227 N.L.R.B. 1392 (N.L.R.B. 1977)

Methodist Hospital of Kentucky, Inc.

National Labor Relations Board - Board DecisionsJan 24, 1977

227 N.L.R.B. 1392 (N.L.R.B. 1977)

1392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Methodist Hospital of Kentucky , Inc. and Communica- tions Workers of America , AFL-CIO. Case 9-CA- 8939 January 24, 1977 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO On June 23, 1976, Administrative Law Judge Herbert Silberman issued the attached Decision' in this proceeding. Thereafter, Respondent filed excep- tions 2 and a supporting brief, the General Counsel and Charging Party filed limited exceptions and briefs, and Respondent filed an answering brief to their exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record 3 and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, as amplified herein. The facts of this case are not in substantial dispute and are set out fully by the Administrative Law Judge. Briefly, the Respondent, Methodist Hospital of Kentucky, Inc., is a nonprofit Kentucky corpora- tion engaged in the operation of a hospital in Pikeville, Kentucky. The hospital was exempt from the Act prior to August 25, 1974, by virtue of the exclusion of nonprofit hospitals from the definition of an "employer" in Section 2(2) of the Act, but became an employer within the meaning of Section 2(2) as a "health care institution" as defined in Section 2(14) on August 25, 1974, the effective date of the health care amendments. The strike began on June 10, 1972, when approxi- inately 200 nonprofessional employees walked off their jobs, and shortly thereafter it was ratified by the Charging Party, Communications Workers of Ameri- ca, AFL-CIO. The strike continued until October 10, 1974, when the Union by letter dated October 7 called off the strike and made an unconditional i The Administrative Law Judge made two inadver tent errors in his Decision in quoting from Keene's testimony near the end of part III, B, of his Decision Thus, in the first sentence quoted , the word "would" does not appear in the transcript, and in the second quoted sentence the word "this" appears in the transcript instead of the word "these " 2 Respondent has excepted to the Administrative Law Judge 's failure to permit evidence as to the causes and effects of the violence and disruption caused by the strike Although we find that the evidence was admissible, we find no prejudice because none of it establishes such misconduct by the Union or individual strikers involved herein 3 The Administrative Law Judge, prior to completion of the General 227 NLRB No. 189 application for reinstatement on behalf of all strikers. Subsequent to the termination of the strike approxi- mately 81 individual strikers filed separate applica- tions at the hospital for employment as new employ- ees. The Union on November 12, 1974, sent another letter to Respondent not only requesting reinstate- ment but making application for new employment on behalf of all strikers. The Administrative Law Judge found, and we agree for the reasons fully set forth by him, that Respon- dent violated Section 8(a)(3) and (1) of the Act by refusing to reinstate the striking employees when vacancies arose on or about October 10, 1974. We therefore adopt his recommended Order requiring immediate and full reinstatement of the strikers to their former positions or, if those jobs no longer exist, to substantially equivalent positions without preju- dice, and backpay for loss of earnings . We shall direct, in addition, that the Respondent discharge, if necessary to accomplish such reinstatement, all employees hired since October 10, 1974, the date of such application for reinstatement. Furthermore, we find merit in the General Coun- sel's and Charging Party's exceptions to the Adminis- trative Law Judge's failure to find independent violations of Section 8(a)(3) and (1) by Respondent's refusal to hire as new employees any of the strikers named in Appendix E of the Decision because they engaged in union and/or protected concerted activi- ty.4 The Union's November 12, 1974, letter was clearly and unambiguously a request for new employ- ment on behalf of all strikers.5 The strikers were thus entitled to nondiscriminatory consideration of their employment applications on and after November 12, 1974, or an earlier date if an individual application was filed. It is hornbook law that it is violative of Section 8(a)(3) for an employer to discriminate against union members in hiring new employees.6 And it is conced- ed that the Respondent decided not to rehire any employees who had walked off their jobs, and it is a fact that not one single striker has been hired subsequent to the request. It is thus clearly estab- lished that the hospital refused employment because of prior concerted activities by the applicants and thus had an unlawful and discriminatory motive in refusing to hire the former strikers as new employees. Counsel's case , granted Respondent's motions to dismiss the complaint on the grounds that the Charging Party had failed to comply with the notice requirements of Sec 8(g) of the Act The Board in Methodist Hospital of Kentucky, Inc, 221 NLRB 692 (1975), reversed the Administrative Law Judge and reopened the proceeding for further hearing 4 Ashville- Whitney Nursing Home, 188 NLRB 235 (1971), remanded 468 F 2d 459 (C A 5, 1972), affd 208 NLRB 341 (1974), Jackson Chair Co, Inc, 176 NLRB 239 (1969), Universal Mobile Homes, 210 NLRB 689 (1974) 5 See Methodist Hospital of Kentucky, supra 6 Phelps Dodge Corporation v N L. R B, 313 U S 177 (1941) METHODIST HOSPITAL OF KENTUCKY 1393 The Administrative Law Judge found the essential facts of the violations but failed, possibly as an oversight, to include findings of fact or conclusions of law on this conduct as an independent violation of the Act. Thus, in footnote 14 of his Decision he states: However phrased, the meaning of Keene's testi- mony is that the Hospital refused to reinstate the employees who joined the strike because of their participation in that concerted activity. Likewise, it is Keene's testimony that after March 7, 1973, the Hospital refused to rehire (as distinguished from reinstate) any of the striking employees for the same reason. [Emphasis supplied.] Accordingly, we find that Respondent additionally discriminated against the former strikers in violation of Section 8(a)(1) and (3) of the Act by refusing to hire them as new employees because of their member- ship in, sympathies for, and activities on behalf of the Union and/or because of the protected concerted activities in having participated in a strike. \ ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge, as modified below, and hereby orders that the Respon- dent, Methodist Hospital of Kentucky, Inc., Pikeville, Kentucky, its officers, agents, successors, and assigns, shall take the action set forth in the said recommend- ed Order, as so modified: 1. Substitute the following for paragraph 1(a): "(a) Discouraging membership in Communications Workers of America, AFL-CIO, or any other labor organization, by failing to reinstate or to reemploy employees who have engaged in a lawful strike and have made unconditional applications for reinstate- ment or reemployment to vacant positions as they occur, without prejudice to their seniority and other rights and privileges, or by otherwise discriminating against any of its employees in regard to their hire, tenure of employment, or other terms or conditions of their employment." 