Roosevelt Memorial Medical Center

National Labor Relations Board - Board Decisions

Oct 26, 2006

348 N.L.R.B. 1016 (N.L.R.B. 2006)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
348 NLRB No. 64
1016
Roosevelt Memorial Medical Center and American
Federation of State, County and Municipal Em-
ployees, Montana State Council 9. Cases 27–
CA–17564–1, 27–CA–17564-3, 27–CA–17564–4,
and 27–CA–17701–1
October 26, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On December 16, 2002, Administrative Law Judge
Thomas M. Patton issued the attached decision. The
Respondent filed exceptions with a supporting brief, and
the General Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reviewed the record in light of the ex-
ceptions and briefs and has decided to affirm the judge’s
rulings, findings, and conclusions only to the extent con-
sistent with this Decision and Order.
We agree with the judge’s findings that the Respon-
dent violated Section 8(a)(1) of the Act by coercively
interrogating employees regarding their intention to
strike, and that it violated Section 8(a)(5) and (1) by uni-
laterally implementing its final contract proposals con-
cerning grievance/arbitration procedures, strikes, dues
checkoff, and term of the agreement. For the reasons
explained below, however, we disagree with the judge’s
findings that the Respondent unlawfully solicited em-
ployees to decertify the Union, disparately enforced its
no-solicitation rule, and unlawfully reduced the work
hours of intended strikers after the Union cancelled an
impending strike.
Background
The Respondent operates a nursing home, emergency
room, hospital, and rural health clinic. It employs ap-
proximately 70 employees in all departments, including
29 in its nursing department. Audrey Stromberg is the
facility’s administrator. Two part-time directors of nurs-
ing (DONs), Clair Brown and Brenda Hunter, report di-
rectly to Stromberg.
The Union was certified as the collective-bargaining
representative of full-time and regular part-time licensed
practical nurses (LPNs) and certified nursing assistants
(CNAs) in separate units in 2000. Because it is chroni-
cally understaffed, the facility regularly uses nonunit, per
diem employees to cover shifts.
Bargaining for initial contracts began in August 2000.
When no agreement was reached after more than 10
months of negotiations, the Union, on June 20, 2001,1

1 All dates refer to 2001, unless otherwise indicated.
notified the Respondent of its intent to strike on July 27.
On June 26, the Respondent sent a letter to unit employ-
ees asking them to say whether they intended to partici-
pate in the strike and followed up by questioning some
employees directly. On the basis of the answers she re-
ceived, Stromberg contacted per diem employees and
volunteers (both from elsewhere in the facility and from
the community), made arrangements with an employ-
ment agency to supply temporary strike replacements,
and drew up a work schedule covering the period of the
anticipated strike.
On July 23, 4 days before the announced strike date,
the Respondent received written notice from the Union
of its decision to postpone the strike indefinitely while
the parties met in the presence of a Federal mediator.
Stromberg then revised the work schedule to include
employees who previously had advised the Respondent
they would participate in the strike. While some strike
replacements were left on the revised schedule, six unit
employees who planned to participate in the strike were
assigned fewer hours than they customarily worked be-
fore the strike notice.
In late July, CNAs circulated and signed two decertifi-
cation petitions. The first was legally defective and was
withdrawn. The second petition was dismissed because
of this unfair labor practice proceeding.
On July 27, after the breakdown of the parties’ final
negotiating session, the Respondent declared an impasse
in negotiations and advised the Union of its intent to im-
plement its final offers. The Respondent implemented its
final proposals on October 16.
Discussion
1. Interrogation
The judge found, and we agree, that the Respondent
violated Section 8(a)(1) by interrogating employees
about their intention to participate in the strike because it
failed to include assurances against reprisals either in its
letter or in direct inquiries made to employees who failed
to respond to the letter.
2. Unilateral implementation
We also agree with the judge that the Respondent vio-
lated Section 8(a)(5) by unilaterally implementing its
final contract proposals for dues checkoff, a no-strike
clause, a grievance procedure with nonbinding arbitra-
tion, and a 2-year term. As the judge found, because the
no-strike provision involves the surrender of statutory
rights, and dues checkoff is “contract-bound,” those
terms cannot be imposed on the Union without its con-
sent. See, e.g., McClatchy Newspapers, 321 NLRB
1386, 1390 (1996), enfd. in relevant part 131 F.3d 1026
ROOSEVELT MEMORIAL MEDICAL CENTER 1017
(D.C. Cir. 1997), citing, inter alia, Litton Financial Print-
ing Division v. NLRB, 501 U.S. 190, 198–199 (1991).
We adopt the judge’s conclusion that the Respondent
acted unlawfully by imposing the grievance/arbitration
procedure, but we do so only for the following reasons.
Arbitration, like dues checkoff, has long been held to be
a contract-based procedure. Because arbitration typically
requires parties to give up their economic weapons and
submit to final and binding resolution of their disputes,
parties cannot be compelled to arbitrate grievances ab-
sent their explicit consent. Indiana & Michigan Electric
Co., 284 NLRB 53, 55, 57–58 (1987), and cases cited.
Although the provision imposed here does not provide
for binding arbitration, it requires the Union to engage in
the process of striking arbitrators’ names from a list and
to pay half of the cost of arbitration. Given these re-
quirements, and especially the financial burden imposed
on the Union, we agree with the judge that the arbitration
provision could not lawfully be implemented unilater-
ally. And, inasmuch as the arbitration provision was an
integral part of the grievance procedure, we find that the
entire grievance/arbitration article could not be imposed
without the Union’s consent.2
With respect to the 2-year term, we find that it was
unlawfully implemented because, in these circumstances,
it was tantamount to a 2-year refusal to bargain. It is
well settled that parties have a continuing obligation to
bargain even though they have reached a lawful impasse.
Paul Mueller Co., 332 NLRB 312, 317 (2000). By im-
posing a 2-year term of agreement, the Respondent in
effect attempted to place the other imposed conditions
beyond the reach of collective bargaining for that period.
This it could not do, consistent with its continuing obli-
gation to bargain after reaching impasse.
3. Reduction in scheduled hours
When the Union notified the Respondent of its inten-
tion to strike and the Respondent learned which employ-
ees would participate in the strike, Stromberg drew up a
“strike schedule.” This schedule included per diem em-
ployees, volunteers from other departments and from the
community, and employment agency-supplied temporary
labor, all working as temporary strike replacements.
When the Union notified the Respondent 4 days before

2 In its exceptions, the Respondent does not contend that the griev-
ance procedure, as distinct from the arbitration provision, could be
lawfully implemented after bargaining to impasse. It argues only that,
like the other unlawfully imposed provisions, the grievance/arbitration
provisions were beneficial to the Union and had been approved by the
Union during bargaining (which argument the judge correctly rejected).
Accordingly, we express no view as to whether the Respondent could
have unilaterally implemented a separate grievance procedure without
an arbitration component.
the proposed strike that it would be postponed, the Re-
spondent requested that the Union bargain over how to
return the intended strikers to the schedule. The Union
did not respond to the request, and Stromberg proceeded
alone to revise the strike schedule to integrate the would-
be strikers back into it. In doing so, Stromberg retained
on the revised schedule some of the temporary and per
diem employees she had lined up as striker replacements.
She testified that, using the prestrike schedule, she listed
the employees and then alternated between names at the
top and bottom of the list in scheduling work hours. As a
consequence, five CNAs and one LPN who had informed
the Respondent of their intent to strike were not initially
scheduled for their full 37.5-hour shifts. Four of the six,
however, ultimately worked their full number of hours
by filling in for individuals who called in sick or took
leave, as Stromberg had surmised would occur when she
was making out the poststrike schedule.
Stromberg testified that she kept employees from the
temp agency on the schedule because the agency told her
that the Respondent would have to pay for them even if
they did not work.3 She also kept two employees who
transferred from housekeeping on the revised schedule
because the impending strike necessitated accelerating
their transfers. Stromberg further testified that she kept
certain per diem employees on the schedule because they
had made special arrangements to work during the period
(e.g., one had given notice at another job), and she did
not want to lose their good will. Finally, Stromberg said
the opening of an Alzheimer’s unit in the facility had an
effect on how she prepared the schedule because some
employees said they did not want to work in the unit and
others said they would only work if scheduled for less
than a full shift because of the constant-care stresses that
Alzheimer’s-unit work entailed.
The judge found that following the cancellation of the
strike, the Respondent unlawfully reduced the hours of
six unit employees who had expressed their intent to
strike. Citing NLRB v. Great Dane Trailers, 388 U.S. 26
(1967); International Paper Co., 319 NLRB 1253
(1995), enf. denied 115 F.3d 1045 (D.C. Cir. 1997); and
Esmark, Inc. v. NLRB, 887 F.2d 739 (7th Cir. 1989), the
judge reasoned that the Respondent’s conduct was “in-
herently destructive” of employee rights because it penal-
ized the would-be strikers for announcing that they
would engage in union activity, thereby distinguishing
among workers based on their participation in conduct
protected by the Act. He also found that the Respon-
dent’s conduct was potentially disruptive of future orga-

3 The contract with the temp agency is not in evidence, but the Re-
spondent acknowledged that it did not contain a provision to this effect.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1018
nizing and concerted activity because employees would
be less willing to support the Union in negotiations, in-
cluding making a commitment to strike, if the Respon-
dent were free to reduce their hours, even when the an-
nounced strike was called off before it commenced. He
found that although the Respondent had a legal right to
prior notice of the strike under Section 8(g) of the Act in
order to ensure that it could meet patient care needs,4 it
did not have the right to replace employees simply be-
cause they planned to participate in a strike. Finally, the
judge said that under the “inherently destructive” analy-
sis, it was unnecessary to determine the Respondent’s
motive for reducing the employees’ hours.
In Great Dane, the Supreme Court explained that the
analysis of an employer’s motive in 8(a)(3) cases turns
on the effect of its conduct on employees’ Section 7
rights:
From this review of our recent decisions, several prin-
ciples of controlling importance here can be distilled.
First, if it can reasonably be concluded that the em-
ployer’s discriminatory conduct was ‘inherently de-
structive’ of important employee rights, no proof of an
antiunion motivation is needed and the Board can find
an unfair labor practice even if the employer introduces
evidence that the conduct was motivated by business
considerations. Second, if the adverse effect of the dis-
criminatory conduct on employee rights is ‘compara-
tively slight,’ an antiunion motivation must be proved
to sustain the charge if the employer has come forward
with evidence of legitimate and substantial business
justifications for the conduct. Thus, in either situation,
once it has been proved that the employer engaged in
discriminatory conduct which could have adversely af-
fected employee rights to some extent, the burden is
upon the employer to establish that he was motivated
by legitimate objectives since proof of motivation is
most accessible to him.
Great Dane, 388 U.S. at 34.5

4 New York State Nurses Assn., 334 NLRB 798 (2001).
5 Thus, the fact that conduct may be “discriminatory” is not itself
sufficient to prove that the conduct has an unlawful motive. Rather, the
issue of motive is subject to the principles set forth above.
Even when conduct is found to fall within the “inherently destruc-
tive” criteria, the Board may, but is not compelled to, find an improper
motive. As the Court explained:
If the conduct in question falls within this “inherently destructive”
category, the employer has the burden of explaining away, justifying
or characterizing “his actions as something different than they appear
on their face,” and if he fails, “an unfair labor practice charge is made
out.” And even if the employer does come forward with counter ex-
planations for his conduct in this situation, the Board may nevertheless
draw an inference of improper motive from the conduct itself and ex-
ercise its duty to strike the proper balance between the asserted busi-
Following Great Dane, the Board and the courts have
elaborated on the Supreme Court’s “inherently destruc-
tive” analysis and have noted the Court’s distinction be-
tween the effects of an employer’s conduct on the sub-
stance and the process of collective bargaining, finding
that inherently destructive conduct applies only to those
actions that exhibit hostility to the process of collective
bargaining. See Boilermakers Local 88 v. NLRB, 858
F.2d 756, 763 (D.C. Cir. 1988); Esmark, supra, 887 F.2d
at 748; International Paper, supra, 319 NLRB at 1269.
Inherently destructive conduct is that which has “‘far
reaching effects which could hinder future bargaining’;
i.e., conduct that ‘creat[es] visible and continuing obsta-
cles to the future exercise of employee rights.’” Esmark,
supra (quoting Portland Willamette Co. v. NLRB, 534
F.2d 1331, 1334 (9th Cir. 1976)); see also Boilermakers,
supra at 763. Such cases, however, are “relatively rare.”
Boilermakers, id. at 762 (quoting Loomis Courier Ser-
vice v. NLRB, 595 F.2d 491, 495 (9th Cir. 1979)). In
contrast, when an employer’s conduct is of temporary
duration and does not attempt to prevent employees from
bargaining collectively, it is not unlawful without proof
of antiunion motivation. See Esmark, supra; NLRB v.
Brown, 380 U.S. 278, 284 (1965); American Ship Build-
ing Co. v. NLRB, 380 U.S. 300 (1965).6
Applying these principles to this case, we find that the
judge erred in characterizing the reduction in the sched-
uled hours of the intended strikers as “inherently destruc-
tive” of their Section 7 rights. To the contrary, the re-
cord establishes that the scheduled and actual reduction
in employees’ hours was at most “comparatively slight.”
Only six unit employees who intended to participate in
the strike were scheduled for fewer hours than they nor-
mally worked, and for them, the reduction was small—
ranging from 4.5 to 8 hours. Moreover, as noted above,
four of the six employees actually worked their full 37.5-
hour workweek because of other employees’ absences,
something that Stromberg surmised would occur in the
normal course of events when she drew up the poststrike
schedule. A fifth intended striker did not request to work
more than she was scheduled during the first 3 days, and
thereafter she became unavailable to work at all because
of an injury. The remaining employee declined to work
in the Alzheimer’s unit where she could have increased
her hours. It is evident, therefore, that the poststrike

