold's transfer Davidson impressed me as an honest and reliable witness. Sattler did not. 7 Regala also worked 3 dass a week in microbiology. 12 noon to 8:30 p.m. 742 PROVIDENCE MEDICAL CENTER which he had worked prior to the strike and was similar to his former work schedule. Sattler stated the job being va- cated by Copenharve would not be available for awhile. Regala stated that he would be willing to wait for it to become vacant since it was in his line of experience. Sattler told him she could only offer him the position in the satel- lite lab on the second shift. Respondent offers no explanation whatsoever for its re- fusal to allow Regala to wait II days so he could fill the hematology vacancy created by Copenharve's termination. This was a position for which Regala already was trained to perform. Nevertheless, Respondent required him to accept a position for which he had absolutely no prior experience, and this would have necessitated training him. 4. The record reveals that at the same time Respondent was claiming it had only one part-time position available to offer part-time technologists Kiehn and Rhoda, it had a sufficient number of extra working days so that it could have offered both of them part-time work substantially equivalent to their former positions. Thus, as soon as Kiehn and Rhoda had each rejected Respondent's offer of week- end work in chemistry on the day shift, 3 additional work- ing days suddenly materialized in chemistry on days which, coupled with the 2 days offered Kiehn and Rhoda. totaled 5 days. Rather than split the 5 days in such a way as to offer Kiehn and Rhoda jobs substantially equivalent to their pre- strike positions, which Respondent could have done easily. it created, on the day shift in chemistry, a new full-time job which it offered Dattilo who, unlike Kiehn and Rhoda, had worked on the second shift in chemistry prior to the strike and would presumably be opposed to accepting emplos- ment on the first shift. In short, instead of making job offers to Kiehn and Rhoda which they more than likels would have accepted. Respondent made offers to Kiehn, Rhoda. and Dattilo. which it must have known would, in all likeli- hood, be rejected by all three. thus, enabling Respondent under its recall formula to terminate them as employees entitled to preferential hire. The inference that Respondent was discriminatorily mo- tivated in its treatment of Kiehn, Rhoda, and Dattilo is bolstered by the contradictory testimony of Sattler and Fouty concerning the circumstances surrounding the job offers made to them. Sattler testified, in essence that the 5 available days in chemistry were offered Dattilo because Respondent desired flexibility in its scheduling so that weekends would be covered. But the full-time job offered Dattilo did not include Sunday. even though this was one of the days included in the offers to Kiehn and Rhoda. In addition, contrary to Sattler's testimony, Fouty testified that the manner in which the lab achieved flexibility in scheduling weekend work was by the employment of part- time workers, such as Kiehn and Rhoda. not full-timers such as Dattilo. Finally, Sattler's testimony that the week- end position offered Rhoda and Kiehn was a new one cre- ated because the large number of new employees hired dur- ing the strike made it necessary to hire part-time workers (e.g.. Rhoda and Kiehn) to work weekends, was contra- dicted by Fouty's testimony that the weekend position of- fered Kiehn and Rhoda was not a new one created for the reason stated by Sattler, but had existed prior to the strike. I am persuaded that the circumstances surrounding the job offers made to Kiehn, Rhoda. and Dattilo. when viewed in the context of the whole record. lend further support to the inference that Respondent made its offers to the return- ing strikers with the ulterior motive of ridding itself of the strikers because they had supported the strike. (d) The inference that Respondent used its recall system to discriminate against the strikers also is supported by the fact that Karen Kiehn, a striker whose preferential recall status was terminated pursuant to the operation of the ss- tem and who was the only such striker to apply for employ- ment as a new hire, as I have found injira. was denied em- ployment by Fouty because she had engaged in the strike. Based upon the foregoing, I find that Respondent's recall system was illegally motivated. It was used as a device to rid itself of employees because they had supported the Union by engaging in an economic strike. I further find that in implementing its illegal system of recalling the strikers, Respondent discriminated against the employees to whom it offered reinstatement by conditioning their continued sta- tus as employees entitled to preferential recall upon: (a) accepting positions on work shifts different than the shifts worked prior to the striker (2) accepting positions which required substantial amounts of training for them to be- come qualified:'" (3) accepting positions which required them to work weekends each week:s0 and (4) in Rhoda's case. accepting a position which offered him substantially fewer working days than his prestrike position. Likewise, I find that the Respondent's ailure and refusal to offer em- ployees reinstatement to their former positions or to sub- stantially equivalent ones which they were qualified to per- torm, as such job openings occurred, was a natural and intended consequence of Respondent's discriminators re- call sstem. ' Ill Even assuming the record ails to establish that Respon- dent's treatment of the full-time and part-time employees who engaged in the strike and thereafter sought reinstate- ment was motivated by an ulterior motive to discriminate against them for striking. Respondent has still violated the Act, as the evidence preponderates in favor of a finding that, regardless of its motivation. Respondent's conduct toward this group of strikers was proscribed by Section 8(a)( I ) and (3) of the Act. is Konma. Turpin. Huntley. Spieth. Yoda. Davidson, Hayes. (handler, Copenharve, Dattilo. Nusbaum. McBride. Duke, and Regala. ' Turpin, Huntley. Chandler, Nushaum. McBride. Duke. and Regala 6 Copenharve, Kichn. and ('handler '1 The record reveals that, during October 1976. vacancies occurred n prestrike positions occupied by Copenharve, Dattilo. Regala, Turpin. David- son. and Konma. et they were not offered reinstatement to thewe positions. but instead were threatened with termination if they did not accept posilons which were not substantially equivalent to their prestrike positions Like' se. during October 1976. as desc-nbed supra. the record establishes that there were job vacancies substantially equivalent to the prestrike positions of Rhoda and Kiehn. During the period from December 1976 into September 1977. acancies occurred in positions for which Dattilo. Turpin, Davidson. Konma. Regala. Hayes. Nusbaum. Yoda, Spieth. McBride. Duke, and ('handler were qualified Yet none of them were offered reinstatement to any one of these vacancies because, pursuant to Respondents disriminalor recall system. they were no longer eligible for preferential reinstatement 743 DEI:( ISIONS OF NATIONAL LABOR RELATIONS BOARD In Fleetwood railer, 389 U.S. 375. 