Swedish Hospital Medical Ceter

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Swedish Hospital Medical Center and Washington State Nurses Association. Case 19-CA-9116 September 16, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY On May 9, 1977, Administrative Law Judge Maurice M. Miller issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the Administrative Law Judge's Decision. 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, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. 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, Swedish Hospital Medical Center, Seattle, Washington, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. DECISION STATEMENT OF THE CASE MAURICE M. MILLER, Administrative Law Judge: Upon a charge filed December 23, 1976, and duly served, the General Counsel of the National Labor Relations Board caused a complaint and notice of hearing dated January 26, 1977, to be issued and served on Swedish Hospital Medical Center, designated as Respondent in this decision. Therein Respondent was charged with the commission of unfair labor practices within the meaning of Section 8(a)(l), (3), and (5) of the National Labor Relations Act, as amended. 61 Stat, 136, 75 Stat. 519, 88 Stat. 395. Respondent's duly filed answer conceded certain factual allegations within General Counsel's complaint, but denied the commission of any unfair labor practice. Pursuant to notice, a hearing with respect to this matter was held before me on April 19, 1977, in Seattle, Washington. The General Counsel, Respondent, and Complainant Association were represented by counsel. Each party was afforded a full opportunity to be heard, to examine and cross-examine witnesses, and to introduce 232 NLRB No. 4 evidence with respect to pertinent matters. When the hearing convened, counsel presented a joint stipulation of facts, with supportive documentation; thereafter, Respon- dent presented two witnesses. They testified briefly with regard to particular considerations which had prompted Respondent's course of conduct, challenged herein. Since the hearing's close, briefs have been received from General Counsel and Respondent's counsel. These briefs have been duly considered. FINDINGS OF FACT Upon the previously noted stipulation of facts, documen- tary materials proffered in support thereof, and the complete testimonial record, I make the following findings of fact: 1. JURISDICTION Respondent raises no question herein with respect to General Counsel's jurisdictional claim. Upon the com- plaint's relevant factual declarations - specifically, those set forth in detail in the second paragraph thereof - which are conceded to be correct, for jurisdictional purposes solely and on which I rely, I find that Respondent herein was, throughout the period with which this case is concerned, and remains an employer engaged in commerce and business operations which affect commerce within the meaning of Section 2(2), (6), and (7) of the Act. Further, with due regard for presently applicable jurisdictional standards, I find assertion of the Board's jurisdiction in this case warranted and necessary to effectuate the statutory objectives. II. COMPLAINANT ASSOCIATION Washington State Nurses Association, designated as Complainant Association within this decision, is a labor organization within the meaning of Section 2(5) of the Act, as amended, which admits certain of Respondent's em- ployees to membership. III. THE UNFAIR LABOR PRACTICE CHARGE A. Issue Following a lawful work stoppage during which certain members of Respondent's nursing staff refused to partici- pate, withdrew their participation and returned to work, or were newly hired, while the work stoppage was in progress, Respondent's management decided to grant, promised, and subsequently granted, single compensatory "days off" with pay to nursing staff members who had refused to participate in Complainant Association's strike, or who had suspended their participation therein. General Counsel contends, herein, that Respondent's decision, coupled with its subsequent course of conduct - which Respondent's management had taken, unilaterally, without prior notice to, or consultation with, Complainant Association herein - compassed Section 8(a)(1), (3), and (5) unfair labor practices. Respondent contends, contrariwise, that, with due regard for certain circumstances which had purported- 16 SWEDISH HOSP. MEDICAL CENTER ly motivated its decision, its course of conduct should be considered privileged. B. Facts 1. Background On October 29, 1974, Respondent became privy to a collective-bargaining contract - designated the First Agreement herein - which had been negotiated by Seattle Area Hospital Council and Complainant Association, with a July 1, 1974, effective date. Hospital Council had represented certain designated member hospitals, eighteen in number, during the collective-bargaining negotiations with Complainant Association herein which had preceded the First Agreement's execution. Respondent had, during those negotiations, maintained and currently maintains Hospital Council membership. While the First Agreement was being negotiated, and throughout the period with which this case is concerned, Complainant Association had been and remains the duly selected majority representative of registered nurses em- ployed by Hospital Council's member hospitals. General Counsel, Complainant Association, and Respondent have stipulated that by virtue of Section 9(a) of the statute Complainant Union has been and is entitled to claim recognition as the exclusive representative of all nurses within the designated bargaining unit for collective-bar- gaining purposes. Indeed, Complainant Association has been throughout the period with which this case is concerned duly recognized as their exclusive bargaining representative. Within its collective-bargaining contract, negotiated with Hospital Council, the bargaining unit covered - which the parties considered appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the