ness justifications and the invasion of employee rights in light of the
Act and its policy. Great Dane, 388 U.S. at 33.
6 As Great Dane makes clear, even if the effect of the employer’s
conduct is comparatively slight, the employer still has the burden of
showing that its conduct served a “substantial and legitimate business
end.” At that point, the burden shifts to the General Counsel to prove
unlawful motive. As explained below, the Respondent met its burden,
but the General Counsel did not.
ROOSEVELT MEMORIAL MEDICAL CENTER 1019
schedule—which the Respondent prepared unilaterally
because the Union failed to respond to the Respondent’s
request to bargain over it—did not significantly ad-
versely affect the number of hours that the proposed
strikers actually worked, and the effect of the schedule
change was indeed slight. Moreover, the would-be strik-
ers were returned to their regular schedules within a few
weeks.7 The Respondent’s conduct, therefore, was tem-
porary, and did not have “far-reaching effects” on future
bargaining between the parties.
Our dissenting colleague acknowledges that only two
would-be strikers actually lost hours of employment, and
that they lost relatively few hours, but nevertheless main-
tains that the Respondent’s conduct was inherently de-
structive. In doing so, she expands the “inherently de-
structive” analysis well beyond its appropriate confines.
Indeed, we are hard pressed to understand the dissent’s
position that the severity (or lack thereof) of loss sus-
tained by employees as a result of their employer’s con-
duct should not be taken into account in determining
whether that conduct was inherently destructive of the
employees’ Section 7 rights. See International Paper,
supra, 319 NLRB at 1269 (stating that the severity of
harm to employees’ Section 7 rights includes “the sever-
ity of harm suffered by employees for exercising their
rights”). The more severe the consequences reasonably
perceived by employees to flow from their exercise of
Section 7 rights, the more likely it is that the future exer-
cise of those rights will be chilled. Conversely, minimal
consequences that reasonably and naturally flow from
events like those here are less likely to have a chilling
effect.
The facts in this case show that two would-be strikers
each suffered a loss of pay for 8 hours or less, and our
dissenting colleague finds this minimal loss inherently
destructive of employees’ rights. Under this standard,
virtually any impact on employees resulting from an em-
ployer’s response to a strike or intended strike would be
inherently destructive of Section 7 rights. Such a result,
which fails to consider the severity of harm resulting
from the Respondent’s conduct, is not supported by
Great Dane or its progeny.
In his analysis, the judge referred to four “guiding
principles” articulated by the Board in International Pa-
per, supra, 319 NLRB at 1269–1270, to determine
whether an employer’s conduct is inherently destructive

7 The strike schedule was not entered into evidence and no one testi-
fied how long the strike was projected to last. The poststrike schedule,
however, runs from the week beginning Sunday, July 22 through the
week beginning Sunday, August 19. Presumably, the strike schedule
that was prepared would have encompassed the same period, i.e., 24
days at most.
of employees’ rights: (1) the severity of harm to employ-
ees’ Section 7 rights; (2) the temporal impact of the em-
ployer’s conduct; (3) the employer’s hostility to the proc-
ess of collective bargaining; and (4) whether the conduct
makes collective bargaining appear futile to employees.
The judge noted that all four factors need not be shown
to find conduct inherently destructive. Id. at 1270 fn. 37.
As to the first principle, the Board in International Pa-
per stated that consideration must include “the severity
of harm suffered by the employees for exercising their
rights as well as the severity of the impact on the statu-
tory right being exercised.” Id. at 1269 (citation omit-
ted). In this case, the judge, citing Esmark, supra, 887
F.2d at 748, found that the Respondent’s conduct se-
verely harmed employees’ rights because the Respondent
directly imposed penalties on employees for engaging in
protected activity. As explained above, we find that the
impact of Respondent’s conduct on the would-be strikers
was clearly not severe.8 In addition, we do not find that
the record supports a finding that the conduct “directly
and unambiguously penalize[d] or deter[ed] protected
activity.” Id. (quoting NLRB v. Haberman Construction
Co., 641 F.2d 351, 359 (5th Cir. 1981) (en banc)). The
record shows that six would-be strikers were removed
from the original poststrike schedule, not because of anti-
union animus but because their announced activity made
them unavailable to work. Similarly, when the Union
postponed the strike, the would-be strikers were reinte-
grated into the schedule, although they did not immedi-
ately return to their former schedules because of the Re-
spondent’s obligations to the temps and per diem em-
ployees hired to replace them. Within a few weeks, as
soon as the Respondent’s obligations to the replacements
ended, the would-be strikers resumed their former sched-
ules.9 Therefore, because the Respondent’s conduct does

8 In Esmark, the employer sold two meat-packing plants to a sub-
sidiary, reopened the plants 2 weeks later, and repudiated the collec-
tive-bargaining agreements in effect at the plants before the sale. The
Seventh Circuit found that the employer’s conduct was inherently de-
structive because it clearly signaled to employees that collective bar-
gaining was futile. Esmark’s conduct, which resulted in the employees’
total loss of representation, is far more severe than the Respondent’s
conduct here, which resulted only in the temporary loss of a few work
shifts.
9 The dissent, citing Laidlaw Corp., 171 NLRB 1366 (1970), enfd.
414 F.2d 99 (9th Cir. 1969), cert. denied 397 U.S. 920 (1970), and
Fleetwood Trailers, 389 U.S. 375 (1967), states that the Board and the
courts have consistently ruled that the failure to reinstate economic
strikers who have not been permanently replaced is inherently destruc-
tive of employee rights. Even if this statement is correct, it has no
application here. The Respondent did not fail to reinstate the would-be
strikers. On the contrary, when the Union postponed the strike 4 days
before it commenced, the Respondent requested bargaining regarding
reinstatement of the strikers, returned the strikers to the schedule, albeit
with reduced hours, and returned them to their former schedules as
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1020
not “bear its own indicia of intent,”10 the General Coun-
sel still bears the burden of making an affirmative show-
ing of such intent.
The dissent asserts that the temporary replacements
and unit employees who chose not to strike should have
been subject to the same risk of schedule reductions as
the would-be strikers. The Supreme Court and the
Board, however, have rejected this position under analo-
gous circumstances. In TWA v. Flight Attendants Union,
489 U.S. 426, 438 (1989), the Court held that the em-
ployer was not required to replace junior crossovers with
more senior strikers after the strike ended because “[w]e
see no reason why those employees who chose not to
gamble on the success of the strike should suffer the con-
sequences when the gamble proves unsuccessful.” Rely-
ing on the Supreme Court’s decision in TWA, the Board
in Encino-Tarzana Regional Medical Center, 332 NLRB
914 (2000), held that an employer faced with a 1-day
strike lawfully hired temporary replacements for a con-
tractual 4-day minimum, and during the 3 days after the
strike, the employer was not obligated to displace cross-
overs with more senior returning strikers under the em-
ployer’s “call off” procedure. In this case, we agree that
because the strike announcement required the Respon-
dent to commit itself to replacement workers, the would-
be strikers, not the replacements or nonstrikers, should
absorb the temporary consequences of the decision to
strike.11
As to the second principle, the judge found that, be-
cause of the Respondent’s conduct, employees would be
less willing to support the Union in negotiations, and
thus the conduct created “visible and continuing obsta-
cles to the future exercise of employee rights.” As dis-
cussed above, we do not agree that a would-be striker’s
temporary loss of up to one shift would have such a dra-
matic result. Moreover, courts have reasoned that con-
duct is inherently destructive to future bargaining be-
cause it creates “cleavage” between bargaining unit
members.12 See, e.g., International Paper, supra, 115

soon as its obligations to the temporary replacements and per diems
were met.
10 Great Dane, supra, 388 U.S. at 33 (citation omitted).
11 The dissent’s attempt to distinguish TWA and Encino-Tarzana,
because those cases, unlike this one, involved actual strikes, is unper-
suasive. The effect here was the same; the impending strike caused the
Respondent to hire replacements for would-be strikers to meet its
scheduling requirements. The Union’s decision to call off the strike at
the 11th hour did not diminish the disruption to the Respondent’s work
schedule. The underlying principle remains: the would-be strikers can
be required to absorb the consequences of the disruption to the work
schedule that their actions caused.
12 As stated above, employer action that creates “cleavage” among
bargaining unit employees is one of several indicia of inherently de-
structive conduct. Contrary to the dissent’s assertion, we do not sug-
F.3d at 1049–1050; Boilermakers, supra, 858 F.2d at
763. For example, the Boilermakers court referred to
NLRB v. Erie Resistor Corp., 373 U.S. 221 (1963),
where the employer granted strike replacements and
crossovers 20 years’ superseniority, thereby creating two
camps, those who stayed with the union and those who
returned before the strike ended. Such conduct was in-
herently destructive because it would divide the bargain-
ing unit long after the strike ended and would remind
members of their separation every time an issue involv-
ing seniority arose. In contrast, the temporary nature of
the Respondent’s actions here, and the small impact on
the affected employees, would not create the kind of
cleavage among bargaining unit members that the Su-
preme Court found inherently destructive in Erie Resis-
tor.
As to the third and fourth principles (whether the con-
duct demonstrated hostility to the process of collective
bargaining and whether it had the effect of discouraging
collective bargaining by making it appear futile to the
employees), the judge acknowledged that they were at
best only arguably relevant and were of tenuous applica-
bility here. As a result, the judge stated that he did not
rely on them for his analysis of this issue.
In sum, because of the temporary nature of the Re-
spondent’s schedule change and its relatively small im-
pact on employees, we find that the Respondent’s actions
had a comparatively slight effect on employees’ rights.
Having found that the effect of the reduction in sched-
uled hours was comparatively slight, we examine
whether the Respondent demonstrated legitimate and
substantial business justifications for its conduct. We
find that it has done so. Specifically, Stromberg testified
that when the strike was called off, she attempted to put
all of the unit employees back on the schedule without
excluding the agency-supplied temp employees, for
whom the Respondent was already obligated to pay, or
the per diem employees who had substantially rearranged
their lives in order to be available to help the Respon-
dent. The prospect of forfeiting funds for agency-
supplied workers justifies the Respondent’s desire to
keep those employees on the poststrike schedule, at least
for a limited period of time. In Pacific Mutual Door Co.,
278 NLRB 854 (1986), the Board held that a 30-day no-
tice of cancellation provision in the contract between the
employer and the entity that supplied it with temporary
replacements during an economic strike justified the em-
ployer’s delay in returning strikers to their jobs. Here,
too, the Respondent’s desire to avoid having to pay for

