Kaplolani Hospital

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kapiolani Hospital and Christine Kiyohara. Case 37- CA-1239 July 29, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY On March 29, 1977, Administrative Law Judge James T. Barker issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief, and the General Counsel filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified below.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Kapiolani Hospital, Honolulu,' Hawaii, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order as so modified: 1. In paragraph 1(b), substitute the phrase "In any other manner" for "In any like or related manner." 2. Substitute the attached notice for that of the Administrative Law Judge. I The Respondent's motion to supplement and correct its brief in support of exceptions is hereby granted. 2 In par. I(b) of his recommended Order, the Administrative Law Judge uses the narrow cease-and-desist language, "in any like or related manner," rather than the broad injunctive language, "in any other manner," which the Board traditionally provides in cases involving serious 8(aX3) discriminato- ry conduct. See N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941); Electrical Fitting Corporation, a subsidiary of I-T-E Imperial Corporation, 216 NLRB 1076 (1975). Accordingly, we shall modify the Administrative Law Judge's recommended Order and no-ice. APPENDIX B NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT terminate the employment of Christine Kiyohara, or any other employee, because he or she engages in union or other protected concerted activities, including refusal to work behind a lawful picket line established by Hawaii Nurses Association. WE WILL NOT discourage employees in their right to engage in union or protected concerted activities, including their right to observe a lawful picket line, by terminating our employees because they engage in union or other concerted activities, or in any other manner discriminate against any of our employees in regard to hire or tenure of employment, or any term or condition of employ- ment, except as permitted by the proviso to Section 8(a)(3) of the Act. WE WILL offer Christine Kiyohara immediate and full reinstatement to her former position, or, if that position is no longer available, to a substantially equivalent position of employment, without prejudice to her seniority or other rights and privileges, and make her whole for any loss of pay she may have suffered by reason of the discrimination against her. KAPIOLANI HOSPITAL DECISION STATEMENT OF THE CASE JAMES T. BARKER, Administrative Law Judge: This case was heard before me at Honolulu, Hawaii, on October 21, 22, and 23, 1976, pursuant to a complaint and notice of hearing issued by the Regional Director of the National Labor Relations Board for Region 20 on July 2, 1976.' The complaint is based upon a charge filed by Christine Kiyohara, an individual, on March 29, and alleges violations of Section 8(aXI) and (3) of the National Labor Relations Act, as amended, hereinafter called the Act. Respondent concedes the timely filing of the charge herein. Counsel for the General Counsel and counsel for Respon- dent timely filed briefs with me. Upon the entire record in this case, the briefs of the parties and my observations of the witnesses, I make the following: ' All dates refer to the calendar year 1976. unless specifically noted otherwise. 231 NLRB No. 10 34 KAPIOLANI HOSPITAL FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Respondent is a corporation organized under the laws of the State of Hawaii and is engaged in the operation of a hospital facility located in Honolulu, Hawaii. During the calendar year immediately preceding the issuance of the complaint herein, Respondent, in the course and conduct of its business operations, received gross revenues in excess of $250,000. During the same period of time, Respondent, in the course and conduct of its business operations, purchased goods, materials, and supplies valued in excess of $50,000 directly from suppliers located outside the State of Hawaii. Upon these facts, which are not in dispute, I find that Respondent is, and has been at all times material herein, an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent concedes, and I find, that the Hawaii Nurses Association, herein called the Union or HNA, is, and has been at all material times, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The principal issue in this proceeding is whether Respondent terminated Christine Kiyohara because she engaged in protected concerted activities, or whether Kiyohara was terminated because she failed to comply with Respondent's legitimate employment regulation re- quiring employees to give timely notice of their intended absence from duty. The complaint, as amended at the hearing, alleges, and Respondent concedes, that at material times Kiyohara was an employee within the meaning of the Act. A threshold issue is raised whether Kiyohara, an unrepresented employee, engaged in protected activity when she honored a picket line legally established at Respondent's facility by the Union, or whether she lost the protection of the Act by failing to give the notices required by Section 8(g) and 8(d) of the Act.2 Moreover, an issue was raised whether the strike of the Union against Respondent's acute care medical facility was, by its nature, unlawful thereby rendering unprotected Kiyohara's con- duct in withholding her services in support of the nurses' strike. 2 Sec. 8(g) provides: A labor organization before engaging in any strike. picketing, or other concerted refusal to work at any health care institution shall, not less than ten days prior to such action, notify the institution in writing and the Federal Mediation and Conciliation Service of that intention, except that in the case of bargaining for an initial agreement following the certification or recognition the notice required by this section shall not be given until the expiration of the period specified in Clause (B) of the last sentence of sentence 8(d) of this Act. The notice shall state the date and time that such action will commence. The notice, once given. may be extended by the written agreement of both parties. B. Pertinent Facts 1. Background facts a. The setting Kapiolani Hospital is an acute care hospital facility situated in Honolulu, Hawaii, and is engaged in providing maternity, obstetrical, and gynecological care. It is the principal obstetrical care facility situated on the island of Oahu. In the maternity section of the hospital is labor and delivery; the special care unit, also known as first postpartum unit; the nursery; and the second postpartum unit. Respondent's facility operates on a 24-hour basis. The nursing services department is under the direction of Richard Davi, executive director. June Nakashima is the director of patient services. Reporting directly to Nakashi- ma at relevant times were Patricia Okano, the shift coordinator, and Pauline Meheula, the unit manager. Under the unit manager work the charge nurse; staff nurses; licensed practical nurses, herein called LPNs technicians; nurses aides; attendants; and transporters. Employed also in the nursing services department are ward clerks and two secretaries to the director of patient services. At all relevant times, the registered nurses, herein called RNs, were classified either as charge nurses or staff nurses and were represented by the Union. Excluded from the unit of nurses are the supervisory, administrative, and managerial registered nurses, including the unit managers, shift coordinators, and the nursing educators. At all times pertinent herein, the LPNs were represented by the United Public Workers, herein called UPW. Under a separate collective-bargaining agreement, UPW at all pertinent times has represented all nonmanagerial and nonsupervisory personnel employed in the nursing services department, other than RNs and the ward clerks and the secretaries to the director of patient services. The ward clerks and the two secretaries are unrepresented. Christine Kiyohara was employed at relevant times as a ward clerk on the second postpartum unit and was not a member of any labor organization. b. The strike commences During times pertinent to this proceeding, Respondent and the Union were parties to a collective-bargaining agreement effective by its terms from July 15, 1974, through November 30, 1976. For a substantial period of time the Union has engaged in joint bargaining with Respondent, Children's Hospital, Kaiser Foundation, Sec. 8(d) of the Act provides, in pertinent part, that: Any employee who engages in a strike within any notice period specified in this section, or who engages in any stnke within the appropriate period specified in subsection (g) of this subsection shall lose his status as an employee of the employer engaged in the particular labor dispute, for the purposes of section 8, 9 and 10 of this Act, as amended. .... 