2. Substitute the following for paragraph 2(a): "(a) Offer to those employees listed in Appendix E [omitted from publication, see Appendix F for names] immediate and full reinstatement to their former positions or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of the discriminatory failure to reinstate or to reemploy them in the manner set forth in the section of the Administrative Law Judge's Decision entitled `The Remedy,' as modified by the Board's Decision." 3. Substitute the attached notice marked "Appen- dix F" for that of the Administrative Law Judge. APPENDIX F NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in Com- munications Workers of America, AFL-CIO, or any other labor organization, by failing or refus- ing to reinstate or rehire any employees who have engaged in a lawful strike, after application for reinstatement has been made, to positions as they become vacant without prejudice to such employ- ees' seniority and other rights and privileges, or by otherwise discriminating against any of our em- ployees in regard to their hire, tenure of employ- ment, or other terms or conditions of their employment. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act. WE WILL offer to all those employees listed below immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without preju- dice to their seniority or other rights and privileg- es, and WE WILL make them whole for any loss of earnings they suffered as a result of the discrimi- nation against them. Arlena Adkins Berma Hopkins Nona Akers Kathleen Howell Lola Anderson Pearl Howell Roberta Bolton Pat Hamilton Louise Bartley Shirley Harmon Luna Bevins Betty Hughes Shirley Birchfield Louise Huffman Alice Blankenship Patricia Iricks Ruth Blankenship Dorothy James Frankie Blair Mable James Shirley Brewer Mary Ann James Eloise Bumgardner Johnny Johnson Ann Burgess Nine Johnson Opal Burns Mary J. Jordan Mary Canada Audrey Justice Alpha Carroll Pebble Justice Minnie Carroll Mike Justice Shirley Carroll Sandra Justice Irene Charles Anna King Marilyn Charles Peggy King 1394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hazel Coleman Larry Coleman Lola Coleman Lois Coleman Marie Comer Evelyn Compton Maxine Courtney Phyllis Cummins Erika Caldwell Elwood Charles Kathryn Chaney Joe Dotson Jeanette Elswick Anna Mae Fields Nancy Fields Brenda France James Flowers Mae Fleming Cora Gibson Lue Vicie Gibson Phyllis Gibson Wilma Reid John Gray Frances Greer Jettie Griffey Mona Hamilton Judy Hampton Faye Haynes Laura Hinkle Elizabeth Honaker Ruby Prater Eloise Pyle Alpha Ratliff Hazel Ratliff Josephine Ratliff Rhonda Ratliff Velva Ratliff Martha Ray Arvid Reynolds Causby Reynolds Mary Ellen Roberts Geraldine Robinette Peggy Robinette Johnny Robinson Virginia Ratliff Woody Ratliff Gertrude Robinson Lurla Scott Nancy Scott Haller Sexton Clemia Smith Frieda Smith Flossie Stanley Bobby Tackett Anna Sagraves Carrie Stratton Glema Kinney Ruby Kinney Phyllis Layne Joe Donald Little Martha Little Bernice Mason Helen Maynard Judy Maynard Lonnie Maynard Verda L. Maynard Rebecca Maynard Winfred Maynard Johnny Mattingly Eunice McCoy Albert Meade Mentie Meade Tennie Meade Roger Meade Beatrice Moore Bethel Mullins Mervil Mullins Wanda Mullins Deborah Mullins Carolyn Justice William Parsons Geneva Pauley Eileen Phillips Juanita Phillips Oler Phillips Norma Prater Rondle Gene Bowens Danny Coleman Juanita Lewis Martha Hall Betty Weddington Donna Justice Phyllis Tackett Fayetta Stanley James Rich John Peters Lowell Adkins Nancy Anderson Barbara Austin Barbara Branham Bonnie Branham Donna Chapman Ruth Coleman Sheila Coleman Billy Dotson Freddie Fouts Karen Hall Sheila Hall Ethel Holsinger Maxine Kendrick Velva Justice Mary M. Maynard Bertha Taylor Bonnie Thacker Fayetta Thacker Inis Thompson Josephine Thacker Elsie Thacker Ruth Thacker Brenda Thompson Emoline Thompson Maudie Thompson Shirley Vance Eddie Vanover Lola Wallace Ardena Wheeler Jean Stanley Rick Thacker Virginia Williams Bonnie Rooks Edith Williams Janice Wood Lorraine Woods Emoline Warrix Robert Wray Raymond Wright Curt Wallace Helen Williams Lois Hall Dolly Mullins METHODIST HOSPITAL OF KENTUCKY DECISION STATEMENT OF THE CASE HERBERT SILBERMAN , Adnumstrative Law Judge: Upon a charge filed on November 11, 1974, by Communications Workers of America, AFL-CIO, herein called the Union, a complaint was issued on June 18, 1975, alleging that the Respondent, Methodist Hospital of Kentucky, Inc., herein called the Hospital, has engaged in unfair labor practices within the meaning of Section 8(a)(I) and (3) of the National Labor Relations Act, as amended. Respondent filed an answer generally denying that it has engaged in the unfair labor practices alleged in the complaint and asserting various affirmative defenses. A hearing in this proceeding was held in Pikeville, Kentucky, on August 27 and 28, 1975, and March 9 and 10, 1976. Following the close of the hearing, the parties filed briefs with the Administrative Law Judge. Upon the entire record in this proceeding, I make the following: FINDINGS OF FACT I. JURISDICTION Methodist Hospital of Kentucky, Inc., a nonprofit Kentucky corporation, is engaged in the operation of a health care institution in Pikeville, Kentucky. During the 12 months preceding the issuance of the complaint, which period fairly represents the Hospital's operations, Respon- dent purchased goods and products valued in excess of $50,000 which were shipped to its premises through channels of interstate commerce directly from points located outside the State of Kentucky. During the same period the Hospital's gross revenues exceeded $250,000. Respondent admits, and I find, that the Hospital is an employer within the meaning of Section 2(2) and (14) engaged in commerce within the meaning of Section 2(6) and (7) of the Act. METHODIST HOSPITAL OF KENTUCKY 1395 II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The complaint as amended at the hearing, in substance, alleges that employees of the Hospital were engaged in a strike against the Hospital during the period from June 10, 1972, until October 10, 1974. As of October 10, 1974, the striking employees referred to in paragraph 7 of the complaint made an unconditional offer to return to work. The striking employees also made applications for employ- ment with the Hospital as new employees. The Hospital has refused to reinstate the striking employees and also has refused to hire the striking employees as applicants for new employment although since October 10, 1974, the Hospital has hired many new employees. In addition to denying generally that it has engaged in the alleged unfair labor practices, Respondent interposes seven affirmative defenses. I find no merit to these defenses. Below is a summary of the alleged affirmative defenses and my reasons for rejecting each. First defense: Following the inception of the strike Respondent "promptly offered reinstatement to all such employees who participated in said work stoppage and has employed and continues to employ employees who partici- pated in that work stoppage without any discrimination whatsoever because of such participation or because of any union activities or sympathies of any of its employees." There is no evidence that the Hospital offered reinstate- ment to any striker,' although between the commencement of the strike and March 7, 1973, the Hospital reemployed 37 of the more than 200 employees who had gone on strike and refused to reemploy 6 other strikers