Mercy-Memorial Hospital Corp.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mercy-Memorial Hospital Corporation and Local 79, Service Employees International Union, AFL-CIO and Mercy-Memorial Hospital Employees' Griev- ance Committee, Party in Interest. Cases 7-CA- 12174. 7 CA 12015(1), 7-CA-12015(2), and 7- CA-12599 August 31, 1977 DECISION AND ORDER On November 18, 1976, Administrative Law Judge Paul Bisgyer issued the attached Decision in this proceeding. Thereafter, General Counsel filed excep- tions and a supporting brief and Respondent filed a brief in opposition to General Counsel's exceptions, and in support of the Administrative Law Judge's Decision, and also filed cross-exceptions to the Administrative Law Judge's Decision and a brief in support thereof. 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, to modify his Remedy,' and to adopt his recommended Order. We fully agree with the Administrative Law Judge's finding that the instant Employees' Griev- ance Committee is not a labor organization within the meaning of Section 2(5) of the Act. The facts surrounding the establishment and operations of the Committee are thoroughly described in the Adminis- trative Law Judge's Decision and need not be repeated here. Suffice that these findings are amply supported by the record. Based on the facts, we are satisfied, as the Administrative Law Judge was, that the Employees' Grievance Committee does not qualify as a labor organization under the language of Section 2(5) even given its broad application under N. L. R. B. v. Cabot Carbon Company and Cabot Shops, Inc., 360 U.S. 203 (1959). The Administrative Law Judge's Decision clearly articulates our reasons for so finding. Our dissenting colleagues' arguments to the contrary are not persuasive. 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 ' In accordance with our decision in Florida Steel Corporation, 231 NLRB 651 (1977). we shall apply the current 7-percent rate for periods prior to August 25. 1977. in which the "adjusted prime interest rate" as used by the Internal Resenue Service in calculating interest on tax payments was at least 7 percent. 2 In a recent decision, a panel majority (Members Penello and Murphy) held that an employee council that "performs a purely adjudicatory function 231 NLRB No. 182 hereby orders that the Respondent, Mercy-Memorial Hospital Corporation, Monroe, Michigan, its offi- cers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. CHAIRMAN FANNING and MEMBER JENKINS, dissent- ing in part: Contrary to our majority colleagues, we find that the Mercy-Memorial Hospital Employees' Grievance Committee (the committee) is a labor organization within the meaning of the Act and that Respondent violated Section 8(a)(2) and (1) by assisting and interfering with the administration of the committee. There is no dispute that Respondent assisted and interfered with the administration of the Committee. The majority agrees with us that Respondent did. Our disagreement with the majority, rather, is over whether the Committee is a labor organization within the meaning of Section 2(5) which defines "labor organization" as: [A]ny organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work. In N.L.R.B. v. Cabot Carbon Company and Cabot Shops, Inc., 360 U.S. 203 (1959), the U.S. Supreme Court held that the term "dealing with" is not synonymous with the more limited term "bargaining with." It is thus settled that the absence of any "bargaining" in the usual sense of that word is immaterial. It is also well settled that the phrasing of the statutory definition is in the disjunctive. Hence, "dealing with" an employer concerning one (or more) of the matters enumerated in Section 2(5) suffices. The declared purposes and the actual functions of the Committee demonstrate that it existed for the purpose, at least in part, of dealing with Respondent concerning one or more of the matters enumerated in Section 2(5). Even assuming, as our colleagues find, that the Committee was created to give employees a voice in resolving grievances at stage III of the grievance procedure, it is clear that the Committee has not been limited to "rendering a final decision on a grievance." 2 Rather, the committee function and does not interact with management for any purpose or in any manner other than to render a final decision on the grievance" is not a labor organization within the meaning of the Act. Sparks Nugget, Inc., d b/a John Ascuaga's Nugget, 230 NLRB 275 (1977) (Chairman Fanning dissenting). We find no support for Sparks Nugget in Board precedent. Cabot Carbon, or the Act. However, even were we' inclined to accept the majority's view in Sparks Nugget, we find factual differences which clearly distinguish the 1108 MERCY-MEMORIAL HOSPITAL embraces action by management or recommenda- tions by elected employee representatives. The declared purposes of the Committee were set forth in two policy statements issued by Respondent which reflected the consensus at the employee meetings concerning the functions of the Committee. The expanded version of the policy statement issued in August 1975, immediately following the election of the permanent Committee, provides that the Com- mittee has "the right and the obligation to recom- mend . . . any change in the rules, regulations, and standards. These recommendations will then be discussed and acted upon by the administrative head and the committee members and committee will be informed of that decision." It is thur as plain as words can express that the Committee existed, at least in part, for the purpose of dealing with Respondent by recommending changes in rules, regulations, and standards which patently include "conditions of employment" and other matters enumerated in Section 2(5). Moreover, the Committee has recommended man- agement consideration of changes in terms and conditions of employment. Within the first month after the permanent Committee's members were elected, an employee filed a grievance complaining about the different methods used to determine eligibility for longevity service pins. In marked contrast to stage III of the grievance procedure,: the service pin "grievance" was handled in the manner described in the policy statement quoted above. Thus, Respondent's personnel director and his designated successor met with the Committee to discuss the issue after which Respondent's represen- tatives solicited from the Committee a recommenda- tion for a single uniform policy. The Committee made such a recommendation which was adopted by Respondent sometime later without further discus- sion or negotiation. In sum, we find that, whatever role the Committee was originally conceived to play, the declared purposes and the actual functions of the Committee leave no doubt that it was an organization which existed, in part, for the purpose of dealing with grievances and conditions of work and, therefore, that the Committee was a labor organization within instant case. Moreover, these differences demonstrate, convincingly. that the (ommnittee has interactled ] with management for [a I] purpose land I in la] manner iother than to render a final decision on the grievance." : As fulls set forth in the Administrative Law Judge's Decision. stage III of the grievance procedure provides that the Committee is to investigate all aspects of the grievance. meet with the grievant if necessary. and render its decision within 5 days bh informing the personnel director, who in turn informs the grievant. It the grievant is not satisfied with the Committee's decision, he mas proceed to stage IV. a review by the hospital's directors. 4 North American Rockwell Corporation. 191 NLRB 833 (1971): FTS Corp. (Division of Hilco), 184 NLRB 787 (1970): Pines of .4merica, Inc.. 178 NLRB 376 (1969); Monet Oldsmobile Companl. 201 NLRB 155(1973). Section 2(5) of the Act.4 It follows that assisting and interfering with it violated Section 8(a)(2) and (1). DECISION STATEMENT OF THE CASE PAUL BISGYER, Administrative Law Judge: This proceed- ing, with all parties except the Grievance Committee represented, was heard on June 1, 2, 14, and 15, 1976, in Detroit, Michigan, on the consolidated complaint of the General Counsel issued on January 30, 1976,1 and the answer of Mercy-Memorial Hospital Corporation, herein called the Respondent or the Hospital. The litigated questions to be resolved are whether the Respondent unreasonably delayed the reinstatement of striking employ- ees at its Mercy Hospital on their unconditional applica- tion to return to work, thereby violating Section 8(a)(3) and (I) of the National Labor Relations Act, as amended;2 whether the Respondent, in violation of the same provi- sions, discriminatorily required certain returning strikers to work two weekends out of three, while nonstrikers, strikers who had abandoned the strike earlier, and strike replace- ments hired before March 1, 1974, were only required to work every other weekend; whether the Respondent dominated and interfered with the formation and adminis- tration of a so-called Grievance Committee for the employees at its Mercy and Memorial Hospitals in violation of Section 8(a)2) and (I) of the Act; and whether it engaged in preelection misconduct in connection with the scheduled election at Memorial Hospital (Case 7-RC- 12947) and otherwise interfered with, restrained, and coerced its employees at Mercy Hospital in the exercise of their statutory rights, in violation of Section 8(a)( ) of the Act.3 At the close of the hearing, the parties briefly stated their positions with respect to some of the difficult issues presented in this case but otherwise waived oral argument in favor of submitting comprehensive briefs. However. only the Respondent availed itself of this opportunity to file a brief, which proved to be very helpful. Upon the entire record, and from my observation of the demeanor of the witnesses, and with due consideration being given to the arguments advanced by the parties, I make the following: The consolidated complaint is based on separate charges filed by Local 79, Service Employees International Union, AFL-CIO. and sersed on the Respondent by registered mail on the indicated dates: Cases 7 CA 12174. 7 CA 12015(1),7 CA- 12015(2). and7 CA 12599 filed on July 15. Ma3 12. August 19, and December 17, 1975, respectively. and served on Jul 5 15, MaN 13. August 19, and December 18. 1975. respectively. 2 The allegations of the consolidated complaint relating to the denial of reinstatement of Herman Mayne, one of the striking emplo' ees. were settled during the hearing without prejudice to the other litigated issues. I Sec. 8(a)( I ) of the Act makes it an unfair labor practice for an employ er "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7." Inscfar as pertinent. Sec. 7 provides that "le ]mployees shall have the right to self-organization, to form. join. or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection .... Sec. 8(aX2) makes it an unfair labor practice for an employer "to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it. Sec. 8(aK3), with certain qualifications not material herein, prohibits an (( Contntlled) 1109 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT The Respondent, a Michigan corporation, with its principal office and place of business at 718 North Macomb Street, Monroe, Michigan, is engaged in the operation of a health care institution providing general and acute care for the sick and infirm. For such purposes, the Respondent operates two facilities-one, Mercy Hospital, at the above location, and the other, Memorial Hospital, also located in Monroe about I mile away. In the regular course and conduct of its business operations, the Respon- dent annually receives gross revenues in excess of $500,000 for its hospital services and purchases supplies valued in excess of $50,000, more than $5,000 worth of these supplies being shipped to it directly from suppliers located outside the State of Michigan. The Respondent concedes, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 11. THE LABOR ORGANIZATIONS INVOLVED It is undisputed that Local 79, Service Employees International Union, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. For the reasons subsequently discussed, I further find that the Mercy-Memorial Hospital Employees' Griev- ance Committee, herein referred to as the Grievance Committee, is not a labor organization within the meaning of Section 2(5) of the Act. 111. THE ALLEGED UNFAIR LABOR PRACTICES A. Alleged Discriminatory Delay in Reinstating Strikers 1. Background To put this issue in proper perspective, it may be well to set forth at the outset the prior state, Board, and court proceedings as recently summarized by the Board in Mercy-Memorial Hospital Corporation, 224 NLRB 51, 52 (1976), 4 as follows: . .. [Plursuant to a consent agreement, an election was conducted by MERC [Michigan Employment Relations Commission] on May 20, 1970, which the Union won. In the absence of objections to the election, the Union was certified by MERC on May 28, 1970 [as the exclusive representative of certain employees of Mercy Hospital in an appropriate unit]. Thereafter, collective bargaining between the parties commenced, but no agreement was reached and, on June 30, 1972, the Respondent announced it would no longer bargain employer "by discrimination in regard to hire or tenure of employment or an), term or condition of employment to encourage or discourage membership in any labor organization .... " I The parties stipulated that I may take official notice of the Board's decisions in Mercr-Memorial Hospital Corporation. 