statute - was defined thusly: All registered nurses classified as. resident nurse, general duty staff nurse, charge nurse, assistant head nurse and head nurse; excluding supervisors and all other employees. This contractually defined group, so the record shows, covered, within a single, multiemployer bargaining unit, all registered nurses working, within the classifications shown, for Hospital Council's member hospitals privy thereto. The collective-bargaining contract noted expired on June 30, 1976, consistently with its terms. Negotiations between Complainant Association and Hospital Council, looking toward a replacement contract, had prior thereto been duly initiated on or about May 20, before the designated First Agreement's termination date. 2. The strike On or about July 12, 1976, most of the registered nurses within the First Agreement's designated multiemployer bargaining unit ceased work concertedly; the stipulated record shows Complainant Association had called a concededly "lawful" strike in furtherance of its bargaining objectives. When the strike began, Respondent's registered nurse roster compassed some 447 staff members. Within this group, 390 nurses ceased work; 57 did not strike. A list of nonstrikers - proffered for the present record - may, so it shows, include staff members who had not been scheduled to work when the strike began - part-time employees; nurses then on vacation, sick leave, or leaves of absence; and nurses who had initially ceased work but who subsequently returned to work during July, the strike's first month. Thereafter, during August and September 1976 particularly, while the strike was in progress, 11 nurses abandoned their strike and resumed work. Likewise, during these 2 months, Respondent hired 14 new registered nurses. Meanwhile, for a comparatively short July-August period, X-ray technicians in Respondent's hire had, likewise, gone on strike. Of 18 technicians, 16 had ceased work, while 2 had continued to perform their regular services. This work stoppage had ended while Complainant Association's strike was still in progress. The registered nurses' strike was terminated, on or about September 17, with the negotiation of a strike settlement agreement between the parties. Therein, Hospital Council, for its member hospitals, and Complainant Association, mutually agreed, inter alia, that there should be no discrimination of any kind by the parties against nurse personnel who had freely exercised designated rights which the Act protects. 3. The new contract Likewise, on or about September 17, Complainant Association and Hospital Council negotiated and signed a collective-bargaining contract, designated the Second Agreement herein, with a June 30, 1979, termination date. The parties have stipulated that Respondent, by virtue of its Hospital Council membership, became privy thereto. By its terms, this September 17 Second Agreement likewise covers registered nurses working within a single, multiemployer bargaining unit - concededly appropriate for collective-bargaining purposes within the meaning of Section 9(b) - which stands defined therein, thusly: All full-time, part-time and per diem registered nurses employed by the Employer; excluding supervisory and administrative positions and all other employees. Since September 17, 1976, and throughout the period with which this case is concerned, Complainant Association has concededly been - so the stipulated record shows - the duly selected representative of a majority of nurses within the designated Second Agreement's defined bargaining unit; by virtue of Section 9(a), Complainant Union has been, and remains, the exclusive bargaining representative of all nurses within the designated bargaining group, including those in Respondent's employ, with respect to their rates of pay, wages, hours of employment, and other terms and conditions of work. 4. The compensatory day grant On or about October 13, 1976, Respondent's manage- ment - without any previous notice to, or consultation with, Complainant Association's representative - decided to grant I compensatory day off, with pay, for certain staff personnel who had not participated in Complainant Association's strike, or who had returned to work before 17 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the strike settlement date. Within a memorandum dated October 13, and directed specifically to nursing department personnel who would be considered eligible for such a compensatory day, H. Jean Byers, Respondent's director of nursing, declared that: This note is to express my sincere appreciation to all Nursing Department employees for their outstanding efforts and cooperation during the recent nurses' strike. Because of your willingness to assume additional responsibilities, we were able to maintain our excellent quality of patient care. The Nursing Office is well aware of the emotional, physical, and financial hard- ships which were imposed upon the staff during this period. As a gesture of gratitude we would like to offer each employee one compensatory day to be scheduled off with the approval of the Head Nurse and Clinical Supervisor. Subsequently, Respondent's decision to grant the so-called compensatory day was reported to Respondent's nursing department supervisors by Director of Nursing Byers during their regular November 2 supervisors' meeting. Byers' October 13 memorandum had been distributed presumably some time shortly thereafter to some 82 nurses. This group compassed those 57 nurses who, within Respondent's view, had never withheld their services, plus I I nurses who had struck but had resumed work before the strike settlement date, together with 14 nurses who had been hired while the strike was in progress. Those nurses who had ceased work on July 12, and who had continued to withhold their services for the full strike period - some 379 in number - received no memorandum conveying a compensatory day promise from Respondent's manage- ment. Respondent's