Baptist Memorial Hospital System

1160 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Baptist Memorial Hospital System' and Service Employees International Union, Local 84, AFL- CIO. Case 23-CA-8456 May 27, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On December 26, 1984, Administrative Law Judge William N. Cates issued the attached deci- sion. The Respondent, Baptist Memorial Hospital System, filed exceptions and a supporting brief. The Charging Party, Service Employees Interna- tional Union, Local 84, AFL-CIO (the Union), filed an answering brief in opposition to the Re- spondent's exceptions, and the General Counsel filed a brief in support of the judge's decision.2 The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs3 and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consistent with this Decision and Order. The Union's unfair labor practice charge was dismissed by the Regional Director, and the Union's appeal of the dismissal was denied by the General Counsel. The Union filed an untimely motion for reconsideration of this denial. The judge concluded that it was not an abuse of the General Counsel's discretion to grant the Union's untimely motion for reconsideration. The judge also concluded that the settlement agreement to which the Respondent was a party in Cases 23- CA-816l, 23-CA-8234, and 23-CA-8293 did not bar the complaint in the present case. The judge further concluded that the Respondent violated Section 8(a)(1) of the Act by discharging three em- ployees and issuing "anecdotal notes" to nine other employees who picketed the Respondent's facili- ties. The Respondent excepts to all of these conclu- sions. We find merit in the Respondent's exception to the judge's conclusion that the complaint was not barred by the settlement agreement in Cases 23-CA-8161, 23-CA-8234, and 23-CA-8293. We therefore fmd it unnecessary to pass on the judge's The name of the Respondent has been corrected as requested by the Respondent. 2 The Respondent also filed a motion for leave to amend the answer, the General Counsel filed an opposition to the Respondent's motion, and the Union filed an objection to the Respondent's motion and moved to strike it. In view of our disposition of the case, we need not pass on these documents. 8 The Respondent has requested oral argument. The request is denied as the record, exceptions, and briefs adequately present the issues and the positions of the parties. conclusions concerning the merits of the alleged 8(a)(1) violations or any other arguments raised by the Respondent regarding the General Counsel's reinstatement of the charge. The settlement agreement in Cases 23-CA-8161, 23-CA-8234, and 23-CA-8293 was signed by the Respondent's attorney on May 22, 1981. That agreement was to "become effective," and compli- ance with its terms was to commence, once either of two events occurred: (1) the expiration of the period for an appeal from the Regional Director's dismissal of the charge in Case 23-CA-8456 (the present case) without any appeal being filed, or (2) the General Counsel's action sustaining the Region- al Director's dismissal. The Counsel did in fact sus- tain the dismissal on July 31, 1981. 4 On August 25, the Union filed an untimely motion for reconsider- ation of the General Counsel's affirmance of the dismissal, but the motion was not served on the Respondent, although it was mentioned by the Union's attorney at a hearing on August 25 in an- other case involving the parties. 3 In any event, on September 2 the Regional Director, acting as an agent of the General Counsel, approved the settle- ment, and on September 25 the Regional Office no- tified the Respondent that compliance with the set- tlement should commence. The Respondent there- upon complied by posting the notices called for in the settlement agreement and on September 30 it notified the Region that it had commenced the posting. 6 The Respondent then notified the Re- gional Director on November 30 that it had fully complied with the settlement agreement, and the Regional Director on December 7 closed the cases, subject to reopening if the Respondent violated the terms of the settlement. The cases have not been reopened. It is well established that a settlement agreement disposes of all issues involving presettlement con- duct of a charged party unless prior violations of the Act were unknown to the General Counsel and not readily discoverable by investigation or were specifically reserved from the settlement agreement by the mutual understanding of the parties. E.S.I. Meats, Inc., 270 NLRB 1430 (1984); Hollywood Roosevelt Hotel, 235 NLRB 1397 (1978). When the General Counsel approved the settlement agree- ment in Cases 23-CA-8161, 23-CA-8234, and 23- CA-.8293, the violations alleged in the present case clearly were known to the General Counsel, as the settlement agreement expressly refers to this case. 4 All dates are in 1981 5 The Respondent eventually received a copy of this motion for recon- sideration in November 6 The Respondent had earlier complied with the make-whole provision of the settlement agreement. 288 NLRB No. 131 r BAPTIST MEMORIAL HOSPITAL SYSTEM 1161 Additionally, these alleged Violations were not spe- cifically excluded from the settlement agreement. Thus, the settlement agreement in these cases, which was fully complied with, bars the litigation of the present case. We further note that when the Respondent began compliance with the settlement - agreement, it had reason to believe that the condi- tion on which the settlement was to "become effec- tive" was satisfied, in that the General Counsel had sustained the Regional Director's dismissal of the charge in this case and the Regional Office had in- structed the Respondent to begin compliance. Con- trary to the judge's indication at footnote 15 of his decision, the Union's motion for reconsideration did not defeat satisfaction of this condition because the motion was untimely and the terms of the con- dition already had been met. We therefore fmd that the settlement agreement disposes of the issues in the present case. Accordingly, we shall dismiss the complaint. ORDER The complaint is dismissed. William G. Levy II, Esq., for the General Counsel. Ben F. Foster Jr., Esq. and Thomas E. Reddin, Esq., of San Antonio, Texas, for the Respondent. Jorge H. Torres, Esq., of San Antonio, Texas, and Edwin H. Benn, of Chicago, Illinois, on brief, for the Charg- ing Party. DECISION STATEMENT OF THE CASE WILLIAM N. CATES, Administrative Law Judge. The hearing in this case held in San Antonio, Texas, on Sep- tember 25, 1984, is based on an unfair labor practice charge filed by Service Employees International Union, Local 84, AFL-CIO (Union) on April 2, and amended on April 9, 1981. A complaint and notice of hearing issued on May 11, 1984, on behalf of the General Coun- sel of the National Labor Relations Board (Board) by the Regional Director for Region 23 of the Board, alleging that Baptist Memorial Hospital Systems (Respondent) has engaged and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the National Labor Relations Act (the Act). Specifically, the com- plaint alleges Respondent discharged its employees Adele Barnett (Barnett), Shirley Freelon (Freelon), and Carole Ann Schaller (Schaller) on March 25, 1981, be- cause they banded together and engaged in peaceful in- formational demonstrations on March 23, 1981, at Re- spondent's Northeast Baptist Hospital (NBH) and March 25, 1981, at Respondent's Southeast Baptist Hospital (SBH) protesting working conditions at the Respondent's hospitals. The complaint further alleges that anecdotal notes or reprimands were issued to certain employees who engaged in the informational demonstrations of March 23 and 25, 1981. 1 Respondent filed a timely answer and amended answer to the complaint in which it admitted various allegations of the complaint but denied the commission of any unfair labor practices within the meaning of the Act. Respondent also filed a pretrial motion to dismiss the complaint. The Respondent re- newed its motion to dismiss the complaint in its posttrial brief.2 On the entire record 3 made in this proceeding includ- ing my observation of each witness who testified herein and after due consideration of briefs filed on behalf of the General Counsel, Respondent, and Charging Party, I make the following FINDINGS OF FACT L JURISDICTION Respondent, a nonprofit Texas corporation, operating three medical centers in San Antonio, Texas, is engaged in the business of providing health-care and related medi- cal services to the general public. During the year pre- ceding the issuance of the complaint, a representative period, Respondent, in the course and conduct of its op- erations of its health-care institutions, had a gross volume of business in excess of $250,000 and during the same period purchased goods and materials valued in excess of $50,000, which goods and materials originated from sources outside the State of Texas. The complaint al- leges, the Respondent admits, the facts establish, and I find the Respondent to be a health-care institution within the meaning of Section 2(14) of the Act engaged in com- merce and in an industry affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED It is admitted, the record reflects, and I fmd that the Union is, and at all times material has been, a labor orga- nization within the meaning of Section 2(5) of the Act. The Board found American Federation of State, County, and Municipal Employees, AFL-CIO (AFSCME) to be a labor organization within the mean- ing of Section 2(5) of the Act in a related case, Service Employees Local 84, 266 NLRB 335 (1983). III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues This case presents certain issues, which have been thoroughly litigated. Those issues generally summarized are as follows: 1. Whether Respondent's renewed motion to dismiss the complaint should be granted. 1 Although It was alleged in the complaint that, anecdotal notes were issued to Barnett, Freelon, and Schaller, the General Counsel acknowl- edged at the trial that no such notes were issued to those three employees but that they were discharged. 