35 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kuakini Hospital, and St. Francis Hospital, all situated on the island of Oahu.3 Each hospital was a party to an individual contract with the Union. In the latter part of 1975, pursuant to bargaining requests by the Union, collective-bargaining negotiations were commenced. Chris Taylor, associate director of the Union, participated in the negotiations. Nurses Mary Maas and Deborah Tullier, employees of Respondent, were chosen by unit employees to represent them on the negotiating committee. Several meetings were held but the parties were unable to reach a collective-bargaining agreement. The services of the Feder- al Conciliation and Mediation Service were invoked and in December a one-man board of inquiry was convened. On December 29, 1975, the board of inquiry issued its report, together with recommendations. However, the parties did not achieve a meeting of the minds with respect to the terms of a collective-bargaining agreement and a strike resulted. By letter of January 15, the Union, through Chris Taylor, its associate director, had advised Respondent of its intention to engage in a strike commencing at 12:01 a.m. on January 26. Subsequently, by letter dated January 26, Respondent was advised that the Union would commence its strike at 12:01 a.m. on January 28. The strike commenced, as scheduled, on January 28 and ended on February 15. On March 1, the parties executed a memoran- dum of agreement modifying certain terms of the basic collective-bargaining agreement. c. The ward clerk position Christine Kiyohara was employed in November 1974 in the position of ward clerk in the second postpartum unit. Kiyohara's last day of work was January 27, 1976. During the term of her employment, she was employed in the maternity section of the hospital and she served on the evening shift from 3 to 11 p.m. Kiyohara worked 5 days, 40 hours per week. In second postpartum, a ward clerk also served on the day shift which hours were 7 a.m. to 3 p.m. There was no ward clerk employed in second postpartum on the night shift which ran from 11 p.m. to 7 a.m. No individual substituted for Kiyohara on her days off. By contrast, three ward clerks were employed in the special care unit of the maternity section and each shift was covered. Kiyohara substituted in the special care unit and, as matters evolved, she performed duties in the unit on the average of twice each week. On duty with Kiyohara in second postpartum were an RN and a nurses aide. There was a variance of approxi- mately 45 minutes in the starting and quitting time of the ward clerks and that of the RN and the nurses aides. Kiyohara worked from a desk at the junction of two corridors. Located near or on the desk were a telephone, a chart rack, shelving, and a supply cabinet. Immediately behind the desk was a medicine room. A call bell system was available to patients on second postpartum for use in signaling their desire or need for medication or attention. Thus, patients in rooms located on one of the two :' A sixth hospital, Queens, coordinated its bargaining with the group. The foregoing is based primarily upon the credited testimony of Christine Kiyohara. She testified credibly concerning the applicability of the ward clerk job description to the duties which she actually performed during postpartum corridors could activate a signaling device which would be heard by the ward clerk at her station, and which would permit the patient to converse by intercom with the ward clerk. The four or five patients rooms situated on the other and older corridor of second postpartum were equipped with a bell which would activate a light at the ward clerk's desk. Upon observing the light, it was the ward clerk's duty either to notify the nurse or to go herself to the patient's room in order to determine the nature of the patient's needs. This she was required to do frequently. It was also the duty of the ward clerk to serve certain clerical and receptionist functions. Thus, Kiyohara would often assist doctors and nurses by accompanying them on their rounds and carrying medical charts. She charted temperatures and pulses and filed laboratory reports. She maintained in current status the medical charts of the patients and attended the nurses' station in order to maximize the time available to nurses to care for patients. Kiyohara answered telephones, ran errands to the labora- tory, assisted visitors to the second postpartum in locating the rooms of patients, and, upon request, assisted nurses in a variety of tasks.4 d. The call-in rule At all relevant times herein, a house rule was in effect which provided for the suspension or discharge of any employee for: Absence from work without giving notice (unless the giving of notice is not possible), irregular attendance at work or habitual tardiness in reporting for work. Kiyohara was aware of the existence of that rule and was first informed of its content during an orientation period which transpired at the commencement of her employ- ment. It was established procedure on the part of employees generally to give 2 hours' notice of any intended absence or tardiness, but this practice was not invariably followed. Termination would not result if the failure to call in was for a reason deemed valid to management. e. The prelude to the strike As found, on January 15, the Union, over the signature of its associate director, Chris Taylor, dispatched a letter to Respondent advising Respondent of the Union's intention to strike on January 26. On January 15, also, Chris Taylor was featured on a television news segment wherein, in response to a question posed by a television reporter, Taylor announced that the Union was not going to provide emergency services in the event of a strike. On January 18, Richard Davi dispatched a letter to the Union requesting the Union to "reconsider its decision not to provide emergency care at the six hospitals [Kapiolani, Kaiser, Children's, Kuakini, Queen's, and St. Francis], in the event of a strike." The following day, January 19, the Union dispatched a letter to Honolulu physicians advising them that a strike notice had been served on the hospitals, her employment tenure. The content of the job description which Kiyohara adopted as actually applicable to her performance of ward clerk duties is set forth at Appendix A lomitted from publication 1, and is specifically adopted as a factual finding herein. 36 KAPIOLANI HOSPITAL including Respondent, and stating further "[d]isruption of normal services by Registered Nurses at all hospitals, in addition to LPNs at Children's will occur on January 26, 1976, at 12:01 a.m. if the negotiations dispute has not been resolved." On January 22, Union Representatives Mau and Tullier met with top staff personnel of Respondent. During the course of the meeting, representatives of Respondent defined nondeferrable medical emergencies requiring the services of the RNs. Dr. Ralph Hale, Respondent's chief of medical staff, defined "obstetrical deliveries" as falling within this category. Further, during the meeting, in the context of a discussion of RN coverage of "high risk" babies or the "intensive care" babies needing one-to-one type of care, consideration was given to utilizing nurses from other hospitals. The Union's representatives at the meeting refrained from giving any assurances either with respect to staffing all obstetrics cases or providing coverage for the intensive care unit. The union representatives agreed to render a report of the meeting to the Nurses Association and to advise the hospitals of any decision reached with respect to the Union's willingness to provide emergency coverage at the hospitals. The Union did not thereafter directly communicate any response in this regard to Respondent. In point of fact, the Union refused to accept responsibility for defining a medical "emergency," taking the position that this was