management, further, made compara- ble compensatory day off commitments to some other nursing department personnel, not compassed within the professional group which Complainant Association repre- sented, who had worked during the registered nurses' work stoppage. This group, which compassed some 313 employ- ees, included ward clerks and secretaries, central service personnel, nursing assistants, nonlicensed nurses, practical nurses, student RN employees, surgery technicians, order- lies, tech I workers, certified registered nurse anesthetists, and licensed practical nurses; Respondent considers them nursing department workers. Subsequently, hospital staff personnel working in various other areas of Respondent's facility - that is, within departments other than the nursing department with which we are concerned - protested Respondent's failure to grant them compensatory days off with pay, despite the fact that they had likewise worked throughout Complain- ant Association's work stoppage. (Inter alia, those X-ray technicians who had worked throughout the July-August period, while their fellow technicians were on strike, had not been granted compensatory days.) On December 3, within a communication directed to representatives of these various departments, Respondent's personnel direc- tor, Barbara James, took note of these protests. She declared that Respondent's management had made an "administrative decision" to grant the compensatory day: as an expression of thanks to those [nursing department] employees for their efforts during the recent RN strike. Without the support of those employees the hospital would have been unable to accept any patients and working hours would have been further reduced or eliminated altogether. The Nursing Department personnel worked long hours, all shifts, and had schedules changed constantly in order to provide the necessary care for our patients. .. Respondent's personnel director reported management's appreciation for the "hardships" which all hospital employ- ees had faced, but noted that it was the support which nursing department personnel provided which had "al- lowed the hospital to function at all" during Complainant Association's work stoppage. The stipulated record, though it provides no factual details, warrants a determination, which I make, that Respondent still refuses to bargain with Complainant Association regarding its compensatory day off commit- ments. Since October 13, some of Respondent's staff personnel have requested, scheduled, and taken their extra day off with compensation; the precise number of those who have thus far taken their compensatory day, however, cannot be, so Respondent contends, readily determined. C. Discussion and Conclusions 1. Contentions of the Parties General Counsel's representatives herein have presented three closely related contentions. Basically, they seek a determination that Respondent's promise to grant purport- edly compensatory days off with pay for nurses who did not participate in Complainant Association's lawful work stoppage, or who withdrew from their initial participation therein, constituted a statutorily proscribed encroachment upon the right of Respondent's nurses to strike, which violated Section 8(a)(l). Further, they contend that Respondent's commitment to grant such compensatory days - coupled with its subsequent payments for particu- lar days off which some "substantial number" of nurses within the privileged group subsequently took - consti- tuted disparate treatment, motivated by statutorily pro- scribed considerations, which violated Section 8(a)(3) specifically. Finally, General Counsel's representatives argue that Respondent's course of conduct - which reflected its determination, unilaterally, without prior notice to Complainant Association herein, or consultation with that body's representatives, that certain designated nonstrikers would be severally granted compensatory day - should be considered a statutorily proscribed refusal to bargain. Respondent's presentation and posthearing brief, how- ever, suggest its reliance upon several countercontentions. First, Respondent's counsel would have this Board note that since his client's managerial representatives neither determined nor publicly declared their readiness to grant any nonstrikers compensatory days off with pay before Complainant Association's strike terminated, no conclu- sion should be considered warranted that Respondent had thereby encroached upon or interfered with the statutorily 18 SWEDISH HOSP. MEDICAL CENTER protected right to strike which Complainant Association's members had theretofore exercised. Counsel further contends that any determination bot- tomed upon this record with respect to whatever "tendency to discourage" management's compensatory day program might have upon hospital and medical center personnel, with respect to their future exercise of statutorily guaran- teed rights, would necessarily be derived from "rank speculation" merely. Further, Respondent's presentation and brief suggest a contention that - because the hospital and medical center's so-called compensatory day grant was considered a reward for the demonstrated willingness of nursing department nonstrikers to handle "additional responsibili- ties" while Complainant Association's work stoppage was being maintained, and compensation for "emotional, physical, and financial hardships" which these nonstrikers had suffered - such day off grants with pay should not be considered a special type of benefit provided for staff personnel merely because they had refrained from strike participation; shortly, counsel suggests that Respondent's compensatory day grants should not be considered a manifestation of discriminatory favoritism toward non- strikers, whereby Association membership and participa- tion in statutorily protected, Association-sponsored con- duct, on the part of Respondent's represented staff personnel, would be discouraged. These several contentions raise significant, somewhat novel, questions. However, the decisional principles which should determine their disposition have been characterized as well established within this Board's view. Those principles must now be considered. 