Care Center of Kansas City d/b/a/ Swope Ridge Geri-atric Center

National Labor Relations Board - Board Decisions

Jun 25, 2007

350 N.L.R.B. 64 (N.L.R.B. 2007)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
350 NLRB No. 9
64
Care Center of Kansas City d/b/a/ Swope Ridge Geri-
atric Center and Service Employees Interna-
tional Union Local 2000, affiliated with Service
Employees International Union. Cases 17–CA–
13664, 17–CA–23679, and 17–CA–23680
June 25, 2007
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND KIRSANOW
On March 1, 2007, Administrative Law Judge Gerald
A. Wacknov issued the attached decision. The General
Counsel filed exceptions and a supporting brief, and the
Respondent filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs,1 and has decided to affirm the judge’s rulings,
findings,2 and conclusions3 and to adopt the recom-
mended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Lyn Buckley, Esq., for the General Counsel.
Rhonda Smiley, Esq. (McDowell, Rice, Smith & Buchanan), of
Kansas City, Missouri, for the Respondent.
Gussie Winston, Business Representative, of Kansas City, Mis-
souri, for the Union.

1 The Respondent has requested oral argument. The request is de-
nied as the record, exceptions, and briefs adequately present the issues
and the positions of the parties.
2 Because we affirm the judge’s finding that the strikes were unpro-
tected activity, we do not pass on his alternative finding that, had the
strikes been protected activity, he would have found that the Respon-
dent’s adherence to its 2-hour call-in policy violated the Act. Similarly,
we do not pass on the judge’s alternative finding that the Respondent
did not violate the Act by requiring striking employees to make up their
missed weekend shifts.
3 In his decision, the judge stated that the Union’s intent to continue
work stoppages as part of its underlying bargaining strategy, “absent
any contrary evidence, may be clearly presumed.” To the extent that
this language can be read to suggest that a presumption exists as to such
intent, and that the General Counsel has the burden to produce evidence
sufficient to rebut that presumption, we note that such a reading is
contrary to Board law. See, e.g., Silver State Disposal Service, 326
NLRB 84, 85 (1998) (respondent bears burden of showing that work
stoppage is unprotected). In this case, the parties were unable to reach
agreement on a wage increase. The Union issued three strike notices
and engaged in two work stoppages, the third strike notice following
only 1 day after the conclusion of the first strike. Moreover, the Union
proffered no alternative reason for its conduct. Thus, we find that the
strikes were part of the Union’s bargaining strategy and, because the
bargaining dispute continued with no evident changed purpose, there
was a reasonable basis for finding that the pattern would continue. In
these circumstances, the Respondent met its burden of proof.
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge. Pursuant
to notice a hearing in this matter was held before me in Over-
land Park, Kansas, on December 12 and 13, 2006. The initial
charge in Case 17–CA–23664 was filed by Service Employees
International Union Local 2000, affiliated with Service Em-
ployees International Union (the Union) on August 28, 2006.
Thereafter an amended charge was filed and a complaint, dated
October 25, 2006, was issued. Thereafter related charges were
filed, and on November 28, 2006, the Regional Director for
Region 17 of the National Labor Relations Board (the Board)
issued an Order and notice of hearing alleging violations by
Care Center of Kansas City d/b/a Swope Ridge Geriatric (Re-
spondent) of Section 8(a)(1) and (3) of the National Labor Re-
lations Act (the Act). The Respondent, in its answer to the
complaint, duly filed, denies that it has violated the Act as al-
leged.
The parties were afforded a full opportunity to be heard, to
call, examine, and cross-examine witnesses, and to introduce
relevant evidence. Since the close of the hearing, briefs have
been received from counsel for the General Counsel (General
Counsel) and counsel for the Respondent.
On the entire record, and based on my observation of the
witnesses and consideration of the briefs submitted, I make the
following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a corporation with its office and principal
place of business located in Kansas City, Missouri, where it is
engaged in the business of operating a nursing home. In the
course and conduct of its business operations the Respondent
annually derives gross revenues in excess of $100,000, and
annually purchases and receives goods valued in excess of
$5000 directly from points outside the State of Missouri. It is
admitted and I find that the Respondent is, and at all material
times has been, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted, and I find, that The Union is and at all times
material has been, a labor organization within the meaning of
Section 2(5) of the Act,
III. ALLEGED UNFAIR LABOR PRACTICES
A. Issues
The principal issues in this proceeding are whether employ-
ees engaged in protected activity by participating in strikes
called by the Union, and, if so, whether the Respondent vio-
lated the Act by issuing warning notices to employees for fail-
ure to call in prior to participating in such strike activity.
