Lake Charles Memorial Hospital

National Labor Relations Board - Board Decisions

Mar 14, 1979

240 N.L.R.B. 1330 (N.L.R.B. 1979)

1330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Southwest Louisiana Hospital Association, d/b/a
Lake Charles Memorial Hospital and Office & Pro-
fessional Employees International Union, Local 87,
AFL-CIO. Case 15CA -6556
March 14, 1979
ORDER DENYING MOTION
BY MMBERS JENKINS. M.RPIIY. AND TR FS[)AI F
On September 2, 1977. the Regional Director for
Region 15 of the National Labor Relations Board
issued a complaint and notice of hearing in the
above-entitled proceeding, alleging that Respondent
has engaged in and is engaging in cergain unfair la-
bor practices affecting commerce within the meaning
of Section 8(a)(l) and (3) and Section 2(6) and (7) of
the National Labor Relations Act, as amended. Sub-
sequently, Respondent filed an answer admitting in
part and denying in part the allegations of the com-
plaint and requesting that the complaint be dis-
missed, or in the alternative, that the General Coun-
sel be held to strict proof of the allegations not
specifically admitted.
Thereafter, on September 23, 1977, counsel for the
General Counsel filed with the Board in Washington,
D.C., a "Motion to Transfer and Continue Case Be-
fore the Board and Motion for Summary Judgment
or Partial Summary Judgment to Limit Issues," with
attachments. The General Counsel contends, in ef-
fect, that Respondent's answer admitted all the ele-
ments of the unfair labor practices alleged in the
complaint, and that the General Counsel therefore is
entitled to summary judgment as a matter of law.
The General Counsel accordingly requests that sum-
mary judgment be granted and that a Decision and
Order issue, finding that Respondent violated Sec-
tion 8(a)(I) and (3) of the Act as alleged in the com-
plaint, and directing appropriate remedial action. Al-
ternatively, General Counsel contends that partial
summary judgment, to limit the issues at the hearing,
be granted.
On September 30, 1977, the Board issued an order
transferring the proceeding to itself and a Notice To
Show Cause why the General Counsel's motion
should not be granted. Respondent filed a response
to the Board's order and Notice To Show Cause con-
tending that inasmuch as it has denied all allegations
of the complaint material to the commission of all
unfair labor practices, except its failure to recall and/.'
or reinstate six named employees, genuine issues of
fact are raised as to whether Respondent has violated
the Act as alleged.' The Charging Party filed a brief
240 NLRB No. 118
in support of the General Counsel's motion.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act. as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The General Counsel urges, and our dissenting
colleague agrees, that by admitting that certain of its
employees went on strike and that it has failed or
refused to recall or reinstate six employees named in
the complaint. Respondent has admitted all elements
of the unfair labor practices alleged in the complaint,
and summary judgment should therefore issue
against Respondent. As set forth below, we disagree.
Rule 56 of the Federal Rules of Civil Procedure
provides that summary judgment shall be rendered if
the "pleadings, deposition, answers to interrogato-
ries, and admissions on file, together with the affida-
vits, if any. show that there is no genuine issue as to
any material fact and that the moving party is enti-
tled to judgment as a matter of law." 2 Rule 56(e)
sets forth the burdens of the moving and opposing
Ilhe releani allegations f the complaint. and Respondent's anser
therei. arte as forllos
6(a) rrin onl or ahbul March 3(0. 1977 t iOn r about June 17. 1977.
certailn emploees of he Respondent eplosed at the facilits ceased
vsork concertedl and went on strike. [Admitted hb Respondent.]
(bh I he strike described in paragraph 6(a) above. was caused and
pr.oinged bh the unfair labor practices of Ihe Respondert as alleged in
the ('rnplaint uhich issued on Jul 6. 1977 and was amended on July
I I. 1977. in Case No. 15 (A 6504, presently pending before the Board
otn .1a Motion for Suminar? Judgilenrt I)Denied b Resporndent]
7 (al On or about June 16. 1977. the follorsltig eniploees mplrosed
bh Responden .at the facilits. whIo had engaged i the strike r olher
concerted actiitles referred to i pa;ragraph 6(al a.bove. made an un-
co(rdilionlal offer to ICIIlnir to their forinicr or subst;talll ecqUlsalenl
positions of eniplsrment: (rlia S. loritcrlot Billie R I razer Sare-
th;i B l.el)a. Marilh e Rosiolrlre. Rdella S lI ahr. Iheresa M. Vic-
torian [I)ernied b Responderit.]
tb Since rn or .bout June 16. 1977. anrid continuing to date. he
Respondent has failed arid refused, and coninues o falil arid refuse. to
recall an d or reinslate Ihe eniplo ees na;rled in paragraph
7
(a) abs e to
their formler or shbstantlall quivalelnt psitions of enplriernt [lAd-
iltted Responderit]
( lc I he Responldentr failed anid rcfused. arid onrltinues to fal ;nd
refuse to recall ;arid or lenstale the enmploiees named a nd or referred
to above in pa;ragraphs 7(a) and 7(bl for he realson that said employees
had joined or assisted the t ion. or engaged n other concered actiSi-
tie fror the purpose of crllecte-h argaalrng or mutu;al aid or protection
and or had partTcipated in the strike described in pragraph 6. abos,
[D)eried b\ Resprondenti
Rule S6(cl
Ou(r dissentling colleague cllte only Ithe l:lst two sentences of Rule 56(e).
slich pertamI oI the obhligations of the adserse parti. and asserts that hese
sentences require that Respondernt must "come forth with facts showring
thait . geliunle issue is present." llweser. the adserse partD has no obliga-
tioln to respond. a s is ade clear ecen b Ihat portion of the rule cited b,
our colleague. untl he moing part herein the General (Counsel) has car-
rned its birden of supportilig the Ilmori n ith adinlssible evidence (e.g..
affid;a tts br persons comnpelenl to Iesif). For reasons sta ted below. Ae
