Woodlawn Hospital

796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Woodlawn Hospital and Hospital Employees' Labor Program of Metropolitan Chicago. Case 13- CA-13539 11 March 1985 SECOND SUPPLEMENTAL DECISION AND ORDER By CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 5 September 1980 Administrative Law Judge Josephine H. Klein issued the attached Supplemen- tal Decision on Remand. The General Counsel and the Charging Party filed exceptions and supporting briefs, and the Respondent filed cross-exceptions and a brief supporting its cross-exceptions and op- posing the General Counsel's and the Charging Party's exceptions. The General Counsel also filed an answering brief to the Respondent's cross-excep- tions. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions and to adopt the recommended Order. We agree with the findings and conclusions of the judge. A union, in its role as the collective-bar- gaining agent of employees, has broad authority to act on behalf of those employees. Under the Act, a collective-bargaining agent is the employees' exclu- sive representative for collective bargaining regard- ing terms and conditions of employment. A dis- charge, or notice thereof, manifestly affects the terms and conditions of employment. Accordingly, a union may, depending on the circumstances, be the agent of employees it represents for the pur- pose of receiving a notice of discharge. A strike is peculiarly a group action. Thus, in a strike situation, it is particularly appropriate and proper that the strikers' bargaining representative be deemed to have broad authority to make and re- ceive offers and proposals on behalf of strikers. For example, the Board has held that a union is the strikers' agent to receive an employer's offer to return strikers to their jobs.' Similarly, a union may also be the agent for receiving notice of an employer's decision to terminate strikers. Where, as here, a union, during a strike situation, receives notice, as an outgrowth of its collective-bargaining function,2 that the employer has discharged strikers i See, e g, Birmingham Ornamental Iron Co, 251 NLRB 814 fn 1 (1980), and cases cited therein 2 It is significant that the Union's counsel, on 18 August 1972, respond- ed on behalf of the strikers to the Respondent regarding the "locker" letter As we note herein, the court has ruled that the "locker" letter con- tained a clear notice of the strikers' discharges The Union not only knew of the letter and its contents, but it also considered itself the strikers' agent for the purpose of replying to the Respondent Similarly, the represented by the union, that knowledge must be imputed to the striking employees. The court remanded this case in order that the Board determine whether the Respondent, prior to becoming subject to the Act, effectively communi- cated to employees notice of their discharge.3 In the court's view, if the discharges occurred before the effective date of the Hospital Amendments of 1974, the striking employees were not subject to the protections of the Act. Further, as we read the court's opinion, it has ruled that the "locker" letter-of which the Union was aware 2 years before 25 August 1974-contained a clear notice of discharge. Accordingly, as the employees' agent had notice of the employees' discharges prior to the Respondent becoming subject to the Act, we shall, in agreement with the judge, dismiss the complaint. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. Union's letter of 6 August 1974 to the Federal Mediation and Concilia- tion Service and the Illinois Department of Labor demonstrates that the Union was acting on behalf of the strikers regarding their discharges Clearly, the notice of the strikers ' discharges was received by and acted on by the Union as a part of its role as the collective -bargaining agent for the strikers Under the circumstances, the knowledge received by the Union must be imputed to the strikers 3 Woodlawn Hospital Y NLRB, 596 F 2d 1330 (7th Cir 1979) SUPPLEMENTAL DECISION ON REMAND JOSEPHINE H. KLEIN, Administrative Law Judge On August 15, 1977, I issued a decision and recommended Order finding that Woodlawn Hospital (Respondent), a health care institution under the Act" violated the Act by refusing to reinstate 50 of its employees who had gone on strike in 1972, before the Act was applicable to health care institutions, but who had made unconditional requests for reinstatement on August 25, 1974, after the Act had been amended so as to cover health care institu- tions.2 The Board affirmed my decision, although in part on grounds different from mine. Woodlawn Hospital, 233 NLRB 782 (1977). However, the Court of Appeals for the Seventh Circuit thereafter reversed the Board's deci- sion as to 19 strikers and remanded the case for further determination as to the remaining 40 Woodlawn Hospital v. NLRB, 596 F.2d 1330 (7th Cir 1979). On the remand, the Board provided the parties with an opportunity to state their position. After the parties had fully set forth their positions on both procedural and substantive issues, the Board issued a Supplemental Decision and Order re- manding the case to me for further hearing and the prep- aration of a decision, including findings of fact and con- i National Labor Relations Act, 29 U S C § 151 et seq 2 P L 93-360, 93d Cong S 3203, 88 Stat 395 274 NLRB No. 123 WOODLAWN HOSPITAL clusions of law, and a recommended Order. Woodlawn Hospital, 245 NLRB 975 (1979) Pursuant to the Board's remand Order, a trial was held before me in Chicago, Il- linois, on December 3 through 5, 1979. All parties were represented by counsel and were afforded full opportuni- ty to present written and oral evidence and argument and to examine and cross-examine witnesses The parties waived oral argument, and posttrial briefs have been filed on behalf of the General Counsel, the Respondent, and the Charging Party. On the entire record, including those of both the origi- nal trial and that on remand, and careful observation of the witnesses and consideration of the briefs, I make the following FINDINGS OF FACT 1. BACKGROUND AND ISSUES In June 1972 some 76 of Respondent's employees, rep- resented by the Union, went on strike. Respondent and the Union then took several steps in an attempt to re- solve the dispute They engaged in a nonbinding fact- finding proceeding, which included 2 days of hearings, on August 2 and September 8, 1972.3 The Hospital re- fused to accept the factfinder's report and decision. There then ensued a course of negotiation for strike set- tlement with both the Union and the Hospital represent- ed by counsel. The negotiations were unsucessful, with Respondent cutting them off on August 1, 1974, in view of the imminence of the Hospital's coming within the ju- risdiction of the Board pursuant to the Health Care Insti- tutions amendment to the Act. On August 4, 1974, the Union requested intervention by the Federal Mediation and Conciliation Service and the Illinois Department of Labor. On August 25, 1974, the Union made an unconditional offer to return to work on behalf of 64 named strikers. Forty one of the sixty four strikers thereafter personally applied for reinstatement and were treated as new appli- cants for employment. Six of them were treated as new applicants for employment. Six of them were offered and accepted reemployment Of those six, three failed to pass the physical examination required of new employees, and the other three were reemployed. On a charge filed by the Union, a complaint was issued alleging that Respondent had refused to reinstate 59 named strikers, in derogation of their rights und. r the Act, as construed and implemented in NLRB v. Fleetwood Trailer Co, 389 U.S. 375 (1967), and Laidlaw Corp, 171 NLRB 1366 (1968), enfd 414 F.2d 99 (7th Cir. 1969). In my original decision I found that 19 strikers had been discharged before the Hospital became subject to the Act. However, I held further that the Hospital had rescinded the discharges by condoning the alleged mis- conduct for which they had been discharged. In my original decision I found that Respondent had written to between 34 and 50 strikers, requesting that they visit the Hospital and remove their personal belong- 3 Apparently the factftnding hearing convened on at least one other day, but only the August 2 and September 8 sessions are relevant here 797 ings from their lockers. I held that the "locker" letters amounted to notices of termination. However, I further concluded that such ostensible discharges did not termi- nate the recipients' employee status because they did not reflect a true intention of the Hospital to terminate the employees, but rather were "at most, tactical maneuvers designed to lead the strikers to return to work," a con- clusion supported by the fact that 36 of the strikers were later offered reinstatement and, in the course of the ulti- mately unsuccessful negotiations for a strike settlement, Respondent had proposed to reinstate the strikers. In my prior decision I also indicated that additional strikers might have received notice of their discharges by attendance at the factfinding hearing, where "Respond- ent stated its position that the majority of the strikers have been assumed to `have resigned from the hospital."' However, I made no actual findings in this regard be- cause of my holding that all terminations had been only "tactical maneuvers" and/or had been rescinded. The Board adopted my finding and conclusion that all of the strikers were entitled to reinstatement under Laid- law. But the Board's holding was grounded primarily on its view that "striking employees, if discharged due to