gest that conduct is inherently destructive “only if” it creates such
cleavage.
ROOSEVELT MEMORIAL MEDICAL CENTER 1021
unused employee services is sufficient justification for
minimally reducing the scheduled hours of a few would-
be strikers. Similarly, we find that maintaining the good-
will of per diem employees, who had rearranged work
schedules and who the Respondent was dependent on to
cover future shifts, constitutes sufficient justification for
minimally reducing the affected employees’ hours.
We disagree with our dissenting colleague’s conten-
tion that the Respondent’s business justification was pre-
textual and unsupported by the evidence. Stromberg
testified without contradiction that she was informed by
the temp agency that the Respondent would have to pay
for agency-supplied employees whether or not they
worked. She also testified that she kept two employees
on the revised schedule whose transfers from housekeep-
ing were sped up because of the impending strike, and
that she offered work to certain per diem employees who
had made special arrangements to work during the period
and whose good will she did not want to lose. Stromberg
further testified to the factors she considered in preparing
the revised schedule: she weighed the needs of the pro-
posed strikers for work, the Respondent’s commitments
to temporary employees hired in response to the strike
notice, and the Respondent’s obligations to per diem
workers and in-house transferees. Although our dissent-
ing colleague concludes that the Respondent’s reasons
for its actions were contradictory, we find that the Re-
spondent made reasonable efforts to balance its obliga-
tions to various workers who were temporarily compet-
ing for a limited number of available shifts.
Having found that the Respondent established a le-
gitimate and substantial business justification within the
meaning of Great Dane, we must determine whether the
General Counsel has demonstrated an antiunion motive
for the Respondent’s actions. We find that the General
Counsel has failed to do so. Significantly, the Respon-
dent attempted to solicit the Union’s input into putting
would-be strikers back on the schedule before Stromberg
created the poststrike schedule, but the Union never re-
sponded. With little time to spare when the Union failed
to respond, Stromberg made a list of all of the unit em-
ployees and intended replacements and then scheduled
them by alternating between the top and bottom of the
list. Thus, the Respondent’s attempt to confer with the
Union and its attempt to be fair in working the would-be
strikers back into the schedule after the strike was can-
celled clearly demonstrate its lack of antiunion animus.
We disagree with our dissenting colleague’s claim that
the Respondent’s effort to confer with the Union was an
attempt to enlist the Union in potentially compromising
employees’ rights. We are aware of no evidence that
would support this claim, and we see nothing sinister in
Stromberg’s attempt to deal with a difficult situation by,
among other things, asking for any suggestions the Un-
ion might have.
Further, the Respondent’s unfair labor practices do not
provide a sufficient basis for finding antiunion animus.
Although the Respondent violated Section 8(a)(1) when
it attempted to ascertain who planned to participate in the
strike, that conduct alone does not reveal an improper
motive. The Respondent had a legal right in the interest
of patient care to determine who was going to strike, and
even though it unlawfully failed to inform the employees
that there would be no reprisals against strikers, there is
no evidence that it intended to abridge the employees’
rights. The Respondent’s unlawful unilateral implemen-
tation of the contract proposals discussed above is simi-
larly devoid of unlawful motive. Indeed, most of those
provisions had been tentatively approved by the Union
during negotiations, but contingencies were not worked
out.
For all the foregoing reasons, then, we find that the re-
duction of the would-be strikers’ hours did not violate
Section 8(a)(3).
4. Soliciting decertification petitions
The judge found that the Respondent violated Section
8(a)(1) by soliciting two petitions to decertify the Union
in late July and early August. He based this finding on
the testimony of CNA Arlinda Reger, which he reluc-
tantly credited after drawing an adverse inference against
the Respondent. For the reasons set forth below, we find
that the judge erred by drawing the adverse inference and
consequently by crediting Reger, and therefore we dis-
agree with his finding of unlawful solicitation.
Regarding the first petition (Case 27–RD–1098), Re-
ger testified that DONs Brown and Hunter called her into
their office to sign the petition and then gave her the peti-
tion along with a list of employees likely to support it
and requested that she circulate it. She said that Strom-
berg entered the office, but she could not recall at what
point in the discussion with Brown and Hunter that oc-
curred. Brown denied soliciting Reger to sign the peti-
tion or circulate it. Hunter did not testify, but Stromberg
testified that she never walked in on a meeting at which
Brown and Hunter were discussing the decertification
petition with Reger.
With respect to the second petition (Case 27–RD–
1101), Reger testified that Hunter and Brown summoned
her to their office and asked her to sign it, telling her that
the first petition had been defective. Brown denied solic-
iting signatures for the petition or even being at the facil-
ity at a time when both Hunter and Reger were present.
Timesheets admitted into evidence establish that Brown
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1022
clocked out on the evening of August 3, some 53 minutes
before Reger clocked in to begin the nightshift.
The judge found that the testimony about the petitions
was in equipoise, but he drew an adverse inference from
the Respondent’s failure to call Hunter as a witness. He
credited Reger despite what he referred to as “objective
problems with her testimony,” as well as her demeanor,
and acknowledged that no violation could have been
found in the absence of the adverse inference. Thus, the
adverse inference effectively “tipped the scale” in favor
of Reger’s testimony.13
We find that the judge erred in drawing an adverse in-
ference from the Respondent’s failure to call Hunter to
testify and in relying on the inference to resolve this is-
sue. Normally, it is within an administrative law judge’s
discretion to draw an adverse inference based on a
party’s failure to call a witness who may reasonably be
assumed to be favorably disposed to the party and who
could reasonably be expected to corroborate its version
of events, particularly when that witness is the party’s
agent and thus within its authority or control. It is usu-
ally fair to assume that the party failed to call such a wit-
ness because it believed that the witness would have tes-
tified adversely to the party.14
In the circumstances presented here, however, we find
no basis for inferring that the Respondent feared that
Hunter’s testimony would have been adverse. We infer
instead that the Respondent elected not to call Hunter
because the other record evidence supporting Brown’s
testimony made Hunter’s testimony unnecessary.
Concerning the first petition, the testimony of two of
the Respondent’s witnesses flatly contradicts that of Re-
ger. Thus, Brown denied meeting with Reger and solicit-
ing her to circulate the petition, and Stromberg denied
walking in on any meeting at which Brown, Hunter, and
Reger were present. Hunter’s testimony, though poten-
tially corroborative, would have added little to the mutu-
ally consistent testimony of Brown and Stromberg. Hav-
ing already elicited testimony from two high-level man-
agers, and with a medical facility to operate during the
hearing, the Respondent understandably chose not to call
yet another witness to testify on the same point. A party
has no obligation to call every witness at its disposal to

13 We find no merit to the Respondent’s exception that the judge
erred by noting that Reger was discharged soon after the unfair labor
practice hearing. A posthearing unfair labor practice charge and a
complaint allegation concerning Reger’s discharge (Case 27–CA–
18000) were brought to the judge’s attention in a motion to consolidate
prior to the issuance of his decision in this case. It is clear, however,
that the judge simply noted that case for procedural purposes without
making any findings with respect thereto.
14 Automated Business Machines, 285 NLRB 1122, 1123 (1987).
prove its case. International Business Systems, 258
NLRB 181, 192 (1981).
With respect to the second petition, Reger testified that
she signed it on August 3, at the request of Brown and
Hunter. Brown denied that she and Hunter solicited Re-
ger to sign any petition. Although no other witness cor-
roborated Brown’s testimony, undisputed documentary
evidence strongly supports it. As stated above, the time-
sheets reveal that Brown clocked out 53 minutes before
Reger clocked in on that date. In light of this evidence, it
is understandable that the Respondent elected not to call
Hunter to provide still more corroboration.
We therefore find that the judge was not warranted in
drawing an adverse inference from the Respondent’s
failure to call Hunter as a witness or in relying on that
inference to credit Reger, whose credibility he clearly
questioned. The judge found that, absent the adverse
inference, the evidence concerning the alleged solicita-
tion of Reger to sign the petitions is, “at most, in equi-
poise,” and this violation could not be found. We agree,
and we accordingly dismiss this complaint allegation.
See, e.g., Blue Flash Express, 109 NLRB 591, 591–592
(1954) (where credibility factors are equal and the judge
is not persuaded by the testimony of the General Coun-
sel’s witnesses that unlawful conduct took place, the
General Counsel has failed to meet his burden of proof).
See also American, Inc., 342 NLRB 768, 768 (2004).
5. Disparate enforcement of no-solicitation rule
Having credited Reger’s testimony that the Respon-
dent solicited her to circulate a decertification petition
and that she did so for an hour and a half, the judge
found that the Respondent disparately enforced its rule
prohibiting “solicit[ation] for any purpose during work or
non-work time in patient areas.” We have found that the
evidence fails to establish that the Respondent solicited
Reger to circulate the petition. Moreover, there is no
evidence that the Respondent knew of or tolerated any
employee’s circulation of the petition in patient areas.
Accordingly, we reverse the judge’s finding that the Re-
spondent disparately enforced its no-solicitation rule.
AMENDED CONCLUSIONS OF LAW
1. The Respondent violated Section 8(a)(1) of the Act
by coercively interrogating employees regarding their
intention to strike in a June 26, 2001 letter and in conver-
sations with employees.
2. The Respondent violated Section 8(a)(5) and (1) by
unilaterally implementing articles of its final contract
proposals for the CNA and LPN units relating to dues
checkoff, strikes, grievance/arbitration procedure, and
term of agreement.
3. The Respondent has not otherwise violated the Act.
ROOSEVELT MEMORIAL MEDICAL CENTER 1023
ORDER
The National Labor Relations Board orders that the
Respondent, Roosevelt Memorial Medical Center, Cul-
bertson, Montana, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Coercively interrogating employees regarding their
intention to strike.
(b) Unilaterally implementing proposals providing for
dues checkoff, no strikes, grievance/arbitration proce-
dures, and term of agreement.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) At the Union’s request, rescind the unlawfully im-
plemented proposals providing for dues checkoff, no
strikes, grievance/arbitration procedures, and term of
agreement for the CNA and LPN units.
(b) Within 14 days after service by the Region, post at
its Culbertson, Montana facility copies of the attached
notice marked “Appendix.”15 Copies of the notice, on
forms provided by the Regional Director for Region 27,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that while these proceedings are pending the Respondent
has gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since June 26, 2001.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

15 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
MEMBER LIEBMAN, dissenting in part.
When an announced strike was canceled, the Respon-
dent revised the work schedule prepared in anticipation
of the strike. It cut the customary hours of six employees
who had said that they would strike—but it left intact the
hours of unit employees who planned to work despite the
strike, as well as the hours of temporary and per diem
employees hired as strike replacements. Contrary to the
majority’s view, this step was inherently destructive of
the right to strike: only prospective strikers lost work and
pay. But even if the adverse effect on employee rights
was only “comparatively slight,” as the majority con-
cludes, the Respondent’s claimed business justifications
for its actions were unsubstantiated and implausible.
Only hostility toward the potential strikers can explain
what the Respondent did here.1
Facts
The relevant facts are not in dispute. After being noti-
fied on June 20, 2001,2 that the Union would strike on
July 27, and after determining (through unlawful means),
how many employees planned to participate, the Re-
spondent contracted with an employment agency for the
supply of temporary employees.3 It also made arrange-
ments with members of its board of directors, employees
from other departments, per diem employees, and other
members of the community to work as temporary strike
replacements.
Thereafter, the Union notified the Respondent by letter
dated July 20, and received on July 23, that the strike
was postponed pending further negotiations, and that it
would give the legally-mandated 10 days notice of any
future strike.
Despite the cancellation of the strike and having at
least 4 days to adjust the strike schedule that had been
prepared, the Respondent failed to return six unit em-
ployees to their normal hours on the schedule. None of
the unit employees who planned to work rather than
strike was scheduled for reduced hours, and none of the
temp or per diem employees who had been secured as
replacements lost hours.4

1 I agree with my colleagues in all other respects, including the find-
ings that the Respondent violated the Act by coercively interrogating
employees about their intent to strike and by unilaterally implementing
its final contract proposals on grievance/arbitration, strikes, dues
checkoff, and term of agreement.
2 All dates refer to 2001, unless otherwise indicated.
3 The number of employees who intended to participate in the strike
was not disclosed in the record.
4 The Respondent does not take issue with the General Counsel’s as-
sertion that only intended strikers were adversely affected on the post-
strike schedule.
In addition to the named discriminatees, employee Charlotte Cald-
well worked a reduced schedule following the cancelled strike. The
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1024
Discussion
1. The Respondent’s actions were inherently destructive
In NLRB v. Great Dane Trailers, 388 U.S. 26 (1967),
the Supreme Court articulated two controlling principles
for determining whether conduct that facially discrimi-
nates against employees who exercise their Section 7
rights violates the Act:
First, if it can be reasonably concluded that the em-
ployer’s discriminatory conduct was “inherently de-
structive” of important employee rights, no proof of an
antiunion motivation is needed and the Board can find
an unfair labor practice even if the employer introduces
evidence that the conduct was motivated by business
considerations. Second, if the adverse effect of the dis-
criminatory conduct on employee rights is “compara-
tively slight,” an antiunion motivation must be proved
to sustain the charge if the employer has come forward
with evidence of legitimate and substantial business
justifications for the conduct. [388 U.S. at 34.]
Applying these principles, the Board and the courts have
repeatedly found that employers violated Section 8(a)(3) by
discriminating against lawful strikers. In Great Dane itself,
the Board and the Supreme Court reasoned that the em-
ployer’s unjustified refusal to pay strikers accrued vacation
benefits, while paying them to nonstrikers, was unlawful.
The Board and courts have also consistently ruled that the
failure to reinstate economic strikers who have not been
permanently replaced is inherently destructive of employee
rights. Laidlaw Corp., 171 NLRB 1366 (1968), enfd. 414
F.2d 99 (9th Cir. 1969), cert. denied 397 U.S. 920 (1970);
NLRB v. Fleetwood Trailers, 389 U.S. 375, 380 (1967).
The Respondent’s conduct in this case is inherently
destructive as well. The only employees who were ad-
versely affected were those who had indicated that they
would participate in the strike. There is no showing that
anyone else—per diem employees, employees hired
through the temp agency, individuals who made adjust-
ments in other employment in order to work for the Re-
spondent, or the Respondent’s employees who trans-
ferred from other parts of the facility—were similarly
disadvantaged. In these circumstances, the poststrike

prestrike schedule shows that Caldwell was scheduled to work a regular
12-1/2-hour shift on July 28, but the poststrike schedule shows that she
was scheduled to work only 8 hours that day. Although Caldwell is not
among the named discriminatees, Stromberg’s testimony suggests that
she may have indicated an intention to strike. If, however, Caldwell
did not intend to strike, it was within the Respondent’s purview to
explain her reduced hours and to argue the parity of the would-be strik-
ers’ treatment with hers. This the Respondent did not do.
schedule signaled to all nursing employees that even the
potential exercise of Section 7 rights would cost them.5
The nursing employees never exercised their statuto-
rily protected right to strike, opting instead to give the
collective-bargaining process another chance. Had they
actually struck, they could not have been denied their
former positions at the end of the strike unless they had
been permanently replaced. According to the majority,
though, employees who intended to strike but did not are
entitled to no such protection. Instead, the Respondent
was free to reduce their hours of work and earnings—and
theirs alone—in order to accommodate the interests of
replacement employees.
As things turned out, only two would-be strikers actu-
ally lost hours of employment, and they lost relatively
few hours. But those facts do not lessen the seriousness
of the Respondent’s offense, which was to notify all em-
ployees via the poststrike schedule that employees who
contemplated striking effectively would be punished with
reduced shifts. That schedule clearly shows that six of
the intended strikers, not two, were scheduled to lose
hours. The fact that four of them ultimately were lucky
enough to work full schedules by covering for other em-
ployees does not change the nature of the Respondent’s
action. In any event, the severity of an unfair labor prac-
tice may be measured as much by the method used to
accomplish it and its likelihood of chilling future pro-
tected activity as by the present economic harm.6
2. The Respondent has not demonstrated a legitimate
and substantial business justification for its actions
In any event, the Respondent’s asserted business justi-
fications for its discriminatory treatment of the would-be
strikers are unfounded and pretextual. Thus, even if, as
the majority finds, the effect of the Respondent’s actions