224 NLRB 51 (1976). (Case 7-CA 12474) and 221 NLRB I (1975) (Cases 7 RC 12947 and 7 RM 1010) and that the records in those cases, including the transcripts, as it did not believe the Union represented a majority of the employees in the previously certified unit. On July 10, 1972, the Union filed a refusal-to- bargain charge with MERC. On May 16, 1973, after considering a MERC administrative law judge's deci- sion recommending dismissal of the charge, MERC found that Respondent's refusal to bargain was an unfair labor practice and ordered Respondent to bargain with the Union and take certain other remedial action. Respondent appealed MERC's decision to the Michigan Court of Appeals which, on March 15, 1974, issued its decision affirming MERCs unfair labor practice determinations On June 12, 1974, the Michi- gan Supreme Court issued an order denying Respon- dent's application for leave to appeal, and Respon- dent's motion for reconsideration of that order was similarly denied on September 12, 1974. Thereafter on September 27, 1974, after the August 25, 1974, effective date of the hospital amendments, Respondent filed with the Board a representation petition in Case 7-RM-1010 seeking a single unit of all employees at Mercy and Memorial Hospitals. The Regional Director concluded that no question concern- ing representation existed and dismissed the petition. Thereafter, Respondent filed a timely request for review of the Regional Director's decision with the Board. On December 20, 1974, the Board remanded the case to the Regional Director for a hearing and reinstated the petition for this purpose. After a hearing, the case was transferred to the Board for decision. Respondent contended that an election should be directed in the requested two-hospital unit because the circumstances of the case compelled the Board to deny comity to the certification of MERC and subsequent decisions of MERC and the Michigan courts finding a refusal to bargain. In support of its position that comity should be denied, Respondent argued that (I) MERC's certification of the Union should not be recognized, as the hospital amendments to the Act give the Board exclusive jurisdiction over Respondent; (2) Respondent was not under an obligation to bargain with the Union because, at the time of the initial refusal to bargain in June 1972, Respondent had a good-faith doubt as to the Union's continued majority status; and (3) the MERC-certified unit was no longer appropriate be- cause Mercy and Memorial Hospitals had effected a merger which so integrated their operations that only a unit encompassing employees at both locations is appropriate. On October 23, 1975, the Board issued its Decision and Order 4 in which it, inter alia, found ' Service Ermployees International Union, Local 79, AFL-CIO v. Monroe Mercy Hospital, 52 Mich. App. 165, 216 NW 2d 589. i221 NLRB I (1975). exhibits. and briefs, be incorporated into the record in the proceedings at bar. The Respondent also made a written offer of proof relating to issues previously raised and determined by the Board in the above-cited cases. The written offer was made part of the record but the proffered evidence, which was neither newly discovered nor previously unavailable, was rejected as an attempt to relitigate issues already resolved by the Board. 1110 MERCY-MEMORIAL HOSPITAL Respondent's contentions to be without merit, stated that the single Mercy Hospital unit certified was in close conformity with units found appropriate by the Board in similar cases, gave comity to the Michigan certification and proceedings, and dismissed the peti- tion. Accordingly, in its Decision issued in 224 NLRB 51 (1976), the Board, under established law, declined to relitigate previously raised and resolved issues and found that since November 3, 1975, the Respondent refused to bargain collectively with the Union as the exclusive bargaining representative of the employees in the Mercy Hospital unit in violation of Section 8(a)(5) and (1) of the Act. 2. The evidence As indicated above, following the Union's certification by MERC on May 28, 1970, the Respondent and the Union undertook contract negotiations.5 No agreement having been reached, most of the Mercy Hospital unit employees went out on strike on May 1, 1972, and picketed the Respondent in support of the Union's economic demands.6 On June 30, 1972, while the strike was in progress, the Respondent withdrew recognition from the Union, stating its reasons in a letter sent to the Union on that date that As you know, the strike by your union has made it necessary for the hospital to hire replacements in order to continue to provide health care to the community. Most of the striking employees have been permanently replaced. It is now our belief that your union no longer represents the majority of employees at Mercy Hospi- tal. Accordingly, it would be inappropriate for us to continue further negotiations. The strike continued for almost 3 years in somewhat diminished form until February 20, 1975, when the Union decided to terminate it and make an unconditional application on behalf of the strikers for their return to work. Accordingly, on Friday, February 21, 7 during a late afternoon recess of the hearing on the Respondent's above- mentioned petition in Case 7-RM-1010,8 the Union handed the Respondent's attorney the following letter: Please be advised that pursuant to Certification of Michigan Employment Relations Commission, Local 79, Service Employees' International Union, AFL-CIO was declared the exclusive bargaining representative of a bargaining unit at your hospital .... "The bargaining unit in which the Union was certified by MERC as hargaining agent and which the Board adopted as appropriate in 224 NLRB 51 consists of: All nurses aides. physical therapy aides. central supply aides. laborator) aides, pharmacy aides, ward clerks, orderlies, dietary employees, housekeeping employees. laundry employees, maintenance employees, and grounds employees at the Respondent's Mercy Hospital in Monroe, Michigan. but excluding registered nurses, L.PN's. GPN's, office clerical employees. professional employees. technical employees. supersisors. and all other employees. i JI. Exh I is a list of 175 unit employees on Merce lHospital's payroll on April 30. 1972. the day before the strike. Jt. Exh. 2 lists the names of 92 employees hired between Ma) 1, 1972. when the strike began, and June 30, 1972. the dlas the General Counsel contends the strike became an unfair Subsequent thereto, on or about May 1, 1972, a strike was instituted by the bargaining union against your hospital. Pursuant thereto, numerous employees within the above-mentioned bargaining unit went on strike to attain certain economic goals. Please be advised that we are hereby unconditionally offering the immediate return to work of all the strikers who left theirjobs at the hospital. In accordance with this decision, we are immediately withdrawing our picket lines. A brief conversation then ensued among the Union's Dusan Vorkapich, the assistant to its president, its attorney, Lee Franklin, the Respondent's administrator, Richard Hiltz, and its then personnel director, Benjamin Duckworth, in which the Respondent's officials pointed out the problems entailed in getting the returning strikers back to work in view of the strike's duration, the large number of strikers involved, the pending representation hearing, the need for physical examinations of the strikers required by law, as well as by the Hospital, and the problem of scheduling these examinations and locating some of the employees. While acknowledging the difficul- ties presented and the need for the physical examinations, Franklin asserted the Union's object and concern were to secure the strikers' return to work. The representation hearing was then adjourned to March 4. Most of the next week of February 24 was spent by Hiltz and Duckworth in the office of the Respondent's counsel preparing for the testimony they would give at the scheduled resumption of the representation hearing and arranging more than 100 exhibits the Respondent planned to introduce in evidence. However, during this week, Duckworth instructed his secretary and another personnel office clerk to assemble the files of all the striking employees; to compile a list of strikers containing their addresses, telephone numbers, and blank spaces in which to note other information; and to prepare envelopes in which to insert notification to strikers to contact the personnel office. At this time, the personnel office began receiving telephone calls from strikers who were advised by the office to come in, sign up for their availability, update their addresses and telephone numbers, and furnish other personnel information. The callers were also informed that they would be contacted to take a physical examination. When strikers appeared at the personnel office as a result labor practice strike as a result of the Respondent's withdrawal of recognition of the Union which. as indicated above, MERC and the Michigan courts found constituted an unlawful refusal to bargain. It. Exh. 2 also lists 48 employees who were employed on April 30, 1972, and who either did not go out on strike or initially struck but abandoned the strike and returned to work prior to June 30, 1972. The Respondent argues that the strike at all times was economic and was never converted into an unfair labor practice strike as it has been under no statutory obligation to bargain with the Union since June 30. 1972. However, the reasons urged by the Respondent in justification of its withdrawal of recognition were rejected by the Board in 224 NLRB 51 and 221 NLRB I. 7 All dates subsequently mentioned. unless otherwise indicated, relate to 1975. " The hearing on this petition was held on February 20 and 21 and March 4, 7. and 10. III1 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of their prior telephone calls or in the first instance, their appearances were noted on the list, as well as their latest addresses and telephone numbers and other data. In addition, they were told that they would be notified when to report for a physical. In the early part of the week of February 24, the Respondent composed a letter for transmittal to the strikers to report to the personnel office later in the week. However, this letter was not mailed out because a number of strikers who had called or visited the personnel office told Duckworth's secretary that a rumor was circulating that, if strikers came to work for even I day, they would be entitled to 3 years' backpay while they were on strike. To disabuse the strikers of this erroneous impression, the Respondent gave thought to the idea of including in its proposed letter to the strikers a requirement of a quit slip from their current employer. However, the Respondent decided against it but, instead, determined to have Assistant Administrator Wasserman directly convey over the telephone the message quoted below to all the strikers for whom the Respondent had telephone numbers: Good morning, this is Mr. Wasserman of Mercy- Memorial Hospital. You recently indicated to the Personnel Office that you wished to return to work. There has been a rumor started that you are going to receive three years back pay. This is not true. You are not entitled to any back pay. I am informing you of this. If you are planning to quit a job and asking to return just for this reason, reconsider. We do not want you misled. For such purpose, Wasserman was given a list of strikers with their telephone numbers. Either the same week or the following week of March 3, Wasserman started making telephone calls to the listed strikers over a period of about 10 working days. Hiltz estimated that Wasserman probably conveyed the message to half the individuals on the list and to other strikers who called the personnel office. In addition to the Wasserman communication, the Respondent also decided to dissipate the effects of the misleading rumor by requiring the then employed strikers to submit quit slips showing that they had terminated their current employment, at the time when they returned to work at the Hospital after they had passed their physicals.9 This requirement the Respondent believed would discour- age strikers from accepting reinstatement to qualify for the 3 years backpay and then quit the Hospital job to return to their former employment. Accordingly, strikers were apprised of the quit slip condition when they appeared at the personnel office or otherwise communicated with it. Moreover, they were told that they had the right to give their current employer notice that they were resigning, if they so desired. It appears that all employed strikers furnished quit slips upon their reinstatement at the Hospital. There is no evidence that this requirement delayed anyone's recall. During the week of February 24, a new letter dated February 28 was drafted by the Respondent to replace the ' Quit slips were not required before the strikers took their physical examination in order to avoid jeopardizing their current employment should they fail the examination. first one mentioned above. It was mailed to all the striking employees, some 90 in number, including, by mistake, those who had previously abandoned the strike; those who had quit the Respondent's employ before the strike ended; and those who had died since the strike began.10 Letters, which were returned by the post office because of incorrect address, were remailed upon ascertaining their latest addresses. The letter in question read: We have been notified by Local 79, SEIU, that it has finally abandoned the strike begun on May 1, 1972 and has unconditionally offered the return to work of the strikers. While the hospital does not have a contract with the union, if you desire to return to work, you must report to the Personnel Department at the Mercy Unit by Friday, March 7, 1975. The Personnel Department will be open between the hours of 10:00 a.m. to 12:00 noon and from 2:00 p.m. to 4:00 p.m. Tuesday, Wednesday, Thursday, and Friday, March 4-7, 1975. It appears that under date of February 27, the Union also sent out the following letter to striking employees: Upon the advice of Counsel, we have withdrawn the picket line at Monroe Mercy Hospital and uncondi- tionally offered the return to work of all strikers. We hereby advise all strikers to immediately make your availability known by going to the Hospital and accepting any return to work offer made to you by the Hospital. Please advise the Union as to the results. We shall keep you informed of developments. On Tuesday, March 4, before the resumed representation hearing was opened, Union Attorney Franklin inquired of Administrator Hiltz and Personnel Director Duckworth the status of the returning strikers. The Respondent's officials explained their efforts to assemble the strikers' names, addresses, and telephone numbers for the purpose of scheduling physical examinations and the difficulties the Respondent was experiencing in locating strikers who "were gone" and in obtaining their current addresses. In addition, Hiltz and Duckworth told Franklin that the Respondent was obliged to hire an extra doctor in order to process the physical examinations; that it was moving as fast as it could to arrange for the strikers' reinstatement, which could take a few weeks more; and that the strikers would be scheduled for physical examinations. Franklin indicated that she understood the problems of processing physicals and locating strikers after a 3-year strike, repeating what she had previously said that the important thing was getting the strikers back to work. She also voiced deep concern over the Respondent's requiring quit slips from the strikers who were then employed. In response, the Respondent's officials informed her of the unfounded rumor regarding 3-year backpay, and the Respondent's fear that some strikers might quit their current jobs they otherwise might not do only to obtain backpay. The Respondent's officials also told Franklin that the quit slip i° The individuals who were erroneously sent the February 28 letter to report are listed on Appendix A and obviously cannot be regarded as applicants for reinstatement. 