one of medical judgment. The Union refused during the course of the strike to provide coverage for medical emergencies. No coverage was provided by bargaining unit RNs for the nursing service department, including maternity, or for the subsid- iary units, including second postpartum. In the meantime, the hospitals, in a joint statement which gained widespread public notoriety, declared: We are dismayed and shocked at the nurses' frighten- ing pronouncement last night that they will not provide emergency care in any of the six hospitals. Some of the critical areas which concern us are those children in the Pediatric, Pulmonary Center of Children's Hospital, those patients who must receive kidney dialysis treat- ments three times per week and all patients who must receive life support services through the cardiac and intensive care units of all of these institutions. In an open letter to the community, the Union declared the following: The decision to withhold emergency care services during this strike was a difficult one. However, we took into account the needs and resources of each hospital. There are various types of health care personnel working in each hospital. Adequate care under supervi- sion can be provided given the current reduction in patient load. During the strike, unit RNs for a period of time refused to provide the services of RNs qualified in renal dialysis I Under prestrike arrangements, one registered nurse came on duty in the capacity of charge nurse at 2:45 p.m. and worked until 11:15 p.m. She was assisted in second postpartum by a nurses aide who worked shift hours coextensive with hers and by a ward clerk - Kiyohara who came on care at the hemodialysis center of St. Francis Hospital, but agreed to do so alter injunctive relief had been sought and a temporary restraining order was issued by the court. After issuance of the injunction, a "respectful agreement" was achieved and requisite services were thereafter provid- ed. In preparation for the strike, meantime, Respondent had taken steps to provide coverage in the various units and departments which were to remain operative during the course of the strike. Thus, a projected staffing schedule was prepared, contemplating substitution of the 12 available supervisory and management RN personnel for the approximately 60 RNs on strike, and the readjustment of normal shift hours. Pursuant to the schedule, the substitute RN personnel were scheduled to work 12-hour shifts. One shift was to commence at 6:45 a.m. and run to 7 p.m. and the other shift was to commence at 7 p.m. and run to 7 a.m. Support personnel such as LPNs, nurses aides, and ward clerks were scheduled for each shift, and their normal shift hours were slightly modified. Under staffing arrangements contemplated for imple- mentation during the strike in second postpartum on the afternoon shift, from 2:45 to 11:15 p.m., one nurses aide and one ward clerk were also scheduled to work from 11:45 p.m. to 7:15 a.m. in second postpartum.5 In preparing for coverage during the strike, reliance was placed by Respondent upon a system of transfers within the hospital of nonstriking personnel from positions of low priority need to positions of higher priority need. Further, appeals were made for volunteer help and plans were formulated to facilitate the use of this type of assistance, on an as-available basis. However, because of professional standards of privacy and confidentiality, as well as considerations relating to the training of such volunteers, the use of this type of assistance was circumscribed. On January 26, a meeting was held in the postpartum unit and the unit manager, Meheula, informed a staff meeting that during the strike the gynecology department staff would assist in providing coverage in the maternity wing of the hospital, and she asserted that there would be no layoffs or leaves of absence because of the workload. Kiyohara devoted a portion of her shift time on January 26 to familiarizing Anne Kakaumi, a ward clerk from the gynecology department, with the ward clerk job in second postpartum. In context of the January 26 staff meeting, Kiyohara spoke with Meheula concerning her longstanding desire to have the hours of her shift adjusted in order to permit an earlier arrival and earlier departure time. No assurances were given in this regard. Kiyohara was not scheduled to work on January 28 or January 29, her normal days off. She was not requested by Respondent to report for duty. She was scheduled to return to duty at 3:30 p.m. on January 30. Kiyohara did not do so. Some 5 weeks earlier, Kiyohara had solicited Tullier's opinion as to Kiyohara's vulnerability to malpractice charges in the event she were called upon to provide care or bedside assistance to a patient during the course of a duty from 3:30 p.m. to 12 midnight. Thereafter, at 10:45 p.m.. an RN came on duty as charge nurse and worked until 7:15 a.m. She was assisted throughout her entire shifl by one nurses aide. 37 DECISIONS OF NATIONAL LABOR RELATIONS BOARD potential RN strike. Kiyohara expressed concern over being called upon to perform this variety of service in the event of a strike. Tullier stated that she could give her no assurances as to the duties Kiyohara would be expected to perform during the strike, but proffered the notion that any person providing care to a patient would incur potential personal liability. Tullier advised Kiyohara that she should perform only those duties required by her job description. Approximately I month later, and nearly 2 weeks prior to the strike, Kiyohara spoke again with Tullier and raised the question of her right to withhold her services and support the strike by honoring the picket line. Tullier ventured the opinion that Kiyohara would have the rights of all strikers. Tullier disclosed to Kiyohara that she was not totally certain of the correctness of her opinion. Thereafter, on January 29, after the strike had com- menced, Kiyohara made several efforts to contact Tullier by telephone. When she finally spoke with Tullier, she disclosed that she was scheduled to work the following day and desired to obtain some authoritative information concerning her employment rights should she decide to honor the picket line. Tullier assured Kiyohara that she would obtain an answer for her. At approximately the noon hour on January 30, Tullier contacted Kiyohara and stated that she had consulted with legal counsel for the Union and had been advised that Kiyohara had the right to honor the picket line, and would be subject to losing her job only if she were replaced during the strike. Tullier further advised Kiyohara that it was not necessary for Kiyohara to give Respondent notice of her intention to honor the picket line. Tullier also advised that, if the hospital contacted Kiyohara, she should actually inform the caller that she had decided to honor the picket line. 2. The alleged unlawful conduct a. The events of January 30 After speaking with Tullier, Kiyohara decided to honor the picket line. She spent the afternoon at the home of her neighbor, Pamela Courtney, then a staff nurse in the postpartum unit and a member of the employee negotiating committee. During the course of the afternoon, Kiyohara made some telephone calls to coworkers and friends and at approximately 2:45 p.m. placed a telephone call to the hospital. The call was successfully completed through the switchboard but was disconnected by the PBX operator. Kiyohara expressed her disgust at being cut off and immediately made a further effort to contact the hospital. She spoke to a secretary who could not reach the shift coordinator by page. Kiyohara left no message and made no further effort to call the hospital. Kiyohara and Courtney spent the balance of the afternoon until approxi- mately 7:15 p.m. in conversation and playing cribbage. Kiyohara received two phone calls during the afternoon, but neither of these were from hospital supervision or management.6 Kiyohara returned to her own home at approximately 7:15 p.m. "Kiyohara had doubtless left a number at which she could be reached by these callers. In the meantime, at approximately 4 p.m., Wilma Schiner, an RN serving as the nurse in charge of a segment of the operation, including second postpartum, met Nakashima in the corridor and inquired into the wherea- bouts of the ward clerk. Nakashima observed that she was not aware that the ward clerk was not on duty and would check into the matter. She assured