a labor dispute, retain their rights to preferential reinstate- ment under" Lardlaw; the Board expressly stated that it "deem(ed) it unnecessary to rely on the finding of the Administrative Law Judge that Respondent . . . rescind- ed its discharge of the striking employees." Although not expressly so stating, the Board had no occasion to pass on my tactical maneuvers' finding. The court rejected the Board's view, propounded by the General Counsel and the Union, that, as a matter of law, the strikers retained their employee status, regard- less of whether Respondent had discharged them before the Act became effective as to them.4 The court sus- tained the finding that 19 strikers had been terminated but rejected my further finding that the terminations had been rescinded (or, otherwise stated, that Respondent had condoned the conduct on which the terminations had been based). Accordingly, the court reversed the Board's order concerning these 19 strikers and ordered dismissal of the complaint as to those 19. The Board ac- cepted the remand and has dismissed the complaint as to them.5 As to the remaining 40 strikers involved, the court held that the "locker" letters constituted notice of dis- charge but rejected my conclusion that Respondent did not really intend to discharge the addressees but rather was merely attempting to lead them to return to work. Although the court made no express finding on this score, it indicated that a striker's presence at the factfind- ing hearing might be sufficient to establish effective notice of his discharge The crux of the court's opinion is: 4 The Board noted that Respondent had not shown that any of the strikers had been guilty of misconduct which would warrant denying them reinstatement as strikers 5 The Board's order actually lists only 18 strikers Apparently Atrlean Robinson was inadvertently omitted Since I do not have authority to amend a Board Order, I assume the Board will make the appropriate cor- rection 798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The "locker" letters . . clearly communicated to the employees that they had been discharged:. . . The difficulty presented however is that apparently not all the strikers received these letters. The ad- ministrative law judge found that between 34 and 50 of the strikers received the letters but that the "precise number and identity of these strikers do not appear." The judge also found that the dis- charge may have been communicated to others as well since "most of the strikers attended at least some of [the] fact-finding hearings, at which Re- spondent apparently made clear its position that the strikers had resigned, pursuant to the resignation rule in the personnel manual." . . . The issue of who received effective notice was not resolved by the judge since it was unnecessary to her decision. Since these two events, the "locker" letter and the announcement at the hearings, constitute the only efforts to inform the employees of their termination, we find it necessary to remand to the Board to de- termine who was informed by the employer. On the remand, after the parties had submitted their views at considerable length, the Board issued its remand order. So far as relevant at this point, the Board's order said (245 NLRB 975 (1979)): The court held . . . that any striking employees who were discharged before August 25, 1974, . . . lost their status as employees . . . and are not there- fore entitled to reinstatement. The court added, however, that in order to be effective the intent to discharge must be communicated to the employ- ee. . . . Regarding the . . . 40 strikers [here in- volved], the court remanded this case to the Board for a determination of which of these individuals were informed of their discharge by Responden. It is . . . ordered that this proceeding be remand- ed to [the ALJ] for the purpose of holding a further hearing to receive evidence as to which, if any, of the remaining 40 strikers were effectively notified of their termination by Respondent before [April] 25, 1974] . . . . IT IS FURTHER ORDERED that, upon con- clusion of such hearing, [the ALJ] shall prepare . . a Supplemental Decision containing findings of fact based upon the evidence received pursuant to the provisions of this Order, conclusions of law, and recommendations . . . . II. COLLECTIVE NOTICE OF TERMINATION A. The Merits In my original decision, I said that the "precise number and identity of the strikers [who received notice of discharge] do not appear." As recognized by the court and the Board, neither the Board nor I had occasion to address "the issue of who received effective notice" of discharge. 245 NLRB 975 at 976 fn. 10 (1979). However, it was implicit in my decision that I was assuming that notice of termination could be effective only if given by Respondent to each striker directly and personally. In its decision, the Board had no occasion to address the issue. The case was then apparently presented to the court with that implicit assumption unexamined. At the risk of possible oversimplification, it may be said that the Board and the Union sought generally to support the Board's legal position that all the strikers remained employees, and did not argue the sufficiency of the evidence of notice of the discharge. Respondent apparently relied on individual notices to the employees, in the form of the "locker" letters and attendance at the factfinding hear- ing. Thus, so far as it appears from its opinion, the court also assumed, without specific examination, that such direct notice to individual strikers was essential to effec- tive discharge. Accordingly, I was directed to receive additional evidence, presumably as to such individual no- tices and to make findings on the basis of such evidence. It was after the remand that I was first required to focus on the issue of which strikers had been discharged. At the point, consideration of the facts and legal princi- ples led me specifically to examine the assumption im- plicit in my earlier decision. As a result of that examina- tion, I have concluded that the assumption was neither required nor warranted. For the reasons hereafter set forth, I have concluded that the Union was clearly in- formed of the discharges and its knowledge, as.the strik- ers' agent, is imputed to each of the strikers.6 It is Hornbook law that "the knowledge of an agent is imputed to his principal." See, e.g., Eitel v. Schmidlapp, 459 F.2d 609, 615 (4th Cir. 1972), citing Restatement of Agency. The Board, with judicial approval, has consist- ently applied this view in many contexts, most notably in charging employees with their supervisors' knowledge of employees' union activities. See, e.g., Texas Aluminum v. NLRB, 435 F.2d 917, 919 (5th Cir. 1970), Red Line Transfer & Storage Co., 204 NLRB 116 (1973). There can be little doubt that, as a general principle, a union is the agent of the employees for whom it is the collective-bargaining representative For example, as said by the Supreme Court in Hines v. Anchor Motor Freight, 424 U.S. 554, 563 (1976): The federal labor laws, in seeking to strengthen the bargaining position of the average worker in an in- dustrial economy, provided for the selection of col- lective-bargaining agents with wide authority to ne- gotiate and conclude collective-bargaining agree- ments on behalf of all employees in appropriate units, as well as to be the employee's agent in the enforcement and administration of the contract. Wages, hours, working conditions, seniority, and job security therefore became the business of certi- fied or recognized bargaining agents, as did the con- tractual procedures for the processing and settling of grievances, including those with respect to dis- charge. 6 After I had tentatively reached this conclusion , I became aware of the fact, previously overlooked, that in one of its filings with the Board Respondent had presented a similar contention , apparently as a matter of "policy " WOODLAWN HOSPITAL A union's position as an agent of the employees it repre- sents is the legal basis for the duty of fair representation. See, a g ., L U.E. v. NLRB, 307 F 2d 679, 683 (D.C. Cir. 1962), cert. denied 371 U.S. 936 The Board has recognized a union's authority and re- sponsibility as an agent of the employees it represents in regard to many matters other than negotiating and en- forcing collective -bargaining agreements . Perhaps most noteworthy here, because close to the issue under con- sideration is the recognized authority of a union to present to an employer unconditional offers by strikers to return to work. Newspaper Production Co. v. NLRB, 503 F.2d 821, 829 (5th Cir. 1974); Colonial Haven Nursing Home, 218 NLRB 1007, 1011 (1975). In this very case the Union exercised that authority and the court sus- tained the Board's finding that the employees had made effective unconditional offers. The converse is also true , i.e., an employer may accept strikers' requests and effectively offer them reinstatement by notifying their union. See Stauffer Chemical Co., 242 NLRB 98 (1979), where the Board held that an employ er did not violate the Act by refusing to reinstate a strik- er who did not report for work within the reasonable time provided by the employer in the offer of reinstate- ment it made to the union as a result of negotiations for a strike settlement. In that case, the employer and the union had expressly agreed that the union would be re- sponsible for notifying the strikers of the reinstatement offer, but the union had failed to notify one striker, who filed a charge against the employer when it refused to re- instate the employee after the date