1112 MERCY-MEMORIAL HOSPITAL requirement was intended to counteract this erroneous impression of the strikers. On this note the conversation ended. It is undisputed that state law requires that employees of health care institutions who are in contact with patients take preemployment and periodic physical examinations. Apparently, consistent with state law, the Respondent has had a long established policy of requiring preemployment and less comprehensive annual physical examinations, including various laboratory tests and chest X-rays. In addition, under its policy, employees on nonmedical leave of absence for more than 90 days have been required to pass a complete preemployment type of physical examina- tion before returning to work and, if they fail such examination, they must produce a private doctor's certifi- cate that their condition of health permits their return to their duties." Since the strikers had been absent from work for almost 3 years and had had their last physical examination about 33 to 45 months ago, the Respondent undertook to make arrangements for a preemployment type of physical examination for the returning strikers. Such an examina- tion is normally conducted by the only two doctors in the Respondent's employ,12 each of whom is regularly assigned to the emergency rooms at Mercy and Memorial Hospitals. Because of the large number of strikers seeking reinstate- ment and in order to free the emergency room doctors so that they could conduct the employee physical examina- tions, without disrupting the emergency room services, the Respondent retained another doctor through the place- ment office at the University of Michigan Medical Center who was available for the week of March 10 to relieve the emergency room doctors. Thereupon, during the week of March 3 Duckworth's secretary proceeded to call the strikers on the list to schedule their examinations of one or one-half hour duration at various times during the following week convenient to the strikers if the time slots were open. Almost all of the examinations were thus processed and taken during the week of March 10. Upon the completion of these examinations, the Respondent notified the first group of strikers to report for work on March 18. Subsequent notifications were sent to the remaining strikers on different dates. The initial group of recalled employees consisted of those who were unemployed at the time. Duckworth testified that due to the recession the Respondent felt, and so advised the strikers, that it would be fair to recall the unemployed strikers first before reinstating those who still had a job. This sentiment was also conveyed in a letter to a striker, Mattie Hoye, on March 21, as follows: This will advise you that your physical examination was satisfactory and you are eligible to return to work " There are other aspects of the Respondent's health policy not material to the questions here involved. I:' There are other doctors on the Hospital's staff who are individual practitioners not in the Respondent's emplos hut have hospital privileges. J hes do not conduct employee physical examinations for the Respondent. l Sinct it is clear that the Respondent does not claim that the strikers' former jobs were not available at the lime of their application for reinstatemenl. it is unnecessars to determine whether the strikers had rights at the hospital. However, our records indicate that you are presently working at the Ford Motor Company. Our immediate concern has been the return to work of those strikers who have been unemployed. Because you are presently employed there will be a short delay to your return to work at the hospital. We will notify you two weeks in advance of our resched- uling you to duty at the hospital. We will then request that you notify your present employer that you are resigning. Duckworth testified that similar letters were sent to other strikers who were employed at the time of their offer to return to work at the Hospital. There is no evidence that this order of reinstatement was objected to by the Union or any striker. Nor is any contention made that it was discriminatory. 3. Concluding findings respecting reinstatement Preliminarily, it should be noted that the question to be resolved is not whether the striking employees were discriminatorily denied reinstatement-for they evidently were not-but whether their reinstatement was unreason- ably delayed.'3 Although conceding that the requirement of a physical examination for the strikers before their reinstatement was not per se improper and that some delay in reinstating them might be excusable, the General Counsel and the Union contend that the delay here in scheduling the physical examinations and recalling the strikers was unreasonable and unjustifiable and constituted an infringement of the strikers' statutory rights violative of Section 8(a)(3) and (1) of the Act. In addition, they urge that the Respondent's imposition of a quit slip from the strikers' current employers as a condition of reinstatement similarly violated the Act. The Respondent, on the other hand, takes the position that the circumstances related above plainly demonstrate that it did not unreasonably delay the scheduling of the physicals or the reinstatement of the first group of strikers on March 18. It, however, concedes that, with certain exceptions to be considered below, the reinstatement of the other strikers beyond that date may not be justified.' 4 As for the quit slips, the Respondent argues that it was prompted to request them as part of its efforts to disabuse the striking employees of their mistaken belief inspired by rumors that they would collect some 3 years backpay if they returned to work at the Hospital, thereby inducing them to give up their present jobs which they would not otherwise do. There can be no question that, as a general rule, an employer is obligated to reinstate without unreasonable delay striking employees on their unconditional applica- tion to return to work. Certainly, what is reasonable or unreasonable depends on all the facts and circumstances of of unfair labor practice stnkers by reason of the Respondent's withdrawal of recognition on June 30. 1972, which would entitle them to reinstatement even if it meant displacing their replacements, as the General Counsel and the Union contend, or whether they were only econormic strikers with rights set forth in The Laidloa Corporation, 171 NLRB 1366 (1968). as the Respondent maintains. 4 For this reason, the Respondent admits its liability for backpas subsequently to be determined in compliance proceedings 1113 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a particular case and the existence of legitimate and substantial business reasons for the delay.'S If the rein- statement is unduly delayed, the employer's conduct necessarily undermines the employee's statutory right to engage in protected union and concerted activities in violation of Section 8(a)(3) and (I) of the Act. On the basis of the record before me, I find, in agreement with the Respondent, that the reinstatement of the first group of striking employees on March 18 was timely and justified by the circumstances and legitimate and substan- tial business considerations. As previously discussed, upon receiving the Union's unanticipated application for the reinstatement of the strikers at the Board representation hearing on Friday afternoon, February 21, the Respondent diligently proceeded to assemble the strikers' files, to compile their names, addresses, and telephone numbers, and to take steps to update this information necessitated by the exceptionally lengthy strike of almost 3 years. Signifi- cantly, it appears that at this time there was no firm list in existence identifying the strikers who were interested in returning to their jobs at the Hospital-at least the Union did not supply one to the Respondent. Indeed, on February 27, a week after it made its reinstatement application, the Union wrote to the striking employees informing them of its action and advising them to visit the Hospital to make known their availability to return to work. The next day, the Respondent also sent letters to the strikers to report to the personnel department at any time during the period of March 4 through March 7 if they desired to be reinstated. A number of these letters never reached the strikers because they were unknown at the indicated addresses, requiring further efforts to locate them to apprise them that applications for reinstatement were being processed. During this period, the Respondent was also communicating with strikers to inform them that the rumors regarding their entitlement to 3 years backpay were unfounded and not to quit their jobs for that reason alone. In addition, during the week of March 3 the Respondent was involved in contacting some 90 strikers to schedule, at their convenience if possible, physical examinations man- dated by state law and required by the Respondent's well- established policy. To expedite these examinations, the Respondent was obliged to hire a doctor to relieve the only two doctors on the Respondent's payroll, who were regularly assigned to service the Mercy and Memorial emergency rooms, to conduct these physicals. These examinations were given during the week of March 10 which was the time when the relief doctor was available to assume his duties. In the meantime, the Respondent's efforts and problems in recalling the strikers were made known to the Union which indicated an understanding of what they were but expressing its desire to see that the strikers were returned to work. In sum, I find that, whatever delay there was in not recalling the first group of strikers until March 18, it was due to the need for a complete physical examination of the returning hospital workers and the problems necessarily occasioned by the sudden termination of a 3-year-old strike. Accordingly, I find that the reinstatement of the first I' Cf. N.L.R.B. v. Fleetwood Trailer Co., Inc., 389 U.S. 375 (1967); N.L. R.B. v. Great Dane Trailers, Inc., 388 U.S. 26(1967). group of strikers on March 18 was not unreasonably delayed but, on the contrary, was justified for legitimate and nondiscriminatory reasons. I therefore conclude that the Respondent did not violate the statutory rights of these employees who are listed in Appendix B of this Decision. This result is not negated by the fact that the Respondent required of all employed strikers a quit slip from their then employer as a condition for returning to work at the Hospital. I find, under the special facts and circumstances of this case, related above, that the imposition of this condition was warranted. Moreover, the record is devoid of any evidence showing that the reinstatement of any striker was deferred on account of this requirement. Turning to the strikers who were reinstated after March 18, the Respondent concedes that the reinstatement of the employees listed in Appendix C attached hereto might have been unreasonably delayed, thereby entitling them to backpay for the indicated periods. Since the Respondent has failed to show any legitimate or justifiable reason for not returning those strikers to their jobs by March 18, which I have heretofore found to be a reasonable and timely date, I find that such delay violated Section 8(a)(3) and (1) of the Act. Accordingly, as subsequently provided in "The Remedy" section of this Decision, the Respondent shall reimburse the employees listed in Appendix C for their loss in pay from March 18, 1975, to the date of reinstatement or, in the case of one individual, Ronald Fountain, to the date he was supposed to report to work. The Respondent, however, argues that the individuals separately discussed below were not unlawfully denied reinstatement and therefore no unfair labor practices were committed against them. The General Counsel has not indicated a specific position with respect to any of these individuals. Opal Andrews: Upon receipt of the Respondent's letter of February 28, 1975, she called and wrote the Respondent from Florida informing it that she would return to the area by April 1. Although originally scheduled for a physical examination on March 14, she returned to Michigan on March 25 on which date she received her physical. She was reinstated on April I. I find, in agreement with the Respondent, that the delay beyond March 18 in her reinstatement was not attributable to the Respondent and that therefore no violation of the Act was committed. Alice and Mary Biniecki: Although they received the Respondent's February 28, 1975, letter, the Respondent states in its brief that the parties' stipulation read into the record at the hearing fails to disclose that the Respondent's records show that they never responded. For this reason, I shall leave the matter to compliance to determine the facts with respect to their right to reinstatement and backpay. Shirley Boden: After reporting and taking her physical examination on March 10, Boden advised the Respondent by letter dated March 14 that she wanted to give her current employer 2 weeks notice that she was leaving. Apparently, the Respondent agreed and reinstated her on April 1. I find, as the Respondent urges, that the delay in Boden's reinstatement was not due to any fault on the 1114 MERCY-MEMORIAL HOSPITAL Respondent's part and hence the Act was not violated with respect to her. Robert Carroll: Although scheduled to take a physical examination during the week of March 10, it was taken on March 24. In April, Carroll did not report for work because of illness until June 23 at which time he was advised that the watchman's job that he had occupied prior to the strike had been subsequently eliminated and its functions were included in the maintenance job classification. He was accordingly assigned to that classification, worked I day in that job, and quit on June 24 stating that it was too physical. It appears that the watchman job was eliminated prior to June 1973 and that all employees performing those functions became maintenance helpers. I find that the delay in Carroll's reinstatement until June 23 was solely on account of his illness. I further find that, when Carroll returned to work on June 23, he was assigned to substantially equivalent employment because of the elimination of his prior job for legitimate business reasons. In these circumstances, I find that the Respondent fulfilled its statutory obligation and no violation was committed in Carroll's reinstatement. Helen Chickeral: After reporting to the Hospital on March 7 in response to the Respondent's February 28 letter, she was scheduled to take a physical examination on March 12 which she never took. She