5 The majority asserts that for conduct to be inherently destructive of
Sec. 7 rights, it must have “far reaching effects which could hinder
future bargaining” and “creat[e] visible and continuing obstacles to the
future exercise of employee rights.” Esmark, Inc. v. NLRB, 887 F.2d
739, 748 (7th Cir. 1989) (citations omitted). Retaliating against em-
ployees by effectively docking them a half day to a full day of pay for
announcing that they would strike in support of their union’s bargaining
demands would have precisely those effects. I reject the majority’s
suggestion that an employer’s conduct is inherently destructive only if
it creates a “cleavage” between bargaining unit members. The case on
which the majority relies for this suggestion itself observes that “the
Supreme Court has not held that differential treatment within the bar-
gaining unit is a necessary ingredient of inherently destructive em-
ployer conduct.” International Paper Co. v. NLRB, 115 F.3d 1045,
1051 (D.C. Cir. 1997).
6 Contrary to the majority’s characterization of my position, I do not
consider the severity of the harm to the employees caused by the em-
ployer’s conduct to be irrelevant in determining whether the employer’s
conduct was inherently destructive of the employees’ Sec. 7 rights.
Here I find that the financial harm caused by the Respondent’s conduct
was severe enough to chill employees’ future protected activity.
ROOSEVELT MEMORIAL MEDICAL CENTER 1025
on the employees’ Section 7 rights was “comparatively
slight,” the violation is still established. Great Dane,
supra, 388 U.S. at 34–35.7
The Respondent offers several explanations for its
failure to restore the would-be strikers to their former
schedules. None rings true.
First, the Respondent contends that it was compelled
by circumstances to accommodate the needs of replace-
ment employees. It cites the testimony of Facility Ad-
ministrator Audrey Stromberg, who said that, had the
Respondent not employed the two individuals referred by
the temp agency, it still would have been compelled to
pay for their services. This testimony is entirely unsub-
stantiated. The Respondent’s contract with the temp
agency is not in evidence, but the Respondent concedes
that it contained no such provision. Stromberg testified
that she was informed of this extra-contractual require-
ment by the temp agency, but did not testify that she
agreed to it. No one from the temp agency testified. On
this record, no binding requirement to pay for the temps’
services can reasonably be found.8
The Respondent also cites Stromberg’s contention that
the Respondent had an obligation to two individuals who
had left other jobs in order to work for it during the
strike.9 This testimony is also unsubstantiated.
In any event, the Respondent’s argument begs the
question: why didn’t the Respondent recognize any com-
parable obligation to accommodate the rights of the
would-be strikers? In other words, Stromberg’s testi-
mony may explain why the Respondent hired those four
individuals after the strike was called off, but it does not
explain why they were not exposed to a reduction in
hours on the same basis as the would-be strikers. In

7 Accordingly, I need not reach the issue of whether other evidence
establishes that the Respondent was unlawfully motivated. However, I
reject the majority’s suggestion that the Respondent’s offer to bargain
over the composition of the poststrike schedule is evidence of a lawful
motive. As I have shown, the intended strikers had a legal right to
continue in their employment as they had done before the strike was
announced. The Union was under no legal obligation to negotiate with
the Respondent about the placement of those employees on the sched-
ule. The Respondent’s attempt to enlist the Union in potentially com-
promising employees’ rights under the Act is hardly evidence of a
lawful motive.
8 Pacific Mutual Door Co., 278 NLRB 854 (1986), cited by the ma-
jority, is clearly distinguishable. There, the provision requiring 30
days’ notice of cancellation was included in the contract between the
employer and the labor supplier, the contract itself was in evidence, and
a strike actually took place during which strikers were temporarily
replaced.
9 One individual quit her job at a local pool, and the other individual
arranged a vacation from his other employer.
The Respondent also contends that it had to accommodate the
temps’ and per diem employees’ needs in order to ensure a steady
supply of temp staff in the future. This argument, too, has no support
in the record.
short, the “obligations” to the temps and other newly
hired employees, which the majority invokes repeatedly,
simply did not exist.10
Second, the Respondent relies on Stromberg’s testi-
mony concerning the supposedly random method she
used to prepare the poststrike schedule. Again, that tes-
timony is unpersuasive. Stromberg testified that she
listed the names of the per diem employees, temporary
employees, and the unit employees, and then selected
names for the various shifts, alternating between the
names at the top and bottom of the list in an effort to
achieve randomness. But, if the selection process was
random, as Stromberg testified, why were the would-be
strikers the only employees whose hours were reduced?
The Respondent offers only the bewildering assertion
that cutting the hours of some of the intended strikers
was justified because it was experiencing a shortage of
RNs, CNAs, and LPNs. The Respondent also offers no
justification for the fact that none of the unit employees
who indicated an intention to work through the strike
suffered a reduction in scheduled hours of work.
Furthermore, the Respondent’s claim that its schedul-
ing approach was an attempt to be “fair to all employees”
is contradictory. If this claim were true, then the sched-
uling approach would have exposed the temp and per
diem employees to the same risk of lost hours as other
employees. But this is something the Respondent argues
it was constrained not to do. The Respondent could ei-
ther favor the temps and per diem employees over the
would-be strikers, or it could try to achieve fairness. It
could not do both. The Respondent’s attempts to justify
the reduction in hours on these mutually inconsistent
grounds undermine its proffered justifications. In cases
where the employer proffers inconsistent or shifting rea-

10 Citing TWA v. Flight Attendants Union, 489 U.S. 426 (1989), and
Encino-Tarzana Regional Medical Center, 332 NLRB 914 (2000), the
majority contends that the Respondent lawfully gave preference to
nonstriking permanent employees. Those cases, which both involved
actual strikes, are inapposite. In each case, the employer lawfully failed
to displace nonstriking “crossover” employees with returning strikers
when the strike ended. Crucial to each decision was the fact that the
employers had hired other employees who were not subject to dis-
placement at the end of the strike. Thus, TWA had hired permanent
replacements, and the employer in Encino-Tarzana had hired tempo-
rary replacements and guaranteed them a minimum of 4 days’ pay, of
which 3 days were still owing at the end of the 1-day strike. In those
circumstances, where there was not enough remaining work to give to
both the returning strikers and the crossover employees, it was held that
the crossovers need not be displaced in favor of the returning strikers.
Those circumstances do not exist here. As shown, the Respondent did
not hire permanent replacements and had no obligation to employ either
temps or new employees. Consequently, it has failed to show that it
could not have provided full employment to both the would-be strikers
and the permanent employees who did not indicate that they would
strike.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1026
sons for conduct that harms employees who have exer-
cised their Section 7 rights, the Board has found those
reasons to be pretext designed to mask an unlawful mo-
tive. Casino Ready-Mix, Inc., 335 NLRB 463, 465
(2001); Naomi Knitting Plant, 328 NLRB 1279, 1283
(1999); GATX Logistics, Inc., 323 NLRB 328, 335
(1997); Hi-Tech Cable Corp., 318 NLRB 280, 281, 293
(1995); Jennie-O Foods, Inc., 301 NLRB 305, 321
(1991).11
The random scheduling process was an obvious sham.
Accordingly, the Respondent has failed to demonstrate a
legitimate and substantial business justification for its
actions against the would-be strikers.
3. Conclusion
Because the Respondent’s scheduled reduction in the
hours of work of the would-be strikers was inherently
destructive of their Section 7 rights, and because, in any
event, the Respondent has failed to provide a legitimate
and substantial business justification for its scheduling, I
would find that it violated Section 8(a)(3) and (1) of the
Act.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT interrogate you about your intent to
strike without assuring you that no reprisals will be taken
against you if you say that you will strike.
WE WILL NOT refuse to bargain in good faith with the
Union as the representative of our CNA and LPN em-

11 Adding to the pretextual nature of the Respondent’s defenses, in
attempting to justify its failure to return intended striker Joanne Ander-
son to a full schedule, the Respondent relies on her unwillingness to
work in the facility’s Alzheimer’s unit. As the judge found, that con-
tention is a red herring: before the strike was called, the Respondent
had accommodated Anderson’s desire not to work in the Alzheimer’s
unit, and there were any number of CNAs on the day shift who were
available to work there.
ployees by implementing our contract proposals for dues
checkoff, no strikes, grievance procedure, and term of
agreement without the consent of the Union, and WE
WILL, if the Union requests, rescind any of these propos-
als we have implemented.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed by Section 7 of the Act.
ROOSEVELT MEMORIAL MEDICAL CENTER
William J. Daly, Esq., for the General Counsel.
Laura Christoffersen, Esq., of Culbertson, Montana, for the
Respondent.
DECISION
STATEMENT OF THE CASE
THOMAS M. PATTON, Administrative Law Judge. This matter
was heard in Culbertson, Montana, on April 16 and 17, 2002,
based upon charges filed by American Federation of County,
State and Municipal employees, Montana State Council 9 (the
Union). The initial charges were filed in Cases 27–CA–17564–
1 and 27–CA–17564–3 on July 30, 2001, and served the fol-
lowing day.1 An amended charge was filed and served in Case
27–CA–17564–3 on September 28. The charge in Case 27–
CA–17564–4 was filed and served on August 9. The charge in
Case 27–CA–17701–1 was filed on November 6 and served the
following day. An initial complaint issued on September 28.
The amended consolidated complaint that was the subject of the
hearing issued on December 31. The complaint alleges viola-
tions of Section 8(a)(1), (3), and (5) of the National Labor Rela-
tions Act (the Act) by Roosevelt Memorial Medical Center (the
Employer or Respondent). The Employer denies any violation
of the Act. On the entire record, including my observation of
the demeanor of the witnesses and after considering the briefs
filed by the General Counsel and Respondent I make the fol-
lowing2
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION STATUS
At all material times the Respondent, a corporation, with an
office and place of business in Culbertson, Montana, has been
engaged in the operation of a health care facility (the Hospital).
The Respondent admits that it meets the Board’s standards for
asserting jurisdiction. The record establishes and I find that the
Respondent is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act and a health
care institution within the meaning of Section 2(14) of the Act.
The answer admits, the record establishes and I find that the
Union is a labor organization within the meaning of Section
2(5) of the Act.

1 All dates are 2001 unless otherwise indicated.
2 In assessing credibility, testimony contrary to my findings has not
been credited, based on a review of the entire record and consideration
of the probabilities and the demeanor of the witnesses. See NLRB v.
Walton Mfg. Co., 369 U.S. 404, 408 (1962).
ROOSEVELT MEMORIAL MEDICAL CENTER 1027
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
The operation of the Hospital includes a 44-bed nursing
home, a 10-bed hospital, an emergency room, and a rural health
clinic. Culbertson is a small town located in a sparsely popu-
lated area in northeast Montana.3 There are about 70 employees
who work in various departments, including nursing, environ-
mental services (maintenance, laundry, and housekeeping),
dietary, and administration. The nursing department is managed
by two directors of nursing (DONs), Brenda Hunter and Clair
Brown, who are supervised by the Hospital’s administrator
Audrey Stromberg, The nursing department is staffed by ap-
proximately three registered nurses (RN’s), four licensed prac-
tical nurses (LPNs) and 22 certified nursing assistants (CNAs).
The number of regularly scheduled employees is insufficient to
staff the hospital. The employer regularly uses per diem em-
ployees who work on an as needed basis.
On January 12, 2000, the Union was certified as the exclu-
sive collective-bargaining representative of the Respondent’s
CNAs (the CNA unit).4 The Respondent admits and I find that
at all times since January 12, 2000, the Union has been the
exclusive collective-bargaining representative of the CNA unit.
On March 15, 2000, the Union was certified as the exclusive
collective-bargaining representative of a unit of Respondent’s
RN’s and LPN’s.5 On or about June 25, 2001, the Respondent
and the Union agreed to exclude the RN employees from the
unit of nurses, thereby creating a unit of LPNs (the LPN unit).6
The Respondent admits and I find that at all times since March
15, 2000, the Union has been the exclusive collective-
bargaining representative of the employees in the LPN unit.
Collective bargaining regarding the CNA and LPN units be-
gan in August 2000 and continued through July 27, 2001. No
contract was reached regarding either of the units. The Union
gave the Employer written notice of intent to strike dated June
20, 2001, stating that both units would go out on strike at 12:01
a.m. on July 27.