who sought to return to work in that period. After March 7, 1973, the Hospital refused to consider any striking employee for further employment. Second defense: Prior to August 25, 1974, the effective date of the nonprofit hospital amendments to the Act (Public Law 93-360), the Hospital permanently replaced the striking employees. "Consequently, and as a result thereof, the said work stoppage was not privileged or protected by the Act and the persons mentioned in paragraph 7 of the complaint were never `employees' of Respondent on and after June 10, 1972, within the meaning of Sections 2(3), 7, and 8(a)(1) and (3) of the Act, as amended ...." The thrust of this allegation is that the status of the employees who joined the strike should be determined not as of the time they applied for reinstatement, but as of some period prior to the effective date of the nonprofit hospital 1 On December 21, 1972, the Hospital placed an advertisement of an institutional nature in the Pike County News presumably to enlist communi- ty support for its position with respect to the strike At the bottom of the advertisement is the statement , "Former Employees Of The Hospital Will Be Considered On A Selective Basis For Re-Employment Since A Few Job Vacancies Still Exist" In the text of the advertisement is stated , ". . . that patient care is the sole purpose and responsibility of the Hospital and Union recognition is not consistent with this purpose The Board [of Directors of the amendments to the Act. The rationale is that otherwise the amendments to the Act are being retroactively applied. As will be discussed at greater length below I find no merit to this position. The complaint herein is based upon Respon- dent's conduct after the effective date of the nonprofit hospital amendments, namely, its refusals to honor applica- tions for reinstatement or for employment made subse- quent to August 25, 1974. As of the time of such refusals a lawful strike was in progress. Methodist Hospital of Ken- tucky, Inc., 221 NLRB 692 (1975). The participants in the strike who are named in paragraph 7 of the complaint 2 were then employees of the Hospital within the meaning of Section 2(3) "whose work has ceased as a consequence of, or in connection with, any current labor dispute" because they had been employed by the Hospital prior to June 10, 1972, they had joined the strike and they had not thereafter obtained other regular and substantially equivalent em- ployment. Whether permanent replacements had at any time been hired to fill their positions does not affect their status as employees, although it may affect their rights to reinstatement.3 That right is determined as of the time the applications for reinstatement were made, which was October 10, 1974. As of that date and continuing to the present the striking employees' rights to reinstatement are resolved in accordance with the principles enunciated in The Laidlaw Corporation, 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (C.A. 7, 1969), cert. denied 397 U.S. 920 (1970). Third defense: The allegations hereof relate to Section 8(g) of the Act and have been disposed of by the earlier decision in this case reported at 221 NLRB 692 (1975). Fourth defense: Misconduct during the strike disqualifies the strikers for reinstatement. As will be discussed below Respondent has not proved the allegations of this defense. Fifth defense: Respondent "in good faith and for legitimate and substantial business reasons" has refused to reinstate or reemploy the striking employees. The only reason advanced in support of this defense is that the current employees of the Hospital resent the strikers and chaotic conditions would result if both groups worked together. However, the evidence adduced by Respondent fails to prove such assertion. Furthermore, even if proved, such reason is not an acceptable ground for refusing to reinstate the striking employees .4 Sixth defense: The complaint unconstitutionally seeks to give retroactive effect to the Act. This is a variation of the second affirmative defense and for the reasons stated in that connection I find no merit to this defense. Seventh defense: By reason of a decision issued prior to August 25, 1975, by the United States District Court for the Eastern District of Kentucky, and affirmed by the Court of Appeals for the Sixth Circuit,5 "the entire matter is res Hospital] has reiterated its position on several occasions and continues to endorse the same stand " 2 Except Arnold D Coleman and Achilles Williams 3 See N L R B v. Mackay Radio & Telegraph Co, 304 U.S. 333 (1938), Little Rock Airmotive, Inc v N L R B, 455 F 2d 163 (C A 8, 1972). 4 See N L.R.B v. Erie Resistor Corp, et at., 373 U.S 221, 229, in. 8 (1963) 5 Communications Workers of America, Local 10317, et at v Methodist Hospital of Kentucky, Inc., 368 F Supp 564 (1974), affd. 511 F 2d 1403 (1975) 13% DECISIONS OF NATIONAL LABOR RELATIONS BOARD adjudicate, and may not be relitigated in this unfair labor practice proceeding." Contrary to Respondent, all that was decided by the district court is that it had no jurisdiction, "that the right of private employment is a state, not a federal matter" and "discrimination between private persons do not offend the Federal Constitution and afford no basis for the remedies available under the civil rights statutes." B. Sequence of Events On December 3, 1971, the Union wrote to Lee D. Keene, administrator of the Hospital, advising that it represents more than 90 percent of the employees of the Hospital and requesting a meeting for the purpose of discussing wages, hours, and working conditions of the employees. The Hospital answered by a letter dated December 17, 1971, informing the Union that Patient care is the sole responsibility and purpose of the Methodist Hospital. We are now completing a new building program to serve the health needs of Eastern Kentuckians. The Board of Directors have always had a goal to do their best for our patients and our employees and this will continue to be their policy to the best of our ability. It is the position of the Board that union representation is not consistent with the purposes of the institution. The Union on April 8, 1972, filed a representation petition with the Board which was dismissed on May 9, 1972, on grounds ofjunsdiction. On May 31, 1972, the Hospital posted on its bulletin boards and mailed to its employees a letter signed by the president of the board of directors in which he expresses the Hospital's opposition to the representation of its employees by the Union. Among other things, the letter states: The Hospital has steadfastly refused [to recognize the Union and withhold union dues from employees' pay], and will continue to do so because the Board does not feel that a union is to the best interest of you, the employees. The union cannot get you more money; the union cannot improve your working conditions, but it can get dues and initiation fees from you. The union would not be recognized by the hospital management as the management and the Board does not feel that outside spokesmen are necessary for the employees. Those employees who decline to work [in the event of a strike ] will be considered as having resigned from their positions and replacements will be sought. i i a i • Those participating in [picketing] activity and not working, would necessarily be considered as having withdrawn from their employment with this institution. s k s s s As union pressures are an extraordinary means of expression, the response to such means of expression will likewise be of similar nature. Prior to June 10, 1972, when employees of the Hospital went on strike, the Respondent posted on its premises and distributed to its employees the following notice: Don't be mislead! A strike can cost you: 1. Yourjob! 