381 (1967). the Su- preme Court held: IT]he status of the striker as an employee continues until he has obtained "other regular and substantially equivalent employment." . . . If and when a job for which the striker is qualified becomes available, he is entitled to an offer of reinstatement. The right can be defeated only if the employer can show "legitimate and substantial business justifications." [N.L.R.B. v. Great Dane Trailers, 388 U.S. 26.] In its decision in The Laidlaw Corporation, 171 NL.RB 1366 (1968). the Board applied Fleetwood to hold that economic strikers who unconditionally apply for reinstatement when their positions are filled by permanent replacements are en- titled to full reinstatement upon the departure of replace- ments or when jobs for which they are qualified become available, unless they have in the meantime acquired regu- lar and substantially equivalent employment or the em- ployer can sustain its burden of proof that the failure to offer full reinstatement was for legitimate and substantial business reasons. In other words, the law is settled that. absent legitimate and substantial business reasons, "an em- ployer is obligated to accord economic strikers preferential status and immediately to reinstate such strikers when their previous or substantially equivalent positions are avail- able." New 'Fairview Hall Convalescent HIome. 206 Nl.RB 688 (1973). Consistent with the aforesaid principles, it is also settled that economic strikers, upon their unconditional request for reinstatement, have the right to wait for the availability of a job substantially equivalent to their prestrike position. and that the employer violates Section 8(a)( I) and (3) of the Act, irrespective of motivation. by terminating strikers' sta- tus as employees, hence ending their preferential recall rights, if the strikers refuse to accept job offers which are not the same or substantially equivalent to the strikers' pre- strike positions. Elsing Manufacturing Co.. 209 NLRB 1089 (1974); Alcan Cable West, a Division of Alcan Aluminum Corporation. 214 NLRB 236, 249-250 (1974); Pleasant iew Rest Home, 194 NLRB 426 (1971). Likewise. the fact that a striker accepts reinstatement to a position which is not sub- stantially equivalent to his or her prestrike position "did not extinguish the Respondent's continuing duty to offer them reinstatement, at prestrike terms of employment, when jobs in their former shifts and classifications became available." H & F Binch Co.. 188 NLRB 720, 722. 724, 725 (1971). This is especially true where, as in the instant case, the strikers were forced to accept positions inferior to their prestrike positions or be terminated. Guided by these principles, I find that, regardless of its motivation, Respondent violated Section 8(a)(1) and (3) of the Act by engaging in this conduct: (a) Terminating the strikers' status as employees and hence their preferential reinstatement rights when they re- fused to accept reinstatement to different work shifts other than the ones worked prior to the strike 2 when they re- fused to accept reinstatement to positions which, unlike 62 Konma. Turpin. Yoda. Chandler. Nusbaum. McBride. Duke. and Regala. their prestrike jobs, required that they work every week- end2' when Rhoda refused to accept reinstatement to a position which contained 1/3 fewer working hours than he worked prior to the strike; and when they refused to accept reinstatement in positions for which theN lacked prior expe- rience and would have required that they be trained to be- come qualifiedi lb) Terminating strikers' preferential reinstatement rights when they accepted job offers which were not sub- stantially equivalent to their prestrike positions. ' (c) Failing and refusing to offer reinstatement or con- sider strikers for reinstatement to their former positions or substantially equivalent ones for which they were qualified. as such vacancies occurred, because they were no longer entitled to preferential recall inasmuch as they had failed to accept or accepted reinstatement to positions which were not substantially equivalent to their prestrike positions. In summation, assuming arguelndo that Respondent was not discriminatorily motivated in its treatment of the re- turning strikers, the gravamen of its oflense, when iewed in light of the principles enunciated in Fletwssood. (rcat Dane and l.aidlaw, is that it adopted a policy of automaticalli terminating the preferential recall rights of economic strik- ers een though the strikers had not been offered their lor- mer positions or ones which were substantially equivalent. This policy was inherently discriminators to the statutory rights of economic strikers to be treated as employees enti- tled to preferential recall rights absent some legitimate and substantial business justification."? The natural and inevita- ble consequences of this impermissible policy was that. when strikers' former positions or a substantially equivalent one for which a striker was qualified became vacant, the strikers were not considered for or oflered these positions. I V Among the full- and part-time employees. Ted Holzman was the only striker requesting reinstatement who was not offered reinstatement2" Respondent contends that there were substantial and legitimate business reasons for its re- fusal to offer reinstatement to Holzman. 1Holzman began work on March 29, 1976. on the first shift in the lab's chemistry section. Although hired as a "' Kiehn and Chandler. i Turpin. Chandler, Nusbaum, McBride. Duke, and Regala ,' Huntley. Spieth. Davidson, Hayes, Copenharve. and [)attilo That Re- spondent did have a policy of terminating reinstated strikers' preferential recall rights for at least 9 months is established by its use ol the so-called 9- month rule, described rupra and in particular by its treatment of reinstated strikers Hayes, Davidson. and Dattilo, also described supra 66The record establishes that from October 1976 to at least September 1977 job vacancies occurred which were the same as strikers' prestrike posi- tions. but were not offered to these strikers; rather these acancies were offered to other strikers or to new employees. 