B. Facts
The Union has been the collective-bargaining representative
of the Respondent’s employees for a number of years during
which the parties have entered into a series of collective-
SWOPE RIDGE GERIATRIC CENTER 65
bargaining agreements. The last collective-bargaining agree-
ment extended from May 1, 2003, until April 30, 2006..1
The contract sets forth the collective-bargaining unit as fol-
lows:
Included: All regular full-time, regular part-time and regular
limited part-time employees of the Employer, including team
leaders.
Excluded: Officers and managers, office and clerical em-
ployees, skilled craft workers, all therapy workers and diver-
sional activities employees, all registered nurses, licensed
practical nurses, all other professional and technical employ-
ees, on call employees, guards and supervisors as defined in
the National Labor Relations Act.
The unit consists of approximately 40 employees. Most are
certified nursing assistants (CNAs), who care for the comfort of
the residents and assist the residents with certain activities of
daily living such as bathing, dressing, and feeding. The unit
also includes several certified medical technicians (CMTs) who
primarily distribute and assist the residents with their medica-
tions.
Negotiations for a new contract took place before and after
the expiration of the last contract and the parties were unable to
reach a successor agreement. Insofar as the record shows the
principal area of disagreement concerned the Union’s demand
for a wage increase larger that what the Respondent was offer-
ing. As a result the Union engaged in weekend strikes on two
separate occasions.
As the Respondent is a health care institution the Union is
required, pursuant to Section 8(g) of the Act, to notify the Re-
spondent of a strike at least 10 days prior to such action, and to
provide the date and time that such action will commence. The
Union did provide the appropriate10-day strike notice prior to
each anticipated strike action, as well as other notifications and
clarifications, as follows.
On July 14, the Union, in a letter entitled “Ten-Day Notice to
Strike,” gave written notice that a strike would commence on
Friday, August 4, at 11 p.m.
On August 2, 2 days prior to the announced strike, the Union
sent two separate notices to the Respondent. One was a “With-
draw Notice” stating the Union was withdrawing the foregoing
strike notice in order to give the Respondent and its agents “the
opportunity to bargain in good faith and settle the CBA be-
tween both parties.” The other was another “Ten-Day Notice to
Strike,” stating that a strike would commence on Saturday,
August 26, at 2 p.m.
On August 24, 2 days prior to the scheduled August 26
strike, the Union advised the Respondent that the strike would
be a 1 day (24-hour strike) that would commence at 2 p.m. on
Saturday, August 26, and end at 2 p.m. on Sunday, August 27.
Further, the Union advised the Respondent, “There will be a
huge participation of members and outside supporters including

1 All dates or time periods hereinafter are within 2006, unless other-
wise indicated.
other labor organizations of Change to Win.”2 This 24-hour
strike occurred as scheduled.
On August 28, the day following the end of the first strike,
the Union gave the Respondent another “Ten-Day Notice for a
Strike,” stating that it intended to strike again on Saturday,
September 16, at 2 p.m.
On September 13, 3 days prior to the scheduled September
16 strike, the Union advised the Respondent that the strike
would be a 1 day (24-hour) strike that would commence at 2
p.m. on Saturday, September 16, and end at 2 p.m. on Sunday,
September 17. Again, in this notice, the Union advised the
Respondent, “There will be a huge participation of members
and outside supporters including other labor organizations of
Change to Win.” This 24-hour strike also occurred as sched-
uled.
Dorothy Jones, vice president in charge of nursing services,
described the picket line activity she observed. Jones testified
that on August 26, the first day of the first strike, she was
shocked that individuals on the picket line, in the presence of
union representatives, were very loud, that they were yelling
profanities and vulgarities through bullhorns, and that they had
sirens going in order to draw attention to their demonstration.
This was very disruptive and disconcerting to the residents of
the nursing home, and to the surrounding residences in the area.
According to Jones, individuals yelled through bullhorns,
“Dorothy Jones and Patricia Wyatt,3 we know where you live.”