Schiner that the ward clerk was scheduled for that shift. After speaking with Schiner, Nakashima went to the nursing office and verified that Kiyohara was scheduled to work in the ward clerk capacity that afternoon. Nakashima placed three separate telephone calls to Kiyohara's home telephone number during the ensuing 45-minute period. Thereafter, she requested Aurelia Asasaki, the clerk-typist in the nursing office, to attempt to reach Kiyohara by telephone. Commencing soon after 4 p.m., and continuing until soon after 7 p.m., Asasaki placed 8 or 10 telephone calls to Kiyohara's home phone number. Asasaki received no answers to the telephone calls placed by her and she did not speak with Kiyohara during the afternoon or early evening of January 30. In the meantime, soon after 6:30 p.m., Patricia Okano, the shift coordinator, came on duty. Nakashima informed Okano that Kiyohara had not yet reported for work. Nakashima asked Okano to continue efforts to contact Kiyohara by telephone and find out what had happened. Nakashima made a notation of the latter instruction on the shift coordinator's report used in the nursing office as a log reflecting significant occurrences or the shift. When Okano entered on duty, she commenced her rounds and met Pauline Meheula, the unit manager of postpartum. Okano told Meheula that Kiyohara had not reported to work and requested Meheula to continue efforts to reach Kiyohara by telephone. Okano noted that she had been unsuccessful in her endeavors to reach Kiyohara. Meheula agreed to undertake the effort to contact Kiyohara. Meheula proceeded to the nursing office after contacting labor and delivery to report her presence in the hospital, and to convey the information that she could be reached in the office. In the 45 minutes which followed, Meheula made repeated unsuccessful efforts to contact Kiyohara by phone at Kiyohara's residence. She placed approximately 15 telephone calls and finally was successful in reaching Kiyohara at approximately 7:15 p.m. When Kiyohara answered the telephone, Meheula identified herself by name and noted that Kiyohara had been scheduled to commence her shift at 3:30 p.m. that day. Meheula further noted that it was now 7:15 p.m. and asked Kiyohara why she was not on duty. There was a pause in the conversation and Kiyohara did not immedi- ately respond. Meheula asked if Kiyohara had heard her remarks and Kiyohara answered in the affirmative. Thereupon, Kiyohara stated that she had decided against working behind the picket line and, because she was sympathetic with the strikers, she could not in good conscience report to work. In an aside to Okano, who was standing near Meheula as she spoke to Kiyohara from the telephone in the nursing office at the hospital, Meheula stated that Kiyohara was not coming to work. At Okano's 38 KAPIOLANI HOSPITAL prompting, Meheula thereupon stated, in substance, to Kiyohara, that Kiyohara was still considered to be on duty status and that, if she would come in, she would still be considered as having reported for duty. Kiyohara then reiterated her intention to honor the picket line and Meheula asked if she had given the hospital any notice of this decision. Kiyohara answered that she had not and stated that she had not reached the decision in advance but had made the determination after obtaining advice that notice was not necessary. Meheula asked the source of her advice and Kiyohara answered that it had come from representatives of the HNA. Thereupon, Meheula asked Kiyohara whether she understood that if she did not come to work she would not have a job. Kiyohara expressed her understanding and the conversation terminated. 7 b. The termination On February 27, Kiyohara received through the mail a personnel action form entitled "Report of Personnel Activity" dated January 30. The form noted Kiyohara's termination and recorded the reason therefor as "Did not show up for work as scheduled." Receipt of this form was Kiyohara's first notice from Respondent that her termina- tion had been effectuated. Meheula testified that she made the decision to terminate Kiyohara during the course of the January 30 telephone conversation. After completing her conversation with Kiyohara on the evening of January 30, she contacted Nakashima by telephone at her home and informed 7 The foregoing findings with respect to the occurrences during the afternoon and early evening of January 30 are based upon a consideration of the testimony of June Nakashima, Aurelia Asasaki, Patricia Okano, Pauline Meheula. Wilma Schiner, Christine Kiyohara. Pamela Courtney, and Deborah Tullier. I credit the testimony of the latter three witnesses only to the extent that it is consistent with the findings above made Initially. I do not credit the testimony of Kiyohara and Courtney to the effect that their afternoon was spent at Kiyohara's home instead of Courtney's. The rejection of this testimony is necessitated by the composite testimony of Asasaki. Nakashima, Okano, and Meheula revealing that numerous unanswered telephone calls were placed by them to Kiyohara's residence during the afternoon and early evening of January 30. For whatever reason, perhaps because Kiyohara was ambivalent about addressing the matter of intended absence directly with supervision, abandoning such a notion following two abbreviated and abortive attempts to make telephonic contact, or merely because she had learned that it was unnecessary for her to report her decision to honor the picket line directly to management, Kiyohara remained unavailable to telephonic contact for the entire afternoon and early evening. It is noteworthy in this regard that Tullier. who counseled Kiyohara, did not suggest to Kiyohara that she inform the hospital of her intentions, but, significantly, advised her merely to truthfully disclose her plans if she were contacred by the hospital. I am unwilling, in light of the record before me, to indulge the presumption urged by the General Counsel to the effect that Courtney's testimony should be given special credence by reason of the fact that at the time of the hearing she was a supervisor in Respondent's employ and would be unlikely to place herself in a vulnerable position by testifying adversely to her employer's interests or those of her management superiors. The legal proposition cited by the General Counsel loses its persuasive impact when it is measured against the relationship of Courtney to Kiyohara as a friend and a neighbor. and when it is considered, as well, against her former activist role in the Union, which presumably acquainted her with the protective rights of Sec. 8(aX4) of the Act. See Better Monkey Grip Company, 115 NLRB 1170 (1956), enfd. 243 F.2d 836 (C.A. 5. 1957): Carter Lumber. Inc., 207 NLRB 391, 393 (1973). In close relationship to the foregoing credibility resolution is the further rejection of the testimony of Kiyohara and Courtney to the effect that Kiyohara spoke in late afternoon with Asasaki and soon thereafter with Meheula. Reasons of friendship as well as their prior mutual interest in the union cause may well have led to this corroborating rationalization of Nakashima that she had terminated Kiyohara. Meheula testified that she terminated Kiyohara because of the "total conversation, because there was a unit to run ... " on the evening of January 30. On two separate occasions during the term of her employment, Kiyohara failed to report to duty as sched- uled and called in late to report her intended absence. Each of the two occasions had arisen from an unforeseeable emergency and, on each of the two occasions, Kiyohara contacted supervision within 90 minutes to 2 hours of the beginning of her shift. Each time Kiyohara was granted leave without pay. Kiyohara testified that she decided to honor the picket line as a matter of individual conscience and supported the RNs in their strike objective because she harbored an interest in a nursing career, and because she believed that nonunion employees would benefit derivatively from any benefits achieved by the RNs as a consequence of their strike action. At the time of the hearing herein, Kiyohara was enrolled as a part-time student in prenursing. c. The adverse impact of the strike During the strike, as found, Respondent's management and supervisory personnel in the maternity section, including second postpartum, worked extended hours and assumed duties, including patient care responsibilities, which under normal operating