3 The year 2000 census indicates that Culbertson is located in Roo-
sevelt County. The census shows the population of Culbertson to be
716 persons and the population of Roosevelt County is to be 10,620.
4 The CNA unit description is:
All full-time, part-time and on-call Certified Nursing Assis-
tants employed by the Employer at its facility in Culbertson,
Montana, excluding all confidential employees, contract em-
ployees, office and clerical employees, guards and supervisors
as defined by the Act and all other employees.
5 The description of the certified unit of nurses is:
All full-time and regular part-time registered nurses and licensed prac-
tical nurses employed by the Employer at its facility in Culbertson,
Montana, excluding confidential employees, guards and supervisors
as defined in the Act and all other employees.
6 The agreed upon LPN unit description is:
All full-time and regular part-time licensed practical nurses employer
by the Employer at its facility in Culbertson, Montana, excluding con-
fidential employees, guards and supervisors as defined in the Act and
all other employees.
In late June following the strike notice the Employer met
with a group of employees in the basement of the Hospital.7
Brenda Hunter and Clair Brown were present. At that meeting
some employees voiced support for going nonunion.
After receiving the strike notice, the Employer sent a letter to
each unit employee inquiring whether the employee would
strike and stating that the Employer’s intention was to assign
replacement employees to announced strikers’ shifts beginning
July 27. The Employer followed up the letter with individual
inquiries to employees who did not respond to the letter.
Based upon employee responses to the letter and the individ-
ual inquiries, the Employer revised and issued the assigned
work schedule of the LPNs and CNAs beginning July 27 by
removing the employees who had indicated intent to strike. The
Employer arranged for replacement employees.8 The strike was
later called off and the Employer issued a revised schedule
returning the announced strikers to the schedule.
In a telephone conversation on July 20 additional negotia-
tions were scheduled for July 27. The Union advised the Em-
ployer in writing that the strike was postponed and stated that if
the additional negotiations were not successful, the Union
would give the Employer 10-days notice before striking. The
letter was received on July 23. The parties met and negotiated
on July 27, but no agreement was reached. There have not been
further negotiations and there has been no strike or other further
strike notice. On July 27 and August 8 petitions to decertify the
Union were filed. The Employer unilaterally implemented bar-
gaining proposals for both units that made changes in terms of
employment on October 16.
B. The Allegations
The complaint alleges that the Respondent violated Section
8(a)(1) by coercively interrogating employees regarding their
intention to strike in the June 26 letter; by questioning employ-
ees who did not respond to the letter; by soliciting the decertifi-
cation of the Union; and by disparately enforcing a no-
solicitation rule by permitting soliciting for the decertification
petitions on worktime.
It is further alleged that the Respondent violated Section
8(a)(1) and (3) by not scheduling some employees for their full
shifts after the strike was canceled. The complaint alleges that
the Employer violated Section 8(a)(1) and (5) of the Act by
implementing provisions in its final contract proposal for each
unit. The implemented provisions provide for dues-checkoff, a
no-strike provision, a term of agreement provision, and a griev-
ance procedure.
The complaint alleges that the grievance procedure provides
that an employee will be added to the Respondent’s board of
directors; that the Respondent’s board of directors will make
the final decision on any grievance at the third step; and that a
nonbinding arbitration panel will be convened at the forth step
and that the board of directors will make the final decision on
any grievance.

7 There is no contention that the Act was violated at the meeting.
8 There is no contention that this revision of the schedule violated by
the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1028
C. The Evidence
1. The letter to employees
On June 26, the employer delivered a letter to each of its
LPNs and CNAs that included the following:9
In order to be able to schedule replacement staff during the
strike, you need to inform the DONs [directors of nursing], in
writing, of your intent to strike or that you will continue to
work after 12:01 a.m. on July 27, 2001. This notice of intent
must be returned to the DONs no later than Monday, July 2,
2001. If they do not receive a response from you, they will
proceed as if you have indicated that you will strike on July
27, 2001, and your shifts will [be] assigned to a replacement.
The letter did not provide the employees with any assurances
that no reprisals would be taken against them as a result of their
responses.
2. Questioning of employees
Beginning on July 2, Claire Brown spoke individually with
several employees who had not responded to the June 26 letter.
Brown testified that she told the employees she needed to as-
certain whether they would be available for work during the
strike, to insure that there would be an adequate staff to meet
the patient care needs. According to Brown, five employees had
forgotten to turn in their notice and those five thereafter submit-
ted written notice that they would not participate in the an-
nounced strike.10 Brown testified that other employees she
spoke with stated that they would strike, while others declined
to state whether they would join the strike.
Several employees described Brown asking them about
whether they would strike on July 27. Mary Hauso testified that
Brown asked if she intended to strike or not, to which Hauso
replied that she had not responded to the letter and that she
thought that showed her intentions. According to Hauso, Brown
replied that she was sorry to hear that. Geraldine Pennell testi-
fied that Brown asked her if she intended to go on strike, ex-
plaining the Employer needed to know to prepare the work
schedule. Pennell testified that she told Brown that she intended
to strike. Barbara Dean testified that Brown asked her if she
was going to go on strike, and she replied yes, but that nothing
more was said. Joanne Anderson testified that Brown asked if
she intended to strike, and she replied that she was, and there
was no further discussion. Each of these employees testified
that Brown spoke with them at the Hospital within about 2
weeks following the June 26 letter and that Brown did not in-
clude in her remarks any assurances that no reprisals would be
taken against them regardless of the nature of their response.
The versions of the conversations described by the employ-
ees do not vary in any material respect from Brown’s descrip-
tion. To the extent they vary, I credit the employees’ accounts
of the specific conversations they had with Brown, including

9 When documents and testimony are quoted in this decision, the
quoted matter has generally not been edited and the term “sic” has not
been used. Editing appears in brackets.
10 Brown identified these five employees as Joyce Schizvald, Tom
Saunders, Corey Pronto, Bonnie Mintz, and Elizabeth Casey. None of
the five testified.
their testimony that Brown offered no assurances that reprisals
would not be taken against them regardless of the nature of
their response.
3. Soliciting decertification
The complaint alleges that the Employer solicited decertifi-
cation of the Union on or about July 27 and August 3. The evi-
dence relating to these allegations will be summarized in detail
because of the credibility issues presented.
CNA Twila Flagen filed a decertification petition in Case
27–RD–1098. On July 27 Flagen requested withdrawal of that
petition.11 The Regional Director approved the withdrawal on
August 10. Flagen filed a second petition in Case 27–RD–1101
on August 6, which was limited to the CNA unit. Both petitions
were on standard NLRB petition forms. At the request of the
General Counsel I took judicial notice of Cases 27–RD–1098
and 27–RD–1101 and the petitions and the showings of interest
were received as exhibits.
The showing of interest for the first petition consists of 12
undated signatures on the otherwise blank reverse side of the
petition form. The signatures are arranged in a single row down
the page. Flagen’s signature is the last on the showing of inter-
est. The second signature is that of CNA Arlinda Reger.
Reger testified that following the Employer’s June 26 letter
to employees, but on a date she did not recall, she was called to
the shared office of Brown and Hunter. According to Reger,
only Brown and Hunter were present initially. Reger testified
that she was asked to sign a document that was described to her
as being to get the union out. Reger testified that she signed the
document. At the hearing she was shown the first petition and
asked if she had seen the document before, and her attention
was directed to the reverse side. She identified the showing of
interest on the reverse side of the first RD petition as what she
signed in the office. Reger testified, however, “I’ve just seen
this part here the signatures.” She was not questioned further
regarding the decertification petition form printed on the re-
verse side. According to Reger, she was given a list of about 9-
10 names and told by Brown and Hunter that these were people
who might also sign. Reger testified that she was told to take
the showing of interest around, to try to get 13 signatures, but
to get as many signatures as possible and to then return the
paper to Brown or Hunter. According to Reger, Administrator
Audrey Stromberg came into the office at some point. Reger
did not describe at what point in the discussion Stromberg en-
tered the office or her involvement, if any, in the discussion.
Stromberg testified that she never walked into a meeting where
Brown and Hunter were talking to Reger about circulating a
decertification petition.
Reger testified that she then left the office and spent about
1-1/2 hours soliciting other employees to sign the showing of
interest and five or six other CNAs signed immediately below
her signature. Reger stated that she then gave the document to
RN Charmane Riddle, who said she needed it. Riddle did not
testify. The evidence does not show that Riddle was unavail-
able. The only employee identified by Reger who refused to

11 That petition appears, on its face, to have been defective because it
sought decertification regarding both the CNA unit and the LPN unit
with a single petition.
ROOSEVELT MEMORIAL MEDICAL CENTER 1029
sign was Ernest Cadenhead, a temporary employee working
during the summer of 2001.
Ernest Cadenhead testified that he worked for the Employer
in May through August 2001, and that he was to return to work
on May 8, 2002. Cadenhead testified that around the end of
July he was approached by Reger at work and asked “to sign a
petition to decertify the Union” and that he told her that he was
not a member of the Union, but that he would not sign a peti-
tion to decertify because he was only a temporary employee
and did not feel it was any of his business. Cadenhead testified
that later the same day he was also asked to “sign the decertifi-
cation paper” by Charmane Riddle, “another” RN.12 Cadenhead
testified that he told Riddle the same thing that he had told
Reger. Cadenhead did not identify either of the petitions or
showings of interests. Cadenhead’s testimony is credited. It was
credibly offered, was not negated by other testimony and the
evidence does not show it to be unreliable.
Twila Flagen has been a CNA at the Hospital since 1992.
Flagen testified that the petition in Case 27–RD–1098 was pre-
pared using a blank petition form from the Board’s website.
She stated that she had asked Hunter how the Union could be
decertified and Hunter had told her about the Board’s website.
Flagen testified that she did not have access to the web, so she
sought the assistance of a friend, Marilyn Olsen, who was also
a member of the Hospital’s board of directors. According to
Flagen, Olsen downloaded the form and typed in the informa-
tion. Olsen did not testify. There has been no contention that
the involvement by Hunter and Olsen in the initial steps of
securing and preparing the decertification petition was unlaw-
ful.
Flagen testified that she personally secured all the signatures
for the showing of interest for the petition and that the petition
was in her possession at all times. She specifically denied ever
giving the petition to Reger, Brown, or Hunter to circulate.
Flagen stated that one of the persons she asked to sign the
showing of interest for the first petition was Ernest Cadenhead.
Cadenhead was not asked whether he had such a conversation
with Flagen.
The showing of interest for the second petition is a separate,
single sheet of paper. At the top is typed
As a CNA I wish to petition to decertify from the Un-
ion at RMMC.
Name Date
Below the typed portion are nine signatures, each followed
by a date. The first name is Twila Flagen and the date is August
2, 2001. Below Flagen’s name are eight additional signatures
and by each is a date. The second and third signatures are dated
August 1, 2001, the forth is dated August 2, 2001, and the re-
maining signatures are dated August 3, 2001. Flagen testified
that she was actually the third person to sign the document, but
that she inserted her name at the top, ahead of the next two
names, at the request of Riddle. Flagen testified that her in-
volvement in the second petition was limited to signing the
petition and the showing of interest at the request of Riddle.