2 Respondent's renewed motion to dismiss the complaint wilt be dis- cussed in detail elsewhere in this decision. 3 Jt Exh 1 m the instant case is a true copy of the official transcript with exhibits of the August 25, 1981 trial in the matter of Service Employ- ees Local 84 (Baptist Memorial Hospital), 266 NLRB 335 (1983). 1162 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2. Whether Respondent violated Section 8(a)(1) of the Act by issuing anecdotal notes to certain of its employ- ees who picketed Respondent's NBH facility on March 23, 1981. 3. Whether Respondent violated Section 8(aX1) of the Act by discharging employees Barnett, FreeIon, and Schaller because they participated in certain demonstra- tions at the Respondent. B. Facts and Chronology of Events The essential facts of the instant cases are undisputed. Most of the essential facts set forth herein were decided by the Board in an earlier related case captioned Service Employees Local 84, 266 NLRB 335 (1983). Those factual findings already made by the Board in the prior related case that are pertinent to the instant case are final and binding herein. Certain additional facts were developed in the instant case. Those additional facts are undisputed or uncontradicted. The background facts including the factual sequence utilized are taken from the prior related Board case. Respondent operates three hospitals in the city of San Antonio, Texas. It operates a large downtown facility known as Baptist Memorial Hospital (BMH). BMH has approximately 680 beds. Respondent also operates a fa- cility, Northeast Baptist Hospital (NBH), a 190-bed facil- ity located in the northeastern section of the city. The other facility operated by the Respondent, Southeast Baptist Hospital (SBH), is located in the southeastern part of the city and has approximately 190 beds. The em- ployee complement of the three hospitals at relevant times was approximately 3500 employees. All three of the hospitals provide general hospital services to the public. The Unit-in commenced an organizational drive at NBH and SBH in October 1980. Various employees in- cluding Barnett, Freelon, and Schaller cooperated with the Union and identical letters on union stationery were sent to NBH and SBH on October 5, 1980, identifying Barnett, Freelon, Schaller, and others as members of the "core union organizing committee." The letters were as follows: We are the core union organizing committee members at Northeast [Southeast] Baptist Hospital. Our union organizing activities are protected under the National Labor Relations Act. It is illegal for you to discriminate against or harass us or any other employees engaged in organizing activities. We intend to monitor the hospital's treatment of employees throughout our campaign. You will not acknowledge that you are acting differently because of our efforts, but we know that as long as we continue organizing, your treatment of employees will improve. Thank you for the recent pay raise. These two letters designating certain employees as core union organizing committee members were never at any relevant time herein withdrawn. The Union filed petitions to represent certain units of employees at NBH on November 26, 1980. The Regional Director for Region 23 of the Board, on January 16, 1981, issued a consolidated Decision and Direction of Elections in two systemwide bargaining units, and in doing so, he rejected the Union's contention that two units limited to NBH were appropriate. The Board, on April 21, 1981, denied the Union's request for review of the Regional Director's Decision and Direction of Elec- tions. No representation elections were ever held at the Respondent. Commencing in September 1980, the Respondent is al- leged to have engaged in conduct that violated Section 8(a)(1) of the Act. Complaints issued against the Re- spondent in December 1980 and January and February 1981 alleging the Respondent had violated Section 8(a)(1) of the Act in several respects. Administrative Law Judge James M. Kennedy, in his opinion, reported in Service Employees Local 84, 266 NLRB at 338 (1983), described the conduct alleged against the Respondent by the Union as follows: Typically, the accusations against the Hospital in- volved such things as creating the impression of surveillance of union activities, freezing wages pending negotiations, interrogating employees re- garding their union activities, improperly restricting union activity on the hospital's premises, and the discriminatory promulgation of a no-solicitation/no- distribution policy. Judge Kennedy described the deposition of those cases as follows: A hearing was scheduled for May 12 [1981]. A postponement occurred and on May 22, the Hospi- tal signed an informal settlement agreement contain- ing a nonadmission clause. Respondent SEIU [the Union] refused to join that agreement. At the time of the hearing herein, the settlement agreement was in the process of being approved on an unilateral basis by the Regional Director, subject to instruc- tions from the General Counsel's office. The settlement of the cases referred to by Judge Ken- nedy will be discussed hereinafter in relation to the Re- spondent's motion to dismiss the complaint. Barnett, a registered nurse, testified she and certain of her fellow workers were very concerned about morale problems at Respondent. Barnett stated the morale prob- lems were brought about as a result of, among other things, employee turnover and the rate of professional nurses to patients. Barnett testified the feeling was that they did not have an adequate nursing staff to care for the number of patients, which caused employee frustra- tion because the employees felt it compromised patient care. Barnett asserted her own situation was a specific example of what she and her fellow workers were con- cerned about in that she was at times the only registered nurse on her shift on the particular floor she was as- signed and as such she was, during those times, responsi- ble for as many as 40 gynecological and obstetrical pa- tients. Barnett testified she spoke to Respondent on behalf of herself as well as two registered and two II- ^ BAPTIST MEMORIAL HOSPITAL SYSTEM 1163 censed practical nurses. Barnett testified she asked for help from Respondent with regard to staffing but was never given any. Barnett testified she spoke to manage- ment four or five times during the month prior to March 23, 1981, about the problems she and others felt existed at the Hospital. Barnett stated she and fellow employees Joanie Wood and Jimalee Jensen4 specifically raised their problems and concerns with Supervisor Lee Sherry. Barnett, Wood, and Jensen attempted without success to raise their work-related concerns with Direc- tor of Nursing Joyce Lambert Anderson. Based on a lack of success in resolving their concerns with manage- ment, Barnett stated a definite decision was made about March 20, 1981, by her, Bennie Hill, and Jimalee Jensen to demonstrate at NBH on March 23, 1981. Barnett testi- fied the decision to have a demonstration at NBH was predominately hers and that she telephoned fellow work- ers to seek their opinion on the proposed demonstration and to ascertain if they would be willing to participate in such a demonstration at NBH. Barnett summed up her reasons for wanting to demonstrate at NBH as follows: It was a form of harassment to keep us short staffed, to not listen to our request-for more nurses. We saw this getting more critical. . . . it was one of the issues that led to the demonstration. Schaller testified the demonstration on March 23 was for the employees to "voice [their] concerns to the public about patient care." Schaller, who worked at SBH, testified she had spoken with management on vari- ous occasions from 1976 through 1981 abont what she perceived to be very dangerous situations at SBH involv- ing critically ill patients. Schaller testified there was overcrowding in the intensive care and coronary units to the extent that crash carts5 could not be moved between the beds. Schaller stated this was an example of the type of things the employees were trying to bring to the pub- lic's attention when they participated in the demonstra- tions. Barnett testified they did not contact the Union nor did the Union contact them in their discussions about demonstrating.6 On March 23, 1981, approximately 12-14 off-duty and former employees appeared at NBH. The employees and former employees marched from approximately 8:30 a.m. until 11 a.m. on the public sidewalks that passed along the main entrance and other entrances to the hospital. Two of the marchers carried a two-sided sign that stated on one side "United We Stand Against Harassment" and on the other side "Harassment by Administration Inter- feres with High-Quality Patient Care." Bennie Hill who had also been a member of the Union's core organizing committee obtained a parade permit for the March 23 demonstration from the San Antonio, Texas city police 4 At places in the official transcnpt ifirnalee Jensen is referred to as Ji- malyce Jensen. 5 Crash carts are medically equipped carts used in case of a cardio- pulmonary arrest. 6 Barnett testified that although she was a member of the Union's core organizing committee at the Respondent, that the committee had not been active in 1981 She stated the core committee had only been active from June until December 1980 department. Sometime during the morning of March 23 after the demonstration had commenced, Hill contacted Ben Aguirre, a business representative of the Union, and told him of the demonstration. Sometime thereafter Aguirre drove to NBH, stayed for approximately 15 min- utes, and left the premises. Aguirre did not join the marching on that date. Aguirre was in no way involved in planning the March 23 demonstration. Barnett and Schaller participated in the March 23 demonstration at NBH, however, Freelon did not. All employees who participated in the demonstration on March 23, other than Barnett and Schaller, received anecdotal notes that were placed in their personnel files. 