conditions were not theirs. However, as found above, Kapiolani Hospital is a principal health care facility for maternity, obstetrical, and gyneco- sequence and chronology. More likely, because of their common interest in the outcome of this litigation favorable to Kiyohara, they tailored their testimony to an inaccuracy contained in Meheula's pretrial affidavit which inaccuracy was convincingly explained by Meheula when she testified at the hearing. Considering the composite of the testimony of Nakashima, Asasaki, Meheula. Okano. and Schiner, as well as documentary evidence of record as disclosed in the shift coordinator's report of January 30. the finding is required that Kiyohara was not successfully contacted by telephone, or otherwise, until 7:15 p.m., and at the initiative of Meheula. Finally. I am convinced upon the basis of the testimony of Meheula and Okano that, contrary to the testimony of Kiyohara and Courtney, Kiyohara was not told by Meheula that she could retain her position if she reported to work ihefollowing day. I am convinced that the leeway given Kiyohara in reporting to work was limited in the manner and extent above found. I place no reliance on the hearsay testimony of Tullier concerning the rendition given her by Kiyohara of the parameters of Meheula's instructions with respect to reporting for duty. On the other hand, in contrast to the defined willingness of Kiyohara and Tullier to shape their testimony to Kiyohara's advantage, Meheula impressed me as a singularly sensitive and truthful witness who strived diligently to factually describe the events as she remembered them. Her testimony, considered in light of the supporting testimony of other witnesses testifying on behalf of Respondent, presents not only a more logical chronology but is more consistent with the probabilities associated with the burdens which were at the time in question being shouldered by the various witnesses who testified in support of Respondent's case. In this specific regard, there is no reason to believe that Meheula, contrary to her record testimony, reported to duty 75 to 90 minutes early on January 30, the third day of the strike, as was inferred by certain questions posed to her. Nor is there any reason to challenge the entries made by Nakashima and Okano on the shift coordinator's report for January 30. Finally, Asasaki clearly did not impress this trier of fact, who observed her testify, as a vindictive witness willing to shape her testimony in a manner adverse to Kiyohara merely to gain favor with her supenors. As I observed Asasaki testify, she clearly had no recollection of a conversation with Kiyohara on the afternoon of January 30. and there is no basis in logic or reason for assuming that, had one occurred, she would have stood mutely by on January 30 while she and others continued to place telephone calls to Kiyohara's residence. 39 DECISIONS OF NATIONAL LABOR RELATIONS BOARD logical acute care, and obstetrics care is, by its nature, nondeferrable.s Throughout the strike, Respondent contin- ued to provide obstetrical care but endeavored to the extent medically feasible to curtail admissions. However, on January 28 there were 24 obstetrical admissions and the midnight patient census revealed 17 newborns. On January 29, there were 28 admissions and 17 newborns; on January 30, there were 24 admissions and 18 newborns; and on January 31, 19 admissions and 11 newborns were recorded. Immediately following delivery of a newborn, nursing and related patient care are provided in the postpartum unit. In the puerperium stage which begins with the completion of the third stage of labor and ends when the generative organs have returned essentially to normal, the new mother experiences physical and emotional changes which require ongoing monitoring and support care on the part of obstetric nurses whose duties one authority9 states as follows: 1. To secure mental complacency and comfort for the patient. 2. To secure physical rest and comfort for the patient. 3. To guard against pelvic and breast infections. 4. To see that the patient receives an adequate diet. 5. To help the mother maintain body functions, including elimination by the bowels, kidneys, skin and lungs. 6. To demonstrate techniques and equipment for infant care. 7. To leave the mother confident of her own ability to care for herself and for her baby before she is discharged. 8. To foster the maintenance of family ties and assist both parents in adjusting to their new roles. During the puerperium, the new mother experiences pain, weight and blood loss, and emotional variances which require the attention of an obstetrical nurse. Thus, it is the duty of the obstetrical nurse to carry out a variety of bedside procedures to assist the new mother in achieving physical and emotional well-being. 0 As found, it became part of Kiyohara's prestrike duties to fill in in the special care unit, herein called SCU, the unit to which the patient is transferred very soon after delivery. Under normal operating procedures, and depending upon the time of day and the patient load, the patient would remain in the SCU for approximately 12 hours. However, the time spent by a patient in special care under normal operating conditions could be as brief as 2 or 3 hours, depending on the patient load. A "very sick patient" could remain in SCU for as long as 4 days. From SCU situated on the first floor of the hospital, patients are transferred to second postpartum, situated on the second floor. 8 The other two principal civilian facilities on the island of Oahu offering obstetrics care were also subject to the strike. 9 Bookmiller and Bowen. Textbook of Obstetric Nursing (5th ed., W. B. Saunders Co.) "' In a related context, the evidence establishes that one infant boy expired on January 31 at 12 a.m. and another infant expired on February I at 8:17 p.m. The record suggests that nursing care includes providing bedside emotional support to bereaved parents. " The foregoing is based upon the credited testimony of Dr. Ralph W. The 2-hour period immediately following delivery, when patients are cared for in SCU, is the postdelivery period when the patient is undergoing the greatest amount of changes in her body status. It is a "very critical time for the patient" and the patient experiences blood loss, contraction of the uterus, changes in blood pressure, and a diminution in the total amount of circulating fluid within the body. Complications arising during the patient's confinement in SCU could include convulsions, abnormal blood pressure, infections, and hemorrhaging.t On January 30, Wilma Schiner, normally employed by Respondent as director of training and education, worked in the position of charge nurse in second postpartum on the shift commencing at 7 a.m. Schiner had last performed bedside nursing duties in 1955. During the morning hours, time was spent discharging patients from second postpar- tum and in cleaning and preparing rooms. In the after- noon, commencing at approximately I p.m., transfers from SCU arrived. Two of the patients transferred had intrave- nous infusions and at least one patient had undergone a cesarian section. Some of the patients had not voided a second time upon arrival at second postpartum. Schiner was assisted during this period of time by a ward clerk, Blanch Butler, normally assigned as a ward clerk on the GYN unit. Schiner was also assisted on the day shift prior to 3 p.m. by more than one nurses aide.12 At 3 p.m. the patient census stood at approximately 33. Soon after 3 p.m. on January 30, Schiner commenced making her rounds of the ward. It was while she was engaged in this duty that she met Nakashima and inquired into the whereabouts of the ward clerk for the evening shift. Near the completion of her rounds, Schiner reached the room of a post-cesarian section patient who, 2 days earlier, had entered second postpartum with flu-like symptoms. Schiner noted her condition and requested the nurses aide to check her vital signs. The nurses aide was distributing ice water at the other end of the ward and Schiner found it necessary to summon her to take the patient's temperature. It was noted that the temperature was elevated and Schiner endeavored to locate the patient's physician. At approximately 4 p.m. the nurses aide took her dinner break. From the time Schiner learned that the post-cesarian section patient had an elevated temperature, through the duration of the dinner break of the nurses aide, Schiner was endeavoring to answer telephones, respond to patient signal lights, and pour medications for distribution to the various patients on the ward. Moreover, between 3 and 5:30 p.m. when Schiner again returned to the room of the post-cesarian section patient, she handled two or three new admissions. Additionally, with the assistance of the nurses aide, she catheterized the post-cesarian section patient. This process required 15 or 20 minutes. The nurses station went unattended because Schiner was assisted Hale. Dr. Hale testified that one quarter of all convulsions at pregnancy occur after the baby has been delivered, and that 75 percent of postdelivery convulsions occur within 2 hours after delivery. However, Dr. Hale further testified that the remaining 25 percent will occur later in the postpartum period. 