Jones testified she took this as a threat. The sirens went all day
and all night except during the times the police were present in
response to the repeated calls of the Respondent. Thus, the
noise only stopped while the police were there. Also, according
to Jones, Michael Brown, vice president of the Union was con-
stantly beating on a drum and trespassing on Respondent’s
property. Some of the residents remained awake, looking out
the windows, as the noise was keeping them from sleeping. On
one occasion, Sterling Brown, a union business agent, said over
the bullhorn, “[H]ow would they feel if we burn this. . . MF’ing
building down.”
Jones testified that again, during the September 16–17 strike,
an individual on the picket line yelled, “Dorothy Jones, I know
where you live, why don’t you come out and talk to us.” Ac-
cording to Jones, “The behavior was still just as aggressive and
vulgar as it had been the previous strike.” Again, individuals on
the picket line were using the bullhorn, the sirens, and the
drum.4 Further, they were blocking the driveway of the facility
and would attempt to shove petitions in automobiles as they
entered the driveway. Sometimes cars exiting from the drive-
way would stop for inordinate periods of time because the driv-
ers could not tell whether the siren was from an approaching
emergency vehicle. Jones saw one exiting car being banged on

2 Apparently “Change to Win” is the name given to a coalition of la-
bor organizations established to promote union solidarity and to assist
each other in situations such as the union activities herein.
3 Wyatt was apparently another manager or supervisor of the Re-
spondent.
4 However, from questions asked by Respondent’s attorney, it ap-
pears that the bullhorn and siren were not used from 7 p.m. on Septem-
ber 16, until the next morning.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD66
by an individual on the picket line, and observed individuals
actually lying down and sprawling out on the driveway.
No union representatives were called as witnesses to rebut
the testimony of Jones. However, as a rebuttal witness, the
General Counsel called Henry Klein, who is a candidate for
mayor of Kansas City. Kline had been invited by the Union to
participate in the picketing, and did so during both strikes.
Klein testified that during the times he spent on the picket line,
namely, about a total of 10 hours on three separate occasions,
there was sometimes a bullhorn being used and sometimes a
drum. He was not aware of a siren being used. Nor was he
aware of any threats being uttered, or of people lying on the
driveway or blocking traffic. He testified that he “considered it
to be a very peaceful rally.”
The testimony of Jones and Klein is not necessarily inconsis-
tent. Klein may simply not have observed or heard what Jones
observed and heard. However, the record evidence indicates
that Union Representative Gussie Winston was present on the
picket line for substantial periods of time during both strikes;
and although Winston, who entered an appearance on the re-
cord as the designated union representative, was present
throughout the hearing and was even called as a witness by the
Respondent following Jones’ foregoing testimony, Winston did
not rebut the testimony of Jones regarding the picket line and
related conduct during the strike. Accordingly, I credit Jones’
account of the strike activity.
The record shows that of the approximately 40 unit employ-
ees, only about 6 or 7 honored the picket lines and/or partici-
pated in picketing. Thus, only a few of the individuals on the
picket lines were employees. The Respondent does not contend
that any striking employees, all of whom returned to their regu-
lar shifts after the strikes, engaged in picket line misconduct.
The record also shows that the Respondent was well pre-
pared for the strikes and that there was no disruption of services
and care for the residents. Jones testified that the Respondent
did not know whether employees would work or not during the
strike: “There were employees who told us that they would be
there, but we didn’t know who would show up and who
wouldn’t show up. So we had called agency and given them
notice that we may be doing some last minute calls for staff-
ing.”
As noted, the striking employees were not disciplined for
picket line misconduct or for condoning such misconduct.
However, those employees who were scheduled to work and
had not notified the Respondent of their intention to be absent
from work were given written disciplinary warnings for failing
to adhere to the Respondent’s call-in requirement. Thus, the
Respondent has maintained a long-standing policy of issuing
written warnings to employees for failing to notify the Respon-
dent at least 2 hours in advance if they will be absent from their
scheduled shift. This rule is designed to provide the Respon-
dent with sufficient opportunity to obtain alternate fill-in staff-
ing, usually from an outside agency. The record shows that
employees are well aware of this requirement and of the ad-
verse consequences in the event they fail to adhere to it,
namely, that they will be discharged upon receiving three such
written warnings within an 18-month period.5
While the Respondent held several employee meetings prior
to the strikes, and on several occasions reminded the employees
that they should call in if they intended to miss their shifts dur-
ing the strikes, some employees did so and some did not.