67 Respondent did not offer any legitimate or substantial business justifica- tion for its policy of terminating strikers' preferential recall rights even though they had not been offered positions substantially equivalent to their prestrike positions. In this regard, Laboratory Director Fouty testified that the policy was formulated by Respondent's personnel department which. without any explanation as to the basis for the policy, instructed him to implement it which he did). 66 In August 1977, Respondent did offer him reinstatement in an effort to mitigate any potential backpay liability arising out of the allegations in the instant proceeding. 744 PROVII)I N('E. MlED)l('AI ('ENTER registered medical technologist. he was not registered. hut was scheduled to take the August 1976 registry exam. He was informed by Sattler when he was hired that his emplo 5- ment was conditioned upon passing the registry and being accredited as a registered medical technologist. She also as- sured him that if he failed the general registry he would be reclassified as a nonregistered technologist, provided such a position was vacant. On or about June 18, 1976. Holzman received a letter from the professional organization which accredits medical technologists. The letter, in essence. stated that Holzman was not eligible for the general registry exam because he lacked approximately 2-1/2 years of the 5 years of required experience. Holzman immediately took the letter to his su- pervisor, Alice Smith. and together they showed it to Satt- ler, who placed a copy in his personnel file. Holzman asked whether his job was in jeopardy. Smith and Sattler. in es- sence, advised him he was not in danger of losing his joh. provided he was eligible to take the specialty registry exam and passed it." Holzman was also told that if he was not accredited in a specialty registry he would be considered lbr a nonregistered medical technologist's position it' one wvas vacant. Holzman was assured by Supervisor Smith that no action would be taken, pending word from Holzman. with regard to his efforts to secure a specialty accreditation'" Between this conversation and the strike, which began 4 weeks later, nothing further was stated about this subject b, either Holzman or by management. The specialty registry examinations are given two times yearly, in February and August. Holzman. who testified that he was qualified to take the one in hematology, did not take the preliminary steps needed to qualif for this exam until September 1976, at which time he discovered that the filing fee was $50. He did not apply to take the examination because he could not afford the filing fee. On October 13, 1976, several strikers, including Holz- man, who had requested reinstatement, but who had not been offered it, were notified by Respondent. by letter, that there were no medical technologist positions available, and they would be placed on a preferential recall list. They were also asked to fill out an enclosed form and indicate whether they still desired reinstatement. On October 14. Holzman completed this form, indicating he wanted to be reinstated. and forwarded it to Respondent. On October 25. 1976. Laboratory Director Fouty wrote Holzman. in essence, that he was terminated from his position as a registered medical technologist because he was not eligible to take the registra- tion examination and because his work performance was not that of a registered medical technologist. The letter also advised him that Respondent presently had no "lesser posi- tion" available to offer him. Normally. medical technologists secure a general registry which covers all areas in a clinical lab, i.e.. chemistry. microbiology. etc. There are also several specialty registries limited to one particular area. This type of registry is apparently easier to qualify for insofar as an applicant may have the necessary experience to take the specialty registry exam, but insufficient ex- perience to be eligible for the general registry o Holzman, Saltiter. and Smith testified with regard to this conversation I have credited Sattler's and Smith's version, over Holzman's. since the> im- pressed me as the more credible witnesses Upon receipt of this communication, Holzman phoned his immediate supervisor Alice Smith, and informed her that he had been terminated and asked it' his work h ad been satisfactlor. Smith indicated, in essence, that his technical work was satistactorN, but his work lacked oranlzaltlon and he was unable to rwork efficientl under stress. ecause of this. Smith told him. she did not think his abilit\ measured up to , hat swsas expected froln a registered mledical tech- nologist.' It is undisputed that during his 3-3 4 months of emplo,- ment. Holzman's technical work was acceptable. provided he was not required to work too fast. When faced k ith a situation whereby a lab test had to be done wilhin a short period of time. which occurs more than 50 percent of' the time. Holzman's work was disorganized. and he had diti- cults complsing with time requirements. Superxisor Smith spoke to him three times during his emplo ment about these failings. Holzman promised that he would makC e er\ effort to improv e his job performance. The record, as described in detail (/ila. re, eals that. prior to the strike. Respondent indicated to tlloliman that it w,,as not satistied with his performance as a registered medi- cal technologist and at the same time received notification that Holtman was not eligible to be accredited as regis- tered medical technologist. Respondent u, arned Ilolzman that he ould be terminated from his position unless he satisfied Respondent that he was eligible to take the spe- cialty registr, exam and passed it. lolzman tiled t infolrm Respondent whether he was eligible to take an exam tIOr a specialt reglstry. Indeed. he had not taken the examination as of the date of the hearing in this case and, tor th I mal- ter. had ne er applied to take it. here is no e deice that Respondent in the past has allo ed l mledical technologists in ituatiollS iniilr o Iol rmatl's1 t conitinue orking Ias registered medicil technologists. Under the circumstances. I am persuaded that during the norimal course of buisilless. even absent the strike. Htolzman would ha e hbeen termi- nated from his position a;s a registered medical technologist. It is for this reason that I shall recominmend the dismissal of the portion of the complaint which alleges that Respondent violated the Act hby terminating Holzman because he en- gaged in the strike.'2 The remaining question is whether Respondent iolated the Act b iiling to offer him reinstatement as a nonregis- tered medical technologist. There is no evidence that prior to August 1977 