2. Your seniority! Your paycheck! The union will not hire you-or pay you- Don't hurt yourfuture. On June 9, 1972, Hospital Administrator Keene dis- charged the admissions clerk, Arnold D. Coleman, who had been active in soliciting employees to sign union authoriza- tion cards, for the asserted reason that he "had been involved in some extracurricular activities."s Either on June 8 or on June 9, 1972, Achilles Williams, who had been employed as an orderly in the nursing department, was discharged by Hospital Administrator Keene who told him, "You have been involved in a movement here for some- time.... The hospital won't tolerate this. . . . As of now, you are fired." 7 On June 9, 1972, Imogene Vickers, the Hospital's chief dietician, at a meeting of employees who worked under her supervision, informed them that Coleman and Williams had been discharged because of their union activities, that others would be discharged, and that if any employee in the department signed a union card she too would be fired. Vickers also told the employees that if there should be a strike anyone who did not cross the picket line and report for work would be fired. Also, on the same day Norma Charles, the head housekeeper, held a meeting of her department and informed those who attended that two employees had been discharged for being involved in the Union, that there would be no union at the Hospital, and if there should be a strike anyone who did not cross the picket line would be fired. A strike by the hospital employees, which was ratified by the Union, began at 10 p.m. on June 10, 1972, and ended at 8 a.m. on October 10, 1974. The strike was supported by approximately 200 employees who left their jobs and picketing was continuous during the entire period of the strike. 6 Coleman 's testimony to this effect was not contradicted I Keene did not contradict the testimony of Achilles Williams in this respect METHODIST HOSPITAL OF KENTUCKY 1397 Although for some days preceding the strike hospital management had heard rumors that a strike might be called, the only direct communications the Hospital re- ceived from the Union in that regard were (1) a letter dated June 9, 1972, advising that on June 7 more than 90 percent of the employees who had signed cards for the Union had voted by secret ballot to call a strike and urging the board of directors of the Hospital to meet with the Union for the purpose of negotiating an agreement for these employees, and (2) a telegram to the administrator of the Hospital, dispatched at 2:57 p.m. on June 10, stating, "We the people that work for you are willing to talk [to] avoid this strike if you will get us word that you are ready to sit down and talk about the problem." Hospital Administrator Lee Keene testified that everyone who walked off the job was terminated. Keene explained that a longstanding hospital policy requires employees who intend to leave their jobs to give the institution adequate notice and because the strikers failed to give such notice they were discharged. According to Keene, the Hospital's policy regarding such notices is contained in its "Personnel Policies" booklet which, in pertinent part, reads: RESIGNATIONS-If circumstances arise whereby you find it necessary to resign your position, you are requested to give at least two weeks written notice to your Department Head. Failure to follow this proce- dure will forfeit any accrued benefits. Also, according to Keene, the May 31, 1972, notice warned the employees that replacements will be sought for employ- ees who participate in a strike and they will be considered as having resigned from their jobs. Keene further testified that as soon after June 10 as it was possible to do so a form labeled "Notice of Termination of Employment" was placed in the personnel folder of each striking employee which in each instance states that the employee had abandoned his position with the Hospital and that the reason for termination was "Failed to return to work; did not give notice." However, the affected employees were not sent copies of the notices of termination nor were they otherwise informed that they had been discharged. Despite Keene's testimony that the Hospital considered that it had terminated the striking employees when they walked off their jobs, between June 10, 1972, when the strike began, and March 7, 1973, the Hospital reemployed 37 of the striking employees .8 Keene further testified that on December 21, 1972, the Hospital placed an advertise- ment in the "Pike County News" advising former employ- ees of the Hospital that they would be considered for reemployment on a selective basis. Keene explained that "[t]he purpose of the ad was [that as] 6 months had elapsed since the strike began . . . we wanted to actually extend one more opportunity to those individuals who walked off their jobs to return to theirjob if they wished, on a selective basis." No striking employees were hired by the Hospital after March 7, 1973. On direct examination, Keene testified: 8 Keene testified that during this period six strikers who applied for reemployment were not hired for reasons which were unrelated to their union activities Well, we had placed the ad in the newspaper and we made our exceptions to the personnel policy and for those [strikers who had been reemployed] and, after a given time, approximately 9 months, the decision was made that there would be no more striking employees re-employed or re-hired. * Well, 9 months had passed since the strike had began and with all of it's problems and then, in the succeeding months, there was a continuation of harassments at the entrance of our institution, abuse our employees were taking, our visitors were taking and ... . * * * We made a decision, based upon all this kind of abuse, the language and gestures and treatments of our employees and the public, that we just could not, in good conscience return any of the striking employees to the employment of the hospital. So, that decision was made and carried forward.9 On cross-examination Keene gave the following explana- tion for the Hospital's refusal to reemploy any of the strikers after March 7, 1973: On the basis of a letter that had been sent to all of our employees on May 31 from the Chairman of the Board advising the employees if they walked off their job, they would be terminated according to hospital policy. That was done. Exceptions were made ... to that policy where we reinstated or rehired [37] people over a period of 9 months. According to the activities that occurred on the picket line beginning June 10, 1972, continuing those 9 months and thereafter, a decision was made "no additional striking employees would be brought back beyond that given point." The hospital took into consideration the fact that approximately 200 people walked off theirjobs. Which is in violation of the personnel policy of the institution. In addition to that, the decision also included consider- ation of the violence and abuse that had been directed to the hospital employees over that period of 9 months as well as to the visitors and anyone coming into and leaving the hospital grounds. The conclusion was that we made exceptions to the personnel