set . In holding that the employer had violated the Act, the administrative law judge said (at 101)• Having entered into a strike settlement agreement through the normal bargaining process, Respondent insisted on delegating to the Union the responsibil- ity for notifying the employees of the terms govern- ing their return to work. But the obligation to notify and reinstate striking employees rests solely with Respondent, and cannot be transferred to the Union . By making the Union its agent for this pur- pose, Respondent here must also assume responsibil- ity for any failure on the part of the Union to suc- cessfully communicate the terms of the settlement to all of the striking employees. . . . Disagreeing with the administrative law judge the Board said (242 NLRB at 98). While we do not quarrel with the Administrative Law Judge's finding that the responsibility for rein- stating strikers is exclusively an employer 's, we dis- agree with his further conclusion that the obligation to notify striking employees of the recall terms of a bargained -for strike settlement agreement, at least under circumstances as here, is also vested immuta- bly in an employer. The Administrative Law Judge 799 had referred to no Board precedent to support his conclusion . . . .7 The nub of the Board's rationale in Stauffer is (242 NLRB at 99)• As we recognize the intrinsic authority of a union to extend an offer to return to work on behalf of all striking employees , we likewise recognize that a union may also be the proper party : (1) to receive an employer's acceptance of its offer of the employ- ee's return, and (2) by agreement, to communicate the terms of that acceptance to its principals, the striking employees In the latter circumstances, which exist here, we would not find that an em- ployer, like Respondent , thereby had also made the union its agent for purposes of notifying the em- ployees and had assumed responsibility for the union's failure to notify a striker . . . of the terms of the recall. As I read the Stauffer decision, the Board has held8 that a union acts as the agent of strikers it represents to re- ceive an employer's offers to reinstate the strikers; the union is not the employer's agent, even where the em- ployer has asked the union to notify the strikers and the union has agreed to do so The union 's obligation is only to the strikers, whose agent it is 9 It would appear to be an anomaly to hold that a union had no authority to re- ceive from an employer communications to the employ- ees represented by the union, particularly where, as in Stauffer and in the present case, the union receives such communications in the course of negotiations for a con- tract or strike settlement . Indeed, in many situations an employer might run the risk of violating the Act by communicating directly with individual strikers rather than through their union. Diligent search has not revealed any cases in which the Board has advertently decided whether a union may be an agent of the employees it represents for the pur- pose of receiving notice of discharge . Since it is normally unlawful for an employer to discharge strikers as such, one would not expect to find cases in which the issue of notice of discharge would be litigated, in the usual case a union (and/or employees) would claim that strikers were unlawfully discharged while the employer would main- tain that they had not been discharged . Pink Supply Corp., 249 NLRB 674 ( 1980), is a case in point. There, a group of employees appointed a spokesman to request that the employer meet with them as a group. When the spokesman reported to the employees that their request had been denied, they engaged in a work stoppage. As ' The Board here distinguished Ernst Construction, 217 NLRB 1069 (1975), which the judge had cited Ernst bears no similarity to the present case s The Board found a violation on the totally different ground that the complaining striker had not been replaced when she personally sought re- instatement v The apparent absence of any prior direct authority to this effect is undoubtedly due to the fact(s ) that unions, desirous of taking full credit for their achievements, probably rarely, if ever, fail to notify the strikers involved and/or the authority of a union to receive such offers has been assumed and regularly exercised without question 800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD summarized by the majority of the Board panel, the facts were, in part, that the "Respondent told the employees' spokesman that, because it needed people to do their work (while they engaged in a concerted refusal to work, it would `have to act as though [they] were quit- ting and find replacements.' When the spokesman denied that they were quitting, Respondent asked, `Well, what do you call it? What am I supposed to do?' To these questions there was no response, except that [the em- ployees' spokesman] volunteered that the employees would come in to clean out their desks, and they did so the next day." The majority of the panel (Members Jen- kins and Truesdale) affirmed the administrative law judge's holding that, as contended by the employer, the evidence did not establish that the employees had been discharged.10 Chairman Fanning, dissenting in Pink Supply, was of the view the employees had been dis- charged. But all of the opinions-by the judge and the majority and minority of the Board panel-were based on the "the words spoken in the light of the circum- stances known to the employees. Majority 249 NLRB at 676. No consideration was given to the fact that the em- ployer communicated with the employees' "spokesman" rather than directly with the individual employees. As noted above a union is the "spokesman" of the persons it represents. On the foregoing considerations, I conclude that notice of the termination of strikers given to the Union before August 25, 1974, would effectively terminate such strikers, who therefore would not now be entitled to Laidlaw reinstatement. This does not automatically resolve the issue present- ed. The Union's knowledge of the "locker" letters might not be decisive, because those letters were not sent to all of the strikers. However, the "locker" letters began: Inasmuch as you have resigned your employment in accordance with established personnel policies of Woodlawn Hospital, the hospital has found it neces- sary to permanently replace you. The position stated would manifestly apply to all strik- ers. It is clear that union counsel knew the text of the letters, since on August 18, 1972, he wrote to Respond- ent, saying. "Your letters of August 4, 1972 to employees of the Woodlawn Hospital have been referred to me." As I read its opinion, the court has ruled that a statement of position made by Respondent's counsel at the factfind- ing hearing would constitute effective communication of discharge to any strikers having notice thereof. At the factfinding hearing on August 2, 1972, "Respondent stated its position that the majority of the strikers `have been assumed to have resigned from the hospital "' It was not explained why counsel limited his claim to a "majority," 11 but at the September 8, 1972 session he re- 10 No opinion is here expressed as to whether that holding is consist- ent with the court's holding in the present case that an "assumed" resig- nation amounts to a discharge Whatever the answer to that question, the court 's Woodlawn view is binding here as law of the case ( Woodlawn Hospital v NLRB, 596 F 2d 1330 (7th Cir 1979) ) 11 It appears probable Respondent 's counsel may have been eliminating strikers who had already returned to work or who no longer wanted em- ployment by the Hospital While there is no direct record evidence con- stated the position as being "that the people who stayed away from work were considered to have terminated their employment." The court has held, at least by clear implication, that a statement that a striker is "assumed to have resigned" is equivalent to a statement that he has been terminated, '2 On August 6, 1974, still before the Hospital became subject to the Act, union counsel sent a letter to the Fed- eral Mediation and Conciliation Service and the Illinois Department of Labor with copies to counsel and other representatives of the Hospital), in which he said that the strike "issues relate to the hospital's refusal to reinstate approximately 76 employees who were unfairly terminat- ed." 13 Additionally, I understand the, court's opinion was ruling that permanently replacing strikers amounts to dis- charging them.14 The court further said. "Finally and most importantly the fact that the employer refused to reinstate all but three of the strikers who applied reveals indisputably an intention to impair their employee status." That refusal and a notice of replacement were contained in a letter to the Union written on August 22, 1974, before the statutory amendment became effective. At the original hearing in this proceeding, union coun- sel effectively acknowledged that he knew from the outset that Respondent's position was that the strikers' employment had been terminated.1 s cerning any such strikers, considerably fewer employees requested rein- statement than had walked out originally and Respondent's "master list" of strikers, placed in evidence in the original hearing herein, contains fewer names than the number of the original strikers 12 To the extent that the General Counsel still argues that none of the strikers resigned and therefore none were "terminated" under Respond- ent's resignation policy, their contentions rejected under the court's opin- ion 19 At the hearing on remand, Gittler