Those who did not call in testified either that they believed the
Union’s 10-day strike notice constituted sufficient advance
notification, or specifically asked Union Representative
Winston what they should do and were told that the Union’s
10-day strike notice had been made on behalf of all employees
and therefore it was unnecessary for them to individually call in
prior to their scheduled shifts. As noted, only those employees
who did not personally call in were given written warnings.
The complaint alleges that such written warnings, under the
circumstances, are unlawful.
Jones testified that weekends are extremely difficult to staff
as the employees, generally, prefer not to volunteer for week-
end work. For this reason, each employee is required to work 1
day every other weekend. Further, for purposes of fairness, so
that some employees will not have to work more weekend
shifts than others, employees are required to make up any
weekend work that they miss. Working a weekend shift neces-
sarily results in the elimination of a weekday shift during that
week, so that an employee will not be scheduled to work more
than 40 hours per week. There is one exception to this weekend
makeup requirement: If the employee or a family member is ill
and requires care, or if there is some other immediate problem
preventing the employee from working, the employee is cus-
tomarily excused from having to make up the missed weekend
shift. Requiring employees to make up for missed weekend
shifts is not considered to be a disciplinary measure; rather, it is
simply an attempt to distribute weekend work among the em-
ployees in an equitable fashion.
Pursuant to this longstanding weekend shift make-up policy,
the Respondent required those striking employees who missed
weekend work to make up the weekend shift that they missed.
As noted, this necessarily resulted in eliminating one of their
weekday shifts. The complaint alleges that requiring strikers to
make up missed weekend shifts, under the circumstances, was
unlawful.
C. Analysis and Conclusions
The Respondent maintains that it applied its long-established
2 hour call-in policy and its weekend work makeup policy in a
routine, nondiscriminatory manner, and that it would have
taken the same action against any employee regardless of that
employee’s reason for failing to timely call in. Further, the
Respondent apparently argues that the Union’s 10-day notices
were inadequate as a purported substitute for its call-in policy:
thus, the purpose of the policy is to enable the Respondent to

5 One striker was terminated and sent home for receiving her third
such notice. However, it was discovered that this was a mistake be-
cause the earliest of her three notices was beyond the 18-month limita-
tion period and should have been removed from her file. Upon discov-
ering this mistake the Respondent immediately notified the employee
of its error, and the employee was compensated for the work she
missed.
SWOPE RIDGE GERIATRIC CENTER 67
know how many employees and which employees, specifically,
will be absent from their shift so that it may obtain alternative
staffing; simply notifying the Respondent of the time and date
of a strike in no way provides such critical information.
The Respondent also maintains that the employees’ partici-
pation in the strikes, under the circumstances, did not constitute
protected concerted activity, and that it was privileged to treat
the employees as if they were nonstrikers and the strikes simply
had not occurred; therefore, whatever discipline it imposed for
the employees’ failure to timely call in was not imposed in the
context of lawful strike activity. Thus, the Respondent first
argues that the misconduct of the Union’s business representa-
tive on the picket lines, particularly by disturbing the nursing
home residents with loud noises and causing them loss of sleep,
and by uttering veiled threats of possible harm to Respondent’s
managers and facilities, taints the entire strike and renders un-
protected any employee’s participation in the strike even if that
employee personally engaged in no misconduct. The Respon-
dent cites no authority for this proposition, and I find it to be
without merit.
As a corollary argument, the Respondent maintains that its
employees who participated in the strike personally authorized
or ratified such strike misconduct because they continued to
participate on the picket line when such unprotected activities
occurred and did not take any action to cause their representa-
tives to discontinue such misconduct; therefore, the employees’
ratification of strike misconduct was itself misconduct. Again,
assuming arguendo that the employees were even aware of such
activity,6 the Respondent cites no authority for the proposition
that striking employees who fail to attempt to cause their union
representatives to discontinue any impermissible picket line
conduct are thereby complicit in such misconduct. I also find
this contention of the Respondent to be without merit. Further,
the Respondent has conceded that it has taken no disciplinary
action against any employee for engaging in strike activity of
any fashion.