12 Inferentially, it appears that Cadenhead was an RN. There has
been no contention that Riddle is a statutory supervisor or agent.
Reger was the sixth signer of the second showing of interest.
Flagen and Reger are the only signers of the second showing of
interest who testified. There is no contention and the evidence
does not show that the other signers or Riddle were unavailable.
Reger initially testified that she could not recall where she
was when she signed the second showing of interest, who else
was present, whether she was in the directors of nursing office
nor could she recall from whom she received the document.
She then testified, in response to leading questions, that she was
asked to sign the showing of interest by Brown and Hunter.
Reger testified that Brown and Hunter told her, “That the first
one didn’t go through or something, and we needed to do it
over again, or something like that.”
Brown testified as follows regarding asking Reger to sign a
decertification petition:
Q. Did you ever pull her in to sign a Decertification
Petition? A. No, I did not.
Q. Did you ever pull her in to ask her to circulate a
Decertification Petition?
A. No, I did not. . . .
Q. (By Ms. Christoffersen) Were you involved at any
point in asking any employees at RMMC to circulate a
Decertification Petition?
A. No, I was not. . . .
Q. And did you have any participation in any efforts
to decertify?
A. No.
Q. Were either of the Decertification Petitions ever in
your possession?
A. No, they were not.
Q. Were they ever in your office?
A. Not to my knowledge.
Brown testified that on August 3, the date Reger signed the
showing of interest for the second petition, Reger was not
clocked in at any time when Brenda Hunter and Clair Brown
were both present. The time records reflect the following:
In Out
Brenda Hunter 5:44 a.m. 6.52 p.m.
Clair Brown 7:41 a.m. 5:07 p.m.
Arlinda Reger 6:00 p.m. 6:29 a.m.
Thus, on August 3, the date Reger signed showing of interest
for the second petition, Brown clocked out 53 minutes before
Reger clocked in and Hunter clocked out 52 minutes after Re-
ger clocked in. Thus, Hunter was on the clock during the shift
when Reger testified she was asked to sign the second showing
of interest, but Hunter was not called to testify.
Brown testified that she and Hunter were paid hourly, like
Reger, and that she is never at the facility when she is not on
the clock. Brown acknowledged, however, that there was no
rule against being at the facility when an employee is not
clocked in. Stromberg testified that as the administrator for the
hospital she requires all the hourly employees to clockin and
that she has never observed either Hunter or Brown being on
the premises when they have not clockedin.
Brown, Flagen, and Stromberg testified in a calm, relaxed
and confident manner, however, Brown’s denials were sum-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1030
mary in nature and elicited by leading questions. Reger ap-
peared to be very uncomfortable, nervous and reluctant to tes-
tify.
Reger did not demonstrate good recall of the events. Thus,
regarding the first showing of interest, Reger acknowledged no
recollection of the date, other than that it was after the June 26
letter to employees. She testified that she had no recall of see-
ing the NLRB petition printed on the back of the showing of
interest. It seems unlikely that employees would have placed
their signatures on the paper without any indication of a pur-
pose and the NLRB petition form on the reverse side would
likely have been the subject of comment. Reger’s testimony
that she had approached Cadenhead regarding the first decerti-
fication petition and thereafter gave the showing of interest to
Riddle is consistent with Cadenhead’s account that one day he
was asked first by Reger and then by Riddle to sign a decertifi-
cation petition.
Reger either could not or would not recount the details of her
signing the second showing of interest and the purported in-
volvement by Hunter and Brown until the testimony was elic-
ited by leading questions. Her testimony that the typed state-
ment regarding the purpose of the document was not present
when she signed it seems improbable and inconsistent with the
appearance of the document.
Reger’s demeanor and performance as a witness does not
strengthen her credibility, but it does not necessarily indicate
that her testimony is false. As a current employee, she would be
testifying against her self-interest and adversely to the Em-
ployer’s interests. It is not unreasonable that she would be fear-
ful. The record does not show that Reger had any bias against
the Employer or favoring the Union. To the contrary, the tenor
of her testimony was that she continued to oppose union repre-
sentation at the time she testified.13
The conflicting testimony regarding the showings of interest
for the decertification petitions appears to be more than differ-
ences in perception and recollection. Some of the testimony
may well have been willingly and knowingly false. A number
of witnesses whose testimony might help resolve the credibility
issues were not called.
The only signers of the two showings of interest who were
called to testify were Reger and Flagen. Riddle was not called
to shed light on both Reger’s solicitation of Cadenhead and
involvement by her in second petition. The record does not
show that any of these employees were unavailable. The failure
of both the General Counsel and the Respondent to call these
employees to testify has been considered in making my credi-
bility resolutions. See Queen of Valley Hospital, 316 NLRB
721, 722 fn. 1 (1995).
The Employer did not call Hunter to deny Reger’s testimony
or to corroborate Brown and Flagen. When a party fails to call a
witness who may reasonably be assumed to be favorably dis-

13 Reger was fired shortly after the hearing, but the record does not
establish that she was biased against the Employer when she testified.
A complaint and notice of hearing alleging that her discharge violated
Sec. 8(a)(4) of the Act was scheduled for hearing, but was remanded to
the Regional Director for disposition prior to the opening of a hearing,
based on Reger’s refusal to cooperate in the litigation of that complaint.
posed to the party, an adverse inference may be drawn regard-
ing any factual question on which the witness is likely to have
knowledge. Auto Workers v. NLRB, 459 F.2d 1329 (D.C. Cir.
1972); International Automated Machines, 285 NLRB 1122,
1123 (1987); Made 4 Film, Inc., 337 NLRB 1152 (2002). The
adverse inference rule permits an adverse inference to be
drawn; it does not, however, create a conclusive presumption
against the party. Rockingham Machine-Lunex v. NLRB, 665
F.2d 303 (8th Cir. 1981), cert. denied 457 U.S. 1107 (1982).
The fact that Hunter was not present gives rise to an inference
that her testimony would have been unfavorable to the Em-
ployer. The absence of Hunter not only strengthens the proba-
tive force of the witnesses for the General Counsel, but is itself
clothed with a certain probative force. Pur O Sil, Inc., 211
NLRB 333, 337 (1974).
The adverse inference that Hunter, had she testified, would
have adversely affected the Respondent’s case is sufficient to
outweigh the objective problems with Reger’s testimony, as
well as her demeanor. Accordingly, I credit Reger’s testimony
over that of Brown and Flagen regarding the showing of inter-
est for both the July and the August decertification petition.14
4. Disparate enforcement of a no-solicitation rule
At all relevant times, Respondent has had a rule in its em-
ployee handbook prohibiting employee solicitation on work-
time. The General Counsel does not contend the rule is itself
unlawful. The rule provides:
Employees may not solicit for any purpose during work or
non-work time in patient areas, including patient rooms, treat-
ment rooms, or resident lounges. Reasonable forms of solici-
tation are permitted during non-work time, such as before or
after work or during meal or break periods and in non-patient
care areas. Soliciting employees who are on non-work time
may not solicit other employees who are on work time. Em-
ployees may not distribute literature for any purpose during
work time or in work areas. The employee lunchroom is con-
sidered a non-work area under this policy.
Stromberg testified that all employees had been expected to
comply with the rule. However, Stromberg testified that in
March 2001, following the resolution of an earlier NLRB
charge, the Employer ceased enforcing the rule, except when
complaints were registered. However, Stromberg testified that
in response to complaints of employees of solicitation by sup-
porters of the Union she notified Union Agent Tracee Raymond
in June that the employees should be aware of the no solicita-
tion rule and that it would be enforced. The evidence shows
that Reger solicited employees to sign the showing of interest

14 Absent the adverse inference I have drawn from the failure of the
Employer to call Hunter, the evidence favoring the credibility of Reger
is, at most, in equipoise with factors favoring the Employer’s witnesses.
This conclusion is based on an assessment of the demeanor of the wit-
nesses and the inherent probabilities. Accordingly, absent the adverse
inference, the involvement of the Employer in soliciting the decertifica-
tion described by Reger could not be found to have occurred. Tomatek,
Inc., 333 NLRB 1350 (2001); El Paso Natural Gas Co., 193 NLRB 333
(1971).
ROOSEVELT MEMORIAL MEDICAL CENTER 1031
for the first decertification petition on worktime in July with the
knowledge of the Employer.
5. Not scheduling some employees for their full shifts
In June the Employer issued a work schedule for the CNAs
covering the period July 15–August 19 (the prestrike schedule).
The LPNs were on a separate schedule not in evidence. After
receiving the strike notice the Employer revised the LPN and
CNA work schedules by removing, beginning July 27, the em-
ployees who had indicated an intent to strike and scheduled
others to fill their shifts (the strike schedule). The strike sched-
ule is not in evidence.
The Employer had prepared for a strike by arranging for in-
creased use of nonstriking per diem employees, employees
from other departments within the facility, new hires from the
community and employees furnished by a temporary employee
agency as replacements for strikers.
On Monday, July 23, the Employer received notice from the
Union that the strike had been postponed while the parties en-
gaged in added negotiations, which were scheduled to begin
July 27. The union letter said that it would give the Employer
10-days’ notice before striking. The Employer’s attorney, Laura
Christoffersen, called Union Agent Tracee Raymond on July 23
and asked to discuss the return of the strikers to the schedule.
Raymond testified that she told the attorney she should call
Union Agent Don Kinman. On July 24, the attorney sent a letter
to Kinman, with a copy to Raymond, confirming that she had
called Raymond and Kinman and offered to negotiate regarding
the return of the announced strikers to the schedule, but that the
Union had refused. There is no evidence that the Union re-
sponded to the letter and there is no testimony inconsistent with
the representation in the letter that on July 23 the Employer
offered and the Union declined to negotiate regarding the issue.
On July 25, after the strike was canceled, the Employer is-
sued a CNA schedule covering the period July 22–August 19
that returned the announced strikers to the schedule (the post-
strike schedule). A revised LPN schedule that is not in evidence
was also issued.
The complaint alleges that the Employer “failed to schedule
certain of its employees for their full shifts because said em-
ployees had indicated their intention to participate in an antici-
pated strike.”15 The Employer contends that the scheduling of
employees after the strike was canceled was based on legiti-
mate business considerations unrelated to protected activity.
The complaint does not identify the employees who were not
scheduled for their full shifts. Five CNAs and one LPN credibly
testified regarding their scheduling after the strike was called
off. They were Mary Hauso, Dorothy Gonitzke, Geraldine Pen-
nell, Barbara Dean, Tara Madsen, and Joanne Anderson. Each
had informed the Employer that she would join the strike.
Mary Hauso is an LPN who has worked for the Employer
since 1988 and was on the Union’s negotiating committee. She
testified that for years before July 27 she worked three 12-1/2-
hour shifts per week, for a total of 37-1/2 hours. Absent evi-

15 The complaint does not allege that the scheduling of employees
violated Sec. 8(a)(5) and on brief the General Counsel acknowledged
that the Employer was privileged to act unilaterally regarding the re-
scheduling following the strike postponement.
dence to the contrary, I find that on the prestrike schedule she
was assigned to work 37-1/2 hours each week. On the post-
strike schedule she was scheduled for only two 12-1/2-hour
shifts about the second week of August. She later was sched-
uled for a third shift after she volunteered to replace another
employee who took the day off. Thus, Hauso worked 37-1/2
hours that week.
Dorothy “Dot” Gonitzke has worked at the Hospital as a
CNA for about 4 years. She normally worked three 12-1/2-hour
shifts per week, for a total of 37-1/2 hours. The poststrike
schedule assigned her only two 12-1/2-hour shifts during the
week August 5–11. She had been assigned 37-1/2 hours that
week on the prestrike schedule. After the schedule issued,
Brown asked her to work a third shift during her short week, in
place of another employee. Gonitzke thus worked 37-1/2 hours
that week.
Geraldine Pennell has worked for the employer as a CNA for
about 5 years. She normally worked three 12-1/2-hour shifts
per week, for a total of 37-1/2 hours. The poststrike schedule
assigned her only two 12-1/2-hour shifts and an 8-hour shift
during the week of August 5–11. She had been assigned 37-1/2
hours that week on the prestrike schedule. After the poststrike
schedule issued, Pennell was assigned a third 12-1/2-hour shift,
in place of the 8-hour shift and she thus worked 37-1/2 hours
that week.”
Barbara “Barb” Dean has been a CNA at the Hospital for
about 14 years. She normally worked three 12-1/2-hour shifts
per week, for a total of 37-1/2 hours. The poststrike schedule
assigned her only two 12-1/2-hour shifts and an 8-hour shift
during the week July 29–August 4. She had been assigned 37-
1/2 hours that week on the prestrike schedule. She worked the
assigned shifts. She did not inquire about the availability of
additional work during that week and was not offered addi-
tional work. Dean acknowledged that additional shifts could
frequently be picked up because of employee illness or other
reasons. The Employer contends that she was injured on Au-
gust 2 and off for an extended period thereafter. That injury
would not, however, have affected her ability to work on July
30, August 1, or August 2.
Tara Madsen has been a CNA at the Hospital since 1978.
She normally worked three 12-1/2-hour shifts per week, for a
total of 37-1/2 hours. The poststrike schedule assigned her only
two 12-1/2-hour shifts and an 8-hour shift during the week July
29–August 4. She had been assigned 37-1/2 hours that week on
the prestrike schedule. Another employee needed to be absent
from a 12-1/2-hour shift because of a medical appointment and
Madsen took that shift and Hunter found someone else to cover
Madsen’s 8-hour shift. Madsen testified that shifts are com-
monly traded.
Joanne Anderson has been a CNA at the Hospital since 1978
and was a member of the union negotiating committee. She
normally worked three 12-1/2-hour shifts per week, for a total
of 37-1/2 hours. The poststrike schedule assigned her only two
12-1/2-hour shifts and an 8-hour shift during the week July 29–
August 4. She had been assigned 37-1/2 hours that week on the
prestrike schedule. She worked the assigned shifts. The revised
schedule for that week has the notation “NA” for July 29. She
explained that the notation means that she was not available to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1032
work and that the notation is consistent with her having been
called by supervision to ask her to work that day. Anderson
testified that she had not received a call to work that day and
that such a notation might appear if an attempt to reach her was
unsuccessful. There appears to have been a scheduling problem
on July 29. The revised schedule indicates that nine CNAs were
called without any CNA being found to replace Corie. The
schedule shows the notation “no answer” for four of the nine
persons called. However, no witness testified to having placed
the call to Anderson. Corie had been scheduled for the Alz-
heimer’s unit and Anderson did not work in that unit. Thus, she
would have not been available to fill Corie’s missed shift. Con-
sidering the probabilities, as well as demeanor, I credit Ander-
son’s testimony that she did not receive a call.
Stromberg prepared the July 25 poststrike schedule. She tes-
tified that she began by listing the employees and it was appar-
ent to her that there were more employees than were needed.
She stated that she worked from the top and the bottom of the
list toward the middle, to achieve randomness, and assigned
shifts to the employees. Prior to the strike notice the Hospital
was understaffed 2-1/2 RN’s, 1-1/2 LPNs, and about 2 CNAs
and relied on per diem staffing. Stromberg acknowledged that
some of the planned striker replacements on the strike schedule
were also put on the poststrike schedule.
Stromberg testified that one of her objectives in preparing
the poststrike schedule was “[K]eeping the people who had
given up other jobs also on the schedule at that point because
they had done that to work for us. You know we did have an
obligation to them.” She testified that two employees from
other departments of the Hospital worked CNA shifts after the
strike was scheduled. Stromberg testified that one LPN and one
CNA furnished by the temporary staffing agency were left on
the poststrike schedule. Stromberg explained that this was done
because the temporary staffing agency had told her that the
Hospital would be charged for the employees, even if they did
not work.16
Stromberg testified that the July scheduling was affected by
the preferences of several of the announced strikers to not work
on the Alzheimer’s unit that opened in late June or early July.
Joanne Anderson had indicated a preference to not work in that
unit. Barbara Dean, Tara Madsen and others had indicated that
they only wanted to work in the Alzheimer’s unit for less than a
full shift. The shifts in the Alzheimer’s unit were accordingly
shorter, apparently because of the demanding nature of the
work. The poststrike schedule discloses that a CNA was as-
signed to a 3-hour shift in the Alzheimer’s unit from 7 a.m. to
10 a.m., followed by three shifts of 4 hours each, with coverage
from 7 a.m. to 10 p.m. Thus, beginning July 27, the poststrike
schedule shows that no LPN worked more than 4 hours in a day
on the Alzheimer’s unit.
The CNAs were assigned to either a 12-1/2-hour or an 8-
hour shift on the days they were assigned to a shift on the Alz-
heimer’s unit. The staffing levels permitted the Employer to