7 Those employees receiving anecdotal notes were Lorraine Hartenstein, Patsy Shields, Eileen Moore, Sue Simonis, Cynthia Rich- ards, Korbey Wright, Anne Shaunessy, Phyllis Wilkes, and S. (Sharon) McIntyre. The anecdotal notes were as follows: On March 23, 1981, you were observed actively participating in a picket of the Northeast Baptist Hospital facility. Sect. 8(g) of the National Labor Relations Act prohibits picketing of health care in- stitutions without proper notification. The purpose of the requirements of the law are so that we may assure our patients of continued, uninterrupted qual- ity patient care. The Baptist Memorial Hospital System is committed to our patients and their needs in this regard. Labor attorneys for the Baptist Memorial Hospi- tal System have filed unfair labor practice charges against the SEIU, AFL—CIO, in relation to this in- cident. Additionally, the attorneys are investigating the consequences of your participation in the picket- ing of March 23. Please be notified that pending the results of their study, your job at Northeast [in the case of McIntyre Southeast] Baptist Hospital is in jeopardy. At the conclusion of the demonstration on March 23, 1981, the employees determined it would be helpful in promoting their concerns with the Respondent to have a demonstration at SBH. Schaller stated they agreed as they left the demonstration on March 23 that they would march on March 25 at SBH if they could obtain a parade permit. Schaller organized the March 25 demonstration. She testified she contacted a majority of those employees at SBH who had been on the Union's core organizing committee at SBH namely, Susan Ullevig, Nancy Ruiz, Shirley Holmes, and Sharon McIntyre. Schaller said she tried to contact Freelon but was unable to get in contact with her. Schaller testified at the trial in the instant case that she did not contact the Union about the March 25, 1981 demonstration. The Board found in Service Employ- ees Local 84, 266 NLRB 335, that Schaller did, in fact, inform Union Business Representative Aguirre of the 7 An anecdotal note was defined as the recording of an incident. Former employees of the Respondent, of course, received no anecdotal notes. 1164 DECISIONS OF THE-NATIONAL LABOR RELATIONS BOARD demonstration. 8 Schaller stated she told the employees that she contacted, regarding the March 25, 1981 demon- stration, that they were concerned about patient care and about the way the employees were being treated by the Respondent. Schaller testified she utilized her own money to purchase poster board materials and pens to make the signs that were utilized at the March 25 dem- onstration. A demonstration was held at SBH on March 25, 1981, starting at approximately 8 a.m. The demonstrators were current employees, former employees, Union Business Representative Aguirre, and two representatives from AFSCME. Union Business Representative Aguirre sought assistance from Linda Ramirez, executive director of AFSCME, and asked her to support the demonstra- tors. Ramirez honored Aguirre's request by providing the two individuals who marched with the demonstra- tors. Among those employees who demonstrated on March 25 were Barnett and Schaller and they were later joined for a brief period of time by employee Freelon.8 The sign that Union Business Representative Aguirre carried stated "Hospital Employees Need a Pat on the Back . . Not a Kick in the Rear—Go Union." The two signs carried by the individuals from AFSCME stated "AFSCME Supports Hospital Workers' Right to Orga- nize" and "AFSCME Supports Hospital Workers." The letters "AFSCME" on the signs were bumper stickers that the individuals from AFSCME pasted on the signs they carried. Other signs carried by the demonstrators stated "Arise and be Heard, Shine the Light, Spread the Word, Unity is our Greatest Weapon"; "Join the Union, Why Continue to be Caught by Decisions of Administra- tion. Get Representation. Let Your Voice Be Heard in Running Your Hospital Are You an Individual or a Puppet"; "Administration doesn't play fair! We Demand Our Rights to Organize!" "We're All in this Together Hospital Personnel Unite"; "Understaffing of Personnel + Overcrowding of Patients = Dangerous Patient Situ- ation"; "Harassment and Intimidation are Affecting Pa- tient Care. We Cannot Give Our Best. What do You the Public Want? Join in with Us and Help Us, We Need You and You Need Us. Boycott Them"; "Stop Strad- dling the Fence. Job Security. A Grievance Committee. Better Working Conditions. Equals a Happy Employee. Which Means Better Care for the Patient" and "Do You Really Believe Administration Cares About You. . . Freelon testified she was not contacted in any manner with respect to the demonstration that took place on March 25 at SBH. Freelon testified she just happened to be passing by SBH and noticed some demonstrators out- 8 A careful canvassing of the transcript m Service Employees Local 84, supra, does not appear to support a finding that Schaller informed Aguirre of the demonstration. The record in that case tends to indicate that it was former employee Bennie Hill who contacted Aguirre None- theless, I am bound by the Board's finding that Schaller informed Aguirre of the demonstration. 9 There was some question about actually how long Freelon participat- ed m the demonstration. I find it unnecessary in resolving the issues in the instant case to make a finding about the length of time she was present at the demonstration. " This sign has some additional wording on it that is not legible in the photograph of the sign. side the hospital along the sidewalk at approximately 11:30 a.m. on that date. Freelon stated she was not on duty that day. Freelon observed Schaller, Hill, and Hobin, but could not tell exactly what they were doing. Freelon stated she proceeded on the errand she was run- ning at the time and later returned to the hospital at around noon. Freelon asked Hobin what was taking place. Hobin asked Freelon if she would join them in their peaceful demonstration. Freelon testified she did not recall carrying any picket sign at that time. Freelon left the area and returned at about 12:30 or shortly before 1 p.m. When Freelon returned to the scene she marched down the sidewalk carrying a picket sign. Free- lon stated she participated in the demonstration because "I was dissatisfied with the way things had been handled at the hospital [SBH] where I worked at. That was spe- cifically why I was there representing all the other em- ployees of the hospital, because I felt like that there had been a lot of harassment that had occurred in the past. . . . I was there to speak out in behalf of myself and also the employees." Freelon stated she had been a member of the Union's core organizing committee; however, she stated the last meeting of the core had been some 2 or 3 months before the March 25, 1981 demonstration. Free- lon testified that other than carrying a sign on March 25, she had no other connection with the demonstration. Neither the Union, AFSCME, nor any of the demon- strators gave any notice to either NBH or SBH that there was going to be any demonstrations. Employees Barnett, Schaller, and Freelon were dis- charged on March 25, 1981 Each was given written notice dated March 25, 1981, regarding their termination. The letters sent to Schaller and Freelon read as follows: On March 25, 1981, you engaged in picketing at the Southeast Baptist Hospital in violation of Section 8(g) of the National Labor Relations Act. You are hereby discharged effective immediately." The Board in Service Employees Local 84, 266 NLRB 335 fn. 2 (1983), stated "In agreeing with the Administra- tive Law Judge's conclusion that Respondent Unions violated Sec. 8(g) of the Act by their picketing on March 25, 1981, we find it unnecessary to pass on the Administrative Law Judge's findings and conclusions with respect to the March 23, 1981, picketing. Any find- ing with respect to the March 23 picketing would be merely cumulative and would not affect the Order in this case." 1. Whether Respondent's renewed motion to dismiss the complaint should be granted On May 30, 1984, Respondent filed with the chief ad- ministrative law judge a motion to dismiss complaint in the instant case. The General Counsel and the Union thereafter filed statements in opposition to the Respond- ent's motion. In its pretrial motion, the Respondent con- tended that pursuant to the Board's Rules and Regula- ii letter to Barnett contained a few additional words, but con- veyed the exact same message that she had been discharged for picketing on March 25, 1981, at SBH. BAPTIST MEMORIAL HOSPITAL SYSTEM 1165 tions, the General Counsel was without authority to issue the complaint in the instant case. Respondent urged that the issuance of the complaint deprived it of substantive and procedural due process because the complaint issued pursuant to an untimely request for reconsideration of the Regional Director's initial refusal to issue a com- plaint in the instant case. In its pretrial motion, the Re- spondent also urged that the issuance of the complaint in the instant case undermined the settlement agreement in Cases 23-CA-8161, 23-CA-8234, and 23-CA-8293. Re- spondent urged that as a result of that settlement the doctrine of laches and estoppel barred the issuance of a complaint in the instant case. Deputy Chief Administra- tive Law Judge David S. Davidson, in an unpublished Order dated August 3, 1984, denied the Respondent's motion to dismiss the complaint, but did so without prej- udice to the Respondent's right to present at trial evi- dence relating to its claim that it had been prejudiced by the General Counsel's granting of the Union's motion for reconsideration and thereafter issuing the complaint that forms the basis of the instant case. At trial, Respondent renewed its motion to dismiss the complaint, presented certain testimony in support of its motion, and argued orally that its renewed motion to dis- miss the complaint should be granted. The General Counsel and Union orally argued in opposition to the Respondent's renewed motion to dismiss the complaint herein. I denied the Respondent's renewed motion to dis- miss the