also has not communicated with the Respondent since then. Clearly, Chickeral was not unlawfully denied reinstatement. Kathleen Curtis: She took her physical examination on March 12 and left Michigan. On June 18 she notified the Respondent that she had returned to the State. On that date, the Respondent sent her a letter advising her that she had failed her physical, to consult her family physician, and to secure a note indicating her availability to work. On July I she presented a medical certificate to the Respon- dent that she would be able to work after July 9. Subsequent to the latter date in July she was reinstated. I find that Curtis' return to work was processed in accor- dance with the Hospital's legitimate procedures and that the Respondent did not violate the Act with respect to her. Walter Daniels: He reported to the Respondent on March 4 after receiving its February 28 letter. On March 24, Daniels underwent his physical examination but left before its completion. When he failed to report back to the Hospital, the Respondent on May 3 requested him to complete his physical. Receiving no response, the Respon- dent wrote Daniels that he was terminated for not completing his examination on March 24 and that he could notify it if such were not the fact. On June 2, the Respondent again requested Daniels to complete his physical on June 4, stating that he would be returned to work on June 16 if he passed the examination. Daniels did not respond. In these circumstances, it is clear that the Respondent satisfied its obligation to offer reinstatement to Daniels. Carolyn Dixon.' Prior to March 10, she was notified that she was scheduled to take a physical examination on that date. She failed to appear for the scheduled examination and has not communicated with the Respondent since then. Plainly, the Respondent did not violate the Act in not reinstating Dixon. Gerald Dusseau: He took his physical examination on March 10 and was informed that he had failed it but that he would be reinstated upon receipt of a doctor's note that he was available for work. On March 25, the doctor's note was furnished and Dusseau was returned to work on April I. As the Respondent followed its normal, legitimate procedure in requiring a medical certificate of Dusseau's ability to work and as I find that the Respondent permitted Dusseau to return to his job within a reasonable time after receiving the medical certificate, I find that the Respondent did not violate the Act with respect to this employee. Charlotte Goins: She took her physical examination on March 12 and was advised that she failed it. However, in accordance with the Hospital's legitimate policy, Goins was informed that she would be reinstated if she produced a medical certificate that she could return to work. Such a certificate was submitted on March 21 and she was reinstated April 1. I find the 10-day delay in Goins' reinstatement was unreasonable and that she should have been recalled by March 26, allowing 5 days to process the medical certificate. Accordingly, I find that the delay in reinstate- ment violated Section 8(aX3) and (I) of the Act. Angeline Hensley: On March 10, she started her physical examination by taking the laboratory part and left. She returned on March 19 when she completed her physical. Hensley informed the Respondent that she would be unable to return to work prior to April I for personal reasons and requested April 8 as her return date. Hensley resumed work April 8. I find that Hensley returned to work at her own convenience and hence the Respondent was not in violation of the Act with respect to her. Dale Lajiness: By letter dated May 8, the Respondent notified Lajiness to report for his physical examination by May 13 and that if he passed it he would be scheduled to return to work on May 27. Lajiness took and passed the examination but did not report to work on May 27. On May 28; the Respondent sent Lajiness a termination letter for failing to report to work on May 27 and informed him that he could dispute its action. On June 4, Lajiness communicated with the Respondent and was reinstated on June 9. I find that the delay in scheduling Lajiness' physical by May 13, and his reinstatement for May 27, was unreason- able and an impairment of his rights as a striker, violative of Section 8(aX3) and (1) of the Act. Accordingly, backpay is due him for the period from March 18 to May 27, 1975. However, since Lajiness, as a matter of personal choice, failed to return to work on May 27 as he was scheduled to do, no backpay is due for any subsequent period. Blauma Lang/ford: In response to the Respondent's February 28 letter, she reported to the personnel depart- ment during the indicated March 4-7 period. However, she was scheduled for and took her physical examination on June 11. Although scheduled for reinstatement on June 23, Blauma Langford was reinstated on June 30. The Respon- dent states in its brief that it has no facts to account for the June 23-30 delay in reinstatement but concedes that liability might exist for the March 18-June 23 period. 1115 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In view of the foregoing, I find that the record establishes no justification for delaying Blauma Langford's reinstate- ment from March 18 to June 30. Accordingly, I find that the Respondent violated Section 8(a)(3) and (1) of the Act with respect to this employee, entitling her to backpay for the March 18-June 30 period. Grace Langford: She was scheduled and notified for a March 13 physical examination but failed to appear or otherwise communicate with the Respondent. I find that the Respondent is not in violation of the Act with respect to this individual. Mack McBride: He was scheduled for a physical examination on March 13 but failed to appear. By letter dated May 8, the Respondent notified McBride to report for processing. In response, McBride on May 16 wrote the Respondent that he was unavailable to take a physical examination or return to work until after the early part of June when he had a doctor's appointment concerning surgery he had previously undergone. However, since this letter, McBride has not communicated with the Respon- dent. Clearly, no basis exists for a finding of an unfair labor practice with respect to this individual. Alice McDonald. She took her physical examination on March 10 but was informed that she had not passed it completely and that a medical certificate was required establishing her availability for work. Such a certificate was submitted on April I and she was reinstated on May 19. I find that the delay in returning McDonald to work was not justified and that the Respondent thereby violated Section 8(a)(3) and (1) of the Act. Since a reasonable time for reinstating McDonald under the circumstances would have been about April 16, after receiving her medical certificate, I find that she is therefore entitled to backpay for the period from April 16 until May 19 when she was actually reinstated. Effie Mae Miracle: She took her physical during the week of March 10 and was scheduled to return to work on April I. However, at her own request and in order to give her current employer notice of resignation, her reinstatement was postponed to April 8. I find that the delay in Miracle's reinstatement from March 18 to April I was unreasonable and in violation of Section 8(a)(3) and (1) of the Act. Because the further delay to April 8 was at Miracle's request, I find that she is entitled to backpay for the period from March 18 to April 1. William Ohr: He received his physical on March 14 and was scheduled to return on April 8. Instead, Ohr resigned. As the Respondent has furnished no justifiable reason for the delay in scheduling Ohr's reinstatement for April 8 and as there is no evidence of the reason for Ohr's resignation, I find no basis for inferring, as the Respondent would have me do, that Ohr never had a real intention to accept reinstatement. It is just as likely that his resignation was due to the delayed date of the scheduled reinstatement. Accordingly, I find that the Respondent violated Section 8(a)(3) and (I) of the Act, entitling Ohr to backpay for the March 18 to April 8 period. Juanita Patterson: She was notified to appear for a physical examination prior to April 30 and that, if she passed it, she would be scheduled to return to work on June 23. Patterson did not respond to this notification and resigned on July 7. As the delay in scheduling of Patterson's physical and in offering reinstatement on June 23 was not justified by the Respondent, I find that Section 8(a)(3) and (1) was violated and that Patterson is entitled to backpay for the period of March 18 to June 23. Elizabeth Phillips: She received the Respondent's Febru- ary 28 letter but did not respond until March 21 when she advised the Respondent that she had suffered a stroke and that she would be unavailable for work for at least 6 months. She was told by the Respondent to notify it when she could return. However, no such notice has been received since then. Clearly, the Respondent has not failed in its statutory duty to offer her reinstatement. Bernice Sordini: She took her physical on March 13 and was scheduled to return to work on April 1. However, she did not report on the latter date but instead resigned on April 9. As the Respondent has presented no justification for delaying Sordini's reinstatement to April 1, I find that the Respondent violated Section 8(a)(3) and (1) in this respect. Contrary to the Respondent's contention, I find no basis for inferring from Sordini's resignation that she never intended to return to work. For this reason, I find that Sordini is entitled to backpay for the period from March 18 to April 1. Alberta Violanti: She took her physical during the week of March 10 and was advised that, since she had not completely passed it, she should submit a doctor's certificate that she was capable of returning to work. On April 29 such a certificate dated April 10 was submitted stating that she was able to report for work on May 1. However, she was reinstated on May 19. I find that Violanti's reinstatement was unreasonably delayed to May 19 and that therefore the Respondent violated Section 8(a)(3) and (I) of the Act. I further find that Violanti is entitled to backpay for the period beginning May 4, 5 days after the submission of her medical certificate, to May 19, the date of her reinstatement. Dorothy Vogler: She received the Respondent's February 28 letter while she was down South. She thereupon returned to Michigan, reported at the Hospital on March 19, took her physical examination on October 8, and was reinstated on October 14. The Respondent does not attempt to justify the delay but surmises that an adminis- trative error accounts for it. In view of the foregoing, I find the Respondent responsible for the unreasonable delay in Vogler's reinstatement and that it thereby violated Section 8(a)(3) and (I) of the Act. With respect to backpay, the Respondent concedes, and I find, that its liability should begin at a reasonable date after March 19, which I find to be March 24, to the date of reinstatement, October 14. Otha Wilburn. She took a physical examination on March 14 and was returned to the on-call status she enjoyed prior to the strike. As no evidence was adduced with respect to any delay in Wilburn's reinstatement, no violation is found. Pauline Williams: She failed her physical examination, which was given to her on March 10, and was advised to submit a doctor's certificate showing that she was able to 1116 MERCY-MEMORIAL HOSPITAL return to work. Such a certificate was provided, stating that she could return to work on September 24. However, Williams did not report to work on September 24 but requested on October 6 medical leave of absence, which was granted and subsequently was extended to December I. On the latter date, Williams returned to work. I find that her reinstatement was not unreasonably delayed by the Respondent and that therefore the Act was not violated. Harvey Woods: He failed his physical examination on March 10 and was advised to submit a medical certificate that he was able to return to work. Although he presented such a certificate on March 24, he was not reinstated until April 21. As I find that no justifiable reason was presented for the delay in Woods' reinstatement, it is clear that the Respondent violated Section 8(a)(3) and (1) of the Act. In agreement with the Respondent, I find that Woods is entitled to backpay from March 29 (a reasonable time after March 24) to April 21 when he was reinstated. Theo Wylie. He took his physical examination on March 17, which he failed, and was advised to produce the customary doctor's certificate. Such a certificate was submitted on or about March 26 and Wylie was reinstated on April 8. Consistent with my prior holdings, I find that the delay in reinstating Wylie was unreasonable and in violation of Section 8(a)(3) and (1) of the Act. I further find that Wylie is entitled to backpay from March 31 (a reasonable time after the submission of the medical certificate) to April 8, the date of reinstatement. Alice Year)y: She took a physical examination on March 10. Subsequently, on March 18, Yeary informed the Respondent that she intended taking a nurses aide course and that therefore she would not be available for work until May 5, 1976. The Respondent granted her permission to take the course and she was reinstated on that date. It is clear that the Respondent satisfied its statutory obligation and did not violate the Act with respect to Yeary at whose convenience the delay was occasioned. Donald Lazette: On February 6, he presented a letter to the Respondent stating that he was unable to return to work for medical reasons. Pursuant to the Respondent's retirement policy Lazette was retired on October 31 when he reached 65 years of age. I find that here, too, the Respondent did not deny Lazette reinstatement in violation of the Act. In summary, I find that the employees listed in Appendix D, whose situations were separately considered above, were discriminated against with respect to their reinstate- ment and that the Respondent thereby violated Section 8(a)(3) and (1) of the Act. I further find that the employees listed in Appendix E were not subjects of discrimination entitled to backpay as they either did not respond to the Respondent's February 28 letter or, in reply, stated that they were quitting or the February 28 letters addressed to them were returned as nondeliverable. B. Alleged Discriminatory Weekend Work Policy I. The facts The facts as stipulated by the parties are briefly these: Prior to the inception of the strike on May 1, 1972, the Respondent had a policy whereby nursing and related unit employees were required to work every other weekend, being off the intervening weekend. This policy continued while the strike was in progress and after the strike's termination on February 20, 1975, only for such employees who were on the payroll and actively performed their duties on March 1, 1974, including those who never went on strike, those who had abandoned the strike prior to March i, 1974, and employees who were hired as strike replacements prior to that date. However, the policy was changed on or about March 1, 1974, to require the nursing and related unit employees who subsequently came on the active payroll and actually resumed work to be on duty two weekends with the third weekend off. This meant that strikers who abandoned the strike and returned to work after March 1, 1974, and those reinstated after the strike ended on February 20, 1975, as well as employees who returned from a leave of absence which had commenced before March 1, 1974, and new hires after this date, were allowed to be off only one weekend in three while the others previously mentioned were given every other weekend off. It appears that on March 1, 1974, approxi- mately 64 employees enjoyed alternate weekends off and that as of the time of the hearing in this case only about 10 to 12 employees remained in the Respondent's employ who enjoyed this benefit. 