there was a vacant nonregistered technolo- gist position for Respondent to offler Holzman. And i wthl regard to the August 1977 offer. I am persut.ded this offer 71 Smith and Holzman gave different versions ol this inxersation I hase credited Smith's account since she impressed me as the more credible witu- ness. I recognize Holzman's termination occurred smultaneous,[ i lh Re- spondent's unlawlul discrlmination against the other strikers swho, like Holz- man, had requested reinstlalement. Nonetheless. Respondent's nimus toward the strikers and its unfair labor practices must be considered care- fullS in light of the other facts surrounding Holzmans termination to deter- mine whether unlawful considerations did, in act, pla a part n Respon- dent's decision to terminate Here. despite the suspiciO)US circumstances surrounding Holzman's discharge I am not satisfied Ihal the acts support discharge for unlawful reasons Rather. I am cons inced hilt the record ias whole indicates Itolzman ould hae been discharged romn his posillln s a registered medical technologis during the nornial ciullrsc l bhusiness een absent the strike 745 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was sufficient to satisfy Respondent's obligation toward Holzman as an economic striker where, as here. Respon- dent legitimately had terminated him from his prestrike po- sltion. V The remaining three strikers who requested reinstate- ment--Susan Abel, Patricia Ryan. and Julie Smith-were employed prior to the strike as oncall medical technolo- gists. Ryan and Smith, as of the date of the hearing, had not been offered reinstatement. On August 22, 1977, Abel. who, prior to the strike had worked 2 days a week on the first shift in microbiology, rejected an offer of reinstatement in the chemistry section on the day shift as an oncall em- ployee. There is no evidence that since the end of the strike Re- spondent has hired any new technologists to work as oncall employees.? Nor is there sufficient evidence that Respon- dent deliberately refrained from employing oncall workers so as to discriminate against Abel. Ryan. and Smith. The record is insufficient to controvert Sattler's testimony that Respondent's failure to offer reinstatement to Ryan and Smith and the 10-munth delay in offering Abel reinstate- ment was due to the fact that business has never reached the level it was prior to the nurses' strike. Respondent has had no need to employ additional oncall technologists, nor is the evidence sufficient to establish that the August 1977 reinstatement offer to Abel was a part of the October-No- vember 1976 illegal reinstatement scheme designed to dis- criminate against the strikers.7" For these reasons, I shall recommend that portion of the complaint alleging Respon- dent has discriminated against Abel, Ryan, and Smith be dismissed. VI To recapitulate. of the 21 economic strikers who sought reinstatement, the record establishes that, in violation of Section 8(a)(1) and (3) of the Act. Respondent discrimi- nated against 16: Deborah Konma, Mike Turpin. Ronald Huntley, Marily Spieth, Rose Yoda. Jeanette Davidson. Deborah Hayes, Cynthia Chandler. Darlene Copenharve. Barry Rhoda, Karen Kiehn. Michael Dattilo, Carol Nus- baum, Kristine McBride, Susan Duke. and Antonio Regala. Of the remaining five-Linda Gray, Ted Holzman, Susan Abel, Julie Smith, and Patricia Ryan-the record '" The testimony of Karen Kiehn establishes that oncall technologists are treated differently by Respondent than full-time or part-time technologists. The oncall workers have no assurance of regular employment and do not receive any fringe benefits: i.e., holiday or vacation pay. etc. 74 C. C. Patulot, the only oncall technologist employed since the strike, was not a new employee. Patulot was employed during the strike as a full-time nonregistered medical technologist, but only on a temporary basis because she was planning to take her medical exam the first of the year. She worked full time until January 1977, when she took her medical exam. Thereafter, she was allowed to continue working as an on-call technologist. She later resigned and was not replaced. ?" Of course, the reinstatement offer made to Abel does not satisfy Respon- dent's obligation toward her as an unreinstated economic striker who has requested reinstatement. As indicated supra. the offer to reinstate Abel into the chemistry section is not substantially equivalent to her prestrike microbi- ology position. establishes that Respondent had legitimate and substantial business reasons for not offering Holzman reinstatement, that it was not obligated to offer Gray reinstatement inas- much as she had gotten other regular and substantially equivalent employment, and that there were no positions available for "oncall" technologists Abel, Smith, and Ryan.'" Accordingly, I shall recommend that the complaint be dismissed insofar as it alleges Respondent discriminated against these five employees. E. The Refusal To Hire Karen Kiehn The General Counsel contends that Respondent violated Section 8(a)(1) and (3) of the Act by refusing to employ Karen Kiehn as a new hire, because she had supported the Union by engaging in the strike. The pertinent facts are as follows. As described supra, Kiehn was one of the economic strik- ers who requested reinstatement. A registered medical tech- nologist. she began work for Respondent on April 1, 1975, and worked part time. 20 hours weekly, on the day shift in the lab's chemistry section. She also worked in the lab's hematology section when technologists in that section were absent due to illness or vacations and was considered com- petent to work there. On October 21. 1976, Respondent offered Kiehn rein- statement, working every weekend, into the chemistry sec- tion's day shift. Previously, Kiehn had never worked week- ends and her understanding with management was that she would only work one weekend a month and only then if it was absolutely necessary. Kiehn rejected the job offer, ex- plaining it was impossible for her to work weekends be- cause of family obligations and indicated that she was still interested in reinstatement to her former position when a vacancy occurred. Nonetheless, as it did in the case of each striker who rejected a reinstatement offer, Respondent ter- minated Kiehn as an employee and removed her from the preferential recall list. In January 1977, the State of Washington Employment Security Department, which administers unemployment compensation payments, advised Kiehn it was its under- standing that Respondent had positions available for which Kiehn qualified. Thus on January 12, 1977, Kiehn visited the hospital and observed that two medical technologist jobs for which she qualified