complaint but without prejudice to it being re- newed in its posttrial brief. I indicated I wanted the ben- efit of briefs from all parties before I made a final ruling on the Respondent's motion to dismiss the instant case. Respondent, in its posttrial brief, renewed its motion to dismiss the complaint herein and stated various grounds in support of its motion. The thrust of the Respondent's main argument is that the General Counsel did not have authority to issue the instant complaint because it did so in violation of the Board's Rules and Regulations (Sec. 102.19(c)), and that such action by the General Counsel deprived the Re- spondent of substantive and procedural due process. Re- spondent points to the fact that the Union's motion for reconsideration of the Regional Director's initial dismis- sal of the complaint in the instant case was untimely filed and that the General Counsel gave no reason or justifica- tion for breaching Board's Rules and Regulations. The Respondent in its renewed motion acknowledged that there have been instances where the courts had allowed the Board to relax or modify its own procedural rules, but only in those cases where no prejudice had been shown. Respondent argues it has been prejudiced in the instant case. The Respondent argues the prejudice it has suffered has been established in part by matters growing out of the settlement by it of certain unfair labor practice allegations contained in Cases 23-CA-8161, 23-CA- 8234, and 23-CA-8293. Respondent asserts that part of the settlement of those cases was that the instant case would be dismissed in final form. As part of the settle- ment of those cases Respondent made whole all employ- ees at NBH who had been denied regularly scheduled merit increases. Respondent contends it paid out in excess of $21,000 to settle Case 23-CA-8293 and that set- tlement of that case as well as the other two was tied to the dismissal of the instant case. Respondent asserts that it fully complied with the settlement agreement and that at the time it was adhering to the terms of the settlement agreement in Cases 23-CA-8161, 23-CA-8234, and 23- CA-8293, it was unaware that the General Counsel was considering a motion for reconsideration of the dismissal of the instant case. Respondent contends the Board is bound by the settlement agreement entered into between it and the General Counsel in Cases 23-CA-8161, 23- CA.-8234, and 23-CA-8293, and that that settlement agreement under Board law disposed of all issues involv- ing presettlement conduct of the parties. Respondent urges that the settlement of Cases 23-CA-8161, 23-CA- 8234, and 23-CA-8293 included all presettlement con- duct and that the instant complaint was not based on matters unknown to the General Counsel or not readily discoverable by investigation. Respondent asserts the matters contained in the instant complaint were not spe- cifically reserved from the settlement agreement in Cases 23-CA-8161, 23-CA-8234, and 23-CA-8293. Respond- ent urges that it has not breached the settlement agree- ment nor has it committed subsequent independent viola- tions of the Act. Respondent argues that the settlement agreement has not failed of its purpose. Respondent also asserts that litigation of the instant case is barred by the doctrine of accord and satisfaction. The General Counsel contends the settlement agree- ment in Cases 23-CA-8161, 23-CA-8234, and 23-CA- 8293 was to only become effective immediately upon either the Office of Appeals of the General Counsel sus- taining the initial dismissal action in the instant case, or the failure of the Union to timely file an appeal from that initial dismissal. The General Counsel asserts no contin- gency was provided for in the settlement agreement re- garding any motion for reconsideration of any action by the General Counsel. The General Counsel contends the very terms of the settlement agreement called for action on the part of the participants to take place in the future. The General Counsel contends the Respondent under- took the monetary obligations encompassed within the terms of the settlement agreement prior to any formal action having been taken on the settlement agreement. The General Counsel asserts that the Respondent paid out the moneys it did on May 8, and that the settlement was not even executed until May 26, 1981. The General Counsel therefore argues no prejudice on any monetary loss can be shown by the Respondent. The General Counsel urges that the fact that the motion for reconsideration was untimely filed did not amount to any prejudice against the Respondent. The General Counsel urges that the interests of justice dictate that the instant case be resolved on the merits. The Gen- eral Counsel urges that counsel for the General Counsel has the discretion to relax procedural rules where the in- terest of justice would, as in the instant case, so dictate. The Union urges that an agency may relax or modify its own rules of procedure in order to achieve a just result, and that for it to do so does not raise a procedural or substantive due process concern. The Union urges that delay in administrative proceedings is a fact and cost 1166 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD of doing business The Union urges that justice requires that flexibility be exercised in the instant case and that the 10-day rule in Section 102.19(c) not be mechanically applied. The Union urges that the actions of the General Counsel in the instant case were well within the exercise of his discretion. The Union asserts this is especially true in light of the important statutory interpretation issue raised in the instant case. In this regard the Union asserts the circuit court in deciding the related CG cases indi- cated it was not deciding the instant issue of whether the employees herein would be entitled to any relief. The Union urges there has been no factual showing of any prejudice to the Respondent in allowing the instant case to be decided on the merits. The Union points out that the moneys disbursed by the Respondent in May 1981 were disbursed before the settlement agreement in ques- tion was ever executed. The Union urges that the Re- spondent was fully aware that a request for reconsider- ation of the Regional Director's initial dismissal of the in- stant case had been filed as early as August 25, 1981, when, on that date, its attorney so informed all parties in open court in the trial of Service Employees Local 84, 266 NLRB 335 (1983). The Union urges that the Respondent may not rely on correspondence between it (Respondent) and the Board's Regional Director for Region 23 that Cases 23-CA-8161, 23-CA-8234, and 23-CA-8293 had been settled and closed and that the instant case had been therein disposed of because it had actual knowledge that a request for reconsideration of the initial dismissal of the instant case had been filed and it took no action to withdraw from the settlement or to otherwise complain in any manner. The Union urges that Respondent's motion be denied and that the instant case be decided on the merits. The essential facts surrounding Respondent's renewed motion to dismiss the instant case are briefly summarized as follows: On May 22, 1981, Respondent's counsel executed an informal settlement agreement in Cases 23-CA-8161, 23- CA-8234, and 23-CA-8293. The Board's attorney rec- onunended approval of the settlement on August 20, 1981. The Regional Director for Region 23 of the Board approved the settlement on September 2, 1981." The settlement agreement provided among other provisions the following: We have made whole all employees on the pay- roll for the period ending May 3, 1981, of the Northeast Baptist Hospital facility who were denied regularly scheduled merit increases because of the pendency of a question concerning representation as a result of petitions filed by the Service Employees International Union, Local 84, AFL-CIO, in Cases Nos. 23-RC-4945 and 4947. THIS SETTLEMENT AGREEMENT shall become ef- fective, and compliance therewith by the Charged Party, shall commence immediately upon either the Office of Appeals in Washington, DC, sustaining dismissal action by the Regional Director in Case 12 The Union refused to enter mto the settlement. 23-CA-8456 [the instant case], or on the failure by the Charging Party to timely file an appeal in Case 23-CA-8456 to said dismissal by the Regional Di- rector. The settlement agreement also provided for notice lan- guage and notice posting. On September 25, 1981, Compliance Officer Van B. Jones, via letter, informed Respondent's attorney that he was attaching a copy of the settlement agreement execut- ed by the parties (except the Union) and was providing copies of notices to be posted. Jones stated in his letter that until compliance with the terms of the settlement agreement was carried out, the cases would remain in active status. On September 30, 1981, the Respondent, by its administrator of administrative services and through its attorney, notified the Board that it had commenced the posting of the notices called for in settlement of Cases 23-CA-8161, 23-CA-8234, and 23-CA-8293. On November 30, 1981, Respondent's counsel advised the Regional Director for Region 23 of the Board that the Respondent had complied fully with its part of the settle- ment agreement in Cases 23-CA-8161, 23-CA-8234, and 23-CA-8293, and urged the Regional Director to close the cases. On December 7, 1981, the Regional Director informed Respondent's counsel that the Region's records indicated the involved parties had fully complied with the informal settlement agreement involving Cases 23- CA-8161, 23-CA-8234, and 23-CA-8293, and that the Region was closing the files in those matters and the cases would remain closed contingent on continued com- pliance with terms of the settlement agreement. As noted elsewhere in this decision, the charge in the instant case was filed on April 2, 1981, alleging violations of Section 8(a)(1) and (3) of the Act. On May 11, 1981, the Regional Director for Region 23 of the Board de- clined to issue complaint in the instant case concluding among other things that the