2. Concluding findings The General Counsel contends that the discriminatory treatment thus accorded the returning strikers violated Section 8(a)(3) and (1) of the Act. The Respondent, on the other hand, maintains that its weekend work policy is not discriminatory as striker status is not the determinative factor in the weekend work requirement, only the date of active performance of duty on March I, 1974, is. I find the Respondent's contention entirely without merit. In my opinion, resolution of this issue is governed by the Supreme Court's decision in N.L.R.B. v. Great Dane Trailers, Inc. 16 where a majority of the Court held that an employer violated Section 8(a)(3) and (I) of the Act in refusing to pay striking employees vacation benefits which accrued under a terminated collective-bargaining agree- ment, while paying such benefits to striker replacement, returning strikers, and nonstrikers who had been at work on a certain date during the strike. In language equally applicable to the situation presented in the instant case, the majority stated (at 32): The unfair labor practice charged here is grounded primarily in §8(a)(3) which requires specifically that the Board find a discrimination and a resulting discourage- ment of union membership. American Ship Building Co. v. Labor Board, 380 U.S. 300, 311 (1965). There is little "1 388 U.S 26 (1967). 1117 DECISIONS OF NATIONAL LABOR RELATIONS BOARD question but that the result of the company's refusal to pay vacation benefits to strikers was discrimination in its simplest form. Compare Republic Aviation Corp. v. Labor Board, 324 U.S. 793 (1945), with Teamsters Union v. Labor Board, 365 U.S. 667 (1961). Some employees who met the conditions specified in the expired collective bargaining agreement were paid accrued vacation benefits in the amounts set forth in that agreement, while other employees who also met the conditions but who had engaged in protected concerted activity were denied such benefits. Similarly, there can be no doubt but that the discrimination was capable of discouraging membership in a labor organization within the meaning of the statute. Discouraging membership in a labor organization "includes discour- aging participation in concerted activities . . . such as a legitimate strike." Labor Board v. Erie Resistor Corp., 373 U.S. 221, 233 (1963). The act of paying accrued benefits to one group of employees while announcing the extinction of the same benefits for another group of employees who are distinguishable only by their participation in protected concerted activity surely may have a discouraging effect on either present or future concerted activity. The majority therefore concluded, on the basis of three recent opinions of the Court,'7 that (35) "[s]ince discrimi- natory conduct carrying a potential for adverse effect upon employee rights was proved" and the Company failed to come forward with evidence of legitimate motives for its discriminatory conduct, the charged unfair labor practices were sustained. On the basis of the foregoing principles, I find that the Respondent's application to returning strikers of its new weekend work assignment policy, relating as it does to a "term and condition of employment," discriminated against employees who were exercising their statutory right to engage in protected union and concerted activities and thereby discouraged union membership in violation of Section 8(a)(3) of the Act and interfered with protected activity in violation of Section 8(a)(1) of the Act. The fact that the policy also applied to new employees and those who returned to work after March 1, 1974, from a leave of absence granted prior to that date cannot exculpate the Respondent from the discrimination suffered by the striking employees. C. The Alleged Unlawful Domination of, and Assistance to, the Grievance Committee 1. The evidence While the Union was involved with the Respondent in various state board and court and National Board proceedings, as previously outlined in this Decision, to vindicate its right to represent certain employees at Mercy Hospital pursuant to its certification issued by the state 1? American Ship Building Co. v. N.L.R.B., 380 U.S. 300 (1965); N.L.R.B. v. Brown,. er at, d/b/a Brown Food Store, et al., 380 U.S. 278 (1965); N.. LR. B v. Erie Resistor Corp., et al., 373 U.S. 221 (1963). '8 As the unfair labor practice charge in Case 7-A 12174 alleging unlawful domination of. and assistance to, the Grievance Committee was filed and served on July 15, 1975, evidence of events occurring before board, the Respondent revised its grievance procedure wherein the Grievance Committee was created to handle employee grievances in the third stage of a four-stage grievance procedure. The evidence relating to the forma- tion and administration of the Grievance Committee, alleged to violate Section 8(a)(2) and (1) of the Act, is substantially undisputed and is as follows: In the summer of 1974,18 Mercy Hospital and Memorial Hospital each had a separate grievance procedure. Dissat- isfied with the way these procedures operated to their disadvantage, the employees complained to the Respon- dent and refrained from utilizing them. Consequently, Administrator Hiltz instructed the then personnel director, Benjamin Duckworth, to meet with the employees to obtain their ideas regarding an acceptable grievance procedure with the view of restructuring the existing procedures. Duckworth thereupon assembled information concerning the grievance procedures used at various hospitals and other establishments and announced in the Respondent's publications the Respondent's intention to formulate a new grievance procedure, inviting the employ- ees of Mercy and Memorial Hospitals to attend meetings to be held at both Hospitals and to contribute their sugges- tions and ideas. A total of about six such meetings, presided over by Duckworth, were held on different dates from September through November 1974 with employees of one Hospital being permitted to attend any meeting at the other. At the initial meeting, the employees' complaints concerning the existing grievance procedures were discuss- ed and Duckworth explained the different types of grievance procedures utilized at other hospitals and plants, which he posted on a blackboard for employees to inspect and consider as guidelines. At this and subsequent meetings, the principal subject considered was the creation of a Grievance Committee and the role it would play in the grievance procedure. The other steps of the grievance procedure were given minimal, if any, attention. At all these meetings, employees voiced their views and criticism of the various plans and made suggestions and proposals of their own, upon which Duckworth, in turn, offered his comments and opinion. Questions raised by employees were also answered by Duckworth. To assist him in ultimately drafting an acceptable grievance procedure Duckworth kept notes of what he regarded reflected a consensus of the employees' views expressed at these meetings. However, no employee vote was taken concern- ing any aspect of the grievance procedure. A final meeting was held in November 1974, at each of the Hospitals. Duckworth prepared, in advance, a docu- ment which he distributed among the employees in attendance. Noting that "[r]esolving grievances should be viewed as the hospital's and its employees mutual obliga- tion to contribute to the highest quality of care to patients," the document stated that "[i]n developing a grievance procedure for Mercy-Memorial Hospital, the participation January 15, 1975, was received solely for background purposes "to shed light on the true character of matters occurring within the 16-months] limitations period." Local Lodge 1424, International Association of Machin- isis, AFL-CIO v. N.L.R.B., 362 U.S. 411. 416 (1960). It is noted that these unfair labor practices were repeated in the charge filed in Case 7-CA 12599 on December 17, 1975. 1118 MERCY-MEMORIAL HOSPITAL and advice of all employees is encouraged." It then summarized a number of suggestions received since the first meeting and urged that an attempt should be made "to finalize the above suggestions or add any that you feel pertinent. We should also decide on an effective date for the procedure and a method for electing a Grievance Committee." The ensuing discussions, in which Duckworth and employees engaged, among other things, dealt with the encouragement of settlement of grievances at the early stages of the grievance procedure; the establishment of a grievance committee as part of the appeal process should early settlement fail; the composition of the Grievance Committee and qualifications of its members; whether a representative of management should be included to present management's viewpoint; the payment of straight time rates to members of the Committee for the time spent in hearing a grievance; the grievant's right to select four members of the Grievance Committee and a department head to hear the grievance at this step; and the grievant's right to representation, should he or she desire it, during this stage of the grievance procedure. The question of the effective date for the new procedure was also raised by an employee. Since Duckworth had to reduce into writing the new grievance procedure evolved at these meetings and to submit it to the administrator and the board of directors for approval because it embodied a new policy, he informed the employees that the plan could be put into effect in January 1975 at the earliest, as it ultimately was. Moreover, Duckworth pointed out that it would be impossible to arrange for nominations and the election of members of the Grievance Committee by that date, and that therefore it would be advisable to have an interim grievance committee appointed to serve for 3 or 4 months when an election of the permanent Grievance Committee could feasibly be held. The employees were agreeable to this idea, as well as to the proposal that the interim Committee be composed of 10 employees to be selected at random, one from each Hospital department. Duckworth was thereupon requested by the employees to make the Committee selection. Based on the foregoing discussions and guided by the provisions of the grievance procedures prevailing at other establishments, Duckworth drafted a grievance procedure for the Respondent's Hospitals, which was published in the December 1974 Mercy-Memorial News, one of its publica- tions, under the heading of "Grievance Policy and Procedure." The introductory paragraph stated that the grievance procedure therein set forth "is a draft of the employee grievance policy and procedure compiled from employee suggestions and ideas." It then continued: "! The personnel guide, which notes on its first page that it "represents the policies and practices presently in effect at our hospital.'" outlines the terms and conditions of employment there, along with other personnel matters. 2. A grievance is defined in the personnel guidebook "to mean any co'mplaint or inequity concerning an employee or group of employees with regard to working conditions. disciplinary actions. hospital policies. departmental polics and procedure, salary problems. discrimination. complaints. and other incidents in general that affect employer employee relations. 2z Stage I involves presentation of the grievance to the employee's immediate supervisor, while stage II involves his department head. The personnel director asks that employees examine the proposed draft and refer further suggestions and recommendations to his attention. All suggestions will be reviewed and the grievance policy and procedure will then be finalized and placed into effect. When submitting your suggestions and ideas, re- member you may be affected in the future by the policy and procedure, give it your careful consideration. This publication was distributed among the employees in January 1975. Apparently the draft met with the approval of the board of directors and Administrator Hiltz and the same month was incorporated in the Respondent's "Per- sonnel Guide - January 1975" 19 as the grievance procedure then in effect at Mercy and Memorial Hospitals. The issue of unlawful domination and assistance centers around stage III of the grievance procedure which provides the following appeal procedure if an employee's griev- ance 20 is not resolved to his satisfaction at the lower levels: 21 Employee: I. The employee must present his grievance to the Director of Personnel within three days following the completion of stage II. Personnel Director: 2. The Personnel Director will arrange for a meeting of the Grievance Committee 22 and inform em- ployee and/or designee (if any) of the date. Grievance Committee: 3. Investigate all aspects of the grievance including meeting (if necessary) with the employee and/or designee (if any). Grievance Committee: 4. The Committee will render its decision within five days after its meeting. The Committee will inform the Personnel Director of its decision and the Director will inform the employee. Employee: 5. If the employee is still not satisfied with the outcome of the grievance, he should proceed to stage IV. As a matter of practice, when a third-stage grievance is initiated, the personnel director presents the grievant with a list of the 10 committee members from which he chooses 4 to serve on a sort of panel of the Committee to hear his grievance. The grievant is also given the choice of a 22 The grievance procedure defines the Grievance Committee as: composed of four employees and one department head. Employees are elected for a one-year term by all employees and the employee may select a department head of his choice. Any member must have a minimum of three years of continuous employment with the hospital. As indicated below, the statement of policy Duckworth handed the elected 10-member Grievance Committee modified this definition to provide for a 2-year staggered term for members of the Committee. 