attempted to minimize signifi- cance of the quoted statement, "[I]t's part of the rhetoric-what we call Labor Board rhetoric-in trying to induce federal mediation to get into the picture " Despite counsel's statement, I cannot believe that he misrep- resented his view of the situation in a letter to governmental agencies On the contrary, his statement was a seemingly noncontroversial statement of the "obvious " 14 The court said "in Filler Products v NLRB, 376 F 2d 369, 378 fn 3 (4th Cir 1967), the court reiterated that `[o]ne of the established ways to determine in disputed cases when an employee is discharged is to ascer- tain when he was replaced' When the union informed Woodlawn that reinstatement would be sought after the effective date of the Act, Woodlawn replied that 'permanent replacements have filled the job va- cancies which resulted from the work stoppage' is This appears from a colloquy concerning an attempt to obtain a stipulation Pertinent portions of the colloquy are Ms GERSTENBERGER [Counsel for the General Counsel] Your Honor, we have no problem with the fact that that [resignation] pro- vision is in the manual and that manual was in effect at that time JUDGE KLEIN Right, is there anything more you wants MR GOLDMAN That the Hospital followed that practice . I don't believe Counsel of charging party and Counsel for General Counsel have agreed that we invoked that policy MR GLITTLER [Counsel for the Union] Aren't there some exhibits that were stipulated to where letters were sent and we stipulated to those9 And isn't this what we have been hassling about for four or five years now) I'm not going to deny the obvious WOODLAWN HOSPITAL Accordingly, I conclude that, when viewed in its en- tirety, the evidence adduced at the original trial estab- lishes that before August 25, 1974, the Union had been notified and fully understood that Respondent had termi- nated all of the strikers 16 Union counsel was under no misapprehension and had no doubt that, as a practical matter, Respondent had discharged the strikers. Union counsel believed that the discharges were unfair. And he may also have believed that the purported terminations were not effective because, as a matter of law, the Hos- pital could not finally terminate the strikers' employee status. But it has now been definitely ruled that such legal view was erroneous The unquestionable fact is that union counsel knew, as a fact, that Respondent had terminated the employee-em- ployer relationship. I have previously held that knowl- edge by the Union is imputed to the employees.'' Ac- cordingly, I conclude, as a substantive matter, that none of the strikers are now entitled to reinstatement or back- pay under Laidlaw. B. Procedural Issues The procedural posture of the case should be analyzed before concluding this discussion. As stated above, upon receiving the court's remand order, the Board invited the parties to submit statements of position In a response to the General Counsel's statement of position, Respond- ent's counsel set forth substantially the view I have just adopted.18 As Respondent indicated, its view could have been adopted on the basis of the record of the original hearing; no additional evidence was required to support that position. But the Board did not decide the case on that basis and its remand order does not specifically refer to Respondent's argument. To the contrary, in its order, the Board says that it "cannot determine with certainty which of these remaining 40 strikers did receive such no- tification of their termination" and therefore remands the case to me "for the purpose of holding a further hearing to receive evidence" and directs me to make "findings of fact based upon the evidence received pursuant to the provisions of this Order, conclusions of law, and recom- mendations." A rigid, logical analysis of the Board's order would lead to the conclusion that the Board had rejected Respondent's contention, substantially similar to the conclusion I have hitherto reached. However, an 16 It may be that some strikers had returned to work or had voluntari- ly severed the employment relationship (Mississippi Steel Corp, 169 NLRB 647, 633 (1968)) and therefore were not involved in the present case 17 Union counsel conceded that he represented the strikers 1s Respondent's opposition reads in part Prior to the institution of the present proceedings, in the real world there never was any question that the employees had been "terminat- ed" and that all parties understood that As the Union's counsel stated, it was "obvious " The General Counsel wishes, however, to have the Board ignore and deny the "obvious " As a matter of policy an employer should be able to rely on notice to the union's counsel acting on behalf of the employees After all, the request for reinstatement "upon which this entire proceeding is predicated was written by the Union's representative-not the em- ployees themselves . If notice from the union on behalf of the employees is effective as a matter of law, then notice to the union, which admittedly represented those same employees at that time must be equally effective 801 equally literal reading of the Board's order shows that, while I am to make findings of fact based on newly re- ceived evidence,19 the required "conclusions of law, and recommendations" are not so limited. As a practical matter, however, it appears to me that the Board's Order should not be read so finely. As previously noted, my original decision, as adopted by the Board, and the court's opinion proceeded on the unarticulated and es- sentially unexamined assumption that terminations could be effectuated only by direct communication between the Hospital and the individual strikers. That assumption crept in as a result of the basic issues originally litigated. The General Counsel and the Union contended that, under decisions such as NLRB v. Carlisle Lumber Co., 94 F.2d 138 (9th Cir. 1937), cert. denied 304 U.S. 575, per- sons actively on strike when the Act became effective have full statutory protection regardless of any prestatu- tory action by the employer. Respondent maintained that the strikers had been terminated, but little attention was given to the subordinate, nonstatutory question of the re- quirements of a discharge. The General Counsel relied on Methodist Hospital Kentucky, 227 NLRB 1392 (1977), holding that a resignation provision did not terminate striking employees.20 Agreeing with the present Seventh Circuit decision, the Sixth Circuit has since reversed Methodist Hospital in pertinent part. 619 F.2d 563 (1980). It was against this background that the court remand- ed the case to the Board and the Board in turn remanded it to me for further evidence and findings concerning the notice issue. In view of the necessity for further hearing, it cannot be assumed that the Board at that time intended to pass on all contentions advanced by the parties; it would be time enough for such action in a final decision after all the evidence was in. Similarly, the Board's action cannot be construed as implying a ruling that Re- spondent was too late in raising its contention that the Union's knowledge of Respondent's position should pre- clude a finding that the employees had not been dis- charged. Even if it is assumed that ordinarily a party may not inject new legal arguments in support of his po- sition after issuance of an administrative law judge's deci- sion, such rule would not necessarily apply where, as here, further hearing has been ordered on the very issue to which the new argument is addressed. Additionally, the fact that a litigant may not have a right to consideration of new arguments does not mean that the deciding officer may not, sua sponte, base his de- cisions on any legal principles applicable to facts estab- lished. In my opinion, I would be derelict in my duties if 19 I do not understand the remand order as precluding my appraising the newly received evidence in conjunction with that in the original record 20 In my original decision I said Since the General Counsel and the Union basically contend that Methodist Hospital is dispositive of all the issues here involved, their briefs do not deal in detail with the specific situation of the 19 strik- ers who were notified of their ineligibility for reinstatement Accord- ingly, the ensuing discussion of their status is directed to Respond- ent's arguments essentially without the benefit of the views of the General Counsel and the Union Presumably they can present their views to the Board if exceptions to this decision are filed 802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I knowingly decided any issue contrary to what I be- lieved was the correct governing legal authority.21 C Practical Considerations My conclusion that the terminations (or discharges) were adequately communicated to the employees, through their agent, appears particularly appropriate to the particular facts in this case. It is important to note that the most significant events transpired in 1972, more than 2 years before the charge was filed and about 4 years before the complaint was issued . It is entirely understandable that Respondent would not exercise special care to maintain and preserve precise records of such early events because at the time, it was not subject to the Act and had no reason to antici- pate that it might be in the future. So far as anyone could know at the time, the dispute was a purely private one, not subject to governmental regulation or interven- tion.22 The controversy was between the Hospital and the Union over a collective-bargaining agreement. There was no occasion for direct dealings