discharged employees had lost their employee status because the picketing they par- ticipated in was found to have been in violation of Sec- tion 8(g) of the Act. The Union appealed the Regional Director's initial determination not to issue complaint in the instant case and the Office of Appeals informed the Union in a letter dated July 31, 1981, that its appeal was denied. On August 25, 1981, a separate counsel for the Union filed with the General Counsel a motion for re- consideration of his earlier denial of their appeal. The General Counsel acknowledged receipt of the Union's request for reconsideration and on November 4, 1981, in- formed the Union that a decision on its request for re- consideration was going to be held in abeyance until a decision had been made by the Board in Cases 23-CG- 13 and 23-CG-14 (Service Employees Local 84, 266 NLRB 335 (1983)). The Union's request for reconsider- ation was not served on the Respondent. The General Counsel's November 4, 1981 acknowledgment of the Union's request for reconsideration was, however, served on Respondent. On November 11, 1981, Respondent re- quested that the General Counsel provide it with a copy of the Union's request for reconsideration. The General Counsel honored that request on November 19, 1981. On December 16, 1981, the Respondent urged the General BAPTIST MEMORIAL HOSPITAL SYSTEM 1167 Counsel to dismiss the Union's request for reconsider- ation. No further action was taken on the Union's re- quest for reconsideration until May 11, 1984, when the complaint herein issued. On December 23, 1983, in Case 83-1320, the United States Court of Appeals for the Dis- trict of Columbia Circuit entered its unreported judg- ment enforcing the Board's Order (266 NLRB 335 (1083)) against the Union and AFSCME wherein the Board found the two unions had violated Section 8(g) of the Act by their participation in the demonstration at SBH on March 25, 1981. The circuit court, in its memo- randum opinion, specifically noted that the issue of the effect of the Union's actions on the rights of the dis- charged employees was not before it and it made no as- sumption that its holdings had any necessary impact on the rights of the discharged employees. On April 20, 1984, the General Counsel granted in part the Union's motion for reconsideration and, in doing so, concluded the motion was not barred by the Board's Rules and Regulations and further concluded that the discharge of tlarnett, Freelon, and Schaller and the issuance of anec- dotal notes to other employees raised issues under Sec- tion 8(a)(1) of the Act warranting a determination by the Board.13 The first issue that must be decided is whether the General Counsel may disregard, as it did in the instant case, certain of the Board's Rules and Regulations. Sec- tion 102.19(c) of the Board's Rules and Regulations pro- vides as follows: The general counsel may sustain the regional di- rector's refusal to issue or reissue a complaint, stat- ing the grounds of his affirmance, or may direct the regional director to take further action; the general counsel's decision shall be served on all parties. A motion for reconsideration of the decision must be filed within 10 days of service of the decision, except as hereinafter provided, and shall state with particularity the error requiring reconsideration. A motion for reconsideration based upon newly dis- covered evidence which has become available only since the decision on appeal shall be filed promptly on discovery of such evidence. Motions for recon- sideration of a decision previously reconsidered will not be entertained: except in unusual situations where the moving party Can establish that new evi- dence has been discovered which could not have ken discovered by diligent inquiry prior to the first reconsideration. It is established that the Union's appeal of the Region- al Director's initial refusal to issue complaint in the in- stant case was denied on July 31, 1981. It likewise is es- tablished that the Union's request for reconsideration was not filed until August 25, 1981, some 15 days after the filing period for a timely appeal for reconsideration had passed. It is likewise clear that the Union's request for reconsideration was not based on newly discovered or 'a The above chronology of events has been taken exclusively from Deputy Chief Administrative Law Judge David S. Davidson's unpub- lished Order denying the Respondent's motion to dismiss the instant case. Judge Davidson's Order issued on August 3, 1984 previously unavailable evidence. In summary, the Union did not meet any of the requirements outlined in Section 102.19(c) of the Board's Rules and Regulations; therefore may the General Counsel relax the application of those rules? The Supreme Court in American Farm Lands it Black Ball Freight, 397 U.S. 532 (1970), reflected its approval of the general principle that an administrative agency may relax or modify its procedural rules in Certain cir- cumstances where the ends of justice require that it do so. In American Farm Lands, supra, the Interstate Com- merce Commission had failed to require strict compli- ance with its own rules and regulations regarding- the filing of certain information with the Commission. The Supreme Court noted that the Commission's rules were to enable it to make "an informed and equitable deci- sion" and that its failure to require strict compliance with its own rules had not prejudiced the complaining parties therein. The Supreme Court held: Thus there is no reason to exempt this case from the general principle that "[i]t is always within the dis- cretion of a court or aui administrative agency to relax or modify its procedural rules adopted for the orderly transaction of business before it when in a given case the ends of justice require it. The action of either in such a case is not reviewable except upon a showing of substantial prejudice to the com- plaining party." NLRB v. Monsanto Chemical Co., 205 F.2d 763, 764. And see NLRB v. Grace Co., 184 F.2d 126, 129; Sun Oil Co. v. Fpe, 256 F.2d 233; McKenna v. Seaton, 104 U.S. App. D.C. -50, 259 F.2d 780. [Emphasis added.] The circuit court in NLRB v. Monsanto Chemical Co., 205 F.2d 763, 764, held that the relaxation or modifica- tion of procedural rules applied with "especial force" in cases before the Board because the Board "acts in the public interest and not in vindication of private rights." In the Monsanto case, as in the instant case, the Board's Rule 102.19(c) was in issue. In Monsanto, the circuit court held that the relaxing of the requirements of Rule 102.19(c) was in the General Counsel's discretion even though in that case, as in the instant case, the appealing party's action was untimely. The circuit court in Monsan- to found no prejudice had been shown by the Respond- ent in that case. The circuit court stated that the argu- ment that the Board is powerless in the public interest to relax its own procedural rules was "not worthy of seri- ous consideration." It is clear from the above guidance that an agency such as the Board may relax the strict application of its own rules and regulations where the ends of justice re- quire it or where the orderly transaction of business may f be gained so long as there is no showing of substantial prejudice to the responding party. It is clear that the purpose of Board Rule 102.19(c) is for the orderly trans- action of business before the Board. I am persuaded the ends of justice are served in the instant case by allowing the General Counsel to relax its rules, as it has done in the instant case, with respect to the Union's filing of an untimely appeal. The ends of justice to be served are that 1168 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD it will allow an interpretation to be made of the statutory issue involving the status of employees who picket when the picketing involves Section 8(g) of the Act. It will allow the issue of what impact, if any, a union's liability with respect to Section 8(g) will have on employee rights in light of certain specific language contained in Section 8(d) of the Act, which specific language sets forth the circumstances under which an employee will lose his or her status as an employee. I find the General Counsel did not abuse his discretion in accepting the Union's untimely appeal. I therefore fmd the complaint is properly before the Board for consider- ation on the merits. Having found that the General Counsel may relax and/or modify its rules in those cases where the ends of justice require it, and having found that the ends of jus- tice required such a relaxation of the rules in the instant case, I shall now determine whether the Respondent has demonstrated any substantial prejudice as a result of the General Counsel's relaxation of its rules. Respondent urges it has established substantial preju- dice in the instant case and that it should be dismissed. The Respondent asserts the prejudice against it has been clearly established by the fact it paid its employees $21,438.83 in regularly scheduled merit increases and has posted copies of the required notice in settlement of Cases 23-CA-8161, 23-CA-8234, and 23-CA-8293.14 The Respondent contends it was not aware of the Union's untimely appeal of the instant case at the time it commenced to comply with the terms of the settlement in Cases 23-CA-8161, 23-CA-8234, and 23-CA-8293. The Respondent's contention that it has suffered sub- stantial prejudice is not borne out by the facts. The infor- mal settlement agreement in Cases 23-CA-8161, 23-CA- 8234, and 23-CA-8293 was executed by the Respondent through its counsel on May 22, 1981. The evidence es- tablishes, however, that the Respondent paid out the $21,438.83 about May 8, 1981, some 14 days before the settlement agreement had even been signed by the Re- spondent. Further, the terms of the settlement agreement were to take place in the future, i.e., after the Office of Appeals of the General Counsel had sustained the Re- gional Director's dismissal of the instant case or upon the failure of the Union herein to timely file an appeal of the Regional Director's dismissal of the