policy of the hospital for 9 months which was 9 Keene testified that the conduct about which he was complaining "was a continuation of very similar activity from the beginning [of the strike l throughout those months " to and including October 10, 1974 1398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD considered to be sufficient time for anyone wishing to discuss their job with the hospital; and after that date, we determined there would be no more strikers rehired. Hospital Administrator Keene and Dorothy Walters Carter, director of nursing, testified that the strike, particu- larly during its early days, caused the Hospital serious inconvenience which required the Hospital to curtail some patient services. Thus, the intensive care unit was closed, one entire floor was vacated as soon as it was possible to do so, and for a period of time new admissions were limited to emergency cases.10 Both Keene and Carter testified that the Hospital, its employees, its patients, and its visitors were subjected to harassment during the strike. According to their testimony, when the strike began on June 10, 1972, a large crowd of people blocked the entrance to the Hospital making it difficult to enter or to leave the premises and abusive epithets were directed at persons going into the Hospital.ii In addition, there were two other large demonstrations at later dates. Also, they testified that tacks and broken glass regularly were thrown onto the Hospital's driveway, that false fire alarms were sounded, and bomb threats were received. They further testified that it was reported to them that automobiles of nonstriking employees were vandalized by slashing tires, breaking windows, and throwing paint and acid onto the vehicles. Also, on one occasion, a fire was started beneath a trailer on the Hospital's grounds where nurses were residing. Keene testified that the objectionable conduct continued throughout the entire period of the strike. However, no evidence was adduced to identify any employee of the Hospital who had joined the strike as a participant in any of the described activity nor was any evidence adduced to establish that the Union was responsible for any of the objectionable activity either directly or indirectly by instigating or encouraging such conduct.i2 C. Termination of the Strike Within 2 months after the nonprofit hospital amend- ments to the Act became effective on August 25, 1974, the Union terminated the strike against the Hospital. On September 6, 1974, the Union wrote a letter to Lee D. Keene, administrator of the Hospital, calling attention to the amendment of the Act, advising that the Union represented the employees of the Hospital and requesting a meeting to discuss wages, working conditions, other condi- tions of employment, and settlement of the strike. On October 7, 1974, the Union wrote to the Hospital advising, among other things, that "it is terminating the strike and all 10 Although there is no dispute that the strike had an adverse effect upon the care of patients, nevertheless, both Keene and Carter sought to exaggerate its impact Thus, although they testified that because of the strike the intensive care unit was closed, Keene elsewhere testified that the reason the intensive care unit remained closed was "[]lack of professional employ- ees," which classifications did not Join the strike, and Carter testified that the intensive care unit has not been reopened because it has been replaced by a critical care unit 11 Carter testified that on the first day of the strike and at other times she and other persons were called, "yellow dog, scab, son-of-a-bitch, whore, slave driver " picketing in connection therewith effective at 8:00 a.m. on October 10, 1974." The letter also states: This letter is also for the purpose of making an unconditional offer by Communications Workers of America on behalf of all strikers to return to work to their former jobs at the hospital effective as of the aforesaid time that the strike is terminated. This unconditional offer to return to work is a continuing offer and each striker individually desires to return to work unconditionally whether you see fit to reinstate any other striker or strikers. On November 12, 1974, the Union sent the following letter to the Hospital: Since I sent you a letter dated October 7, 1974, many of the former strikers have been to the hospital and made application for employment on the standard application for employment form provided by the hospital. Others have obtained an application for employment form and mailed it to the hospital pursuant to instructions from the hospital' s personnel department or the lady occupying the information booth in the lobby of the hospital. These former strikers desire employment with the hospital in their former jobs and it is my opinion that you are obligated to place them back on their former jobs; however, if you will not place them back on their former jobs at this time because you contend that no vacancies exist the former strikers seek employment to their former jobs or any other jobs, which they are qualified to fill, at any time in the future when vacancies occur on their former jobs or any other jobs. Each former striker on his or her application for employment has indicated his or her address and the former strikers expect to be employed in the future when job vacancies occur. The application for employment filed by each former striker is a continuing offer and each individual desires to be employed whether you see fit to employ any other former striker or strikers. A total of 81 striking employees filed applications for employment with the Hospital. Seventy-eight were filed between October 11 and December 16, 1974, and three were filed between December 20, 1974, and August 20, 1975. On each application is written the initials "LWN," which Hospital Administrator Keene testified stands for "left without notice" and for which reason none of these applicants were given consideration for employment.13 Hospital Administrator Keene testified that after the Union's request for reinstatement on behalf of the striking 12 At the hearing counsel for Respondent asserted , "We are not attempt- ing in this case to establish misconduct with respect to any particular individual This evidence goes towards our defense, that because of the conduct of the pickets, to reinstate these strikers would cause a severe disruption of the hospital " Although the alleged misconduct contin- ued from the beginning of the strike until its end, no explanation was offered by Respondent as to why there would be any more disruption by rehiring strikers after March 7, 1973, than there was during the 9 preceding months when 37 striking employees were rehired 13 Each of the individuals who filed the above-described applications for employment had worked for the Hospital prior to June 10, 1972 METHODIST HOSPITAL OF KENTUCKY 1399 employees was received he consulted with the attorneys for the Hospital and with the board of directors of the Hospital and the decision was reaffirmed not to rehire any of the "individuals that walked off their [jobs]." 