12 The documentary evidence of record suggests that on January 30 during the day shift, in the SCU second postpartum unit, two LPNs, five nurses aides, and two ward clerks performed duties on the day shift. 40 KAPIOLANI HOSPITAL during the time period in question only by a single nurses aide.'3 In due course, Schiner distributed medication to the patients later than it is normally distributed under prescribed procedures. Schiner credibly testified that by reason of the absence of the scheduled ward clerk, Christine Kiyohara, between the hours of 3:30 and 7 p.m., the amount of patient care she was able to give was decreased. Schiner further credibly testified that this diminution in patient care arose from the necessity for her to perform certain duties normally performed by the ward clerk, including telephone-answer- ing duties, which interrupted and delayed the successful completion of the distribution of medication to patients; and by the requirement visited upon her in the absence of a ward clerk to deal with certain order forms and charts to assure that all physician directives pertaining to medication and diet were accurately carried out. Schiner credibly described the routines and protective practices which prevailed and which rendered it essential for her to traverse substantial distances from patient rooms to the nurses' station in order to answer telephone calls and facilitate proper dissemination of information. Kiyohara testified that in her opinion the effect of the absence of the ward clerk on the ability of an RN to deliver services required of her would be "some loss of time as far as the RN's ability to see the patients .... " Kiyohara testified, however, that this would depend on the census at the time and the number of aides working with the RNs. Kiyohara further testified that in providing the communi- cations which her job duties required her to provide and in completing the various forms which she was expected to complete she was a link between the personnel providing patient care. However, Kiyohara testified that second postpartum involved "minimal care"; that there was "very seldom any great emergency as far as pain"; that there was not "usually an immediate need of anybody"; and that the patients "weren't that sick on the second floor." She noted that her own workload during the evening shift in the prestrike period of her employment was "minimal." However, Dr. Ralph Hale credibly testified that compli- cations involving the physical well-being of the patients may and often do develop during the postpartum. He testified further that, while many complications are handled in SCU, some predictably do emerge in second postpartum and require attention involving a trained registered nurse. The emergence of physical symptoms requiring attention is, according to the credited testimony of Dr. Hale, first noted by the patient herself who would summon the nurse. In certain units in second postpartum, as found above, the light or buzzing device activated in the patient's room is situated at the ward clerk's desk. Nakashima characterized the ward clerk as "the hub of activity." Her service is "almost like a logistical officer on the unit .... " Nakashima testified that the ward clerk answered the telephones and sees that the operations of the unit "go very smoothly." The role of the ward clerk was characterized by Nakashima as "a very important function on each nursing unit." Nakashima credibly and succinctly testified that the absence of Kiyohara on the evening shift 13 The record does not disclose the precise duties being performed in the combined SCU unit on the first floor and the second floor postpartum unit by the L PNs and the ward clerk assigned to the special care unit. on January 30 meant that "someone else would need to do the duties she is normally assigned to do. That means taking that person away from the bedside and direct patient care." Nakashima further credibly testified that she did not transfer another individual to substitute for Kiyohara on the evening shift on January 30 because scrutiny of her staffing schedule indicated to her that she did not have any available personnel to transfer. Nakashi- ma testified that all personnel were being utilized in other areas of the hospital and that, although she considered making such a transfer of personnel on the evening shift on January 30, she rejected the notion. Schiner credibly testified that she permitted the nurses aide to take her normal dinner break on the evening of January 30 because, in substance, she was unable to project the possible occurrences later in the shift and believed that the total proficiency of the unit and of the nurses aide would be enhanced by the revitalization that would be achieved from the off-duty respite accorded by the dinner break. Conclusion I find that Respondent violated the Act by terminating Christine Kiyohara because she refused to report for work behind the Union's picket line on January 30. Basic to this finding are the further findings that, in refusing to work behind the Union's picket line, Kiyohara was engaging in protected concerted activity, and was not excluded from the protection of the Act by her failure to give 10 days notice of her intention to honor the picket line. Subsumed within these foundational findings is the further prefatory conclusion that, upon the instant record, no basis exists for concluding that the Union's strike with which Kiyohara associated herself was unlawful. In its recent decision in Walker Methodist Residence and Health Care Center, Inc., 227 NLRB 1630, 1631-32 (1977), the Board held that the provisions of Section 8(g) are applicable only to strikes or picketing involving a labor organization. In Walker, the Board held that two nurses aides at a health care institution who, without the aid or assistance of a labor organization, engaged in a brief work stoppage for the purpose of presenting a grievance, were engaged in protected concerted activity and were not required to assume the advanced warning obligation imposed by Section 8(g). The Board also reasoned that the loss of status sanction of Section 8(d) did not apply to these employees. In its decision, the Board reasoned: In enacting Section 8(g), Congress did not make a legislative finding of fact that all work stoppages against health care institutions are so harmful that they must be forbidden. Rather, it found that strikes or picketing by labor organizations against health care institutions are so potentially disruptive as to require that advance notice be given. Nothing in the 1974 Health Care Amendments restricts concerted activity by nonorganized employees, and the legislative history does not indicate an intent to alter the scope of protection granted them under Section 7. In fact, the purpose of the 1974 amendments was to extend the 41 DECISIONS OF NATIONAL LABOR RELATIONS BOARD protection of the Act to employees of nonprofit health care institutions who were excluded from coverage by the 1947 Taft-Hartley Amendment. The amendments should therefore not be read to reduce the preexisting rights of health care employees unless explicit language mandates that result. [Footnote omitted.] I find on the basis of Walker that Section 8(g) may not be read as requiring advance notice by an individual unrepre- sented employee who entirely of her own volition and without being proselytized decides, as here, to withhold her services and thereby lend support to an otherwise lawful strike action of a labor organization which itselfhas complied with Section 8(g). This conclusion appears wholly conso- nant with the emphasis