instant case. The set- tlement agreement made no provision for what would happen in the event a motion for reconsideration was filed. It is clear the Respondent undertook to resolve a portion of the then-charges against it even before it had executed the settlement agreement covering those out- standing charges. Likewise, the evidence establishes the Respondent paid out the $21,438.83 in withheld merit in- creases after a representation matter in Cases 23-RC- 4945 and 23-RC-4947 was resolved. Respondent Admin- istrator for Administrative Services Stebbins testified that the Respondent had the moneys that it paid out in with- held merit increases already budgeted into its operations and was simply waiting for word from counsel as to the 14 As noted elsewhere in this decision, the settlement agreement per- taining to those cases was contingent upon a disposition of the instant Case 23-CA- 8456 appropriate time to pay the withheld merit increases. Stebbins testified that once the representation cases were resolved, the money for the merit increases was released. Therefore, it appears and I find the Respondent was not prejudiced by the release of the moneys it paid in with- held normally scheduled merit increases because it would have and did pay the wage increases as soon as the rep- resentation cases were resolved. Simply stated, the Re- spondent has failed to demonstrate a monetary loss in re- lation to the merit increases paid to certain of its employ- ees because it was something Respondent was going to undertake, but merely delayed doing so pending a resolu- tion of the representation matters. The Respondent has likewise failed to demonstrate that it suffered substantial prejudice by posting copies of the required notice with respect to the settlement agreement in Cases 23-CA- 8161, 23-CA-8234, and 23-CA-8293, inasmuch as those cases involved allegations not before me and for which the Respondent has been relieved of any legal obliga- tions: Accordingly, I am fully persuaded the Respondent has not demonstrated any substantial prejudice such as to preclude the Board from deciding the instant case on its merits. See West Meat Co., 244 NLRB 828, 829 (1979).15 For the reasons set forth above, I deny Respondent's renewed motion to dismiss the complaint in the instant case. 2. Whether Respondent violated Section 8(a)(1) by issuing anecdotal notes to certain employees who picketed Northeast Baptist Hospital facility on March 23, 1981 The Board in Service Employees Local 84, 266 NLRB 335 fn. 2 (1983), found the Union's picketing at SBH on March 25, 1981, to be in violation of Section 8(g) of the Act. The Board, however, found it unnecessary to make a finding with respect to the March 23, 1981 demonstra- tion at NBH. The Board specifically stated it was not passing on the findings and conclusions of the adminis- trative law Judge with respect to the March 23 demon- stration. Administrative Law Judge Kennedy, in his deci- sion in Service Employees Local 84, supra, set forth a fac- 15 / likewise find no merit in the Respondent's contention that litiga- tion of the instant case is barred because the Regional Director approved the settlement agreement in Cases 23-CA-8161, 23-CA-8234, and 23- CA-8293 on September 2, 1981, and thereafter closed those cases on De- cember 7, 1981 I find no merit in the Respondent's contention in that regard because one of the essential terms of the settlement agreement (the Regional Director's initial dismissal of the instant case being sustained) was never met Thus, one of the purposes of the settlement agreement failed and the settlement agreement was frustrated. The Respondent had knowledge of an appeal by the Union of the Regional Director's Initial dismissal of the instant case as least as early as August 25, 1981, some 8 days before the Regional Director approved the settlement agreement in Cases 23-CA-8161, 23-CA-8234, and 23-CA-8293 Therefore, the Re- spondent knew that the terms of the settlement agreement possibly were not going to be fulfilled prior to the time the Regional Director actually approved the settlement agreement. The Respondent could have, but did not, withdraw from the settlement agreement at that time. Accordingly, it may not now claim substantial prejudice such as tO preclude a decision on the merits in the instant case. Finally, I reject the Respondent's con- tention that the doctrine of accord and satisfaction would bar litigation of the instant case. There may well have been an agreement entered into, but its terms were never fully satisfied in that one of the essential terms of the settlement agreement never came about Therefore, the doctrine of accord and satisfaction cannot be applied to the instant case. BAPTIST MEMORIAL HOSPITAL SYSTEM 1169 tual description of the March 23 demonstration and con- cluded the demonstration on that date did not give rise to a violation of Section 8(g) of the Act because the demonstration was neither union sponsored nor con- doned." The Board in Service Employees Local 84, supra, found that between 12-14 off-duty and former employees par- ticipated in the demonstration at NBH. The Board like- wise found that two individuals carried one two-sided sign that stated on one side "United We Stand Against Harassment" and on the other side "Harassment By Ad- ministration Interferes With High Quality Patient Care." The Board likewise found that the group demonstrated from approximately 8:30 to 11 a.m. on that date. The Board found the picketing on that date was organized by Barnett and that employee Hill had obtained a parade permit for the demonstration from the San Antonio, Texas Police Department. Additionally, the Board found that Union Representative Aguirre was notified of the demonstration after it had commenced and that he went to NBH, stayed for approximately 15 minutes, and left the premises. At trial of the instant case, Barnett testified she orga- nized the demonstration on March 23 because she and her fellow workers were very concerned about morale problems at the Respondent. Barnett stated morale prob- lems were brought about as a result of, among other things, employee turnover and the rate of professional nurses to patients. Barnett testified it was the feeling of the employees that patient care was compromised by an inadequate nursing staff. Barnett stated she had tried to raise the employees' concerns with certain management officials but her efforts had been unsuccessful. Barnett testified the employees' lack of success with management regarding their concerns caused them to decide to bring their concerns to the attention of the public by way of a demonstration. Schaller also testified that it was what the employees perceived as dangerous situations at Respond- ent with respect to overcrowding in the intensive care and coronary units that caused the employees to partici- pate in the demonstrations. Certain facts must be examined in determining the character of the March 23, 1981 demonstration. It is without dispute that certain of the employees (and former employees) joined together in an attempt to bring to management's attention what they perceived to be work related problems at the Respondent. Although Bar- nett and Schaller, along with certain other of the demon- strators, had been members of the Union's core organiz- ing committee at the Respondent, it appears their partici- pation in the demonstration was brought about by mat- ters unrelated to their previous efforts to bring the Union in at the Respondent. The mere fact that certain of the demonstrators had been members of the Union's in-plant organizing committee does not, standing alone, make them agents of the Union. Barnett testified the Union's core organizing committee had been inactive since around the first of 1981. This hiatus period suggests the 16 The Board specifically stated it was not passing on Judge Kennedy's findings and conclusions on this pond because it would be cumulative for them to do so. actions of the employees were unrelated to any efforts to help organize the employees for the Union. The two- sided sign carried by the demonstrators clearly reflected that their concerns were with what they perceived to be harassment of employees and interference by manage- ment with quality patient care and not for any other pur- pose. The evidence indicates Union Representative Aguirre was present at the demonstration for approxi- mately 15 minutes but did not join in any way in the demonstration nor was he involved in any way in plan- ning for the demonstration. I am persuaded, as was Judge Kennedy, that Union Representative Aguirre's brief appearance at the March 23 demonstration did not change the extra-union character of that particular dem- onstration. I am persuaded the demonstration on March 23, 1981, was not union sponsored or condoned. The Board, in Service Employees Local 84, 266 NLRB 335 (1983), specifically declined to pass on the character Of the March 23 demonstration, but did give some guid- ance, albeit dicta, with respect to how it viewed that demonstration. The Board, in referring to the March 23 demonstration, stated, "Here the unions added their pres- ence to otherwise unorganized picketing." The Board at another point in its decision stated the unions added themselves to concerted activity by unorganized employ- ees. It therefore appears the Board likewise considered the character of the March 23 demonstration to be extra- union. Therefore, having concluded, as I do, that the demonstration on March 23, 1981, was neither union sponsored nor condoned but, rather, was unorganized picketing, the issue then becomes one of whether the Re- spondent acted unlawfully when it issued anecdotal notes (a written record of an incident) to its employees who participated in the demonstration. The Respondent contends it had a longstanding policy of issuing anecdotal notes documenting various employee incidents and that it had utilized such notes prior to the advent of the demonstrations. Respondent further con- tends the anecdotal notes were not issued to harass em- ployees or to interfere with their protected concerted ac- tivities. _ _ _ The evidence indicates that those employees who were given anecdotal notes because they participated in the March 23 demonstration still have those notes in their personnel files. Respondent Administrator for Adminis- trative Services Stebbins testified the anecdotal notes were a part of the employment history of the employees involved and that management had an interest in the em- ployment history of its employees. Stebbins stated that an employee's employment history clearly had the poten- tial of being considered in any action involving the em- ployee and could jeopardize the employee's job. Stebbins stated, however, that he was not aware of anything hap- pening to any employee that had received an anecdotal note as a result of their participation in the March 23, 1981 demonstration. Stebbins acknowledged he had not reviewed the personnel files of the employees involved nor had he spoken with any supervisors who had done so or whether they had considered the anecdotal notes with respect to any promotions or other personnel ac- tions involving the individuals in question. Stebbins testi- 1170 , DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD fled supervisors reviewed personnel files to determine if there was anything detrimental in the files when they considered employees for merit increases. According to Stebbins, personnel files are also reviewed any time an employee is considered for a promotion or transfer. I am persuaded that Respondent violated Section 8(a)(1) of the Act when it issued anecdotal notes to cer- tain of its employees who participated in the demonstra- tion at NBH on March 23, 1981. It is clear the demon- stration by employees on that day constituted concerted activity protected by the Act. The demonstration was nothing more than an attempt by the employees (and former employees) to bring to the public's attention cer- tain problems they perceived they had with Respondent. I reject the Respondent's contention that anecdotal notes are nothing more than the mere recording of an incident. The notes remain in the files of the employees concerned and are considered, or may be considered, Whenever any of those employees are considered for promotion, trans- fer, or wage increases. The anecdotal notes indicated they would be used in a negative instead of a positive fashion The notes stated in part: "Please be notified that pending the results of their [Respondent's attorneys'] study, your job at Northeast Baptist Hospital is in jeop- ardy." Accordingly, I fmd Respondent violated Section 8(a)(1) of the Act by issuing anecdotal notes to its em- ployees Lorraine Hartenstein, Patsy Shields, Eileen Moore, Sue Simonis, Cynthia Richards, Korbey Wright, Anne Shaunessy, Phyllis Wilkes, and S. (Sharon) McIn- tyre. 3. Whether Respondent violated Section 8(a)(1) by discharging employees Barnett, Freelon, and Schaller because they participated in certain demonstrations A brief recap of what was and was not decided by the Board in Service Employees Local 84, 266 NLRB 336 (1983), is necessary in order to place in proper perspec- tive the issues raised by the discharges of Barnett, Free- Ion, and Schaller. The undisputed facts, as more fully set forth elsewhere in this decision, clearly indicate that certain off-duty and former employees engaged in a demonstration at SBH on March 25, 1981. The Board not only found that employ- ees and former employees participated in that demonstra- tion, but that the Union herein, as well as AFSCME rep- resentatives, picketed the Respondent on that date and that the picketing was traditional organizational or rec- ognition picketing and as such the two Unions violated Section 8(g) of the Act by failing to give the Respondent and the government the appropriate notice required by Section 8(g) of the Act. The Board found that neither the employees, the Union herein, nor AFSCME notified the Respondent or the Federal Mediation and Concilia- tion Service of the March 25, 1981 demonstration. Addi- tionally, the Board found that no employees ceased working to join the picketing and no deliveries or cars were stopped by the actions of the employees and the two Unions. The question, therefore, becomes one of what effect the Union's conduct, found to be unlawful under Section 8(g) of the Act, has on the rights of discharged employ- ees Barnett, Freelon, and Schaller. Can Barnett, FreeIon, and Schaller differentiate their activities as individuals from their activities, if any, on behalf of the Union? Did the actions of the three employees involved herein, in light of the 8(g) violations, cause them to lose their status as employees under Section 8(d) of the Act? The issue of whether employees who engage in unlawful picketing under Section 8(g) of the Act lose their employee status under Section 8(d) of the Act where their actions do not constitute a strike may well be a question of first impres- sion. The United States Court of Appeals for the District of Columbia Circuit was careful in its unpublished court judgment and memoranda in Case 83-1320, Service Em- ployees Local 84 (Dec. 23, 1983), to state that it specifical- ly was not deciding the issue in the instant case. The cir- cuit court, with respect to the status of the three dis- charged employees herein, stated: Petitioners inform us that a number of intervenor's employees were discharged for their picketing and urge us to recognize the consequences that finding a Section 8(g) violation here will have on the rights of these employees. We recognize that but for the behavior of the union agents, there would have been no violation of the Act. See, e.g., East Chicago Rehabilitation Center v. NLRB, 710 F.2d 397 (7th Cir. 1983); Kapiolani Hospital v. NLRB, 581 F.2d 130 (9th Cir. 1978); Walker Methodist Residence and Health Care Center, 227 NLRB 1630 (1977). We refuse to assume, however, that our holding with respect to the unions' liability [violation of Section 8(g) of the Act] has any necessary impact on the legal rights of the intervenor's employees. The plain language of Section 8(d), 29 USC Sec. 158(d) (1976), does not lead us to make such an assump- tion, nor does any prior Board decision. Our under- standing is that the General Counsel has not au- thoritatively declared a fmal position on this issue. More important, the Board has reached no position on it. See Retail Clerks Union Local 727, Chartered by and Affiliated with United Foods & Commercial Workers Int? Union, AFL-CIO, CLC (Devon Gables Health Care Center), 244 NLRB 586, 587 n. 2 (1979). The issue is thus not presently before us. Before considering the primary issue, it is necessary to decide certain preliminary matters. The first question that needs to be answered in order to shed light on the remaining issues is what caused employees Barnett, Free- lon, and Schaller to participate in the demonstration at SBH on March 25, 1981? In summary fashion, they par- ticipated in the demonstration on that day because of perceived harassment they felt from the Respondent. For example, Barnett was concerned about the ratio of nurses to patients at NBH. Schaller was concerned about what was perceived to be overcrowding in the intensive care and coronary units at SBH. Freelon participated because of what she also perceived to be harassment of employ- ees by the Respondent. Accordingly, it is clear the em- ployees participated in the March 25 demonstration be- cause of what they perceived to be problems related to their employment and not for union organizational pur- BAPTIST MEMORIAL HOSPITAL SYSTEM 1171 poses. The mere fact that Barnett, Freelon, and Schaller had all been members of the Union's core organizing committee does not, in my opinion, change the character of the demonstration on March 25 from that of concerns about work-related complaints to that of organizational efforts on their behalf for the Union. There was a hiatus of approximately 3 months between any activities on their part for the Union and their participation in the demonstration on March 25, 1981. The three employees in question had not solicited the Unions to participate in the demonstration on March 25. The Board's finding with respect to Schaller that she informed Union Busi- ness Representative Aguirre of the March 25 demonstra- tion does not establish that she sought support from or desired to have the Union participate in the March 25 demonstration. The Board's finding was simply that she informed the Union of the demonstration. 17 There is ab- solutely no showing on this record that the employees were motivated by union considerations in their decision to demonstrate on March 25. It was simply a situation of the unions joining the employees in their demonstration. It is clear on this record that the unions had nothing to do with initiating the demonstration that took place on March 25, 1981. There is no evidence that the employees consulted with the unions prior to their March 25 dem- onstration, although the employees notified at least one of the unions of their intention to demonstrate. There is no indication the employees sought to have union offi- cials participate in the demonstration. It was Union Busi- ness Representative Aguirre who sought to have AFSCME members participate in the March 25 demon- stration. Having found as I do that the employees (and former employees) had a separate and distinct purpose for par- ticipating in the demonstration on March 25 than did the unions, the question then becomes may the Respondent lawfully discharge certain of its employees for their par- ticipation in the demonstration? I am persuaded the Re- spondent may not do so because the employees were en- gaging in concerted activity protected by Section 7 of the Act. The language in Section 8(g) of the Act ad- dresses itself to activities of unions and not employees. The hiatus between any activities by the employees on behalf of the Union's core organizing committee and their demonstrating on March 25, taken in conjunction with the purpose for which they were picketing, per- suades me that their conduct was protected by the Act and clearly separate from the actions and purposes of the unions