14 Attached hereto as Appendix A is a list of 217 persons who worked for the Hospital on or before June 10, 1972, and who participated in the strike that began on that day.15 Appendix B attached hereto is a list of 37 striking employees who returned to work between the commence- ment of the strike on June 10, 1972, and March 7, 1973. Appendix C attached hereto is a list of 257 persons who were hired by the Hospital between October 14, 1974, and August 12, 1975, and Appendix D attached hereto is a list of 117 persons who were hired by the Hospital between August 12, 1975, and March 9, 1976. [Appendixes A, B, C and D omitted from publication.] A comparison of the list of the striking employees for whom reinstatement was requested on October 10, 1974, with the list of 374 persons who were hired since that date reveals that had the Hospital not pursued a deliberate and conscious policy of refusing to reinstate or to rehire the striking employees it would have had the opportunity to reinstate each and every striking employee. D. Conclusions Although the Hospital did not come under the jurisdic- tion of the Board until August 25, 1974, the strike was not unlawful when it began on June 10, 1972, and the Board has decided that it did not thereafter become unlawful by reason of any failure on the part of the Union to comply with the provisions of the Act after the effective date of the nonprofit hospital amendments. Hospital Administrator Keene testified that the employ- ees who left their jobs to join the strike were terminated in accordance with the automatic operation of (1) the "Resig- nations" provision in its "Personnel Policies" booklet, quoted above, and (2) its May 31, 1972, notice to employees that those who participate in a strike will be considered as having resigned from their positions and replacements will be sought to fill their jobs. However, contrary to Respon- dent, neither communication served to effect the discharge of the striking employees. The provision regarding resigna- tions in the Hospital's "Personnel Policies" booklet by its terms relates only to resignations and has no applicability to strikes and the May 31, 1972, letter was prospective in operation in that it merely advised employees that if they joined a strike replacements would be sought as the Hospital would consider that they had resigned from their jobs. I am acquainted with no case and none have been 14 Keene testified that the strikers' union activities had no bearing on the Hospital's decision to deny them reinstatement, but "we applied the management practice of the hospital of individuals walking off the job and commonly applied to the personnel policy " However phrased, the meaning of Keene's testimony is that the Hospital refused to reinstate the employees who joined the strike because of their participation in that concerted activity Likewise, it is Keene's testimony that after March 7, 1973, the Hospital refused to rehire (as distinguished from reinstate) any of the striking employees for the same reason 15 Not included in this number are Arnold D Coleman Achilles tachilles Williams who were discharged before the strike began The fact that they participated in the strike did not serve to restore their "employee" status "for purposes of asserting the right, as [strikers] to reinstatement." Acrylic Optics Corporation, 222 NLRB 1105 (1976) As no applications for employment on cited to me that holds that any such notice constitutes an operative discharge of employees.16 Hospital Administrator Keene also testified that a "Notice of Termination of Employment" was placed in the personnel folder of each striking employee. However, the affected employees were not advised of this fact nor were they otherwise informed that they had been terminated. In order to terminate an employment relationship there must be not only an intention on the part of the employer to abrogate the employment relationship but also some communication of that intent to the employee.17 Thus, as the Supreme Court of California pointed out in Percival v. National Drama Corporation, 181 Cal. 631, 637, 185 P. 972, 974 (1919), "A discharge cannot be effected by a secret, undisclosed intention on the part of the master. It must be done by some word or act communicated to the servant." 18 I find, therefore, that Respondent had not discharged the striking employees prior to the date as of which application for their reinstatement was made. Furthermore, even had the Hospital given the striking employees notice of termination, their purported discharges, for the reasons stated below, would not have affected their rights to reinstatement. Although the strike began on June 10, 1972, this case does not involve a retroactive application of the Act because the alleged unfair labor practices arise from Respondent's conduct since October 10, 1974, following the date on which the Hospital came under the Board's jurisdiction. Analogous situations arose as of the time the Wagner Act became effective with respect to strikes then in progress. Thus, in Jeffrey-DeWitt Insulator Co. v. N.L.R.B., 91 F.2d 134 (C.A. 4, 1937), cert. denied 302 U.S. 731, where a strike began on June 15, 1935, and the company resumed operations on June 20, 1935, prior to the passage of the Wagner-Connery Labor Relations Act on July 5, 1935, the company argued that the striking employees' failure to return to work automatically terminated their employment and the Act which became effective after the company had resumed operations did not preserve the right of the strikers to be treated as employees. However, the court held: Irrespective of the statute . . . the strike did not of itself result in a complete severance of the relationship which had been established between the company and its employees. They were employees on strike because of the labor dispute which existed; and this situation was not materially changed by the resumption of operations on June 20th, even though the company announced that those employees who desired to go to work must go to work on that day... . their behalf were introduced in evidence and as there is no other evidence in the case that either had specifically applied for employment with the Hospital after his discharge, I find that General Counsel has not proved any unlawful discrimination against either of them 16 See Matlock Truck Body & Trailer Corp, and its Agent Roy L Matlock, 217 NLRB 346 (1975) 17 In re Public Ledger, Inc, 63 F Supp 1008, 1015 (D C Pa , 1945), remanded on other grounds 161 F 2d 762 (C A 3, 1947) 18 Accord. Barnett v Joseph Mayer & Bros, 119 Wash 323, 328-329, 205 P 396, 398 (1922), Coates v Allegheny Steel Co, 234 Pa. 199, 205, 83 A 77, 79 (1912), McKinney v Smith, 271 S W 247, 249 (Ct Civ App Tex, 1925), Ryan v. Mayor, City of New York, 154 N.Y. 328,48 N.E 512 (1897) See also Bob Estes, a Corporation, 222 NLRB 695 (1976), Matlock Truck Body & Trailer Corp, and its agent Roy L Matlock, supra 1400 s s s DECISIONS OF NATIONAL LABOR RELATIONS BOARD s It is argued, however, that the act, which was not passed until July 5th, must be given a prospective operation and not be applied to disputes which had their origin prior to its passage. It is a sufficient answer to this that the dispute was current at the time of the passage of the act and that, under the principles of law theretofore recognized, the relationship between the company and its striking employees had not been so completely terminated as to have no further connection with the company's business or the commerce in which it was engaged. . . . [91 F.2d at 138-139.1 In N.L.R.B. v. Carlisle Lumber Co., 94 F.2d 138 (C.A. 9, 1937), cert. denied 304 U.S. 575, which case bears many resemblances to the instant case, a strike began on May 3, 1935. On June 25, 1935, the company posted the following notice: "We have closed our payrolls which