between the Hospital and the employees. Individual employees were involved only to the extent that they struck to support the Union in the negotiations Thus, it is understandable that the Hospital would make little effort to dot the i's and cross the is in its records concerning particular strikers, except to the extent incidental to staffing the Hospital. The Union, through its counsel, would have somewhat more reason to keep good records because it was charged with the fiduciary duty of protecting the rights of individual strikers to the extent possible. Yet the Union's records were at least as deficient as Respond- ent's. For example, although union counsel had stated at the factfinding hearing that the locker letter had been sent to at least 34 employees known to him, when he tes- tified he was unable to identify even one. Respondent subpoenaed the Union's records. In the original hearing in this case, pursuant to Respondent's subpoena, union counsel produced what was said to be the Union's com- plete file. The materials thus produced were sparse, in- cluding, for example, only four locker letters although many more had been referred to union counsel. Neither the Union nor Respondent can be seriously faulted for not preserving the systematic records con- cerning individual strikers before the Act became appli- cable. Both parties presumably maintained what they considered to be negotiating a strike settlement and, hopefully, a collective-bargaining agreement. The parties to this proceeding (i.e., the General Coun- sel, the Union, and the Hospital) agree that the "burden of proof" is on the Respondent to establish the prestatu- tory discharge of strikers. But precisely how that "burden of proof" can be met is not self-evident. The record establishes that between 34 and 50 employees re- ceived "locker" letters, which were referred to union counsel. And counsel complained that all the strikers, some 76, had been terminated. These facts would appear 21 This view would not necessarily be applicable to "policy" consider- ations, as distinguished from "rules of law " 22 Neither the Union nor the General Counsel suggests that any provi- sions of state law might have been involved to constitute a prima facie showing that termination of the 40 strikers now involved had been effectively com- municated to the Union . To rule now that the Hospital must now reinstate 40 strikers, with backpay23 because it cannot affirmatively identify all the individuals whom it personally notified would be a harsh remedy , particularly in view of the absence of any showing that either the Union or any individual striker was prejudiced by the absence of individual notice of termination . Such a ruling would discriminate among the strikers and penalize the Hospital, even though there is no evidence that the Hos- pital had any ulterior motive or acted on any discrimina- tory motivation. All considerations of equity and practicality in this case support the wisdom of applying the time -honored rule that a union, as the agent of the persons it repre- sents, is the proper party to receive notice on their behalf from the employer . There is no evidence to rebut the Hospital's prima facie showing that all the strikers were notified, through their Union , that their employ- ment was terminated before the statute became effective. If any of the strikers had been prejudiced by the absence of individual notice, their complaints would have to be against the Union. Cf. Stauffer Chemical Co., supra, 242 NLRB 98 ( 1979).24 III. THE INDIVIDUAL STRIKERS As previously set forth, the Board's remand order di- rected me to make findings of fact on the basis of evi- dence received in the hearing on remand. I shall here execute that direction. Such findings are in any event de- sirable to avoid further delay should the Board reject my conclusion that all strikers were notified of their termina- tions by reason of the Union's knowledge. A. Procedural Issues Shortly after the judicial remand, Respondent filed with the Board a motion to transfer proceedings to ad- ministrative law judge for "a supplemental hearing at which additional evidence would be taken from all par- ties to identify those individual strikers who received notice of their terminations." Union counsel stated that it had "no objection to remanding the proceedings" to an administrative law judge. The Board then invited the parties to submit statements of position. In its statement of position, Respondent maintained that "effective discharges of all the strikers prior to August 25, 1974 [had] been proven" in the original hear- ing. However, Respondent added that, if the Board re- jected that contention, Respondent was "prepared to present evidence going to the discharge of each particu- 22 As of now the backpay period would be 6 years, i e, since August 25, 1974 24 It is unnecessary, although desirable, to add that the apparent con- flict between the present decision and my original conclusion stems from the court's rejection of my factual findings that Respondent had engaged in "tactical maneuvers," without any real intention to discharge the strik- ers, and/or had condoned the strikers' conduct and rescinded the termi- nation Because of the court's decision, I reject the Union's current argu- ment that the evidence received on the remand reinforces a "tactical ma- neuvers" finding WOODLAWN HOSPITAL lar worker " Respondent also stated that it had "located additional evidence, previously not available, which shows that the 40 remaining strikers were also effectively notified" of their terminations. Union counsel stated its position that the original record was sufficient to permit the Board to decide that none of the 40 strikers had been notified of their terminations and therefore no remand to an administrative law judge was necessary. The General Counsel "oppose[d] both Respondent's motion to transfer the case herein to the Administrative Law Judge and its motion to reopen the record, and urge[d] the Board" to dispose of the case "on the existing record " She main- tained that the termination issue had been "fully and fairly litigated" and "was, in fact, the primary issue liti- gated by the parties." She proceeded to summarize the relevant evidence, which she contended failed to estab- lish that the strikers had not been notified of termination. Respondent countered with a lengthy document in which, as noted above, it argued that notice to the Union was sufficient and that "even without further evidence [the original] record, taken as a whole, reveals that Woodlawn effectively communicated its intention to dis- charge the 40 remaining strikers to those strikers individ- ually " Attached to Respondent's document was an affi- davit of counsel describing certain evidence wuch had been found after the original hearing and would be of- fered at a further hearing.25 After some further maneu- vers by the parties, the Board issued its remand order. At the remand hearing, and in their posttrial briefs, the General Counsel and the Union vigorously contended that none of Respondent's tendered evidence should be received because Respondent had not made an adequate showing that it could not have presented the evidence at the first trial if it had exercised due diligence. To estab- lish the consistency of their position with the Board's action , the General Counsel and the Union alluded to a footnote in the Board's remand order reading, in part: In light of our determination here that a further hearing is necessary to resolve the issues left open by the appellate court's decision, we find that the General Counsel's position is not prejudiced by the newly discovered material. Any newly discovered material and arguments relating to its [admissibility] should be addressed to the Administrative Law Judge at the hearing [convened] pursuant to this Order. The General Counsel apparently contends that, when the Board said that "newly discovered material and argu- ments relating to its [admissibility] should be addressed to the Administrative Law Judge," it intended that I should rule on "admissibility" under Section 102.48(d)(1) of its Regulations, governing requests for reconsider- ation, rehearing, or reopening of the record after a Board decision. I do not so understand the Board's order. The 25 The evidence Respondent produced at the hearing did not com- pletely conform to the description in counsel 's affidavit For example, the affidavit said that Respondent had "discovered a box which included some of the return receipts showing that in fact [24] named strikers re- ceived the August 4, 1972 'locker letters Only four return receipts were produced at the hearing 803 Board denied the General Counsel's motion to strike the portions of Respondent's response and the affidavit at- tached thereto, in which Respondent described the "newly discovered" evidence it proposed to offer In taking that action, the Board found "that the General Counsel's position is not prejudiced by the newly discov- ered material." I read the quoted language as reflecting the practical view that Section 102.48(d)(1) of the Board's Regulations and similar judicial rules , such as Rule 60 (b)(2) of the Federal Rules of Civil Procedure, which the General Counsel cites, are designed to prevent unduly protracted litigation and to provide timely finali- ty. However, in the present case, the Board has held that further evidence should now be received. Thus, the re- ceipt of evidence not meeting the standards of Section 102.48(d)(1) could not delay final resolution of the case to any appreciable degree, if at all To exclude relevant evidence under such