1119 DECISIONS OF NATIONAL LABOR RELATIONS BOARD department head, other than his own or that of a sitting committee member, to be the fifth member of that committee. The members of this committee are then notified by the personnel office of their selection and are excused from their work duties in order to hear and decide the grievance. The employee members are paid for their time at their regular straight time wage rates while serving on the committee. When the grievance is being heard, the personnel director attends for the purpose of presenting to the committee a written synopsis of the issues and the positions of the parties taken at the earlier grievance steps, which the personnel office had previously prepared. Other documents are also submitted and the complete personnel file of the grievant is made available to the committee for its inspection. The personnel director is then excused unless the committee desires to question him. After the hearing, the committee members enter upon their delibera- tions in private and render their decision based on a majority vote. Each member, including the department head, has one vote and the committee's decision may not contravene the Respondent's policy or other rule or regulation, which the committee is not authorized to change or modify. However, if the grievance involves disciplinary action, the committee may decrease it but never increase it. Finally, the decision is reported to the personnel office which, in turn, notifies the grievant. If the grievant is still dissatisfied with the outcome, he has the option of proceeding to stage IV wherein his grievance will be considered by the personnel committee of the board of directors. Should he not appeal, the Grievance Commit- tee's decision becomes final and binding. As contemplated at the employee meetings, Duckworth appointed an interim grievance committee composed of 10 employees whom he selected from the various departments to act as the third stage of the grievance procedure until a permanent grievance committee was elected by the employees. A number of employees declined Duckworth's invitation to serve on this committee. At the first meeting of the interim committee, Duckworth distributed among the members a two-page policy statement which, according to Duckworth, reflected the understanding reached at the earlier employee meetings. This document described the function and composition of the committee, the term of office of members of the committee, the procedure to follow in investigating and resolving the grievance, the objective of the grievance procedure, the confidentiality of records, the grievant's right to designate an individual to assist or represent him, the nature of the committee's decision, and the grievant's right to appeal. Pursuant to the established procedures, the interim grievance committee processed and resolved a number of grievances, some of which were decided in favor of the grievants and others in favor of management. After several months of the interim committee's opera- tion, Duckworth made arrangements for its replacement by a permanent grievance committee. Accordingly, Duck- worth scheduled an election for June 27, 1975. This was announced in the Respondent's publication in which ':' In addition to the nominees in the first election, Cain and another employee became candidates. "2 Duckworth testified, without contradiction, that this statement also nominations were invited to be submitted to the personnel office or deposited in the suggestion boxes located in both hospitals. All full-time employees who had 3 years seniority were eligible for nomination. When Duckworth received the slips of paper nominating the employees, he placed them in an envelope for the employees' inspection, if they so wished to do. Duckworth then prepared the ballots at the Respondent's expense and, instead of listing the nominees in alphabetical order, decided to use a random number table and scramble the names so that the same names did not appear at the top of the list and thus insure the fairest vote possible. The ballots were thereafter distributed among the employees when they received their paychecks. Upon voting their choice of four nominees, the employees deposited their ballots in one of the suggestion boxes. These ballots were subsequently collected by the individual in charge of the boxes who delivered them to the interim committee. However, the ballots were never counted as employee Dennis Cain promptly filed a grievance with the interim committee challenging the fairness of the election. The committee upheld the grievance, vacated the election, and directed that a new election be held. As a consequence, Duckworth scheduled and announced a new election for August 8, 1975, following the same election procedures as before.23 Thereafter, the cast ballots were tallied by the interim grievance committee in the presence of Duckworth and the results were certified by it. After the foregoing election, the newly elected Grievance Committee held its first meeting with Duckworth in attendance. Here, too, Duckworth handed out to the committee members a three-page policy statement which was an expanded version of the policy statement previously given to the interim committee members, but with some modifications. 24 While the statement made clear that the committee was not empowered to "change or alter any rule, regulation or standard presently in effect at the hospital," it also specifically noted that "'t]he committee does have the right and the obligation to recommend to the Director of Personnel and all other administrative heads through him and in writing, any change in rules, regula- tions, and standards. These recommendations will then be discussed and acted upon by the administrative head and the committee members and be informed of that decision." The Respondent insists that this right to make recommen- dations is no different from the opportunity afforded any employee to make recommendations and that such recom- mendations are processed in the same way without any negotiations taking place. At this meeting there was also some discussion concern- ing the experience of the interim committee in handling grievances and its mode of operation. In addition, on the prior recommendation of the interim committee to Duck- worth, the policy of staggering the members' term of office was adopted in order to maintain a degree of continuity in the Grievance Committee. Accordingly, a drawing was held to determine the five members who would serve I year and the other five members who vould serve 2 years. reflected the consensus at the employee mleetings. Among other things, the statement changed the regular term of office of a committee member from I to 2 years. 1120 MERCY-MEMORIAL HOSPITAL It is undisputed that only one matter was handled by the elected Grievance Committee which resulted in a change of hospital policy 25 and that related to the question of an employee's qualification for a longevity service pin. A grievance pertaining to this matter was filed on August 28, 1975, by an employee on behalf of herself and other employees in which she complained about the different methods used to determine eligibility. Duckworth, then newly appointed to his assistant administrator position, called a meeting of the Grievance Committee. With Duckworth's successor as personnel director in attendance, they discussed the subject of service pins with the committee whose recommendation for a single uniform policy was solicited. The committee made its recommenda- tion which was adopted by management sometime later without further discussion or negotiation. 2. Concluding findings The consolidated complaint alleges that the Grievance Committee is a labor organization which the Respondent has dominated and with whose formation and administra- tion it has interfered in violation of Section 8(aX2) and (1) of the Act. The Respondent, however, denies that the Grievance Committee is a statutory labor organization, insisting that it exists solely for the purpose of deciding grievances and that it does not engage in collective bargaining as that phrase is commonly understood. It further argues that for that reason, as well as the lack of sufficient evidence that the Grievance Committee was unlawfully dominated or assisted, the 8(a)(2) and (I) allegations of the consolidated complaint in that regard should be dismissed. Section 2(5) of the Act, in pertinent part, includes in its definition of "labor organization" any "employee represen- tation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work." The critical factor in this definition as it affects the issue of labor organization here presented is whether the Grievance Committee "exists for the purpose . . . of dealing with" the Respondent concerning grievanc- es. While the Supreme Court has held that the phrase "dealing with" is much broader than the term collective bargaining,26 I am not persuaded that the General Counsel has established by a preponderance of the evidence that the Grievance Committee here involved was formed for the purpose of dealing with the Respondent on behalf of employees concerning their grievances or that the commit- tee functioned in that manner. Quite the contrary, the committee was created simply to give employees a voice in '' All other matters handled b) the Gnevance Committee were grievances which did not involve a change in hospital policy or rules. '- '..L.R B . (oabo Carbon (norpani and (Cabo Shops, Inc, 360 U.S. 203. 211 (19S9) 7' In sile or the Respondent's unlawful refusal to recognize the Union. is the certified representative of Mercs Hospital's employees. perhaps the a;doption ot the new- grievance procedure and. in particular, the formation of the (irievance Committee here involved, might he violatise of Sec. 8(a} 5) of the Act. How.eser. such an unfair labor practice was neither charged nor illeged in the consolidated complaint nor litigated at the hearing. -' Shruld the Board disagree swith ms determination that the Grievance resolving the grievances of their fellow employees at the third level of grievance procedure, not by presenting to or discussing or negotiating with management but by itself deciding the validity of the employees' complaints and the appropriateness of the disciplinary action, if any, imposed. It is not without significance that, should a grievant be dissatisfied with the disposition of his grievance, he could appeal the Grievance Committee's decision to the highest level of management-the personnel committee of the Respondent's board of directors. Otherwise, the Grievance Committee's decision would be final. The fact that a department head designated by the grievant also served on the committee to hear the grievance is not sufficient evidence that the committee thereby exists to deal with management. Clearly, the department head, who has only one vote like any employee member on the committee, is bound by the decision reached by a majority of the committee. Moreover, the single occasion when Respon- dent's officials, Duckworth and Carpenter, discussed with the full Grievance Committee the Respondent's service pin award policy, which also was the subject of a grievance, and adopted the committee's recommendation for a change in policy certainly cannot convert the committee's status into a statutory labor organization. In sum, having found that the Grievance Committee is not a labor organization within the meaning of the Act, I conclude that the prohibitions of Section 8(a)(2) and (I) of the Act are not applicable to it.27 Accordingly, the relevant allegations of the consolidated complaint will be dis- missed. 28 D. Alleged Interference, Restraint, and Coercion of Employees 1. The "Remember Mercy" leaflet In Board proceedings instituted by the Union (Case 7- RC-12947) to represent certain employees at the Respon- dent's Memorial Hospital, an election was scheduled for December 19, 1975.29 As is not unusual in representation cases, the Union and the Respondent waged campaigns to defeat each other at the polls. The consolidated complaint alleges that in order to dissuade employees from voting for the Union the Respondent distributed a leaflet entitled "Remember Mercy" in which it advised them that their efforts to obtain union representation would be futile and that the Respondent thereby violated Section 8(a)(1) of the Act. It appears that, in response to the Union's campaign literature concerning higher wages and other benefits it would obtain for Memorial Hospital unit employees, the Respondent about 2 or 3 weeks before the scheduled Committee is not a statutory labor organization. I would find that. while the record would not sustain a finding of unlawful domination within the 6- month limitation period under Sec. 10(b) of the Act. the evidence would warrant a finding of assistance and interference with the administration of the committee in violation of Sec. 8(aK2) and (I) of the Act. Cf. Duquesne Universiro of the Hotl Ghost, 198 NLRB 891 (1972). 2" Two days before the scheduled date, the election was indefinitely postponed when a charge was filed bs the Union in Case 7 CA 12599 alleging, among others, a violation of Sec. 8ta)2) of the Act. This charge blocked further processing of the representation petition. 