2. Discussion Consistent with Section 8(aXI), respondent employers clearly may not "interfere with, restrain or coerce employ- ees" with respect to their exercise of statutorily protected rights; the right to strike, of course, constitutes one such statutorily guaranteed right. N.LR.B. v. Erie Resistor Corp., 373 U.S. 221, 233 (1963); N.LR.B. v. Washington Aluminum Company, Inc., 370 U.S. 9 (1962); Aero-Motive Manufacturing Company, 195 NLRB 790, 791 (1972). A determination with respect to whether some particular respondent employer may have "interfered" with his workers' statutorily protected rights, flouting Section 8(a)(1)'s proscriptive requirements thereby, will - so the cases hold - require factual findings, first, with respect to whether that employer had participated in conduct "which, it may reasonably be said, tends to interfere with the free exercise of employee rights" contrary to statutory man- dates. N.LR.B. v. Illinois Tool Works, 153 F.2d 811, 814 (C.A. 7, 1946). And this Board has held that benefits granted to nonstrikers, while comparable benefits are being denied or withheld from strikers, do constitute interference statutorily proscribed. N.LR.B. v. Great Dane Trailers, Inc., 388 U.S. 26 (1967); N.LR.B. v. Erie Resistor Corporation, supra, Aero-Motive Manufacturing Company, supra. In this Board's Aero-Motive decision - which dealt with a cash bonus paid to nonstrikers, decided upon while a work stoppage was in progress but publicized and paid directly following that work stoppage's conclusion - the Board panel majority noted that: . I. [The] issue posed here is whether the payment of a special cash bonus to employees who chose to refrain from protected, concerted activity (plus the nonpayment of such a bonus to employees who had persisted in engaging in the protected strike activity) tends to interfere with thefree exercise of the statutory right of the employees of this plant to engage in strike action. .. It is by now axiomatic that employers violate our Act if they grant special benefits to employees who refrain from engaging in concerted activity and .. . deny such benefits to those who choose to engage in such activity. Moreover, this Board has since held that when a labor organization calls and conducts a strike calculated to support a position taken in contract negotiations, the disparate treatment of strikers and nonstrikers calculated to discourage worker participation in such a legitimate strike constitutes discrimination to discourage "member- ship" within the labor organization concerned. Technitrol, Inc., 201 NLRB 74, 78 (1973), citing N.LR.B. v. Great Dane Trailers, Inc., supra at 32; Radio Officers' Union of the Commercial Telegraphers Union, AFL [A.H. Bull Steamship Companyj v. N.LR.B., 347 U.S. 17, 43-44 (1954). See, likewise, N.LR.B. v. Erie Resistor Corp., supra at 233, in this connection. Thus, Respondent's present contention that General Counsel's representatives have failed to sustain their burden (since they have produced no "evidence" that the grant of compensatory days off really discouraged membership in Complainant Association, or participation in that organization's programs, or that it had been "motivated" by some desire to generate discourage- ment) carries no persuasion. Whenever a respondent employer's contrasting treatment of nonstrikers and strik- ers may fairly be characterized as disparate - without some persuasive showing, proffered by the particular employer concerned, that some "legitimate and substan- tial" business justification had motivated challenged conduct - statutorily proscribed discrimination may be found. With respect to whether a respondent employer's unilateral determination, within his sole discretion, to grant nonstrikers a special benefit should, further, be considered a statutorily proscribed refusal to bargain, this Board, in its Aero-Motive decision, commented at 792: Normally, making unilateral changes in wage payments violates an employer's obligation to bargain. But we are here dealing with a payment which was illegal. Is it true, then, that there was nothing which could have been lawfully bargained about? We think not ... [Here], had Respondent known, before it decided on the payments, of the Union's view that they contra- vened our Act, and, further, that the Union intended to pursue the matter before this agency, mayhap Respon- dent would have taken second thought and all of these proceedings might have been avoided . . . [because discussions with the labor organization concerned, regarding a proposal's possible or probable illegality, 19 DECISIONS OF NATIONAL LABOR RELATIONS BOARD might dissuade the proposing party from pursuing his proposal further, or because such discussions might have persuaded the parties to pursue some alternative procedure which might not run afoul of legal prohibi- tions] ... We are therefore of the view that the raison d'etre of requiring bargaining in advance of changes in wages has at least as much application to proposed illegal changes as to legal ones. (Interpolation supplied to promote clarity.) Pursuant to this rationale, a respondent employer's determination with regard to special benefits which he would grant to nonstrikers but withheld from work stoppage participants (when reached without notice to their recognized bargaining representative, or consultation with its spokesman) may properly be considered a tacit refusal to bargain, statutorily proscribed. 