The Respondent maintains the strikes were unprotected be-
cause they were calculated to cause the most disruption to the
Respondent’s operations while providing employees the most
advantageous incentives for striking. Thus, the strikes were
called to begin at 2 p.m. (prior to the 3:30 p.m. ending time of
the day shift), and the Respondent could not know whether the
day shift employees would be walking out prior to the end of
their shift. Moreover, the strikes were called for weekends in
order to enable striking employees to avoid mandatory week-
end work and further because it is most difficult for the Re-
spondent to find weekend replacements. And lastly, the very
nature of discrete and irregular 2-day strikes effectively de-
prived the Respondent of its right to permanently replace eco-
nomic strikers.
It is axiomatic that the very purpose of a strike is to cause
disruption, both operationally and economically, to an em-
ployer’s business operations in order to cause the employer to
accede to the union’s demands on behalf of the employees it
represents. Further, it seems obvious that the greater the num-

6 None of the employees who testified were even asked whether they
were aware of such misconduct by nonemployees.
ber of employees who participate in the strike, the more effec-
tive the strike is likely to be in accomplishing this purpose.
Clearly, the fact that the strike may have been designed to dis-
rupt the Respondent’s operations and at the same time to pro-
vide an incentive for employees to participate in the strike does
not render the strike unprotected. Moreover, contrary to the
Respondent’s assertion that it has been effectively deprived of
its right to permanently replace employees engaged in periodic
2-day economic strikes, there appears to be no legal impedi-
ment to permanently replacing such economic strikers regard-
less of the length of each strike.
The Respondent argues that the successive 10-day notices
announcing a series of weekend strikes are tantamount to the
announcement of recurring “partial” or “intermittent” strikes,
and that the ensuing strikes therefore constituted unprotected
activity; accordingly the discipline for failure to call in was
unrelated to any concerted activity protected by the Act.
In Vencare Ancillary Services, 334 NLRB 965, 970 (2001),7
the Board stated:
Partial strikes, where employees continue working on their
own terms, are not protected by Section 7 of the Act. See
Audubon Health Care Center, 268 NLRB 135, 137 (1983);
and Valley City Furniture Co., 110 NLRB 1589, 1594–1595
(1954), enfd. 230 F.2d 947 (6th Cir. 1956). Thus, employees
lose their statutory protection when they perform only part of
their job functions while accepting their pay and avoiding the
risks of a total strike. Vic Koenig Chevrolet, 263 NLRB 646,
650 (1982).
In Honolulu Rapid Transit Co., 110 NLRB 1806 (1954), the
union advised the employer in advance that it intended to en-
gage in consecutive 2-day weekend strikes until a contract was
agreed upon. It did strike for 2 days each weekend for 4 con-
secutive weekends, and thereafter never advised the employer
that it intended to discontinue this type of weekly strike activ-
ity. The Board determined that this constituted an unprotected
intermittent strike, stating at 1809–1810:
The decision of the employees in this case, implemented in
their part-time weekend strike, can only be described as an ar-
rogation of the right to determine their schedules and hours of
work. . . . employer is not required . . . to alter and adjust his
operating schedules and hours to the changing whim which
may suit the employees’ or a union’s purpose . . . and thereby
in effect establish and impose upon the employer their own
chosen conditions of employment.
In Polytech, Inc., 195 NLRB 695 (1992), employees who
were not represented by a union advised their employer that
they were refusing to work scheduled overtime that evening
and quit work at the end of their regular shift. The trial exam-
iner determined that this one instance of refusing to work over-
time demonstrated the employees’ future intent to engage in
similar recurrent partial work stoppages, and that such activity
was unprotected. The Board disagreed, stating that a single
concerted refusal to work overtime is presumptively protected
strike activity, and that (page 696):

7 Enf. denied 352 F.3d 318 (6th Cir. 2003).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD68
. . . such presumption should be deemed rebutted when and
only when the evidence demonstrates that the stoppage is part
of a plan or pattern of intermittent action which is inconsistent
with a genuine strike or genuine performance by employees
of the work normally expected of them by the employer.
In Polytech the Board engaged in an analysis of an earlier
case, John S. Swift Co., 124 NLRB 394, 396 (1959), enfd. 277
F.2d 641 (7th Cir. 1960), a case in which the employees’ single
refusal to work overtime “to show the company they were seri-
ous about wanting a union contract” (Swift, supra at 395), cou-
pled with their refusal express a willingness to work overtime
in the future, was considered to be unprotected activity. The
Board in Polytech, referencing the Swift decision, stated that in
Swift “the employees’ refusal to work the overtime hours was
significant only insofar as it affirmed the employees’ previ-
ously announced intention to embark on an intermittent or re-
curring strike as a bargaining tactic.”