automatically discharges all of our former employees, excepting those now employed." On July 8, 1935, following the passage of the Wagner Act on July 5, 1935, the company advised the union that it had discharged the striking employees. The company contended that the May 3, 1935, strike terminated the relation of employer and employee. Rejecting this argument the court stated, "We believe that in the absence of statute the relationship of employer and employee is not completely terminated by a strike, but that a new status arises . The courts have coined a word to describe the situation and have called an employee on strike a 'striking employee.' " The court also rejected the company 's argu- ment that it had discharged all the striking employees on June 25, 1935, prior to the effective date of the Act, that it had the unquestioned common-law right to do so, and therefore that it had no employees when the Act became effective. In that connection the court pointed out, "There is no limitation in the statute that individuals whose work has ceased as a consequence of a current labor dispute are employees only if they were not discharged prior to the effective date of the act. The reading into this statute of such a limitation would constitute an abuse of power." 19 The court further opined: "Thus, the right of discharge claimed by respondent is not absolute. It is subject to the limitations that Congress may prescribe, if it regulates, burdens, or obstructs interstate commerce. Therefore, Congress has not destroyed any vested right of respondent, but has merely exercised its right to legislate in respect to a right, over which, because of prior nonaction by Congress, respondent believed it had complete control. Congress took nothing from respondent, for respondent has now as much right as it ever had; that is, the right of discharge, so long as it did not regulate, control, interfere with, burden, or obstruct interstate commerce." In his concurring opinion, Judge Stephens observed, "The gist of respondent' s argu- ment is that workmen who were on strike and had been discharged because of striking, prior to the effective date of the Wagner Act, were strangers to respondent, in that there was no warrant in law for considering them at all in the 19 The following language in Acrylic Optics Corporation, 222 NLRB 1105 (1976), is not to the contrary, but applies to a different situation "The principles governing the reinstatement rights of economic sinkers, as enunciated in N L R B v Fleetwood Trailer Co, Inc, 389 U S. 375 (1967), are controversy; that to do so was applying the act retroactive- ly. But long before the passage of this act the contest for advantage between capital and labor demonstrated that employees on strike were not strangers to employers." In like vein is the decision in Phelps Dodge Corp. v. N.L.R.B., 113 F.2d 202 (C.A. 2, 1940), affd. 313 U.S. 177 (1941). There, a strike began on June 10, 1935, and was terminated on August 24, 1935. When the National Labor Relations Act became effective on July 5, 1935, the Company had resumed normal operations with the places of the strikers taken by other employees. From this, the company argued that there was no current labor dispute when the Act became effective on July 5, and consequently its subsequent refusal to reinstate any of the strikers because they were union men was not unlawful since they were not employees within the meaning of the Act. The court held, however, "Though the union had, before the effective date of the Act, apparently been shown to be too weak to win the strike or even to disrupt seriously the working of the mine, we think it clear that a labor dispute still existed which was then 'current' as the Board found." The court explained, "The definition of employees in the National Labor Relations Act is very broad and should not be narrowed to make abortive the remedial purposes of the statute. It includes 'any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment.' . . . Had the Act been effective when the strike began in June there would, of course, be no question about the retention by the strikers of their status, under the statute, as employees. The sufficiently supported finding of the Board, however, carries the labor dispute into July 5th and that is enough to make the strikers employees within the meaning of the Act when they were refused reinstatement." A like result was reached by the Court in Eagle-Picher Mining and Smelting Company, et al. v. N.LR.B., 119 F.2d 903 (C.A. 8, 1941). In that case the company argued that the Board was without authority to require the reinstatement of any of the striking employees because the labor dispute in consequence of which their work had ceased was not current at the time the Board took jurisdiction and the claimants were not then employees within the meaning of the Act. The court rejected the argument , explaining: Petitioners' contention that their employees who went out on strike May 8, 1935, and did not return to work were not entitled to be dealt with by the Board as employees because the labor dispute which caused the strike was not current at the time of the Board's hearing, is not tenable in view of N.L.R.B. v. Mackay Radio & Telegraph Co., 304 U.S. 333, in which the Supreme Court said (page 344 of 304 U.S.): "True, there is no evidence that respondent had been guilty of any unfair labor practice prior to the strike, but within the intent of the act there was an existing labor dispute in connection with which the strike was called ." And (page 345 of 304 not applicable where , as here, the striker was discharged for cause before the stake ended Following Respondent 's lawful non-discriminatory discharge, Green lost her status as an 'employee' of the Respondent " (Footnote omitted ) Compare N L R B v. International Van Lines, 409 U S. 48 (1972) METHODIST HOSPITAL OF KENTUCKY 1401 U.S.): "The strikers remained employees under section 2(3) of the act, 29 U.S.C.A. § 152(3), which provides: `The term "employee" shall include . . . any individual whose work has ceased as a consequence of, or in connection with , any current labor dispute or because of any unfair labor practice , and who has not obtained any other regular and substantially equivalent employ- ment ....' Within this definition the strikers remained employees for the purposes of the act and were protected against the unfair labor practices denounced by it." . . . We have no doubt that those employees of the petitioners who went on strike on May 8 were on July 5, 1935, and thereafter employees of the petitioners for the purposes of the Act. I am of the view that the principle enunciated in the cases cited above is applicable to the instant proceeding and that the purported discharge of the employees of the Hospital for participating in the strike was ineffective to deny them their rights to reinstatement despite the fact that the Board was not given jurisdiction over the controversy until some 2 years after the strike began . As of the date on which reinstatement of the striking employees was requested, October 10, 1974, the governing considerations had been set forth in The Laidlaw Corporation which , in summary, is that the striking employees must be reinstated to the positions that are vacant at the time the applications for reinstatement are made and to the positions that later become vacant . Respondent has failed to do this. The employees referred to in paragraph 7 of the complaint were economic strikers on October 10, 1974 , as of which date an unconditional application for reinstatement was made on their behalf. An employer who denies or delays reinstate- ment has the burden of proving a lawful business justifica- tion for his action , which otherwise violates Section 8(a)(3) and (1) of the Act.20 Respondent contends that misconduct during the strike provides such justification . However, there is no evidence that the Union was responsible for any such misconduct nor that any of the striking employees had engaged in any of the alleged acts of misconduct . It is well settled that "[e]ach striker 's eligibility for reinstatement must be judged solely upon incidents in which the striker in question is alleged to have participated ." 