3. Conclusions When considered with due regard for these governing decisional principles, Respondent's suggestion - that no statutorily proscribed interference should be herein found, because its managerial decision regarding a compensatory day-off reward for nonstrikers had neither been reached nor publicized before Complainant Association's strike was terminated - carries no persuasion. With respect to a closely comparable contention, in its previously noted Aero-Motive decision, this Board commented at 791-792: While it is true that the absence of an advance announcement or payment necessarily means that the bonus was not used as an inducement to refrain from concerted activity at the time the strike was in progress, we cannot put on blinders and fail to look at the impact of the payment on employees at the time it was made and for the future. Once granted, the former strikers were plainly disadvantaged with respect to the non- strikers and it was equally plain that the distinction was drawn solely on the basis of who engaged in protected, concerted activity and who did not. This not only created a divisive wedge in the work force but also clearly demonstrated for the future the special rewards which lie in store for employees who choose to refrain from protected strike activity. This Board, in its Aero-Motive decision, was dealing with a respondent firm which had decided, during a strike, that nonstrikers would be given cash bonuses, but which had withheld any public pronouncements with respect thereto until those bonus payments were made, following the strike's termination. Herein, Respondent's management representatives had neither conceived their compensatory day program, nor determined that nonstrikers would each be given a single day off with pay before Complainant Association's work stoppage terminated. Within my view, however, the fact that Respondent's management may not have reached any decision, with respect to granting nonstrikers a special benefit, before Complainant Associa- tion's work stoppage terminated, carries no exculpation; Respondent's grant, when subsequently publicized, still carried a prospective thrust. Both former strikers and nonstrikers were clearly notified that specialfuture rewards might be given hospital and medical center staff personnel who could choose thereafter to refrain from participation in lawful work stoppages. Within its context, Respondent's communication may reasonably be considered calculated to interfere with future free exercises of statutorily guaran- teed rights. As previously noted, Respondent's presentation and brief suggest a further contention that its managerial decision to grant compensatory days off with pay derived simply from a desire to reward nursing department nonstrikers because they had been required to handle "additional" responsibilities; because they had suffered "emotional, physical, and financial" hardships throughout Complainant Association's strike; because their families had been "inconvenienced" thereby; and because their services had provided crucial "support" without which Respondent's hospital could not have functioned. In my view, however, these considerations provide no "legitimate and substantial" business justification for Respondent's purportedly compensatory day off program. This Board, in its previously noted Aero-Motive decision, did consider whether a respondent employer's desire to compensate nonstrikers for "special risks" which they had presumably run, throughout a strike, justified special cash bonus payments. Regarding the designated respondent's conten- tion that payments motivated by such considerations should be considered privileged, this Board declared (at 792) that: . . . [The] payments here were neither announced nor made during the strike, nor were they offered as an inducement to encourage employees to run whatever risks may have been created by the violence which accompanied the strike. If then, the employees came to work and were willing to do so for no more than their regular wages, what business justification is left for the granting of special rewards, after the strike is over, to nonstrikers? We perceive none. However the Respondent may have characterized the payments, we believe that the principal impact of the payments will be to discourage employees from engaging in protected activity in the future. And we think this is true even if Respondent's heart was pure. Thus even if Respondent's officers and agents who decided upon the bonus payments acted solely out of a desire to provide additional compensation to employ- ees whom Respondent believed to have risked personal harm, our decision herein would be no different. We are concerned not with the subjective motivation of Respondent but with the objective impact of its action. [Emphasis supplied.] Similar conclusions may reasonably be considered war- ranted herein. Respondent's various nursing department nonstrikers may have been required to work long hours, for which, however, they had presumably been properly compensated; some may have been required to change shifts, for which they may or may not have received shift differential compensation; some may have been required to cancel or reschedule vacations; and some may have found their families "inconvenienced" thereby. However, 20 SWEDISH HOSP. MEDICAL CENTER these nonstriking staff members had nevertheless contin- ued to report for work; they had presumably been willing to provide services during Complainant Association's work stoppage for no more than regular straight time or Respondent's currently payable overtime compensation. Thus, Respondent's proffered "gesture of gratitude" herein cannot logically be considered compelled, warranted, or justified by business considerations. Respondent makes no contention, herein, that special compensatory day privileges were granted to particularly identified staff members who had personally handled "additional" responsibilities, worked strange or modified shifts, canceled or rescheduled vacations previously planned, or found their families "inconvenienced" general- ly, in contradistinction to fellow nonstrikers who may not have suffered such specified burdens, strains, or hardships. Had Respondent proven persuasively that all registered nurse nonstrikers had without