The Board went on to state, “The holding in Swift, that the
concerted refusal to work overtime was unprotected, reasons
that when employees engage in repeated work stoppages lim-
ited to a portion of the working day, they are plainly unwilling
to assume the status of strikers—a status contemplating a risk
of replacement and a loss of pay. The principle of these cases is
that employees cannot properly seek to maintain the benefits of
remaining in a paid employee status while refusing, nonethe-
less, to perform all of the work they were hired to do.”
In Chelsea Homes, Inc., 298 NLRB 813, 831 (1990), a case
involving unorganized employees who engaged in two work
stoppages, the Board agreed with the administrative law judge
that “two work stoppages, even of like nature, are insufficient
to constitute evidence of a pattern of recurring, and therefore
unprotected, stoppages. “
In Robertson Industries, 216 NLRB 361, 362 (1975), another
case involving unorganized employees who also engaged in
two work stoppages, the Board states:
While there is no magic number as to how many work stop-
pages must be reached before we can say that they are of a re-
curring nature, certainly the two work stoppages in the case at
bar, which involved a total of 2 day’s absence from work, do
not, in our opinion, evidence the type of pattern of recurring
stoppages which would deprive the employees of their Sec-
tion 7 rights. [Footnote citation omitted.]
Reviewing the foregoing cases, relied upon and/or distin-
guished by both the General Counsel and Respondent in their
respective briefs, it appears that, as the Respondent maintains,
Honolulu Rapid Transit Co. supra, is most analogous to the
instant situation. There the employees were represented by a
union, their intent to engage in recurring weekend strike activ-
ity was announced by the union and then implemented, the
strike activity was in furtherance of their contract demands
during ongoing collective-bargaining negotiations, and at no
time did the union advise the employer that it intended to dis-
continue this pattern of conduct.
The same elements relied upon by the Board in Honolulu
Rapid Transit Co. appear to be present in the instant case: the
various foregoing 10-day notices herein constitute proof posi-
tive of the Union’s similar intent to engage in a series of recur-
ring intermittent work stoppages; such work stoppages were
implemented; the Union’s intent to continue engaging in re-
peated work stoppages as a part of its underlying bargaining
strategy until a contract was reached, absent any contrary evi-
dence, may be clearly presumed; and the strikes were in fur-
therance of this strategy. Accordingly, I find that the strike
activity in which the employees participated was unprotected
activity. Further I find that in the context of such unprotected
activity the Respondent did not violate Section 8(a)(1) and (3)
of the Act either by issuing warning notices to employees for
failure to comply with the 2-hour call-in policy,8 or by requiring
employees to make up the weekend shifts they missed while
participating in the strikes.9
Accordingly, for the foregoing reasons, I shall dismiss the
complaint in its entirety.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent has not violated the Act as alleged in the
complaint.
On these findings of fact and conclusions of law, I issue the
following recommended10
ORDER
The complaint is dismissed in its entirety.

8 Had the strikes been protected activity, I would have found Re-
spondent’s 2-hour call-in policy to unduly inhibit employees in the
exercise of their Sec. 7 rights in violation of the Act. Thus, the 10-day
notices were sufficient to apprise the Respondent that employees, gen-
erally, would be participating in the strike, and the 2-hour call-in rule
would inhibit employees from deciding, as they were coming to work,
to join their fellow employees on the picket line. Moreover, the Re-
spondent could have lawfully polled its employees in advance to de-
termine who would be participating in the strike. Preterm, Inc., 240
NLRB 654 (1979).
9 Even if the strikes were protected activity, I would find that the Re-
spondent did not violate the Act by requiring striking employees to
make up their missed weekend shifts. The credible record evidence
shows that this policy was not considered disciplinary in nature, and
that, contrary to the General Counsel’s contention, it was customarily
applied in an attempt to equalize the workload among all the employ-
ees. While, as pointed out by the General Counsel, there were past
occasions when employees who should have been required to make up
their weekend shifts were not required to do so, I find that this was
through mere inadvertence on the part of one of Respondent’s manag-
ers. Thus, there is no reason why this weekend makeup policy should
not also be applied to strikers.
10 If no exceptions are filed as provided by Sec. 102.46 of the
Board's Rules and Regulations, the findings, conclusions, and recom-
mended 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 purposes.