circumstances would impede the search for the facts, without substantially furthering any competing interest. Since I was directed to receive evi- dence and making findings concerning the notices of ter- mination, and the original record was inadequate , I exer- cised my discretion to permit litigation de novo. I here reaffirm that ruling. In its opinion, the court said: Since these two events, the "locker" letter and the announcement at the [factfinding] hearings, constitute the only efforts to inform the employees of their termi- nation , we find it necessary to remand to the Board to determine who was informed of their discharge by the employer. [Emphasis added.] I do not understand the italicized portion of the court's decision to constitute a definitive finding that no employ- ees received effective notice by other means other than the locker letters or the factfinding hearings . Thus, I re- ceived evidence and shall state findings concerning other methods of communication now claimed by Respondent. Finally, the Board 's remand Order directs me to make "findings of fact based upon the evidence received pur- suant to the provisions of this Order " I do not under- stand the quoted language as precluding my making find- ings on the basis of all the evidence, including that in the original hearing, to the extent that the court has not made binding findings. B The Means of Communication I The "Locker" letters a. The evidence As previously noted, at the first hearing it was shown that union counsel had conceded, that the "locker" letter had been sent to a minimum of 34 strikers. David J. Koszut, administrative assistant at the Hospital in 1972 (and assistant administrator at the time of the hearings in this proceeding), testified in the 1976 hearing that he,had directed his secretary to prepare copies of the letter and sent them to all striking employees who had lockers at the Hospital, who numbered at least 50 He said that "[t]here had been a locker list of people who had lockers 804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which was based upon the distribution of locks to peopld " At the time of the original hearing herein, he had been unable to find the list. Koszut's testimony was considerably different at the remand hearing. He there testified the list actually used in the mailing had been written by Jerrold Sager, Esq., then Respondent's counsel, based on the decision of Hos- pital Administrator Samuel J. Eblen, Koszut, and Sager as to whom should receive it. Koszut further testified that the names on the Sager list had been taken from the "lock list " But then it appeared that the "lock list" was not coextensive with a list of employees having lockers, since some employees had lockers but did not have locks provided by the Hospital. Since the first hearing, Koszut had found the "lock list." While the list is far from clear or self-explanatory,26 it appears to show assignments of some 125 locks out of a total of 375. Of the 125 assign- ments, around 20 appear to be strikers, 15 of whom are involved herein.27 There is nothing on the list identify- ing the strikers or suggesting that names had been taken from it for any purpose. Koszut testified that he gave his secretary a draft of the "locker" letter, which was to be signed by Eblen, who had participated in composing it. Koszut instructed the secretary to prepare 50 or 60 copies of the letter ad- dressed to the persons on the list he provided He said the addresses had been obtained from Hospital records either by his secretary or by the personnel director, nei- ther of whom testified. Koszut further testified that he watched his secretary run the letters off and helped her stuff the envelopes. He did not indicate whether Eblen's signature was automatically affixed or if and when Eblen actually signed. Koszut did not testify to personal observation or knowledge of the actual mailing of the letters. However, he testified that the Hospital's established routine was that the secretaries prepared material for mailing and then gave it to a security guard, who then deposited it in the mail . Neither Koszut's secretary nor the security guard who presumably posted the "locker" letters testi- fied. Before resting, Respondent called four strikers as wit- nesses- Edna Johnson, Frank Cheers, Myrtle Jackson, and Lucille White. The name of only one, Myrtle Jack- son, appears on the "lock list." However, all four testi- fied that they had assigned lockers. None of them could recall having received a "locker" letter. At the end of Respondent's case, the General Counsel called three striker witnesses. Katie Lyons testified that she had shared a locker with employee Idella Stewart. The name "L. Stewart" appears on the "lock list " On direct 'examination, Lyons testified that she did not re- 26 it contains many names crossed out , some with other names substi- tuted Since the list contains no dates, it is impossible to say with any confidence who had Hospital-provided locks on August 4, 1972, when the "locker" letters were sent out 27 Contrary to the General Counsel's position, I find that, with one exception, the strikers involved are adequately identified, even though the list contains only initials of their first names The exception is "E Johnson" on the list, whereas there are strikers named Edna Johnson and Eddie Mae Johnson One striker is named "Alice Jackson " The name "A Jackson" had ap- peared on the "lock list" but had been crossed out ceive the "locker" letter.28 There is no evidence that Idella Stewart received the letter. The General Counsel next called striker Elsie Mae Lyons, whose name appears on the "lock list." She testi- fied that she had had a locker but not a Hospital-provid- ed lock She further denied that she had ever received the "locker" letter However, as Respondent contends, Lyons' testimony is unreliable because her memory was obviously and concededly faulty The General Counsel's last witness was Trudie Rogers.29 The name "T. Rogers" appears on the "lock list." Rogers testified that she had a locker and a lock but could not recall whether the lock was her own or one provided by the Hospital. Her testimony about re- ceipt of the "locker" letter was confused, and her memory was obviously vague and unreliable. Respondent also maintains that mailing of the "locker" letters to some strikers is established by subsequent con- duct with respect to the lockers The "locker" letters asked the recipients to visit the Hospital and remove their personal belongings from their lockers Koszut named only one striker who had done so.30 He testified that thereafter he personally cleaned out additional lock- ers and, at the remand hearing, he named 18 strikers whose lockers he had emptied. As the General Counsel argues, this identification is of little or no probative value because it was based only on Koszut's observation of the names on the lockers and the articles removed therefrom weeks after the "locker" letters were sent. Koszut identi- fied Katie Lyons as one of the strikers whose lockers he had emptied. But, as noted above, Lyons' name did not appear on the "lock list," and Koszut did not name Idella Stewart, with whom Lyons shared a locker. Receipt of the "locker" letter by five strikers was shown by documentary evidence. Respondent placed in evidence return receipts signed by four and the letters re- ceived by four, which were obtained by subpoena of the Union's records. Because of overlapping, the total number of strikers so identified was five.3 t b. Conclusion as to the "locker" letters The Union contends that "the evidence now in the record . . indicates more clearly than before that the locker letter was in fact only a `tactical maneuver' and it should be disregarded." I reject this argument because, 28 In its brief, Respondent incorrectly states that Lyons "did not deny receiving it " Reference is made to her cross-examination , as showing that she testified only that she did not recall receiving a "locker" letter But the testimony on cross-examination was adduced by the following misleading question by Respondent 's counsel "Now, you were asked by the Government's lawyer whether or not you recall receiving [the 'locker' letter] I believe your testimony was, and you correct me if I'm wrong, that you do not remember ever having received that letter " Lyons replied "No I don't remember receiving this letter When further pressed, she said she did not think it was possible that she had received the "locker" letter 29 Although the transcript spells the first name "Trudy" and Respond- ent's brief spells the last name "Rodgers, " an acknowledged signature in the record reads "Trudie Rogers " 30 That employee, Jasper McKenzie, is not listed on the "lock list" and is not involved in this case 31 Bernice Bell, Hattie Johnson, Veronica McAdory, Ann Worthing- ton, and Mary Lee Payton WOODLAWN HOSPITAL as I read its opinion , the court has already rejected my "tactical maneuver" finding and has definitively held that receipt of that letter by a striker would establish his ter- mination The General Counsel and the Union argue that Re- spondent's evidence is unreliable and cannot be held to establish receipt of the "locker " letter by more than the five strikers as to whom Respondent introduced postal return receipts and/or actual letters obtained from the Union's files . Because of the conclusion reached, I deem it unnecessary to pass on most of the parties' arguments concerning credibility . For example, I decline to draw adverse inferences from Respondent 's failure to call Kos- zut's secretary , Hospital Administrator Eblen, or the se- curity guard who presumably