were posted on th personnel department's bulletin board. Both positions were for full- time employment on the day shift one in chemistry and the second in hematology. Kiehn sought out Sattler and was advised by the latter that if she was inquiring about a job, she must go to the personnel department and speak to Robert Kaplan, the per- son who, at that time, was in charge of hiring for the lab. Kiehn did this and filled out an employment application, stating, among other things, that she was seeking either full- time, part-time, or temporary work as a medical technolo- gist on the day shift and, in essence, explained that she had small children, which made it necessary that she work days. 7t Of course, the three on-call technologists, as economic strikers, are enti- tled to reinstatement to fill vacancies, which may arise or which already have arisen since the close of the hearing, for which they are qualified. I shall leave the question of their reinstatement rights for the compliance stage of this proceeding. 746 PROVIDFN('F MEDI('Al. ( E NTER She spoke to Kaplan and advised him that she was inter- ested in applying for the jobs posted for hematology and chemistry. Kaplan indicated that Alice Smith. the chemis- try supervisor, was in the process of interviewing someone for the chemistry position whom she might hire, but that as far as Kaplan knew, the hematologx position was still as ail- able and she would be considered for that position. Kiehn. with Kaplan's permission, went to the lab to speak with Smith about the chemistry position. Smith ad- vised her that someone had just been hired for this position. Smith, in response to Kiehn's inquiry about the job posted for hematology, indicated that she had no knowledge about that position, but volunteered that Laboratory Director Fouty had "really changed." and Smith did not know whether Kiehn would be able to get back into the lab. Smith assured Kiehn that she, Smith. would like to see Kiehn reemployed because Smith felt Kiehn was really needed, but did not know if Kiehn would be able to get the job. Kiehn asked whether Smith felt it might help if she, Kiehn. spoke personally with Fouty. Smith agreed this was a good idea.7 Thereafter, on or about January 14, 1977. Kiehn visited Fouty and informed him that she was applying for the va- cancy in the lab's hematology section. As I have found su- pra. Fouty acknowledged that Kiehn was an excellent medical technologist whom Fouty would be willing to rec- ommend for employment in another laboratory, but did not desire to employ her in his laboratory because she had been one of the strikers. Fouty only reluctantly agreed to give the matter further consideration. One week later, Kiehn phoned Smith and asked whether Fouty had decided to reemploy her. Smith replied that she understood the matter of Kiehn's employment had been settled. Kiehn stated that she thought Fouty had agreed to take the matter under further consideration. Smith replied that there was no job for Kiehn, but hoped Kiehn would continue to keep trying. and perhaps in 6 months Fouty would reemploy her. The record reveals that on February . 1977. medical technologist Hall began working on the first shift in hema- tology. There is no indication when Hall was hired. but the record indicated there is normally a period of time prior to a new employee's first day of work and the date of actual hire. Accordingly, I find the hematology job which was posted and which Kiehn was applying for is the same posi- tion for which Hall was hired.? In summation, the record establishes that on or about " The descrinption of Klehn's conversation with Smith is based upon Kiehn's testimony. Smith gives a substantially different account. She specif- ically denies Kiehn expressed an interest in the hematology position and, with regard to her comment concerning Fouty having "really changed." testified that she merely told Kiehn that the stnke had changed everyone who worked In the lab, including Fouty. Of the two witnesses, Klehn. who presented her testimony in a straightforward and convincing manner and who otherwise in hearing and demeanor was a very impressive witness. was the more credible witness. '? Respondent offered no evidence to dispute the fact that during the time material in January 1977, there was a vacancy in hematology which was posted for applicants. As indicated supra. Respondent's witnesses, Fouty and Smith, denied Kiehn stated she was interested in this vacancy. I have cred- ited Kiehn's testimony inasmuch as she was a very impressive witness. More- over, as Kiehn was out of work and had been unemployed for several January 12. 1977. Karen Kiehn, a medical tech l inlo glSt ho previously had worked for Respondenlt i hematolgs and was regarded hb Respondent as an excellent technologl,,t. applied fr a acancv in hematology. On or about Januar 14, 1977, Respondent refused to hire Kichn for this position because she had supported the lInion bh engaging in an economic strike. I find that hb refusing to hire Kiehn under these circumstances, Respondent has iolated Section 8(a)(1) and (3) of the Act. F. The Ititihdrasuaoll /t R,,oiti,,l The complaint alleges that in November 1976. Respon- dent violated Section 8(a}(5) and (1) of the Act hb ssith- drawing recognition froml and refusing to bargain Ad ith. the Union as the representative of the Respondent's profls- sional emplovees7 " and also violated Section 8(a)( I) h inl- forming the employees about this conduct. 'Ihe facts pertli- nent to these allegations are as follows. On August 5. 1975. after receiving the majorilt of tlhe ballots cast in a Board-conducted election. the nion Vssas certified as the exclusive collectise-b.arg.ining represnta- tive of the Respondent's professional emplo esex. hi.hen the bargaining negotiations failed to produce agreeteni. the U nion called the employees out on strike. I he strike lasted from July 20. 1976. through September 30, 1976. at hich time the strikers made an unconditional request tor reilln- statement. On October 2, 1976, motivated bh a desire to penalize the strikers for having engaged in the strike, Re- spondent instituted a discriminators system for recallilng the strikers. Between October 2 and November 3. 1976. the record shows that 14 of the strikers were victims of' this illegal discrimination. In the meantime. the I'nion had asked for the resumption of' the contract negotiations. and a Federal mediator had scheduled a negotiation meeting for November 3 1976. Immediatelx prior to this meeting, dulr- ing the last week in October 1976 and the first 2 days in November 1976. 