16 The written contract with the temporary employee agency did not
specifically address the issue of remedy if the Hospital attempted to
cancel. This is not dispositive of the question of whether the Employer
would be obligated to pay for employees not used.
accommodate Anderson’s preference to not work on the Alz-
heimer’s unit. The CNA poststrike schedule (GC Exh. 15) has
the first names of three persons that do not appear on the pre-
strike schedule (R Exh. 3). They are Melinda, Shane, and Tara
Q.17 I conclude that they were striker replacements. Stromberg
testified that Shane was Shane Garrett, a per diem employee
who had worked for the Hospital in the past who had been
hired to fill-in shifts through August 19. On the poststrike
schedule Shane was assigned two 12-1/2-hour shifts the week
July 29–August 4 and another two 12-1/2-hour shifts the week
August 5–11. Shane may have been the CNA provided by the
temporary staffing agency. The poststrike schedule assigned
Tara Q. to two 12-1/2-hour shifts the week July 29–August 4.
The poststrike schedule does not indicate that Melinda was
assigned any shifts.
LaShell appears to have been a per diem employee. She had
no shifts on the prestrike schedule July 29 through August 11,
but on the poststrike schedule she was assigned three 12-1/2-
hour day shifts the week of July 29 and three night shifts the
week of August 5. Faith also appears to be a per diem. She had
no shifts on the prestrike schedule for the week of August 5, but
on the poststrike schedule she was assigned three night shifts
that week.
Jessica was a new hire. Stromberg testified, “Jessica Schmitz
was left on, and she had given up her job or part of her job with
the swimming pool to finish up her summer employment at
RMMC.” She thus appears to have been hired as a striker re-
placement. Jessica had no assignments on the prestrike sched-
ule, but had four 8-hour shifts assignment each week from July
29–August 11.
A revised poststrike schedule (R Exh. 4) adds the name of
“Teri,” a name also not on the prestrike schedule. Teri was
assigned a 6–10 shift on August 11. The record does not dis-
close when Teri was added to the schedule.
The evidence shows that CNAs Gonitzke, Pennell, Dean,
Madsen, and Anderson could have each been assigned their
usual 37-1/2-hour work schedule on the initial poststrike sched-
ule without incurring additional staff hours, if the number of
hours assigned to striker replacements had been reduced. The
shifts assigned to the replacements may not correspond in each
instance with days the asserted discriminatees had open in their
reduced workweeks, but that could clearly have been addressed
by rearranging the other CNA assignments. Alternatively, the
Employer could have reinstated the prestrike schedule and
made any necessary adjustments for staffing the Alzheimer’s
unit in a manner that did not reduce the hours of the announced
strikers. In this regard, the employees were only assigned to
work 3–4 hours on the Alzheimer’s unit beginning July 26. The
Employer chose to accommodate Anderson’s wish to not be
assigned to that unit and was able to accommodate her without
reducing her hours because of the number of CNAs on each
shift.

17 The schedules do not use surnames. There is a “Tara” on the pre-
strike schedule and a “Tara M.” and a “Tara Q.” on the poststrike
schedule. Based on the telephone numbers on the schedules, I conclude
that the “Tara” on the prestrike schedule is Tara Madsen and the “Tara
M.” on the poststrike schedule.
ROOSEVELT MEMORIAL MEDICAL CENTER 1033
The evidence shows that LPN Hauso could have been as-
signed her usual 37-1/2-hour work schedule when she was re-
turned to the schedule following the strike cancellation by re-
ducing the number of hours assigned to the LPN striker re-
placement from the temporary staffing agency who was left on
the schedule.
6. Unilaterally implementing bargaining proposals
The Employer concedes that it unilaterally implemented its
final contract proposals regarding the LPN and CNA units on
October 16. The General Counsel concedes that at the time of
implementation, the parties were at impasse and there is no
contention that the Employer had bargained in bad faith prior to
the implementation. The facts directly relating to the implemen-
tations are not in dispute. The implemented proposals contain
provisions typically found in collective-bargaining agreements,
including descriptions of the units, management rights, nondis-
crimination, subcontracting rights, employee discipline, hours
and conditions of work, assignment of employees, benefits and
pay. The format, numbering and content of the articles of the
implemented proposals at issue are the same.
The implemented provisions also provide for dues-checkoff,
a no-strike provision, a term of agreement provision and a
grievance procedure. The complaint specifically alleges that the
grievance procedure provides that an employee will be added to
the Respondent’s board of directors; that the Respondent’s
board of directors will make the final decision on any grievance
at the third step; and that a nonbinding arbitration panel will be
convened at the forth step and that the board of directors will
make the final decision on any grievance.
The implemented dues-checkoff provision, “Article 19 Un-
ion Security,” provides that the Employer shall deduct and
remit to the Union each month union dues and assessments
from the pay of employees who have authorized the deductions
in writing.
The implemented no-strike provision, “Article 15 Strikes,”
provides, in part:
The Union and its members, as individuals or as a group, will
not initiate, cause, permit, or participate in or join in any
strike, work stoppage, or slowdown . . . during the term of this
contract. . . . Disciplinary action, including discharge, may be
taken by the Hospital against any employee or employees en-
gaged in a violation of this article. The implemented term of
agreement provision, “Article 20 Term,” provides: This
agreement shall be effective October 9, 2001 unless otherwise
specified herein, and shall remain in full force and effect
through October 9, 2003.
The implemented grievance procedure, “Article 14 Griev-
ance Procedure,” has four steps. Step 1 provides that the em-
ployee will initially present the grievance to the employee’s
immediate supervisor. Step 2 provides for submission of the
grievance by the employee to the hospital administrator, if the
grievance is not resolved at step 1. Step 3 provides that if the
Union and the grievant disagree with the hospital administra-
tor’s decision, appeal may be taken to the Hospital’s board of
directors, who shall make a final decision. Step 4 provides that
if any of the parties do not agree with the decision at step 3, any
party may take the grievance to “non-binding, advisory arbitra-
tion before an arbitration board.” The decision of the arbitration
board is to be directed to the Board of Directors and may be
accepted or rejected by the board of directors.
The implemented proposals provide that the arbitration board
will be three persons; one bargaining unit employee, one mem-
ber of the board of directors (but not a unit employee), and a
member of the community. The community member is to be
selected by a process involving the Union and the Employer.
The implemented grievance procedure provides for appoint-
ment of one bargaining unit employee to the Hospital’s board
of directors from “the entire bargaining unit” by election. It is
not clear whether the intent was to have an employee for each
unit or one employee from the combined CNAs and LPNs.
D. Analysis
1. The letter to employees and orally asking employees if
they would strike
The allegations that the Employer’s June 26 letter to em-
ployees asking if they would strike and Brown’s followup oral
inquiries a few days later will be discussed together. The Gen-
eral Counsel argues that the letter and the conversations were
unlawful because they did not provide the employees with any
assurances that no reprisals would be taken against them as a
result of their responses.
The General Counsel points to the Board’s decision in
Preterm, Inc., 240 NLRB 654, 655–656 (1979), where the
Board held that a health care employer may properly ask if
employees intend to participate in a strike after it has been
served with a strike notice pursuant to Sec. 8(g) of the Act.
However, the Board limited this right, finding that to lessen the
inherently coercive effect of such polling, an employer must
explain fully the purpose of the questioning, assure the employ-
ees that no reprisals will be taken against them as a result of
their response, and otherwise refrain from creating a coercive
atmosphere. The decision in Preterm was based on the consid-
erations underlying the decisions in Johnnie’s Poultry Co., 146
NLRB 770 (1964), and Strucknes Construction Co., 165 NLRB
1062 (1967). See also Providence Hospital, 285 NLRB 320 fn.
2 (1987). More recently an employer’s use of a questionnaire
inquiring into employees’ intent to report to work on the first
day of a proposed strike, whether the employees would con-
tinue the strike until it was resolved, and the anticipated length
of the strike was found to violate the Act because it was not
accompanied by simultaneous assurances against reprisal.
Holyoke Visiting Nurses Assn., 313 NLRB 1040, 1049 (1994).
The analysis in Holyoke explicitly relied on Preterm and
Johnnie’s Poultry. Thus, the judge in Holyoke quoted the
Board’s decision in Preterm:
In order to lessen the inherently coercive effect of the polling
of its employees, Respondent had an obligation to explain
fully the purpose of the questioning, to assure the employees
that no reprisals would be taken against them as a result of
their response, and to refrain from otherwise creating coercive
atmosphere.
The Employer argues that the decision in Preterm was based
upon the application of a per se rule, an approach that the Board
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1034
abandoned in Rossmore House, 269 NLRB 1176 (1984). In
Rossmore House the Board concluded that casual questioning
of open and active union supporters concerning union sympa-
thies was not a per se violation, The Board observed, “To fall
within the ambit of § 8(a)(1), either the words themselves or the
context in which they are used must suggest an element of co-
ercion or interference.” id. at 1177. The Employer points to the
Board’s decisions in Sunnyvale Medical Clinic, 277 NLRB
1217 (1985), and Bo-Ed Inc., 281 NLRB 226 (1986).
In Sunnyvale the Board found that the judge properly applied
the totality of circumstances test to alleged unlawful interroga-
tion of an employee, even though she was not an open and ac-
tive union adherent and that the judge correctly concluded that
no violation of the Act occurred. In Bo-Ed the Board reached a
similar conclusion. The Employer contends that Holyoke can be
distinguished because the employer in Holyoke attempted to
discover not only whether the employee intended to strike, but
also how long the strike might last. That argument is unpersua-
sive. It is clear that the Board did not rely on the details of the
inquiry regarding the length of the strike. See Allegheny Lud-
lum Corp., 333 NLRB 734 (2001). Accordingly, I conclude that
the Employer violated Section 8(a)(1) by sending the June 26
letter to employees asking if they would strike and Brown’s
follow-up oral inquiries to individual employees.
2. Soliciting decertification
The decision of whether or not to decertify a union belongs
solely to the employees. The employer may provide general
information about the process in response to employees’ unso-
licited inquiries, but an employer has no legitimate role in that
activity, either to instigate or to facilitate it. Lee Lumber &
Building Material, 306 NLRB 408 (1992). The complaint al-
leges that Brown and Hunter solicited employees to decertify
the Union. As stated earlier, I have credited Reger’s testimony
regarding what occurred in Brown and Hunter’s office on or
about July 27 and on August 3 when she was asked to sign
showings of interest to support decertification and on the first
occasion to seek the signatures of other employees during her
shift. I accordingly find that the Respondent thereby violated
Section 8(a)(1) of the Act. See Harding Glass Co., 316 NLRB
985, 991 (1995), enfd. in rel. part 80 F.3d 7 (1996).
3. Disparate enforcement of a no-solicitation rule
An employer violates Section 8(a)(1) of the Act by dispar-
ately enforcing a no-solicitation rule by according a decertifica-
tion petition special treatment by permitting the solicitation of a
decertification of a union on work time. Albertson’s, Inc., 323
NLRB 1, 6–8 (1997). The evidence shows that Reger solicited
employee signatures for the showing of interest for the first
decertification petition on work time with the knowledge and
approval of the Employer, notwithstanding Stromberg’s con-
ceded determination that the Employer’s no-solicitation rule
would be strictly enforced and so advising the Union. Accord-
ingly, the evidence shows that the Respondent thereby violated
Section 8(a)(1) of the Act by disparately enforcing the rule.18