deposited the "locker" let- ters in the mail It is reasonable to assume that their memories, like those of all other witnesses , were far from precise as to details back in 1972 Koszut's secretary and the security were apparently engaged in purely ministeri- al acts32 and Eblen apparently played no role in the actual mailing It is reasonable to assume that, before tes- tifying, Koszut discussed the preparation of the mailing list with Eblen and Sager . Without passing on the credi- bility of the witnesses , for the reasons set forth below, I find that the record is sufficient to establish only that five of the strikers here involved received notice of ter- mination through the "locker" letters. The fatal deficiency in Respondent 's evidence is the absence of any reliable evidence identifying the strikers to whom the "locker" letters were sent. The "lock" list, the only list in evidence , is obviously not the list used. Koszut eventually so testified Further, and more signifi- cantly, that list, even if it is assumed to be intelligible, lists no more than around 20 strikers , yet Koszut main- tained that at least 50 letters were sent and it has hereto- fore been found that between 34 and 50 were received Additionally, documentary evidence establishes that some letters were received by persons whose names do not appear on the "locker list." When Koszut , on cross- examination at the remand hearing, eventually testified that "[e]verybody who had a locker received a locker letter," he was unable to state which employees had lockers and provided no enlightenment as to how it was determined which strikers had lockers It is clear that the letters were not sent to all strikers since some 76 employ- ees went out on strike and on November 14, 1972, over 2 months after the "locker" letters, Respondent wrote to 65 strikers, whereas Koszut claimed only that 50 "locker" letters had been sent. Koszut's emptying the lockers of some 18 strikers does not establish that "locker" letters were sent to them. If, as Koszut testified , the Hospital was in need of locker space for current employees (including strike replace- 32 It appears to me that a presumption that ministerial work has been performed according to established routine is at least as well grounded in common experience as is the legally recognized presumption that proper- ly addressed mail deposited in the post is received by the addressees Stage Employees IA TSE (K-B Theaters), 238 NLRB 507, 509 (1978) There is no reason to assume that the addresses on the letters were inaccurate, since the exigencies of trying to run the Hospital would appear to require generally up-to-date and accurate information as to the employees' ad- dresses And union counsel conceded that at least 34 letters were re- ceived 805 ments), it would be reasonable for Koszut to empty the lockers, probably storing the contents in safekeeping pending the strikers ' requests therefor. 33 Koszut did not indicate that he had been advised or believed that ad- vance notice to the locker holders was a condition prece- dent to his right to retrieve the lockers 34 Thus, the fact that he emptied lockers would not tend to establish that "locker" letters had previously been sent to the holders of the lockers. In view of the vacillation in Koszut's testimony, and the absence of documentary or other evidence corrobo- rating Koszut's apparently final testimony that the "locker" letters had been sent to all employees using lockers, I reject Respondent 's contention that it made a prima facie showing that the "locker " letter was sent to 24 "named claimants" in addition to the 5 whose receipt thereof is established by documentary evidence. Thus, I find that Respondent established the identity of only five, individual strikers who received notice of their termina- tions by means of the "locker" letters, namely, Bernice Bell, Hattie Johnson, Veronica McAdory, Ann Wor- thington, and Mary Lee Payton 2. The factfinding hearings a. The evidence As previously noted, the court referred to Respond- ent's counsel's "announcement at the [factfinding] hear- ings" as one of the two "efforts to inform the employees of their termination ." The record establishes that at the factfinding hearing on August 2, 1972, Respondent's counsel said that a "majority of the employees who left, work to engage in the strike action have been assumed to have resigned from the Hospital ." At the factfinding ses- sion on September 8, 1972, Respondent 's counsel stated, that the "locker" letter "was sent to people pursuant to a statement that was made at this hearing, at the last meet- ing we had where we indicated that the people who stayed away from work were considered to have termi- nated their employment, pursuant to the employee manual ." The relevant "resignation" provision in the manual was neither read nor summarized aloud. At the September 8, 1972, factfinding session, Re-; spondent's counsel also said: Of 117 employees in the original unit, 74 joined in the strike and 43 stayed at work Woodlawn Hospi- tal has hired replacements for the strikers and is now operated quite efficiently with 95 employees in the unit involved The record further shows that 21 of the strikers here involved signed in at the August 2, 1972 factfinding hearing and 23 at the September 8 session . Of these, 17 signed in at both sessions , 4 only on August 2, and 6 only on September 8.3s 33 The contents could not be found at the time of the hearings herein 34 He knew the combinations of the Hospital -provided locks , but 11 of the 18 lockers he emptied apparently had locks belonging to the individ- ual holders 35 There is also evidence that some additional strikeis may have at- tended the factfindmg hearing but did not sign in 806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD b Discussion and conclusion The General Counsel argues persuasively that the statements of Respondent's counsel at the factfinding hearings were not sufficient to alert individual strikers of the termination of their employment It is doubtful that referring to their having resigned, without spelling out the provision in the manual, would inform any employee that he had been discharged This is particularly true where the statement referred only to a "majority" of the strikers. Each individual striker knew he had not "re- signed," might reasonably understand counsel's statement as referring to unidentified strikers who had given notice of resignation . Counsel's statement on September 8 some- what more clearly referred to "the people who stayed away from work"; but that statement was expressly tied to the "statement that was made at . . last meeting " It can reasonably be argued that counsel's statements were ambiguous and thus did not meet Respondent 's obliga- tion "to clearly inform the workers of their discharge," as required by the court's opinion Similarly, as the General Counsel notes, at the fact- finding hearing, Hospital counsel referred to "replace- ments," but, unlike the "locker" letters, did not describe them as "permanent." 36 A striker hearing the statement might well believe that the replacements were only tem- porary and/or that, because of the substantial reduction in the number of unit employees, there were existing va- cancies which strikers could fill. It may be added that the considerations just set forth are not inconsistent with my earlier finding that union counsel was fully aware of Respondent's position that all the strikers had been terminated Inferences which a lawyer would necessarily draw might well be far from evident to laymen. Although I am inclined to believe that counsel 's statements at the factfinding hearings were not sufficient to inform the strikers of their discharge, I deem it unnecessary to make any finding or conclusion on that score, since I find that Respondent has failed to establish which, if any, strikers heard counsel 's state- ments. I reject Respondent 's contention that mere attendance at the factfinding hearings at some time would establish knowledge of Respondent 's position. There was no evi- dence that any strikers had been present when the rele- vant statements were made. As I read its opinion, the court in the present case ruled that notice of termination could be effective only as to those strikers who were ac- tually present and in a position to hear counsel 's state- ments when they were made . This conclusion follows from the Court's noting that in NLRB v. Fansteel Corp , 306 U.S 240 (1939), "the [Supreme] Court found that the strikers who were not in the building at the time of the announcement were not `within the announcement of dis- charge.' 306 U S. at 259." In a footnote, the Seventh Cir- cuit in the present case stated that in Fansteel "there had been no effective discharge of these men because they were not inside the building to hear it." Additionally, as relevant to the strikers who were present, it is noted that 36 Obviously, informing the replacements that they were "permanent" would not constitute notice thereof to the strikers the announcement in Fansteel was made "in loud tones," a fact not shown in the present case The conclusion I have reached on Respondent's meager evidence is reinforced by the testimony of Union President Irving Kurasch, which I received over Re- spondent's objection at the remand hearing Kurasch tes- tified that the factfinding hearings were held only a short distance from the Hospital "and while most of us were at the hearing room, we sort of used it as a strike headquar- ters " Strikers were advised to report to the hearing room to receive money from the Union and to arrange "for manning of the strike line." Kurasch said the pur- pose of the sign-in sheets was to conduct "our business . . of carrying on the strike " At the time, picketing was being conducted around the clock, with strikers gen- erally serving 4-hour stints Strikers came and went fre- quently at the factfinding hearings because of other needs, such as picketing, babysitting, and attending to other jobs. Kurasch also testified that the order of signa- tures on the sign-in lists did not reflect the order in which the strikers arrived or left He estimated the number of strikers present in the hearing room at any one time as "anywhere from two to fifteen or twenty or more." No representative of Respondent who had at- tended the factfinding hearings identified any strikers who had been present when Respondent's position was stated 37 Accordingly, I find that Respondent has not shown that any identifiable strikers were individually notified of their discharge at the factfinding hearings. 