36 employees in the professional bargain- ing unit signed cards which. in effect, stated that the; did not desire to be represented by the Union?" The emplsees who had solicited these cards presented them at the start of the November 3 meeting to Respondent's principal negotia- tor. Hutcheson. who asked that the Union's negotiators agree to authenticate the validits of the cards and sign a request. which had been previously filed in the professional unit. to proceed with an election in a decertification pro- ceeding." The Union refused. Hutcheson took the position months and was experienced in the area of hematologs. it .is ontls niatural for her to have expressed an interest in this acancy. which Respondent dx" not dispute was posted on the hospital's personnel bulletin board 7 I reject Respondent's contention that this portion of the cornplannt must be dismissed because the charge upon which the allegalion is hbased was signed by a person other than the person who supposedl) signed the charge In my opinion. such a defect is inconsequenilla and was in no , a prc)udi- cial to Respondent. so There is no evidence of the number of employees in the prtess1n1il tll1 as of November 3. 1976 The record does show that as of June 14. 19"6 the date of the union affiliation election. there were 69 persons in this unit 8 On August 5, 1976, an employee filed a decertlfication petillnon i( '.i 19 RD 847) for an election in the professional unit. On November 1, 1976h the petition, which on October 14. 1976. had been dismissed bh the Board's Regional [)irector. as before the Board upon Respondent's appeal On Januar 13, 1977. the petition was reinstated hby the Board It was lltlmalels dismissed on July 6. 1977 74? I)F('ISIONS (): NAIIONAI. LABOR RELATIONS BOARD that a question concerning representation existed and that, under the circumstances. Respondent could not bargain with the Union." 2 On November 8, 1976. Respondent. by memorandum. informed all of the employees in the professional unit that it had been advised to withdraw recognition from the Union and that. in Respondent's opinion, the employees were no longer represented b the Union and would be treated like the other nonunion employees in Respondent's employ. The memo, in effect, further explained that, based upon the decertification petition, the cards signed by the employees. employee statements, and other "objective considerations," Respondent had a good-faith doubt of the Union's current majority status and knew that the Union did not represent a majority of the employees. In situations such as this, where the withdrawal of recog- nition occurs after the expiration of the certification year, the Board has taken the position that the union is to be afforded the benefit of a presumption of continued majority status, but that such a presumption may be rebutted by a showing that the employer entertained a good-faith doubt which was based on objective considerations. Lav'.strom Manufacturing Co., 151 NLRB 1482 (1965). However, such doubt must be raised in a context tree of unfair labor prac- tices. Nu-Souhern Deing & Finishing Inc.. ct al.. 179 NLRB 573, footnote I (1969). In the present case, I have found that, prior to the signing of the cards upon which the Employer bases its good-faith doubt.83 Respondent com- mitted serious unfair labor practices. Beginning on October 2, 1976. motivated by a desire to penalize employees who had supported the Union's strike, Respondent instituted a discriminatory reinstatement system which, between Octo- ber 2 and November 3. 1976. victimized 14 strikers. Such conduct graphically portrayed to the employees who had signed the union repudiating cards the extremes to which Respondent was prepared to go to punish employees for supporting the Union. The calculated effect of this miscon- duct was to cause employee disaffection from the Union. with erosion of majority status the probable result. As a consequence, any loss of majority experienced by the Union would, in substantial part, be directly attributable to the unfair labor practices of Respondent. Thus, I find that Re- spondent cannot justif3y its action on the basis of a good- faith doubt as to the Union's majority status.8 4 Therefore. A1 Any doubt that Respondent withdrew recognition from the Union and refused to bargain as of November 3. 1976. is removed by Respondent's communication to the employees on November 8. 1976, which is described intla. St Respondent also bases its good-faith doubt upon the pendency of the decertification petition and the fact that less than a majority of the employ- ees in the professional unit supported the Union's strike. The decertification petition issue is discussed infra With regard to the failure of employees to Join in a strike or employees' subsequent abandonment of a strike. the Board has long held, with judicial approval, that this kind of conduct cannot give nrise to any presumption that an employee repudiates the union as his or her bargaining representative. Retail, Wholesale and Department Store nion. AFL (0 (Coca Cola Bottling Works] v. A I..R B. 466 F.2d 380 (D.C. Cir. 1972). 14 Likewise. I am of the o)pinion that the pending decertification petition In Case 19-RD 847 did not suspend Respondent's bargaining obligation or otherwise constitute a defense to Respondent's refusal to bargain in the pro- fessional unit. I recognize that the members of the Board disagree about this question. But the) are unanimous that where, as here, a respondent em- Respondent's withdrawal of its recognition of the Union as the majority representative of the employees in the profes- sional unit was a violation of Section 8(a)(5) and (I) of the Act. Likewise, its announcement to the employees that it had withdrawn recognition from the Union and would henceforth treat them as nonunion employees constitutes an independent violation of Section 8a)( I) of the Act. lUpon the basis of the foregoing findings of fact and the entire record, I make the following: (CONtI:SIO)NS () LAV, 1. Respondent. Providence Medical C(enter. is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union. Northwest Economic Council, I.ocal No. 900, Retail Clerks International Association, AFL CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All pharmacists. surgical assistants, physical thera- pists, dieticians. nuclear medicine/ultrasound technologists. registered medical technologists, occupational therapists. and recreational therapists employed by Respondent at 500 17th Avenue. Seattle Washington, excluding office/clerical employees, guards. and supervisors as defined in the Act, and all other employees, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. The Union at all times material has been and is now the exclusive collective-bargaining representative, within the meaning of Section 9(a) of the Act. of the employees in the aforesaid unit. 5. By withdrawing recognition from the Union and by refusing to bargain with the Union beginning on November 3. 