exception suffered these personal strains, inconveniences, and hardships, this Board could, arguendo, still determine, within my view, that no "legitimate and substantial" business justification, for their special poststrike rewards, had been generated thereby. New worktime tasks for nonstrikers, coupled with neces- sarily "additional" responsibilities, longer hours, changed or modified shifts, cancelled or shifted vacations, and revised family programs, frequently become necessary when work stoppages develop. Such presumptively burden- some changes could conceivably be considered routine concomitants of continued service during any work stoppage for workers who have chosen to refrain from strike participation. If so, special poststrike rewards for nonstrikers (who may have suffered nothing more than these conceivably normal hardships) could hardly be considered justified. Had Respondent proven persuasively that registered nurse nonstrikers were required to work "outside their normal jurisdiction" during Complainant Association's work stoppage, special poststrike compensation or benefits granted - specifically calculated to reward nonstrikers for such distinctly "beyond normal" services solely - might arguably be considered privileged. See Association of Motion Picture Producers, Inc., 79 NLRB 466, 496-499 (1948); Columbia Pictures Corporation and Association of Motion Picture Producers, Inc., 82 NLRB 568, 634-637 (1949) (the $3.50 award). Nothing in the stipulated or testimonial record, however, would warrant a determina- tion that registered nurse nonstrikers were required to work outside their normal jurisdiction within Respondent's facili- ty. And, in any event, had a record been made which might call for such a determination, the cases cited might no longer be considered viable precedents for the particular proposition noted. See Aero-Motive Manufacturing Compa- ny, supra, fn. 7. The present record, however, considered in totality, requires no such definitive determination, within my view. Rather, the sole "visible line" which can be drawn herein - between Respondent's Nursing Department staff members, within the bargaining unit which Complainant Association representeda who were granted the right to claim compensatory days, and staff members, within the same bargaining unit, who were denied that right - differentiates merely between those who continued to perform services and those who ceased work. Necessarily, therefore, Respondent's course of conduct reflected a disparate treatment of strikers vis-a-vis registered nurse nonstrikers, reasonably calculated to reward such nonstrikers for their refusal to join Complainant Association's work stoppage, their resumption of work during the strike, or their willingness to take positions as strike replacements. Such disparate treatment constitutes discrimination, statutorily proscribed. Technitrol, Inc., supra, see particularly, footnote 2 therein. Respondent's counsel suggests that since his client's management representatives, concurrently with their chal- lenged course of conduct herein, had refrained from granting compensatory days off with pay for some few X- ray technicians who had continued work while their technician colleagues struck, the hospital's nursing depart- ment personnel would have had no reasonable ground for belief that Respondent's program, for them, derived merely from a purpose to reward nonstrikers for their refusal to join a work stoppage. I have not been persuaded. True, Director of Nursing Byers and Personnel Director James did declare that Respondent's decision to grant Nursing Department nonstrikers compensatory days off represent- ed a gesture of gratitude for certain special strains, burdens, and hardships which they, but no other nonstrik- ers, had sustained, whereby the hospital's capacity to function had been preserved. Respondent has made no showing, however, that all Nursing Department nonstrikers were burdened equally; the stipulated record, so far as it goes, would warrant a determination, inter alia, that nurses hired during the strike, and those who withdrew therefrom and resumed work, had suffered "inconveniences" for significantly shorter time periods than their fellow regis- tered nurses who never ceased work. All nursing depart- ment nonstrikers, however, were "rewarded" with compa- rable even-handedness, regardless of their possibly less- than-equal sacrifices. Respondent's course of conduct, challenged herein, therefore, still reflects a differentiation in treatment between registered nurse nonstrikers consid- ered as a group and their nursing department colleagues who had ceased work. Such a broadly gauged differentia- tion, within my view, cannot be considered statutorily privileged. With respect to General Counsel's contention that Respondent's course of conduct likewise reflected a tacit refusal to bargain, Respondent's counsel notes within his brief the failure of General Counsel's representatives to produce evidence that Complainant Association had ever requested bargaining with respect to compensatory days. However, his sub silentio suggestion that Complainant Association's supposed failure to request negotiations should suffice to foreclose General Counsel's present contention that Respondent's course of conduct consti- tuted a refusal to bargain carries no persuasion. Since Respondent's management representatives had reached their decision with regard to granting nonstrikers purport- edly compensatory "days off" with pay without prior notice to Complainant Association, representatives of that organization can hardly be faulted for their failure to request negotiations before Respondent's decision was publicized. Further, Respondent's decision when publi- 21 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cized, reflected a veritable fait acconpli with respect to which belated requests for post hoc negotiations would most likely have been potentially divisive or futile. See Aero-Motive Manufacturing Company, supra