3. Telephonic notice a. The evidence At the remand hearing, Respondent called Leroy Brown, who, as an employee of Service Master Corpora- tion , had served as the manager of Respondent's house- keeping department in 1972. Brown testified that, on the day after the strike began , on Koszut's direction, he tele- phoned the female employees in the housekeeping de- partment. He named five whom he specifically recalled telephoning He could not specifically remember calling Adzetter Farr, but said: "If they worked in Housekeep- ing I telephoned them . At least I tried ." He then said that as far as he could recall , he talked to all of them, but added : "72 is a long time ago." On cross-examina- tion, Brown testified that there were about 21 or 22 em- ployees in the housekeeping department, of which he "would say at least 16" were women . He conceded that he could not recall how many he had actually reached On direct examination , Brown testified- I told them that within the hospital policies that they had three days to report back to work. If not, they had to be terminated. He then testified that he thought "each one of them that [he] talked to were more or less afraid, more than 37 Kurasch named one or two union activists who he "assumed" were probably present all or most of the time Neither of the persons he named is involved in the present decision WOODLAWN HOSPITAL anything else, to cross the picket line because the union, they were violent " He later repeated that "most of them were, they was afraid . . to cross the picket line" When asked if he offered them protection, he replied: "later on we did. Not at the present." Still later he said that "some of them " said they were afraid to cross the picket line. When asked what, if anything , he had said in reply, Brown testified : "Well, I mean , I could understand why they was afraid but there was nothing I could do . . . If anything I probably told them that we could protect them as long as they was in the hospital " He then disclosed that "a lot of them was out on the picket line." Acknowledging that those who were picketing would probably not have expressed fear of crossing the picket line, Brown said he could not recall how many stayed away out of fear and how many as a matter of principle Several times Brown stated that he could not recall details of specific telephone calls occurring some 7-1/2 years earlier While his failure of precise memory is un- derstandable , it rendered his testimony insufficient to identify any particular employee whom he effectively notified of their termination. Brown also testified that while he was telephoning the female employees of the housekeeping department, Oscar Cobb38 was telephoning their male colleagues. But Brown did not provide any detail as to Cobb's activities. Since Cobb did not testify , there is no evidence to estab- lish which, if any, male employees of the housekeeping department may have been notified of termination within the period immediately following the start of the strike. Trudie Rogers, a female employee in the housekeeping department , testified that, a day or two after the strike began, Cobb telephoned her at her home and asked her to return to work. When she said she would like to, but was afraid , Cobb said they would protect her if she re- turned She did not return . She said she did not recall Cobb's warning, in the words of Respondent's counsel's leading question , "that unless [she] came back, that [she] could lose [her] job with the hospital ." In answer to an- other leading question, on recross-examination by Re- spondent's counsel, she denied that Cobb had told her she could lose her job if she did not report for work for 3 days. Cobb did not testify. Katie Lyons, called by the General Counsel, testified that, when she arrived at the hospital on the first day of the strike, the pickets prevented her entering . Thereafter, she did not report for work because she was afraid to She testified that on the first or second day of the strike she received a telephone call from Hughbungin , her su- pervisor in the nursing department . Lyon's testimony was: The best I can remember [Hughbungin] said, "We want you to come back and we will protect you. You'll be protected on the hospital grounds," but I told her I didn't want to do that I was afraid, so se Brown first identified Cobb as his supervisor, but later testified that he (Brown) was Cobb's supervisor Like Brown , Cobb was actually em- ployed by Service Master, an independent contractor of Respondent 807 she said , "If you wait too long you might lose your job.,, Lyons maintained that Hughbungin had not referred to a grace period of 3 days or any other specified time. Hughbungin did not testify. b. Conclusion For the purpose of this decision , I assume (without making any affirmative finding) that Brown was an au- thorized agent of Respondent As noted above, he testi- fied that there were 21 or 22 employees in the house- keeping department and he spoke to at least 16, who were female. The unreliability of Brown 's testimony is perhaps best shown by the fact that, in its brief, Re- spondent maintains only that. "In view of Brown's testi- mony, the permissible inference is that Brown and Cobb called all fourteen housekeeping employees." The vagueness of Brown's testimony , along with his demeanor, have led me to place no reliance on it in the absence of corroboration There was no corroboration. Additionally, his message to the strikers, as summa- rized by him, did not amount to a notice that they had been discharged ; it was at most a threat of future dis- charge. And Brown did not undertake to say what Cobb had said in conversations with male employees in the housekeeping department . The only specific evidence concerning any statement was given by Rogers. Accord- ing to Rogers, Cobb did not refer to termination or dis- charge. It is true that Rogers' memory was obviously de- ficient. But if her testimony is disregarded , there is no evidence concerning Cobb's calls to any strikers. On all the evidence , I conclude that Respondent has failed to establish that any striker was informed of his termination by telephonic communication. 4. Summary conclusion On the foregoing analysis of the evidence, I find that Respondent has shown that, of the 40 strikers whose stat- utory status as employees is in issue here, 5 received per- sonal notice of their terminations before August 25, 1974 Those five are Bernice Bell, Hattie Johnson, Veronica McAdory, Ann Worthington, and Mary Lee Payton. Thus, if direct personal notice to the individual strikers is necessary, the remaining 35 strikers39 here involved are entitled to reinstatement and backpay under Laidlaw Corp., supra, 171 NLRB 1366 Included within that group are Josie Wells, Fannie Speight, and Juarine McCants, who were rehired as "new " employees around August 26, 1974 , as well as Alice Jackson , Eddie Mae Johnson, and Adzetter Farr, who accepted reemploy- ment but were then declared ineligible for failure to pass a preemployment physical examination CONCLUSION OF LAW The employment of the strikers involved herein was effectively terminated before August 25, 1974, when Re- spondent became subject to the Act. Accordingly, none as See App A hereto 808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the strikers is entitled to reinstatement and/or backpay under the Act, as construed in Laidlaw Corp, supra On these findings of fact and conclusion of law and on the entire record '40 I issue the following recommend- ed41 ORDER The complaint is dismissed in its entirety. 40 The General Counsel's unopposed motion to correct the transcript of the hearing on remand is granted Although there are numerous other errors in the transcript , no separate corrective order is being issued be- cause most of the errors are self-evident and/or unsubstantial or because, in other instances, it is impossible to reconstruct precisely what was said 41 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall , as provided in Sec 102 ,48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses APPENDIX A Strikers Not Individually Notified of Discharge or Termination Before August 25, 1974 Jimmye Doris Arnold Katie Lyons Louis Hardin Mae E. Smith Lucille White Ernestine Ellis Alice Jackson Edna Johnson Pearline King Trudie Rogers Betty Ruff Walter Sawyer Juarine McCants Donella Pender Ruby Lee Davis Rosia Maxine Farr Bobbie Kimbrough Mary Francis Lee Earlie Davis Margaret Hatcher Larry Johnson Olean Porter Fannie Speight Jamie Thompson Charles Streater Frank Cheers Adzetter Farr Myrtle Jackson Eddie Mae Johnson Carrie Kindred Elsie Mae Lyons Angie Lee McFerson Josie B Wells Dorothy White Lucinda Badger