Woodlawn Hospital

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