at 792. With due regard for this Board's rationale the decision noted, I conclude, consistently therewith, that Respondent's course of conduct, when it unilaterally determined that nonstrik- ers would be granted a purportedly compensatory day, constituted a refusal to bargain, statutorily proscribed. Respondent's counsel spends considerable time in his brief trying to distinguish this case factually and legally from the Board's Aero-Motive decision, previously noted. I have not found his several suggested differentiations between the cases sufficiently persuasive to dictate a favorable result, contrary to Aero-Motive, herein. Recogniz- ing the possibility that the Board may likewise consider its disposition of the present case controlled by Aero-Motive, Respondent's counsel finally suggests that Aero-Motive was wrongly decided; that Board Member Kennedy's dissent therein should be considered a better definition of those principles which should be dispositive for present pur- poses; and presumably that Aero-Motive should therefore be overruled. Such contentions raise questions of policy beyond an Administrative Law Judge's proper jurisdiction; they should be presented for Board consideration. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE Respondent's course of conduct set forth in section III above, since it occurred in connection with Respondent's business operations described in section 1, above, had, and continues to have, a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States; absent correction, such conduct would tend to lead to labor disputes burdening and obstructing commerce, and the free flow of commerce. In view of these findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Swedish Hospital Medical Center was, throughout the period with which this case is concerned, and remains an employer within the meaning of Section 2(2) of the Act, engaged in commerce and business activities which affect commerce, within the meaning of Section 2(6) and (7) of the Act, as amended. 2. Washington State Nurses Association is a labor organization within the meaning of Section 2(5) of the Act, which admits certain of Respondent's staff personnel to membership. 3. Respondent's management - when it unilaterally decided without notice to or consultation with Complain- ant Association that certain nurses, who had continued to perform services, resumed work, or commenced work as new hires, during a terminated nurses' strike should each be given I compensatory day off with pay - refused, and continues to refuse, to bargain collectively with Complain- ant Association, which Respondent then recognized as the exclusive bargaining representative of nurses in its hire, within a bargaining unit contractually defined. Further, Respondent's management thereby interfered with, re- strained, and coerced its represented nurses, with respect to their exercise of rights statutorily guaranteed. Thereby, Respondent did engage, and continues to engage, in unfair labor practices within the meaning of Section 8(a)(X5) and (1) of the Act, as amended. 4. Respondent's management, when it promised and subsequently granted certain nurses, who had continued to perform services, resumed work, or commenced work as new hires, during a terminated nurses' strike, compensato- ry days off with pay, discriminated with regard to terms or conditions of work for represented nurses currently in Respondent's hire, under circumstances which necessarily discouraged their Complainant Association membership. Further, Respondent's management, thereby, likewise interfered with, restrained, and coerced its represented nurses, with respect to their exercise of rights statutorily guaranteed. Thereby, Respondent did engage, and con- tinues to engage, in unfair labor practices within the meaning of Section 8(aX3) and (1) of the Act, as amended. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act, as amended. REMEDY Since I have found that Respondent has committed, and has thus far failed to remedy, certain specific unfair labor practices which affect commerce, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action, including the posting of appro- priate notices, designed to effectuate the policies of the Act. Specifically, since I have found that Respondent's determination to grant certain nurses compensatory days off with pay violated the statute, some effective remedy for that violation must be provided. The record suggests that since the date when Respondent's management representa- tives publicly declared that such compensatory days off would be granted some "substantial number" of presump- tively eligible hospital and medical center personnel have scheduled and taken their compensatory days. In its previously noted Aero-Motive decision, this Board, con- fronted with a previously paid bonus which in its view had violated the statute, declared at 793: Rescission would appear to be inappropriate and impractical and would, we believe, create greater discord among the employees than currently exists as a result of Respondent's illegal action. The only practical method, therefore, of restoring the statutorily required equality of treatment as between employees who engaged in concerted activity and those who refrained therefrom is to require the payment of an equivalent amount to the employees who did engage in the concerted activity and who were denied the payment. We shall therefore require Respondent to pay all employees ... who did not receive the bonus payment [comparable sums] plus interest .... In my view, some equivalent remedy should be provided herein. General Counsel's representatives, in their brief, have suggested that Respondent should merely be "re- 22 SWEDISH HOSP. MEDICAL CENTER quired to bargain" with Complainant Association regard- ing the matter and to grant compensatory days off with pay, for those registered nurses who have been discrimina- torily denied a benefit, if Complainant Association con- curs. Such a negotiated