placed by the Board in Walker, upon the literal interpretation to be accorded the provi- sions of Section 8(g). Nor is Walker to be distinguished from the case at bar merely because the employee strike action in Walker, in contrast to that undertaken by Kiyohara herein, was not union-related. Thus, in its Walker decision, the Board noted at 1631: The legislative history stresses that the purpose of the notice provision is to allow a health care institution to make arrangements for the continuity of patient care in the event of a strike or picketing by a labor organiza- tion. Placing the duty of advance warning on labor organizations is warranted because a strike involving a labor organization is likely to last longer and involve a greater number of employees than a work stoppage by unorganized employees. Further, a strike by a labor organization is of greater concern because the presence of a picket line has the potential for interfering with receipt of supplies and making both replacements and nonstriking employees unwilling to work. Here, by virtue of the Union's proper notice, Respondent had been accorded the opportunity for preparation and staffing envisaged by Section 8(g). Thus, Respondent's interests were protected to the extent intended by the statute. In joining the strike called by the Union, Kiyohara visited no quantum or variety of detriment upon Respon- dent's operations not previously foreseen by Congress as likely to arise from work stoppages involving health care institutions. That Congress intended to condone this foreseeable detriment is readily inferable from its refusal to forbid work stoppages against such facilities. To be certain, the record manifestly demonstrates that there was adverse impact visited upon Respondent's operation in second postpartum by virtue of Kiyohara's decision to honor the Union's picket line on January 30. Nevertheless, the record, carefully analyzed, fails to disclose an erosive 1' The Board's reference in fn. 15 of Walker to its previous decision in The Masonic and Eastern Star Home of the District of Columbia, 206 NLRB 789 (1973), does not warrant a different result. The 8(g) obligation devolving on a readily definable group of employees who strike in derogation of their union need not be here decided. Compare the statement of Senator Robert A. Taft, Jr., during the floor debates at p. 115 of the Legislative History of the Coverage of Nonprofit Hospitals under the National Labor Relations Act. 1974. 1S Senator Harrison A. Williams, Jr., chairman of the Senate Labor Committee, admonished during the Senate debates on the health care amendment: impact upon the quality of patient care of a magnitude sufficient to render Kiyohara's conduct indefensible when measured against patient rights and interests. Cf. N.L.R.B. v. Fansteel Metallurgical Corporation, 306 U.S. 240, 252 (1939); N.LR.B. v. Washington Aluminum Co., 370 U.S. 9, 16-17 (1962); International Union, U.A. W.A., A.F. of L., Local 232 v. Wisconsin Employment Relations Board, 336 U.S. 245, 255-257 (1948). The thrust of Walker is consistent with this conclusion and with the notion that Kiyohara, being supportive of the Union's strike objec- tives, was free to join the strike and could, without jeopardizing her rights under the Act, trade on, as it were, the 10-day notice of the Union, even though she was neither a member of nor represented by the Union, and had herself given no notice." Recent Board decisions in District 1199, National Union of Hospital & Healthcare Employees, R WDSU, AFL-CIO, (First Healthcare Corpora- tion, d/b/a Parkway Pavillion Healthcare), 222 NLRB 212 (1976); Casey & Glass, Inc., 219 NLRB 698 (1975), and United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 630, AFL-CIO (Lein-Steenberg), 219 NLRB 837 (1975), are not to the contrary. Rather, these recent decisions are consistent with the observation of the Board in Walker at 1631:, "Congress was concerned that sudden, massive strikes could endanger the lives and health of patients in health care institutions. In voicing this concern and in considering the solution being proposed by Section 8(g), the legislators again and again spoke of placing the duty on labor organizations to give notice before striking." Thus, the implication of Board precedent to this point in time, in my view, suggests that employees who strike in support of a labor organization's objectives are subrogated, in a sense, to that labor organization's proper compliance with the requirements of Section 8(g). But, in any event, narrowing the rationale of this Decision to the precise facts at bar, it would lead to a singularly anomalous result to hold that Congress intended to exclude from the protection of the Act a single employee who, of her own volition and without the intercession or entreaty of any employee group or labor organization, decided to lend her support to an otherwise lawful strike action. Walker suggests no such inroad into employee Section 7 rights and to impose a limitation here would be to embark upon the very amendatory process against which Senator Williams cautioned. In sum, I find that Kiyohara did not lose the protection of the Act, or her status as an employee, under the operation of Section 8(d), by reason of her failure to give Respondent a 10-day notice of her intention to join the work stoppage. Well established is the principle that an employee who honors a lawful picket line is engaged in protected activity This legislation is the product of compromise and the National Labor Relations Board in administering the Act should understand specifical- ly that this committee understood the issues confronting it, and went as far as it decided to go and no further and the Labor Board should use extreme caution not to read into this act by implication - or general logical reasoning - something that is not contained in the bill, its report and the explanation thereof [1120 Cong. Rec. S12104 (daily ed., July 10, 1974.)1 42 KAPIOLANI HOSPITAL and this principle applies without regard to whether or not the employee honoring the picket line is a member of the picketing labor organization or is merely sympathetic with the objectives of the picket line. E.g., Gary Hobart Water Corporation, 210 NLRB 742 (1974), enfd. 511 F.2d 284 (C.A. 7, (1975)); Keller-Crescent Company, a Division of Mosler, 217 NLRB 685, 687 (1975). The instant record discloses that Kiyohara sympathized with the objectives of the RNs in seeking, by virtue of their strike and related picketing, to improve their wages and terms and conditions of employment. Moreover, Kiyohara discerned as well that the Union's efforts would likely redound to the benefit of nonprofessional hospital personnel who, like herself, performed work duties in support positions to the profes- sional nurses. Clearly, under established principles of Board law, Kiyohara's actions in making common cause with the strikers and refusing to work behind the picket line were concerted in nature and were not motivated by fear that her abstention would jeopardize her future nursing career or compromise the future civility of her work relationship with professional nurses. Gary Hobart Water Corporation, supra; Shelly & Anderson Furniture Manufac- turing Co., Inc. v. N.L.R.B., 497 F.2d 1200 (C.A. 9, 1974). Cf. N.L.R.B. v. Union Carbide Corp., 440 F.2d 54 (C.A. 4, 1971). Nor were Kiyohara's rights as a participant in the strike affected by her failure to give Respondent advance warning of her intention to honor the picket line. E.g., Kelco Corporation, 79 NLRB 759 (1948). Rather, Kiyohara possessed the status on January 30, the day of her termination, of an economic striker, with all attendant protections and risks to job tenure, neither enhanced nor diminished by virtue of her employment in the health care industry. Walker Methodist Residence and Health Care Center, Inc., supra. Finally, I conclude, contrary to Respondent, that the instant record does not warrant a determination that the strike called by the Union and participated in by Kiyohara was rendered unlawful by reason of the asserted refusal of the Union to provide emergency services during the course of the strike. Respondent is clearly correct in its contention that the right to strike is not absolute and may be declared unlawful and outside the protection of Section 7 of the Act by reason of the unlawful manner in which they are conducted.' 