18 The General Counsel does not urge a finding that permitting Reger
to solicit during worktime was violative apart from the disparate en-
forcement of the rule.
4. Not scheduling some employees for their full shifts
The General Counsel first argues that the Employer was mo-
tivated by antiunion considerations in scheduling Mary Hauso,
Dorothy “Dot” Gonitzke, Geraldine Pennell, Barbara “Barb”
Dean, Tara Madsen, and Joanne Anderson because each had
disclosed an intent to strike. The General Counsel contends that
other unfair labor practices by the Employer are evidence of the
Employer’s unlawful motivation. The General Counsel argues
further that the scheduling of the six employees for reduced
hours was inherently destructive of employee rights and inter-
ests and, that it should be deemed proscribed by Section 8(a)(3)
of the Act without need for proof of an underlying unlawful
motive.
The Employer argues that the scheduling was based solely
on legitimate business considerations. The Employer states that
as a health care facility it had a right to make scheduling
changes after receipt of a strike notice in order to insure contin-
ued patient care. The Employer contends that it had the right to
consider legitimate business needs and issues of patient care in
returning the employees to the schedule following the cancella-
tion of the strike. In particular, the Employer claims that it was
necessary to keep temporary replacement workers on the
schedule to insure their availability in the future. The Employer
further argues that it was privileged to keep the one CNA and
one LPN provided by the temporary employee agency on the
schedule because the agency had stated that the Hospital would
be billed, even it the replacements did not work.
The Employer emphasizes that the employees who were re-
turned to the schedule when the strike was canceled could rea-
sonably be expected to fill out their schedule as adjustments
were made because of openings that occurred later. The Em-
ployer asserts that while Dean was not offered additional hours
work to make up the 4-1/2-hours she was short, she did not did
not take the initiative to seek additional hours. Other than Dean,
the only hours ultimately lost were 4-1/2 hours lost by Ander-
son.
The opening of the Alzheimer’s unit is urged by the Em-
ployer as a legitimate consideration in preparing the poststrike
schedule because several of the announced strikers, including
Joanne Anderson, had expressed a preference to not work on
the recently opened Alzheimer’s unit and that others, including
Barbara Dean and Tara Madsen, had indicated that they only
wanted to work in the Alzheimer’s unit for less than a full shift.
The Employer also points to the problem of accommodating the
training needs of newly hired employees, possibly a reference
to the assignment of Tara Q to CNA shifts.
The arguments advanced by the Employer are not persua-
sive. The evidence establishes that the Employer’s conduct was
so inherently destructive of employee interests that it may be
deemed proscribed by Section 8(a)(3) of the Act without need
for proof of an underlying improper motive. NLRB v. Great
Dane Trailers, 388 U.S. 26, 33 (1967). Accordingly, I find it
unnecessary to determine whether the Employer’s other unfair
labor practices establish an unlawful motive.
When deciding whether conduct is inherently destructive the
Board applies four “guiding principles.” International Paper
Co., 319 NLRB 1253, 1269–1270 (1995), enf. denied 115 F.3d
1045 (D.C. Cir. 1997). Employer conduct may be found inher-
ROOSEVELT MEMORIAL MEDICAL CENTER 1035
ently destructive without exhibiting all four characteristics Id.,
fn. 37. The first guiding principle is that an employer’s policy
of directly attaching penalties to participation in protected un-
ion activities is inherently destructive of the employees’ statu-
tory right to engage in those activities. In the present case the
Respondent has penalized employees because they had stated
that they intended to participate in a strike by reducing their
hours. Actions that distinguish among workers based on their
participation concerted action such as a strike are inherently
destructive. Esmark, Inc. v. NLRB, 887 F.2d 739, 748 (7th Cir.
1989).
A second consideration in determining whether conduct is
inherently destructive is whether the conduct is potentially
disruptive of the opportunity for future employee organization
and concerted activity, rather than only influencing the outcome
of a particular dispute. Such conduct creates visible and con-
tinuing obstacles to the future exercise of employee rights. In
the present case there is a likelihood that employees will be less
willing to support the Union in negotiations, including making
a commitment to strike, if the Employer is free to reduce their
hours, even if an announced strike is timely called off.
The remaining considerations in determining whether con-
duct is inherently destructive is whether the conduct demon-
strated hostility to the process of collective bargaining and
whether the conduct had the effect of discouraging collective
bargaining by making it appear futile to the employees. While
these considerations may be arguably relevant in the present
case, their applicability is tenuous, in contrast with the consid-
erations discussed above and they have accordingly not been
relied on in reaching the conclusion that the reductions in hours
was inherently destructive.
In reaching the conclusion that the scheduling of strike sup-
porters was inherently destructive I have been guided by the
purpose of the strike notice requirements in Section 8(g) of the
Act. That provision recognizes that because of the needs of
patients, health care institutions must have sufficient notice of
any strike or picketing to allow for appropriate arrangements to
be made for the continuance of patient care in the event of a
work stoppage. New York State Nurses Assn., 334 NLRB 798
(2001); Greater New Orleans Artificial Kidney Center, 240
NLRB 432 (1979); S. Res. 93–766, 93d Cong., 2d Sess. (1974).
I have been referred to nothing in the reported decisions or
legislative history that suggests that the statute grants health
care employers the right to replace employees merely because
they have voiced their intent to strike.
Accordingly, the conduct of scheduling employees for re-
duced hours after the strike was called off was inherently de-
structive. However, before concluding that the scheduling was
unlawful it is necessary to weigh the interests of the employees
in engaging in concerted activities against the Employer’s
claimed legitimate business justifications. International Paper,
supra, 319 NLRB at 1267.
An objective of economic strikes and lockouts is to impose
economic costs on the other party. The Employer’s assertion
that it should be permitted to give preference to strike replace-
ments obtained from a temporary employment agency over
employees who had announced their intention to participate in a
protected strike because the Employer would otherwise possi-
bly incur financial losses is inconsistent with the protected right
of employees to strike. Similarly, favoring per diem employees
and new employees to insure that the Employer will have a
pool of strike replacements in the future is inconsistent with the
employees’ protected right to strike.
The Employer received sufficient notice of the strike cancel-
lation to issue a schedule that included the employees who had
planned to strike. The timing of the strike cancellation does not
weigh against the interests of the employees.
The fact that some of the affected employees may have been
able to secure additional hours after the poststrike schedule
issued affects the backpay liability, but the unfair labor practice
occurred when the poststrike schedule issued and a remedy is
warranted with regard to all of the employees who were dis-
criminated against.
The claimed problem of scheduling of employees for the
Alzheimer’s unit is a red herring. As discussed in detail earlier,
the only unit person who objected to working 4 hours was
Anderson. The Employer had chosen to accommodate her pref-
erence and the evidence does not establish that scheduling her
was a problem. There were five or more CNAs on the day shift
that would be available for the Alzheimer’s unit.
The Employer had no legally cognizable justification for its
inherently destructive conduct in scheduling employees who
had indicated their intent to strike for less than their full shifts.
Accordingly, the Employer violated Section 8(a)(1) and (3) of
the Act by its scheduling of Mary Hauso, Dorothy Gonitzke,
Geraldine Pennell, Barbara Dean, Tara Madsen, and Joanne
Anderson during the period July 29–August 11, in the manner
described in detail, supra.
5. Unilaterally implementing bargaining proposals
The complaint alleges that the Employer violated the Act by
implementing the provisions in each proposal providing for
dues-checkoff, a no-strike provision, a term of agreement pro-
vision and a grievance procedure. The complaint specifically
alleges that the grievance procedure provides that an employee
will be added to the Respondent’s board of directors; that the
Respondent’s board of directors will make the final decision on
any grievance at the third step; and that a nonbinding arbitra-
tion panel will be convened at the forth step.
The General Counsel acknowledges that following a good-
faith impasse in negotiations, an employer is privileged to uni-
laterally implement changes in working conditions that are not
substantially different or greater than what the employer pro-
posed in negotiations. See Atlas Tack Corp., 226 NLRB 222,
227 (1976), enfd. 559 F.2d 1201 (1st Cir. 1977). The General
Counsel contends that implementation after impasse is not,
however, applicable to every bargaining proposal. The General
Counsel points to the decision in McClatchy Newspapers, 321
NLRB 1386, 1390 (1996), where the Board stated:
[I]t is clear that application of implementation after impasse is
not permissible regarding specified proposals. In particular,
certain contract proposals, in addition to arbitration, constitut-
ing mandatory subjects of bargaining—even those that had
been agreed to by the same parties in their expired agree-
ments—e.g., union-security and dues-checkoff, and no-strike
provisions are “contract bound” or involve a “statutorily guar-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1036
anteed right” and could not appropriately be unilaterally thrust
upon a party without its agreement to be bound. (Footnotes
omitted).
The Employer acknowledges the Board’s decision in
McClatchy and the cases relied on by the Board, but contends
that the facts of the present case are unique because, “The con-
tract proposals which were implemented mirror the final pro-
posals reached at the final bargaining session and in fact, either
maintain the status quo or provide significant protections for
the employees over the status quo which existed prior to im-
plementation.” The Employer cites no authority in support of
this contention. I find, contrary to the contention of the Em-
ployer, that McClatchy is controlling.
In view of the foregoing, the evidence establishes that the
Employer violates Section 8(a)(1) and (5) of the Act by unilat-
erally implementing articles 14, 15, 19, and 20 of its final con-
tract proposals for the LPN and CNA units relating to grievance
procedure, no-strike, provision, dues checkoff, and term of
agreement.
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning of
Section 2(2) of the Act engaged in commerce within the mean-
ing of Section 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 following described units are appropriate for collec-
tive-bargaining purposes:
(a) All full-time, part time and on-call Certified Nurs-
ing Assistants employed by the Employer at its facility in
Culbertson, Montana, excluding all confidential employ-
ees, contract employees, office and clerical employees,
guards and supervisors as defined by the Act and all other
employees.
(b) All full-time and regular part time licensed practi-
cal nurses employed by the Employer at its facility in Cul-
bertson, Montana, excluding confidential employees,
guards and supervisors as defined in the Act and all other
employees.
4. The Union, since January 12, 2000, has been and is, the
exclusive representative of the employees in the CNA unit for
the purposes of collective bargaining within the meaning of
Section 9(a) of the Act.
5. The Union, since March 15, 2001, has been and is, the
exclusive representative of the employees in the LPN unit for
the purposes of collective bargaining within the meaning of
Section 9(a) of the Act.
6. The Respondent violated Section 8(a)(1) and (5) of the
Act by unilaterally implementing articles 14, 15, 19, and 20 of
its final contract proposal for the CNA unit relating to griev-
ance procedure, no-strike provision, dues checkoff, and term of
agreement.
7. The Respondent violated Section 8(a)(1) and (5) of the
Act by unilaterally implementing articles 14, 15, 19, and 20 of
its final contract proposal for the LPN unit relating to grievance
procedure, no-strike provision, dues checkoff, and term of
agreement.
8. The Respondent violated Section 8(a)(1) of the Act by
coercively interrogating employees regarding their intention to
strike in a June 26, 2001 letter.
9. The Respondent violated Section 8(a)(1) of the Act by
coercively interrogating employees regarding their intention to
strike in conversations with employees.
10. The Respondent violated Section 8(a)(1) of the Act by
soliciting the decertification of the Union.
11. The Respondent violated Section 8(a)(1) of the Act by
disparately enforcing a no-solicitation rule by permitting solic-
iting for the decertification petitions on worktime.
12. The Respondent violated Section 8(a)(1) and (3) of the
Act by not scheduling employees Mary Hauso, Dorothy Go-
nitzke, Geraldine Pennell, Barbara Dean, Tara Madsen, and
Joanne Anderson for their usual number of hours during the
period July 29–August 11, 2001, because they engaged in pro-
tected union activities.
13. The Respondent has not otherwise violated the Act.
THE REMEDY
Having found that the Respondent has engaged in unfair la-
bor practices, I find that it must be ordered to cease and desist
and to take certain affirmative action designed to effectuate the
policies of the Act. The Respondent having discriminated
against Mary Hauso, Dorothy Gonitzke, Geraldine Pennell,
Barbara Dean, Tara Madsen, and Joanne Anderson, it must
make them whole for any loss of earnings and other benefits,
computed on a quarterly basis, less any net interim earnings, as
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
The Respondent shall be ordered to rescind one or more of
articles 14, 15, 19, and 20 of its implemented final contract
proposals for the LPN and CNA units, if requested by the Un-
ion.
[Recommended Order omitted from publication.]