which also participated in the March 25 demon- stration. Employees who participate in a peaceful infor- mational demonstration at a health care facility are not required to give notice to their employer and Federal Mediation and Conciliation Service under the Act. Ac- cordingly, an employer, such as the Respondent herein, may not lawfully discipline its employees who partici- pate in such a demonstration. I am persuaded that the hiatus period between the last activities of the Union's core organizing committee and the demonstration on 17 As noted earlier in this decision and for the reasons noted earlier, some question may possibly exist as to whether Schaller actually in- formed formed the Union of the March 25 demonstration. March 25 was of sufficient duration to negate any re- quirement for any affirmative action on the demonstrat- ing employees' part to notify the Respondent that their actions were not part of any actions by the unions in- volved in the demonstration. I am persuaded-that-tire purpose of the demonstration, as it related to the em- ployees, was not changed by the fact that at least one of the employees (Schaller) carried a sign on March 25 which read, "Administration Doesn't Play Fair! We Demand Our Rights to Organize!" I therefore conclude and fmd the Respondent violated Section 8(a)(1) of the Act when, about March 2-5, 1981, it discharged and thereafter failed and refused to rein- state employees Barnett, Freelon, and Schaller because they acted concertedly, banded together, and engaged in an informational demonstration at the Respondent on March 25, 1981. The Respondent could not prevail in the instant case even if it was decided, which I do not, that the actions of the discharged employees herein were inextricably intertwined with the Union such as to cause their actions and the Union's to be one and the same. The three dis- charged employees, and others, did not engage in either a total or partial work stoppage at the Respondent in any effort to have the Respondent comply with any demands or concerns the employees had. The demonstrations that the three discharged employees and others participated in took place on the employees' own time. No employees ceased working to join the demonstrations and no deliv- eries to the Respondent were interfered with. According- ly, I am fully persuaded that the three discharged em- ployees did not engage in a strike at the Respondent. Section 8(g) of the Act requires that a 10-day notice be given by a labor organization to a health care institution before it may engage in "any strike, picketing, or other concerted refusal to work." Section 8(d) of the Act states that any employee who engages in a strike within the 8(g) notice period shall lose their status as an em- ployee. Section 8(d) makes no mention of the loss of em- ployee status where an individual participates in any "picketing [demonstrations]" or "other concerted refusal to work." I am persuaded, as the Union contends, that a clear reading of the statute, although requiring 10 days' notice for any "strike, picketing, or other concerted re- fusal to work" under Section 8(g) only imposes a loss of employee status under Section 8(d) if a strike is involved. If Congress intended for employees to lose their employ- ee status for engaging in any "picketing [demonstrations], or other concerted refusal to work" it would have so stated at Section 8(d) of the Act." Accordingly, since 18 The legislative history of the 1974 Health Care Amendments sug- gests the conclusion arrived at herein. The legislative history makes it very clear that Congress and particularly those who were sponsormg the legislation was aware of the distinction between "strikes" and "picket- ing." Senator Taft m a colloquy with Under, Secretary of Labor Schubert noted that Schubert, in his comments on the legislation, had not men- tioned picketing. Senator Taft twice asked Under Secretary of Labor Schubert if any special provisions regarding picketing were necessary in nonprofit hospital situations. Under Secretary of Labor Schubert indicat- ed that strikes required special consideration but picketmg did not. Cover- age of Non-Profit Hospitals under National Labor Relations Act, 1973; Hearings on 5-794 and S-2292 before the Subcommittee on Labor, 93d Continued 1172 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Congress only made specific reference to "strike" in Sec- tion 8(d) as it relates to Section 8(g) as the sole basis for loss of employee status, I am persuaded that employees, such as in the instant case, may engage in a nondisrup- tive demonstration and in doing so, not lose their status as employees notwithstanding the fact that any union or unions that might participate in the same demonstration without notice would violate Section 8(g) of the Act." Therefore, even if Barnett, Freelon, and Schaller's con- duct had been inextricably intertwined with the Union, they would not have lost their status as employees be- cause they did not participate in a strike. CONCLUSIONS OF LAW 1. Baptist 'Memorial Hospital Systems is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and is a health care institu- tion within the meaning of Section 2(14) of the Act. 2. Service Employees International Union, Local 84, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. By, about March 25, 1981, issuing anecdotal notes to employees Lorraine Hartenstein, Patsy Shields, Eileen Moore, Sue Simonis, Cynthia Richards, Korbey Wright, Anne Shaunessy, Phyllis Wilkes, and S. (Sharon) McIn- tyre because they engaged in a peaceful informational demonstration at Respondent's facility on March 23, 1981, Respondent violated Section 8(a)(1) of the Act. Respondent violated Section 8(a)(1) of the Act when, about March 25, 1981, it discharged and thereafter failed and refused to reinstate its employees Adele Barnett, Shirley Freelon, and Carole Ann Schaller because they, engaged in peaceful informational demonstrations at Re- spondent's facilities on March 23 and 25, 1981. Cong., 1st Sess., 430 and 431 (1973). Senator Williams, chairman of the Labor and Public Welfare Committee and sponsor of the legislation, in 13 specific points expressed the views of Congress and observed: This legislation is the product of compromise, and the National Labor Relations Board in administering the act should understand specifically 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 impli- cation—or general logical reasoning—something that is not con- tained in the bill, its report, and the explanation thereof. [120 Cong. Rec. 22575 (July 10, 1974).] Senator Williams concluded his observations on the legislation by stating: My overriding point is that in this carefully tailored legislation Con- gress decided to treat the health care industry uniquely m certain re- spects. It decided to go so far, and no more. I trust this bill will be treated by the NLRB and its General Counsel in the same spirit, and not as an excuse to search out and litigate all possible situations, or substitute its will for that of the Congress [120 Cong. Rec. 22576 (July 10, 1974).] 19 Administrative Law Judge Richard J. Boyce, in a similar situation in Retail Clerks Local 727 (Devon Gables), 244 NLRB 586 (1979), came to this same conclusion that employee status is lost only in the case of a strike and not as a result of off-duty picketing The Board did not adopt Boyce's comments concerning the possible application of Sec. 8(d) of the Act because it concluded that issue was not before them. Responcknt's unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices within the meaning of Section 8(a)(1) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action to ef- fectuate the policies of the Act. It having been found that Respondent, in violation of Section 8(a)(1) of the Act, unlawfully terminated the em- ployment of Adele Barnett, Shirley Freelon, and Carole Ann Schaller, I shall recommend that Respondent be or- dered to offer them immediate and full reinstatement to their former or substantially equivalent positions of em- ployment without prejudice to their seniority or other rights and make them whole for any loss of pay they may have suffered by reason of the discrimination against them, with interest. Backpay shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950). Interest shall be computed as prescribed in Flori- da Steel Corp., 231 NLRB 651 (1977). See generally Isis Plumbing Co., 138 NLRB 716 (1962). Further, it is rec- ommended that Respondent remove from its files any references to the March 25, 1981 discharges of employ- ees Adele Barnett, Shirley Freelon, and Carole Ann Schaller, and that it notify them in writing that this has been done, and that evidence of their unlawful dis- charges will not be used as a basis for future personnel actions against them. See Sterling Sugars, 261 NLRB 472 (1982). It is also recommended that Respondent be or- dered to remove from the files of employees Lorraine Hartenstein, Patsy Shields, Eileen Moore, Sue Simonis, Cynthia Richards, Korbey Wright, Anne Shaunessy, Phyllis Wilkes, and S. (Sharon) McIntyre the anecdotal notes issued to them on March 25, 1981. It is likewise recommended that Respondent be required to notify each of the above-mentioned employees in writing that the anecdotal notes have been expunged from their files and that evidence of the anecdotal notes will not be used as a basis for future personnel action against them. Inas- much as I am unable to ascertain from this record if any of the employees receiving the anecdotal notes have al- ready been adversely affected, I shall direct that in the compliance stage of the instant case that an examination be made to ascertain if any of the employees have been adversely affected, and if they have, then the employees shall be made whole. Finally, it is recommended that Re- spondent be ordered to post the notice to employees at- tached hereto as "Appendix" for a period of 60 consecu- tive days in order that employees may be apprised of their rights under the Act and Respondent's obligation to remedy its unfair labor practices. [Recommended Order omitted from publication.]