accommodation might well be desirable; nevertheless, Board directives calculated merely to promote "bargaining" would not in my view provide a complete or satisfactory remedy. If the parties negotiated a rescission, Respondent's recapture of the extra pay which some represented nurses have already received from those nurses particularly, but not from Respondent's unrepre- sented nursing department personnel, would surely gener- ate discord and revive tensions which all concerned would presumably wish to see forgotten. Should the parties, however, confirm Respondent's right to grant compensato- ry days, or bargain to impasse - which could, conceivably, happen with General Counsel's limited remedy - Respon- dent's unfair labor practices would stand without correc- tion. My recommendation, therefore, will be that since Respondent's management has consistently with its Octo- ber 13, 1976, memorandum notice already permitted some "substantial" number of nurses considered eligible for compensatory days to request their days off when desired, and to take such compensatory days off, when scheduled prospectively, subject to prior "approval" granted by certain designated supervisors, participants in the work stoppage who have thus far been denied such compensato- ry days should likewise be considered privileged to request days off with pay hereafter and to take compensatory days off scheduled prospectively with management's concur- rence. Respondent's compliance with such remedial proce- dures would presumably require no direct "make whole" payments; further, such procedures would foreclose any necessity, under the circumstances of this case, for the Board's currently conventional directive that supplementa- ry interest payments, prescribed consistently with Isis Plumbing & Heating Co., 138 NLRB 716 (1962), specifical- ly, should be made. Since Respondent's course of conduct in my view reflects no truly egregious or pervasive purpose to flout the National Labor Relations Act's prohibitions, no broadly phrased "cease and desist" directives herein should be considered warranted or necessary. Upon the foregoing findings of fact, and conclusions of law, and the entire record, I hereby issue, pursuant to Section 10(c) of the Act, the following recommended: ORDER ' The Respondent, Swedish Hospital Medical Center, Seattle, Washington, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Granting compensatory days off with pay to represented staff personnel who have refrained from lawful strike activity. (b) Discouraging membership in Washington State Nurses Association, or any other labor organization, by discriminating in any like or related manner with regard to the hire or job tenure of Respondent's hospital or medical center personnel, or any term or condition of their employment. (c) Refusing to recognize and bargain collectively with Washington State Nurses Association in good faith, or modifying its current collective-bargaining contract with that Association, unilaterally. (d) Interfering with, restraining, or coercing its employ- ees in any like or related manner, with respect to their exercise of rights which Section 7 of the National Labor Relations Act guarantees. 2. Take the following affirmative action which is required to effectuate the policies of the Act: (a) Grant each nursing department staff member who participated in Complainant Association's July-September 1976 strike, who has not yet been privileged to request I day off with pay, or to take such a day off, prospectively scheduled with management's concurrence, the right to request and take I day off with compensation, consistently with the procedures described within the "remedy" section of this Decision. (b) Post at its Seattle, Washington, hospital and medical center copies of the attached notice marked "Appendix." 2 Copies of such notice, on forms provided by the Regional Director for Region 19, shall be posted, directly following their receipt, after being duly signed by Respondent's representative. When posted, they shall remain posted, 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 insure that these notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 19, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. I 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, 2 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." APPENDIX NoTIcE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing, during which all parties were given an opportunity to present evidence and argument, it has been determined that we violated the law by committing an unfair labor practice. In order to remedy such conduct, we are being required to post this notice. We intend to comply with this requirement, and to abide by the following commitments: WE WILL NOT grant compensatory days off with pay to represented hospital personnel who have refrained from lawful strike activity. WE WILL NOT discourage membership in Washington State Nurses Associations, or any other labor organiza- 23 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion, by discriminating in any like or related manner with regard to the hire or job tenure of our hospital or medical center personnel, or any term or condition of their employment. WE WILL NOT unilaterally modify our current collective-bargaining contract with Washington State Nurses Association; nor will we refuse to bargain collectively with that organization, in good faith, in any like or related manner. I WE WILL NOT interfere with, restrain, or coerce our employees in any like or related manner with regard to their exercise of the right to strike or any other rights which Section 7 of the National Labor Relations Act, as amended, guarantees. WE WILL grant I day off with pay to those staff members within our nursing department who have thus far been denied the right to request and take such a day off with compensation, because of their participation in the work stoppage which ended September 17, 1976. SWEDISH HOSPITAL MEDICAL CENTER 24