21 Respondent in effect also contends that as of October 10, 1974 , all striking employees had been permanently replaced . That may be so. However , thereafter several hundred vacancies occurred and Respondent was under an obligation first to offer those jobs to the striking employees who had applied for reinstatement before hiring other employees . Respondent failed to do this. "Proof that jobs were unavailable [on and after October 10, 1974, is] an affirmative defense , and the burden of establishing it rests upon the respondent compa- ny." 22 As the Hospital did not adduce acceptable evidence of business justification for refusing to reinstate the experi- 20 N L R B v Fleetwood Trailer Co, Inc, 389 U S 375, 378 (1967), N L R B v Great Dane Trailers, Inc, 388 U S 26, 34 (1967), The Lardlaw Corporation, supra 21 Coronet Casuals, Inc, 207 NLRB 304, 305 (1973) Accord N L R B v Wichita Television Corporation, Inc, d/b/a KARD-TV, 277 F 2d 579, 585 (C A 10, 1960), cert denied 364 U.S. 871; N L R. B v Cambria Clay Products Company, 215 F 2d 48, 53 (C A 6, 1954), International Ladies' Garment enced striking employees while hiring new untried employ- ees, its conduct was inherently destructive of employee rights. "This right of reinstatement continued to exist so long as the strikers had not abandoned the employ of Respondent for other substantial and equivalent employ- - ment. Moreover, having signified their intent to return by their unconditional application for reinstatement . . . it was incumbent on Respondent to seek them out as positions were vacated. Having failed to fulfill its obligation to reinstate the employees to their jobs as vacancies arose, the Respondent thereby violated Section 8(a)(3) and (1) of the Act." 23 I further find that each of the striking employees referred to in paragraph 7 of the complaint, whose names are listed in Appendix E attached hereto, would have been reinstated to his or her former position or to a substantially equivalent position but for Respondent's unlawful conduct. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its operations de- scribed in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. I have found that Respondent violated Section 8(a)(1) and (3) of the Act by failing to reinstate the striking employees when vacancies arose on and after October 10, 1974. As 374 persons have been hired by the Hospital between October 10, 1974, when it first was requested to reinstate the striking employees and March 8, 1976, and as the Hospital continues to have a large turnover of employ- ees, I have found that sufficient vacancies occurred since October 10, 1974, to have enabled the Hospital to reinstate all the striking employees referred to in paragraph 7 of the complaint. I will therefore order Respondent to offer the employees listed in Appendix E, attached hereto, [omitted from publication ] immediate and full reinstatement to their former positions or, if those no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and to make them whole for any loss of earnings they may have suffered by reason of Respondent's discriminatory failure to reinstate them by payment to each of a sum of money equal to that which each normally would have earned as wages from the date of Workers Union, AFL [B V D. Co, Inc] v. N L R B, 237 F 2d 545, 550 (C A D C, 1956), M Restaurants, Incorporated, d/b/a The Mandarin, 223 NLRB 725 (1976). 22 N L R B v Cambria Clay Products Company, 215 F 2d 48, 56 (C.A. 6, 1954), N.L.R.B v. J G. Boswell Co., 136 F.2d 585, 597 (C.A. 9, 1943). 23 The Laidlaw Corporation, 171 NLRB at 1369 (1968). 1402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's discriminatory failure to reinstate such indi- vidual24 to the date of Respondent's offer of reinstatement, less the net earnings during such period. The backpay provided for herein shall be computed by calendar quarters in accordance with the method prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950). Interest at the rate of 6 percent per annum shall be added to the net backpay and shall be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the basis of the foregoing findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. By failing to reinstate its striking employees as vacancies arose after an unconditional request for their reinstatement was made on October 10, 1974, thereby discriminating with respect to their hire, tenure of employ- ment, and terms and conditions of their employment and discouraging membership in the Union, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 2. By reason of the foregoing, Respondent has inter- fered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER25 The Respondent, Methodist Hospital of Kentucky, Inc., Pikeville, Kentucky, its officers, agents, successors, and assigns , shall: 1. Cease and desist from: (a) Discouraging membership in Communications Work- ers of America, AFL-CIO, or any other labor organization, 24 The date on which each of the employees listed on Appendix E, attached hereto , would have been reinstated will be determined in connec- tion with the proceedings to ascertain the backpay due to each of them Factors such as qualification, seniority, past practices on the part of the Hospital , etc , will be taken into account in determining which striker would have been reinstated in each job as it became vacant absent the Hospital's unlawful discrimination 2'i In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, by failing to reinstate employees who have engaged in a lawful strike and have made unconditional applications for reinstatement to vacant positions as they occur without prejudice to their seniority and other rights and privileges, or by otherwise discriminating against any of its employees in regard to their hire, tenure of employment, or other terms or conditions of their employment. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the polcies of the Act: (a) Offer to those employees listed in Appendix E attached hereto immediate and full reinstatement to their former positions or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of the discriminatory failure to reinstate them, in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents , for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order. (c) Post at its Hospital copies of the attached notice marked "Appendix F.1126 Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 9, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. conclusions, and recommended Order herein shall, as provided in Sec . 102.48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions , and Order, and all objections thereto shall be deemed waived for all purposes 26 In the event that the Board 's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."