6 Moreover, Respondent properly asserts that property rights may not be equated with the right to life. It is, of course, true the record in the instant matter establishes that prior to the strike the Union in public pronouncements refused to commit itself and its members to the performance of emergency services. But, in so doing, it alluded, as found, to resources available to the hospitals to provide adequate patient care. It also reached the determination that matters of special need would be resolved on the basis of professional judgments reached by striking nurses on a case-by-case basis, as the need for ministration of professional care did, in fact, arise. The salient consideration before me is the fact that, in 'i See N L. R. B. v. Fansteel Metallurgical Corp.. supra, Southern Steamship Companre v. N. L.R. B., 316 U.S. 31 (1942); N. L. R.B. v. Local Union No. 1229, IBEW, A.F.L. [Jefferson Standard Broadcasting Company] 346 U.S. 464 (1953): United.4utoworkers v. W iconsin Employment Relations Board, supra; compliance with the mandate of Section 8(g), the Union served the requisite notice. As previously discussed, the Union thus provided Respondent, and the other hospitals with which it was engaging in collective bargaining, the opportunity to staff and take emergency precautions which was envisaged by the statute. Cf. Walker Methodist Residence and Health Care Center, Inc., supra. In enacting Section 8(g), Congress did not differentiate between health care institutions on the basis of the type of services rendered and there is no warrant for assuming that Congress was unaware and insensitive to impact upon the quality of patient care as would result from a strike, such as here, against an acute care hospital facility. I am unwilling to indulge such a distinction. Turning to Kiyohara's termination, it is, of course, settled law that an employer violates Section 8(aX I) and (3) of the Act by terminating an employee because the employee has participated in a lawful sympathy strike. Upon a careful analysis of the evidence pertaining to the decision of Meheula to terminate Kiyohara, it must be determined that the motivation for her action emanated, at least in part, from the decision of Kiyohara to withhold her services in order to manifest her support for the strike effort of the Union. The record evidence clearly establishes a willingness on the part of Respondent, prior to the events of January 30, to waive the call-in provision of its house rules when the failure to abide by the rules' provisions was, in the mind of management, an excusable or justifiable one. Moreover, it is significant that on the evening of January 30, during the course of her conversation with Kiyohara, Meheula manifested a clear willingness to waive the application of the call-in rule, despite Kiyohara's clear breach of the provision, if she would report to duty for the balance of her shift. This suggests rather strongly that the breach of the rule was not the cardinal consideration in Meheula's mind justifying Kiyohara's termination. Rather, the clear implication of record, including the testimony of Meheula herself, is that Meheula reached the decision during the course of her January 30 telephone conversation with Kiyohara to terminate Kiyohara because Kiyohara had signaled her support of the union strike effort and had announced her intention to join in that effort on an ongoing and continuing basis. It is clearly inconsistent with the entire thrust of Meheula's explanation, as well as past policy of the Respondent applied to Kiyohara's two previous absences, to contend, as Respondent does, that Kiyohara's termination resulted solely from her "inexcus- able failure to comply with [its] legitimate rule." I am convinced that, had Kiyohara reported to duty on January 30 after her conversation with Meheula, no disciplinary action of any kind would have resulted. It was her declaration, in terms, that she was supporting the strike's objectives and casting her lot with the strikers for the duration of the strike that brought about her termination. It is apparent from the record evidence that, in contrast to previous absences involving waiver of the house rule, management gave disparate treatment to Kiyohara when N.LR.B. v. Rockaway News Supply Company, Inc. 345 U.S. 71 (1953); Marshall Car Wheel and Foundry Co. of Marshall, Texas. Inc., 107 NLRB 314(1953). 43 DECISIONS OF NATIONAL LABOR RELATIONS BOARD her absence was occasioned by her observance of a picket line. In all the circumstances, it must be found that Kiyohara's termination resulted from her involvement in protected activity, concerted in nature and related to the strike objectives of the Union. It is no defense that Respondent may have been additionally motivated by reason of its disenchantment with Kiyohara's apparent indifference to the disruptive effects of her absence upon hospital routine and patient care. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations de- scribed in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act, I shall order that Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that, on January 30, Respondent discrimi- natorily terminated the employment of Christine Kiyohara, I shall recommend that Respondent offer her immediate and full reinstatement to her former position or, if that position is no longer available, to a substantially equivalent position of employment without prejudice to her seniority or other rights and privileges, and make her whole for any loss of earnings she may have suffered by reason of the discrimination against her. Backpay shall be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), together with interest in accordance with the policy of the Board as set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the foregoing findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Kapiolani Hospital is an acute care hospital and is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Hawaii Nurses Association is a labor organization within the meaning of Section 2(5) of the Act. 3. By letter dated January 15, Hawaii Nurses Associa- tion notified Respondent and the Federal Mediation and Conciliation Service of its intention to engage in a strike against Kapiolani Hospital on January 26, and said notice complied with the requirements of Section 8(g) of the Act. ,7 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 4. At all relevant times, Christine Kiyohara has been an employee within the meaning of Section 2(3) of the Act, and has not been a member of or represented by a labor organization. 5. On January 30, Respondent unlawfully terminated the employment of Christine Kiyohara because she had engaged in protected concerted activities in support of the Union's strike effort, and in so doing it violated Section 8(a)(1) and (3) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 17 The Respondent, Kapiolani Hospital, Honolulu, Hawaii, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging employees in their right to engage in union or protected concerted activities, by unlawfully terminating the employment of its employees or discrimi- nating in any like or related manner with respect to the hire or tenure of employment of employees or any term or condition of employment in violation of Section 8(a)(1) and (3) of the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their right to engage in self-organization, to bargain collectively through representatives of their own choosing, to act together for collective bargaining or mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Offer Christine Kiyohara immediate and full rein- statement to her former position or, if that position is no longer available, to a substantially equivalent position without prejudice to her seniority or other rights and privileges, and make her whole for any loss of wages which she may have suffered by reason of the discrimination against her, in accordance with the recommendations 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 records, timecards, person- nel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order. (c) Post at its Honolulu, Hawaii, facilities copies of the attached notice marked "Appendix B." 8 Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by Respondent's representative, shall be posted by it immediately upon ni 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." 44 KAPIOLANI HOSPITAL 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 by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 45