1976, Respondent violated Section 8(a)(5) and (1) of the Act. 6. The strike of Respondent's medical technologists. which began on July 20. 1976. and lasted until September 30. 1976. was an economic strike and the employees who engaged in the strike were economic strikers. 7. By informing employees in the aforesaid bargaining unit that it had withdrawn recognition from the Union and would henceforth treat the employees as if they were not represented by the Union, Respondent violated Section 8(a)(1) of the Act. 8. By informing employees that employees who were en- gaging in the aforesaid economic strike had lost their jobs. Respondent violated Section 8(a)( 1) of the Act. 9. By informing one employee that another employee would never work again in the microbiology section of the laboratory because she had supported the Union by engag- ing in the aforesaid economic strike. Respondent violated Section 8(a)(1) of the Act. 10. By informing an employee that she was not being employed because she had supported the Union by engag- ployer comils numerous and serious unfair labor practices which preclude the holding of a fair decertification election, the decertification petition may not be used as a defense for a refusal to bargain. See Lammert Industries, a Division of Cnmponerol Inc. a Subshidiar of I7T E (orporation. 229 NLRB 895 (1977). 748 749 PROV'II)tEN('C MEDI)('AL. (N I ER ing in the alIfresalid econo(mic strike. Respondent violated Section X(;a)(I) of the Act. 11. B informing an emplosee that she as prohibited from talking about the [Union on the Respondent's premises during working hours. Respondent iolated Section a( I) of the Act. 12. By terminating the seniorit and preferential hiring of the employees named below who engaged in the aore- said economic strike and had requested reinstatement. Re- spondent violated Section 8(a)( I) and (3) of the Act. Deborah Konn-ma Mike Turpin Rose Yoda Cnthia Chandler Barry Rhoda Karen Kiehn ('arol Nusbaum Kristine McBride Susan uke Antonio Regala 13. B requiring the employees named below who en- gaged in the aforesaid economic strike and had requested reinstatement. to accept reinstatementi into positions which were not their fiOrmer positions or substantially equisalent ones. Respondent violated Section 8(a)(1) and (3} of the Act. Ronald Huntle Marilyn Spieth Jeanette Davidson Deborah Hlayes Darlene Copenharse Michael Dattilo 14. B discriminatoril) refusing to recall and reinstate the strikers named above in paragraphs 12 and 13 to their former positions which were available from October 1976 to September 1977. or to substantially equivalent ones tor which they were qualified. Respondent violated Section 8(a) 1 ) and (3) of the Act. 15. By refusing to hire Karen Kiehn because she had supported the Union by engaging in the aforesaid economic strike. Respondent violated Section 8(a)( I) and (3) of the Act. 16. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Ri Mi: ii Having found Respondent has engaged in certain unfair labor practices, I find it necessary to recommend that Re- spondent cease and desist therefrom and take certain affir- mative action designed to effectuate the policies of the Act. Having concluded that on or about January 14. 1977. Respondent unlawfully dicriminated against Karen Kiehn with respect to her application for employment as a full- time registered medical technologist on the day shift in the laboratory's hematology section. I shall recommend that Respondent offer her this position immediately or. if such position no longer exists, offer her a substantially equivalent one, with loss of earnings she may have suffered by reason of the discrimination against her. b payment of a sum equal to that which she normally would have earned from the date of the discriminatory refusal of employment to the date Respondent offers her such employment, less her net earnings, if any, during that period. Backpay and interest thereon shall be computed in the manner prescribed in F. W'. oolworth Companiv. 90 NELRB 289 (1950). and F/,r- ida Sil' c( to'rzati.o 231 N I.RB 651 (I9177). See. generall Iso1 1 iin e 1ttr'rc wtitc ('o, 138 NI RB 716 (1 962. Also. hl aing concluded that Respondent di.tcrmilnlntled agalinst the 16 econonic strikers namled 1I the (onclusions of IL.au, u prla, h terminating their pretreitia recall rights an. as acancies opened lfor their ftrmer jobs or suhstan- tialbl equivalenit nes. refusing to reinstate sonie or all of( them to these acantlt positions. I shall therefor recon miend that Respondent offer immediate and full reinstatement to those strikers in this group who would e entitled to rein- stalenle lt to such positions uithout prcludilc e to tleir se- niorit\ and other rights and privileges: Respondenlt should make them hole t for any loss of pav suffered hb reason of the discrimlination against them ftrom the date the, should ha\ e been so reinstated to the date of alid tiers o leil- statenment. Loss of backpa'; and interest thereon shall he computed in the manner prescribed hby /: 1t. 1t ool, orthi ('/oympan , 90 N LRB 289 (1950). and frlorida Stl ( 'orpora uotil. 231 N RB 651 ( 1977). See. generall[ . Ihi P iilhig .k lHetling ('.. 138 Nl RB 716 (1962). tsxCcr. as requested hN the General Counsel. I shall lease the maltter of the discriminatees' hackpav periods and, in particular. the de- termination ot' uhich discriminatees are entitled to inimedi- ate reinstatemlent and, if properl\ entitled, their order of reinstatemenit as uell as respecti e hackpa\ periods. for resolution at the compliance stage of this proceeding.' With regard to the three oncall emplo ees Abel. R an. and Smith uho participated in the strike. but rcr not offered reinstatement dlue to a lack o' uork tfor emploes in this category. I shall recommend that their preferential recall rights ontinue in accordance with the applicable principles of lau set forth in F/ccidlr / and .ilill . and that a acncileis occul for oncall technologists. the! be offered an opportunit? to till these vacancies. uhich they are qualified to perl'orm. "n Upon the tforegoing tindings of' lIact. conclusions of lau. and the entire record, and pursuant to Section ()(c) of the Act. I herehb issue the ollowing recommended: ' The record shows that discriminatee Huntles was reinstated to his for- mer poslilon on Jul3 5. 1977. and that discriminatees Nushaum and McBride were offered lull reinstatement t their former posii;ons on nAugust 10. 1977 and September 1. 