1121 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representation election issued a leaflet entitled "Remember Mercy" which it mailed to the employees. In it, the Respondent in chronological order listed the following events beginning with the Union's victory on May 20, 1970, in a representation election held among the Mercy Hospital unit employees: a strike by 110 employees at that hospital on May 1, 1972, as a result of the Union's inability to secure a contract; the continuing strike by 106 employees on June 30, 1972, while 126 employees remained at work at this hospital; the Respondent's institution of a lawsuit in a local court charging the Union and others with unlawful conduct; and the fact that on indicated successive dates the Union "[s]till [had] no contract and no bargain- ing has taken place," noting the increasing number of months which had elapsed since the last bargaining meeting. Concluding the Respondent's message, the leaflet stated: AS OF TODAY . . . OVER 5-1/2 YEARS AFTER THE ELECTION AND LOCAL 79 STILl. HAS NOT BEEN ABLE TO GET ITS FIRST CONTRACT WITH THE MERCY UNIT AND NO BARGAINING HAS TAKEN PLACE FOR THE LAST 4-1/2 YEARS. AS OF TODAY . . . ON NOVEMBER 3, 1975, THE HOSPITAL WROTE LOCAL 79 AND TOLD THE UNION IT WOULD NOT AGREE WITH THE UNION'S DEMAND TO COMMENCE BARGAINING FOR A UNION CONTRACT AT THE MERCY UNIT. It is noted that there are significant omissions from the leaflet which could explain the absence of bargaining. Thus, as previously discussed in this Decision, on June 30, 1972, the Respondent withdrew recognition from the Union, resulting in state board and court proceedings in which the Respondent was found guilty of unlawfully refusing to bargain with the Union. Moreover, Administra- tor Hiltz admitted in his testimony that the Union had made several bargaining requests since June 30, 1972. On the other hand, although the Union had ample opportunity to respond to the Remember Mercy leaflet and to clarify the situation in the handbills it subsequently circulated among the employees, it did not do so. Perhaps it was unnecessary since there is undisputed, credible testimony by employee Cain that the Remember Mercy leaflet was discussed by a union representative at a meeting with employees. There is also uncontroverted testimony by Hiltz, which I credit, that on December 17, 2 days before the scheduled election, he addressed the Memorial Hospi- tal unit employees and that, reading from a prepared statement, not claimed by the General Counsel or the Union to violate the Act, he assured the employees, among other things, that "[t]he law requires that we bargain in good faith-and we will." :"' Sec. 8(c) provides that the: expressing of any views, argument, or opinion or the dissemination thereof, whether in written. printed, graphic, or visual form, shall not As indicated above, it is the General Counsel's theory that the Remember Mercy leaflet unlawfully infringed upon the self-organizational rights of the Memorial Hospital unit employees because it advised the employees that their efforts to secure union representation were futile and that therefore they should not vote for the Union at the scheduled election. The Respondent, however, denies that futility of seeking union representation was the import of the leaflet or that the leaflet otherwise unlawfully interfered with employee rights. I find no merit in the General Counsel's position. I do not read the Remember Mercy leaflet as conveying the message that it would be futile for the Memorial Hospital unit employees to select the Union as their bargaining representative because the Respondent would refuse to perform its statutory obligation and bargain with the Union even if the Union won the election. Rather, I find that the leaflet's reference to the bargaining history at Mercy Hospital was merely intended to place the responsi- bility on the Union for their failure to conclude an agreement covering the Mercy Hospital employees and for the breakdown in negotiations, and thereby to demonstrate that the Memorial Hospital unit employees had nothing to gain from voting for the Union. Whether true or not, it is clear that the Respondent's statements were nothing more than an expression of opinion which the Constitution and Section 8(c) of the Act30 safeguard, and not an invasion of employees' statutory rights. Nor is a contrary finding warranted by the Respondent's final statement in the Remember Mercy leaflet, quoted above, that on November 3, 1975, the Respondent had informed the Union that it would not resume bargaining for a contract for the Mercy Hospital employees, as requested by the Union. Plainly, the Respondent was simply reiterating its long held position-whether legally tenable or not-that the Union had lost its status as the majority representative of the Mercy Hospital employees. Accordingly, I find that the Remember Mercy leaflet did not violate Section 8(a)(1) of the Act and that therefore the allegations of the complaint relating to that leaflet should be dismissed. 2. Service Director Hazlett's remarks to employee Miracle Effie Mae Miracle, a relief cook employed at Mercy Hospital for II years and a union activist, testified to the following conversation she had with her supervisor, Service Director Donald Hazlett, in either late November or early December 1975: Hazlett summoned her to his office. June Sharpe, another union supporter, was already there. Hazlett asked Miracle and Sharpe whether either one of them had removed from the kitchen bulletin board certain literature which the Hospital had posted concerning the Union and the election scheduled to be held at Memorial Hospital. When both employees denied that they had done it, Hazlett, stating to Miracle that he was aware that she was very active on behalf of the Union-which she readily constitute or be evidence of an unfair labor practice under any of the provisions of this Act, if such expression contains no threat of reprisal or force or promise of benefit. 1122 MERCY-MEMORIAL HOSPITAL admitted-repeated his inquiry about the removal of the literature and whether she had given it to the Union. Miracle again denied that she had done it or that she knew who had. This led to Hazlett's further remarks directed to Miracle that he had heard a rumor that she had been at Memorial Hospital, trying to induce 'its employees to vote for the Union. Miracle denied that she was ever there for such purpose, and added that the last time she was at Memorial Hospital was during the previous spring when her father was a patient in that institution. The conversation ended with Hazlett warning Miracle that, if he ever caught her at Memorial Hospital soliciting employees to vote for the Union, he would fire her, noting that he was tired of fighting with "you guys over this damn union." Hazlett admitted that he had called Miracle and Sharpe into his office but, according to his testimony, he only asked them whether they or somebody else had removed from the kitchen bulletin board a notice posted by the Hospital pertaining to this "union business" or "employees in the union." He further testified that Miracle and Sharpe answered the inquiry in the negative and that this concluded the conversation. He also specifically denied that he mentioned in this conversation the Union or Miracle's campaigning at Memorial Hospital or that she risked discharge. Under cross-examination, Hazlett con- ceded that out of some 37 employees under his supervision he had only spoken to the dietary clerk in his office and to Miracle and Sharpe about the removal of the Hospital notice and that the reason for speaking to Miracle and Sharpe was the fact that they were the most outspoken union advocates, which was a matter of common knowl- edge in his department. Miracle also testified to a subsequent conversation which she had with Hazlett on or about December 16, 1975, after she had asked Hazlett's assistant, Mrs. Steinman, whether she would change her day off for December 19 in order to enable her to take her father to the doctor's. According to Miracle's testimony, Steinman spoke to Hazlett who then called Miracle into the office. There, Miracle, in Stein- man's presence, repeated her request. Indicating some skepticism about the reason for the need to take off December 19. which happened to be the date of the scheduled Board election at Memorial Hospital, Hazlett asked Miracle whether she was lying. Miracle replied that she was not and offered to produce a letter to support her request. Hazlett, nevertheless, commented that he hoped she was not lying, declaring that, if she ever had to attend these union meetings, she would do well to let him know about it,3 ' and she agreed. He then warned Miracle that she was not to go to Memorial Hospital. This evoked Miracle's response that should any member of her family or friend become a patient in that hospital, she would go there to visit that patient after she clocked out at Mercy Hospital where she worked. She also asserted her right to enter the cafeteria in that hospital for a cup of coffee. Hazlett conceded that he could not stop her from seeing any of her relatives or other patients at Memorial Hospital : From the context in which the remark was made it appears to me that 1taleltt was really saying that. if she wanted time off to attend union rmeelings. she should be candid enough to give him the true reason. or going to the cafeteria but warned her that "he better not catch her" in the kitchen trying to talk the employees into voting for the Union because if he caught her he would "write . . . [her] up" and that would be "the end" of her. Miracle answered that the Union had told the Mercy employees not to get involved in the campaign at Memorial Hospital because it was none of their business. At some point in the conversation, Hazlett made the comment that it was not the Union or the "State" which was responsible for striking employees' return to work but the Respon- dent's through "the goodness of. . . [its ] heart." Hazlett gave a testimonial account of two separate conversations with Miracle subsequent to the first one. The subject matter of these conversations appears to relate to the general substance of the above two conversations to which Miracle testified. Thus, Hazlett testified that, after his first conversation with Miracle and Sharpe regarding the removal of the hospital notice from the bulletin board, he had the following "friendly" 5 to 10 minute conversa- tion with Miracle in the presence of his assistant, Steinman,3 2 probably a couple of weeks before the scheduled December 19 election: Having received a report from "someone" that Miracle was seen at Memorial Hospital, Hazlett summoned her to his office. When she arrived, he informed her that he was advised that she had been at Memorial Hospital "on union business" and that she could go there only to visit a patient. He also told her that she was permitted to go to the cafeteria in that hospital but not in the kitchen which is a work area. Miracle's response was that she had not visited Memorial Hospital and that, in fact, the Union had already told her to stay away from that hospital. Hazlett categorically denied telling Miracle that she would be fired if he caught her at Memorial Hospital, or that he would write her up if she went there, or that he was tired of fighting with her and other employees over the Union, or that the Respondent returned her to her job after the strike out of the goodness of the Respondent's heart. In his cross-examination, Hazlett testified that he might have said to Miracle that she would get "in trouble" if she went to Memorial Hospital except to visit patients or to go to the cafeteria. Concerning Miracle's request for the day off on Decem- ber 19, Hazlett testified that this request prompted the third conversation he had with her. According to Hazlett, the following occurred: A few days before December 19, he called Miracle into his office in connection with her request made to his assistant, Steinman, for December 19 day off. In reply to Hazlett's question why she wanted the day off, Miracle stated that her father had to go to see a doctor. Hazlett then told her that, if that was the true reason, he would permit her to have the day off but that he would not rearrange the work schedule to give her that day off if it was for "union business," meaning the scheduled Decem- ber 19 representation election. Miracle assured Hazlett that her request was for the indicated purpose and Hazlett granted it. He specifically denied warning her against lying. Miracle's account of her conversations with Hazlett appears to me to be more reliable than Hazlett's. The *2 Neither Steinman nor Sharpe, who Miracle testified was present during the first conversation, appeared as a witness. 1123 DECISIONS OF NATIONAL LABOR RELATIONS BOARD details related by Miracle have the ring of truth and not something imagined or contrived in order to make out a case against her supervisor with whom she must continue to work. Indeed, the general import of Hazlett's testimony, aside from his categorical denials, is not so much at variance with Miracle's testimony as to render the latter's version suspect. Miracle's testimony is therefore credited. Accordingly, on the basis of Miracle's testimony, I find that Hazlett threatened Miracle with discharge or other discipline if she engaged in the preelection campaign at Memorial Hospital on behalf of the Union. Such conduct was overly broad 33 and constituted an infringement of employee statutory rights violative of Section 8(a)(1) of the Act for which the Respondent is liable. Manifestly, the Respondent cannot claim immunity from such a finding simply because the Union advised Mercy Hospital employ- ees not to get involved in the election at Memorial Hospital. Nor are the threats in question less coercive because Hazlett agreed that Miracle could visit patients and the cafeteria at Memorial Hospital and lawfully prohibited Miracle from entering the kitchen which is a work area. 3. Hazlett's statements to Griffin and two other employees A threat of onerous working conditions was allegedly made by Service Director Hazlett to kitchen employees Alma Griffin, Stella Rictor, and June Sharpe. This incident had its origin in a complaint which employee Karen Symington made to Hazlett that her job was too much for her and that she was unable to do the tasks required in her job description. Hazlett told her that her job had to be performed and to try to cope with it otherwise it would have to be "rescheduled." Symington thereupon left the office distressed and apparently recounted this conversa- tion to employees Griffin, Rictor, and Sharpe who thereupon spoke to Hazlett in his office concerning this matter. Griffin testified that this episode occurred in or about January 1976, wile Hazlett believed it occurred on a date he could not remember but which was before the December 19 scheduled election. According to Griffin, Hazlett called the three employees into his office and, in the presence of Steinman, they complained to Hazlett that he was giving Symington more work than she could handle. Hazlett replied that that matter did not concern them. Griffin, however, retorted that it did concern her since she relieved Symington when the latter was off. Hazlett then challenged their right to act as Symington's spokesmen since there was no union in the picture at Mercy Hospital where they worked, adding that when a union got in he would permit one of the employees to serve as a spokesman. At one point in the conversation, Griffin testified, Hazlett stated that he was going to put more work on the employees. Although Griffin testified that this was all she could recall Hazlett saying on this occasion, the General Counsel, in an attempt to refresh Griffin's memory, asked her whether anything was said about what would happen if the Union got in. Griffin :3:' See, for example, St. John's Hospital and School of Nursing, Inc., 222 NLRB 1150(1976). :" Neither Sharpe nor Rictor who, together with Griffin, approached thereupon amplified her testimony that in the middle of the conversation Hazlett said "if the union got in he would put more work on us." Hazlett's version of this episode is as follows: Griffin, Rictor, and Sharpe entered his office on their own volition to discuss the work assigned to Symington. When Sharpe told Hazlett that he was unfair to Symington, Hazlett replied that the matter was no concern of theirs. At this point, Griffin said that it was certainly her concern as she was Symington's relief worker. Hazlett then stated that the employees had no spokesman but when the Hospital became unionized they would have a union spokesman. He specifically denied warning that employees would have to work harder or that, if the Union got in, he would put more work on them. Hazlett, however, conceded that he probably made the remark that if there were a union at the Hospital they, nevertheless, would have to perform their jobs as required by their job descriptions qr be "written up" or disciplined if they failed to do so. I am not entirely convinced by Griffin's testimony adduced by the General Counsel in support of the allegation of the consolidated complaint that Hazlett "threatened employees with more onerous working condi- tions should employees adhere to the Charging Union as their collective-bargaining representative." As noted above, Griffin added to her testimony that Hazlett said that he would put more work on the employees the phrase "if the union got in" only after the General Counsel mentioned the phrase in an effort to refresh her recollection. 