1977. respectivel thus,. these dlsrminatee' are remedi- ally entilled olnl' to such hackpa as should hase accrued to them heiween the ripening of their right to reinstatement and the date of their reinstate- ment or offer of reinstatemeni. A similar cutoff date would appl) of course. to any discriminatee who. subsequent to the hearing in this mailer. has been offered or restored toi his or her pre-strike posllion hb Respo ndent loweser. Respondent's August 25. 1976. job offer in the lab's chemistrs sectlon o dlscriminatec Duke. who. prior to the strike. was a technologist in the lab's microhiology section. was not suficlent to end Respsndent's ,blgallon toward him The record reveals, as indicated supra. that these posiions a.re not substantialls equivalent Flnally . I shall leave or he .ompliance stage the question of whether the resignations of Turpin and Konma ere sulfi- cient. under the circumstances ot this case, so as to end Respondent's .ohliga- tion toward them as unreinstated economic strikers esen though theN vere never offered proper reinstatemenl. In an effort to toll any backpa l hahili In Abel's case. Respondent. n August 1977. offered Abel reinstatement to an incall positlion in the lab', chemistrs section. Prior to the strike. Abel vorked oincall in the lab's micro- biologN section. T he record estabhlishes that technologlst's positions n micro- biolog and chemlstrx are not suhsianiiallb equi.ilent T'hus. Respondent's offer oft reinstatemen t to Abel was notl suficlent to a.llow Respolidcnl to terminate Abel's preferential right to reinstatement DI)('ISIONS OF NAOI()NAI. I.ABOR REI.ATIONS BOARI) OR[)ER" The Respondent. Providence Medical C'enter. Seattle Washington. its officers. agents, successors, and assigns. shall: I. Cease and desist from: (a) Refusing to bargain collectively with Northwest Eco- nomic Council. Local No. 900, Retail Clerks International Association, AFLCIO,. as the exclusive collective-bargain- ing representative of its employees in the following appro- priate bargaining unit: All pharmacists, surgical assistants, physical therapists. dieticians, nuclear medicine/ultrasound technologists. registered medical technologists, occupational thera- pists. and recreational therapists, excluding office cleri- cal employees, guards, and supervisors as defined in the Act. and all other employees employed by Respon- dent at 500 17th Avenue, Seattle, Washington. (b) Discouraging membership in the above-named Union or any other labor organization of its employees by discriminating with regard to their hire, tenure of employ- ment, or any term or condition of employment. (c) Terminating or attempting to terminate the seniority and preferential hiring rights of economic strikers who have applied for reinstatement. (d) Discriminatorily refusing to recall and reinstate eco- nomic strikers, who have applied for reinstatement, to jobs as they become available. (e) Notifying employees in the aforesaid bargaining unit that Respondent did not intend to recognize and bargain with the above-named Union as their collective-bargaining agent and would treat the employees as if they were not represented by the Union. (f) Threatening employees with loss of employment if they supported the Union by engaging in an economic strike. (g) Notifying job applicants they would not be consid- ered for jobs because they have supported the Union by engaging in an economic strike. (h) Notifying employees they are prohibited from talking about the Union during working hours on Respondent's premises. (i) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self- organization, to form, join or assist any labor organization. to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: s? 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 or all purposes. (a) Upon request, bargain collectively concerning rates of pay. hours of employ ment. wages, and other conditions of employment with Northwest Economic Council. Local No. 900. Retail Clerks International Association. A. ('10, as the exclusive representative of all the employees in the appropriate unit described above and, if an agreement is reached, embody it in a signed contract. (b) Offer Karen Kiehn without prejudice to her seniority and other rights and privileges she would have acquired on this job. immediate employment to the position of regis- tered medical technologist, discriminatorily denied her, in the laboratory's hematology section, and make her whole for an, loss of earnings suffered b reason of the discrimi- nation against her, in the manner set forth in the section entitled "Remedy." (c) In accordance with the Decision herein and subject to any supplementary proceedings that may be had in this case, offer without prejudice to any seniority or other rights and privileges previously enjoyed. immediate and full rein- statement to the economic strikers involved herein.," whose former positions or substantially equivalent ones have been available since their offers to return to work. (d) Make those economic strikers who have been im- properly denied reinstatement whole for any loss of earn- ings they, may have suffered by reason of Respondent's dis- criminatory failure to reinstate them. Backpay and interest shall be computed under the standards of the Board de- scribed in the section herein entitled "Remedy." (e) Preserve and, upon request, make available to the Board or its agents. for examination and copying, all pay- roll records, social security payment records, timecards. personnel records and reports. and other records necessary and useful to determine the rights of reinstatement and the amounts of' backpay due under this Order. (f) Post at its Seattle, Washington. facility copies of the attached notice marked "Appendix."" (Copies of said no- tice, on forms provided by the Regional Director for Re- gion 19. after being signed by Respondent's duly authorized representative. shall be posted by it immediately upon re- ceipt thereof', and be maintained by it for 60 consecutive days thereafter, in conspicuous places. including all places where notices to employees are customarily posted. Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced. or covered by any' other material. (g) Notify the Regional Director for Region 19. in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS A.SO ORDERED that those additional portions of the consolidated complaint found to be without merit are hereby dismissed. is The strikers referred to are the 16 economic strikers Found to have been discriminated against herein and the three other strikers employed as oncall technologists, who, although not discriminated against, are entitled as a mat- ter orf law to preferential recall rights. ", In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the Na- tional L.abor Relations Board." 750