34 On the other hand, I find that Hazlett's account to the effect that the Union's presence would not relieve employees of their duties outlined in their job descriptions reflects what more likely was said by him on the occasion in question. I therefore credit Hazlett's testimony in this respect. I accordingly find that the General Counsel failed to establish by a preponderance of credible testimony that Hazlett threatened employees with onerous working conditions if they continued to support the Union. The relevant allegations of the consolidated complaint will be dismissed. IV. THE REMEDY Pursuant to Section 10(c) of the Act, as amended, it is recommended that the Respondent be ordered to cease and desist from engaging in the unfair labor practices found and take certain affirmative action designed to effectuate the policies of the Act. I have found that the Respondent unlawfully delayed the reinstatement of the striking employees listed in Appendic- es C and D. To remedy this violation, it is recommended that the Respondent make these employees whole for any loss of earnings he or she may have suffered by reason of the delayed reinstatement by payment to him or her of a sum of money equal to that which he or she normally would have earned from the date he or she should have been reinstated to the date upon which he or she was actually reinstated, as indicated in Appendices C and D, Hazlett with the Symington problem testified; nor for that matter was Hazlett's assistant, Steinman, called as a witness. 1124 MERCY-MEMORIAL HOSPITAL less his or her net earnings during the said backpay periods.35 Backpay shall be computed with interest on a quarterly basis in the manner prescribed by the Board in F. W. WoolwAorth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). To facilitate the computation, the Respondent shall make available to the Board, upon request, payroll and other records necessary and appropriate for such purposes. The posting of a notice to employees is also recommended. In view of the nature of the discrimination found herein for protected union and concerted activities and support which "goes to the very heart of the Act,"36 there exists the danger of the commission by the Respondent of other unfair labor practices proscribed by the Act. Accordingly, I recommend that the Respondent be ordered to cease and desist from in any other manner infringing upon the rights guaranteed employees in Section 7 of the Act.37 Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW I. The Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The Grievance Committee is not a labor organiza- tion within the meaning of Section 2(5) of the Act. 4. By unreasonably delaying the reinstatement of certain of its striking employees, as found above, and by applying a discriminatory weekend job assignment policy to reinstated striking employees, the Respondent has discriminated in regard to the hire and tenure of employ- ment of these employees to discourage membership in, and activities on behalf of, the Union within the meaning of Section 8(a)(3) of the Act. 5. By such conduct and by threatening employee Miracle with discharge or other disciplinary action if she engaged in the Union's preelection campaign at Memorial Hospital, the Respondent interfered with, restrained, and coerced employees in the exercise of their statutory rights within the meaning of Section 8(a)( ) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 7. The Respondent has not dominated or interfered with the formation or administration of a labor organiza- tion, namely, the Grievance Committee, in violation of Section 8(a)(2) of the Act; nor has it engaged in conduct in violation of Section 8(a)(1) of the Act other than as found above. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 1.0(c) of the :L:, As indicated in this Decision. Alice and Mary Biniecki's right to reinstatement and backpay will he determined in compliance proceedings. ':"` O L R B. v. Enftisle Manufacruring Compan:. 120 F.2d 532. 536 (C.A. 4. 1941). It is also noted that the Board has recently found the Respondent in violation of Sec. 8(al(5) and (I) of the Act. AUerc -Memorial Hospiial ('r,,rplraion. 224 NLRB 51 ( 1976). :7 ' L R.B. *. Evpress Publishing Co. 312 U.S. 426.433 (1941). : In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations o. the National Iabor Relations Board. the findings. Act, as amended, I hereby issue the following recommend- ed: ORDER 3 8 The Respondent, Mercy-Memorial Hospital Corpora- tion, Monroe, Michigan, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in, or activities on behalf of, Local 79, Service Employees International Union, AFL-CIO, or any other labor organization, by unreason- ably delaying the reinstatement of striking employees upon their unconditional application to return to work or by applying a discriminatory weekend job assignment policy to reinstated striking employees or by discriminating against employees in any other manner in regard to their hire or tenure of employment or any term or condition of employment. (b) Threatening employees with discharge or other disciplinary action for engaging in any preelection or organizational activities on behalf of the above-named Union or any other labor organization at the Respondent's Memorial or Mercy Hospitals. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self- organization, to form labor organizations, to join or assist the above-named Union or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a)(3) of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Make whole for any loss of earnings the striking employees listed in Appendices C and D may have suffered by reason of the discrimination against 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, and all other records necessary or useful in analyzing the amount of backpay due under the terms of this recommended Order. (c) Post at its Mercy and Memorial Hospital Units in Monroe, Michigan, the attached notice marked "Appendix F."3 9 Copies of said notice, on forms provided by the Regional Director for Region 7, after being duly signed by the Repondent's authorized representative, shall be posted conclusions. and recommended Order herein shall. as provided in Sec. 102.48 of the Rules and Regulations, he adopted bs the Board and become its findings, conclusions. and Order. and all objections thereto shall be deemed waived for all purposes. i:S 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." 1125 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by the Respondent immediately upon receipt thereof, 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 to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 7, in writing, within 20 days from the date of.this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the allegations of the consolidated complaint charging violations of Section 8(a)(2) and (1) of the Act except as found in this Decision be, and they hereby are, dismissed. APPENDIX A a. Although erroneously sent the Respondent's letter of February 28, 1975, the following 19 individuals are not entitled to reinstatement because they had quit their jobs on the indicated dates long before the Union's application for the strikers' reinstatement made on February 21, 1975: Irene Baker-June 19, 1972; Marie Braden-June 21, 1972; Hobart Carroll-June 5, 1972; Flora Epps-October 26, 1972; William Hakin-July 18, 1972; Kathleen Joyce- May 23, 1972; Norma Knee-December -, 1973; Mary LaFrance-September 22, 1972; Katherine Lowe-March 21, 1973; Victor Mexico-June 29, 1972; Frederick Owsley-June 29, 1972; Wilma Peters-March 5, 1974; Carolyn Petree-September 29, 1972; Francis Rath- March 5, 1974; Marian Reaume-quit before September 24, 1973, on which date she was reemployed; Claudia Sauer-August 16, 1973; Mildred Schardt-May 30, 1973; Marilyn Smith-October 12, 1974, and Linda Ucci-July 24, 1972. b. The following employees were deceased prior to the Union's application for reinstatement: Harriet DuVall and Janet Sancrant. APPENDIX B The following 21 striking employees were timely reinstat- ed on March 18, 1975, and are therefore not entitled to any backpay: Marion Avery, Barbara Collino, Nicolena Coluc- ci, Irene Congioloso, Florence Dussia, Thelma Lucille Fortner, Alma Griffin, Axie Ivie, Lillian Jones, Genevieve Kregal, Rosemary LeBeau, lona Langford, Mary McCam- mon, Robin McMillan (Robinson), Joyce Messer, Pauline Philbeck, Diane Poupard, June Sharpe, Edward Tibai, Helen Turner, and Billie Woods. APPENDIX C The reinstatement of the following 19 striking employees was unreasonably delayed and they are therefore entitled to backpay from March 18, 1975, to the indicated date. [All dates are in 1975.] Barbara Billmyer-June 23; Billie Cathey-April 21; Susie Clark-June 23; Shirley Ed- monds-April 1; Gladys Fleeman-April 1; Ronald Fountain-June 15; Ethel Freet-April 1; Mattie Hoye- June 23; Elsie Jones-April 1; Mattie Madison-April 1; Kathleen McBride-June 23; Bethel McKenzie-April 8; Hazel Minton-April 1; Kathleen Rhines-April 1; Mary Ruman-June 23; Hazel Sager-April I; Betty Vergow- ven-April 8; Tina Welch-April 1; and Rita Zawicki- June 23. APPENDIX D Employees whose reinstatement or to whom a reinstate- ment offer was separately found in this Decision to have been unreasonably delayed are as follows, with the indicated backpay period. [All dates are in 1975.] Charlotte Goins-3/26-4/1; Dale Lajiness-3/18-5/27; Blauma Langford-3/18-6/30; Alice McDonald-4/16-5/19; Ef- fie Mae Miracle-3/18-4/1; William Ohr-3/18-4/8; Juanita Patterson-3/18-6/23; Bernice Sordini-3/18- 4/1; Alberta Violanti-5/4-5/19; Dorothy Vogler-3/24- 10/14; Harvey Woods-3/29-4/21; and Theo Wylie- 3/3 -4/8. APPENDIX E a. The six employees listed received the Respondent's letter of February 28, 1975, but failed to report or otherwise communicate with the Hospital. Accordingly, they are not entitled to reinstatement or backpay: Sandra Druyor, Virginia Gill, Donald Johnson, Mike Porta, Shirley Vanderpool, and Lawrence Whittaker. b. Similarly not entitled to reinstatement or backpay are the following 10 employees who did not respond to the Hospital's February 28, 1975, letter except to notify it that they were quitting: [Quit dates are as shown. All dates are in 1975.] Jewell Bosenbark - first week in March; Florence Brewer - after March II; James Cron - July 29; Shirley Marchese - March 13; Evelyn Nolan - May 30; Mary Ann Zawacki - June 26; Jane Faziani - July 1; Kathy Grubb - June 27; Macie Langford - July 25; and Buford McKartz - March 19. c. The Respondent's February 28, 1975, letters mailed to Peggy Kohler and Danny Longsworth were returned as nondeliverable. Despite efforts to locate them, the Respon- dent was unable to reach them. Accordingly, they, too, are not entitled to reinstatement or backpay. d. Although the five employees listed below were sent the Respondent's letter dated February 28, 1975, they are not entitled to reinstatement as they had reached age 65 prior to the Union's application for reinstatement and were retired pursuant to the Hospital's mandatory retirement policy: Marguerite Cuson, Louis Nagy, Edith Nieman, Martine O'Bryen, and Leo Russeau. e. Employee Patsy Vanderpool, who had been reinstat- ed on August 25, 1974, was mistakenly sent the February 28, 1975, letter and therefore was not unlawfully deprived of reinstatement. f. Since the following employees never went on strike, they were erroneously sent the February 28, 1975, letters and were not unlawfully denied reinstatement: Marion Costello, Rose Robinson, John Sawick, and Janice Balk. 1126 MERCY-MEMORIAL HOSPITAL APPENDIX F NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had the opportunity to give evidence, the National Labor Relations Board found that we violated the National Labor Relations Act and ordered us to post this notice. The Act gives all employees the following rights: To organize themselves To form, join, or support unions To bargain as a group through a representative they choose To act together for collective bargaining or other mutual aid or protection To refrain from any or all of these activities. WE WILL NOT discourage membership in or activities on behalf of Local 79. Service Employees International Union, AFL-CIO, or any other labor organization, by unreasonably delaying the reinstatement of striking employees upon their unconditional application to return to work or by applying our discriminatory weekend job assignment policy to reinstated striking employees or by discriminating against employees in any other manner in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT threaten employees with discharge or other disciplinary action for engaging in any preelec- tion or organizational activities on behalf of the above- named Union or any other labor organization at our Memorial and Mercy Hospital units. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the above-named Union or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized by Section 8(a)(3) of the Act. WE WILL make whole those striking employees whose reinstatement was unreasonably delayed for any loss of earnings they may have suffered by reason of such discrimination. MERCY-MEMORIAL HOSPITAL CORPORATION 1127