find ri. the (eneral Co('unsel has not ll me that burden in this case. (onse-
quertls al si inple denial of ulavsful cnduct is sufficient to raise a material
quesli ,. wthout requiring a respondenl to come forward ith affidavits or
other eidecnre. he Board. including our colleague. has s held See. eg..
flrrd/' Si.1c ( rrrrtion. 222 N RB 586 ( 1976. ()ur colleague's attempt to
dlrllguish thail cse anlounts ti his saing II is dsllingulshable because he
sass ii is.
LAKE CHARLES MEMORIAL HOSPITAL 1331
parties. Briefly, unless the moving party (here the
General Counsel) establishes by admissible evidence
that there is "no genuine issue as to any material
fact," the burden does not shift to the opposing party
to show that there is a genuine issue for hearing.4
In the instant case, Respondent has denied, inter
alia, that the strike was caused or prolonged by its
unfair labor practices which were the subject of the
complaint in a related case (Case 15-CA-6504) in-
volving the same parties. The complaint in that case
(which was pending before the Board when the com-
plaint in the instant case issued) alleged that Respon-
dent violated Section 8(a)(5) and (l) by refusing to
bargain with the Union as the exclusive representa-
tive of its employees. Although, as our colleague
points out, the Board in that case found that Respon-
dent's refusal to bargain did violate Section 8(a)(5)
and (1),5 there was in the decision in that case no
mention of a strike, much less a finding that Respon-
dent's unfair labor practices caused or prolonged the
strike. To find that the strike was, as alleged here. an
unfair labor practice strike, the Board would have to
find (in addition to its earlier determination that Re-
spondent's refusal to bargain violated the Act) that
the strike was, in fact, caused or prolonged by Re-
spondent's unfair labor practices. Inasmuch as there
are no affidavits or other evidence "such as would be
admissible in evidence" to support a finding, General
Counsel clearly is not entitled to summary judgment
on that issue. and it must go to hearing.6
Thus. where certain facts averred b the moving parts were supported
only bh an affidavit "made upon nformation and belief" (rather than on
'personal knowledge" of one "competent to testif"I. the Supreme Court
found that such affidavit did nt compls with Rule 56(e). and there sa,.
accordingly "nothing available in the record to support the averment "
.4uomatric Radio Manufacruring Co. Inc. v. Ha:eline Research. In{c. 339
I.S. 827. 831 (1950). Moreover. the Court has stated that "On summars
judgment the inferences to he drawn from the underliing facts contained In
such materials affidavits. exhibits, and depositionsI must be viewed in the
light most favorable to the party opposing the motion." nit ed Statcr
Diebold. Incretrporated 369 .S 654. 655 ( 1962) In other svords. '"tlhe mIn(-
ing part i not entitled to the benefit of favorable inferences to be drawn
from his moving papers." C. Wright. I.aw of Federal C'ourts. 2d ed 1970. p-
445 And see Henr Janl, vs.4 Athon J ('ehre::e. 336 F 2d 828. 834 (3d
Cir. 1964)1 where the court stated: "lilt must clearls appear on such a mo-
tion that there is no genuine issue as to ins fact if the motion is to he
granted."
Souihwevt Louisana Hoi.ptl 4 iil'o lni, d i ii LaAe ( harle Velenlorial
Horpital 232 NLRB 1039 (19771
6The General Counsel in his motion makes an argument that it s rrele-
vant. "iln the absence of an affirmative defense b) Respondent." that t
denies that the strike is an unfair labor practire strike since "ItJhe status of
strikers is raised only if a defense of replacement of economic striker, is
proffered." We note, however, that the complaint does not allege that the
strike was economic in nature, and that Respondent was not obliged to offer
a defense to a nonexistent allegation. Furthermore. a determination of the
nature of the strike is relevant to an assessment of Respondent's obligations
vis-a-ti.s ant striker. For the same reasons we find no merit to our col-
league's argument that since Respsndent has not raised as .affirmtise
defenses, the "unfair labor practice strike question is irrelevant " Accord-
ngly. the fact that there was a strike is not dispositlve of the issue the
point being that the nature of the strike is an issue which an;lnot be resolved
on the state of this record I hus. Responilent has no obhigtion monre
Furthermore. a finding that Respondent had, for
purposes of the instant case, any obligation to rein-
state any person would require that the Board have
determined that any such person (a) was a striker
and (b) made an unconditional offer to return to
work. Respondent's denial of the complaint allega-
tion that the six named employees were strikers who
made unconditional offers to return to work has
placed in issue all the facts upon which that allega-
tion is based, including, most significantly, whether
the six in question were striking employees. Other
than the mere allegation that these individuals had,
in fact. participated in a strike, no evidence was pre-
sented in support thereof: they are not, for example,
named in the Union's letter offering, on behalf of all
strikers, unconditional return to work.7 Both the
General Counsel and our dissenting colleague argue
that by admitting its failure to reinstate the six
named individuals, Respondent has admitted that
they were strikers who had made unconditional of-
fers to return, because "[i]f they were not strikers
there would be no occasion to refuse the reinstate-
ment." However, it does not necessarily follow that
there would be no such occasion absent a finding
that the employees were strikers. Obviously, there are
situations other than a strike in which reinstatement
would be inappropriate (e.g., layoff, termination,
etc.). Moreover, if the six named individuals were not
strikers, and/or if any unconditional offer to return
to work did not encompass them, Respondent had
no obligation to offer them reinstatement, and its ad-
mission that it did not subjects it to no liability under
the Act.
Finally, Respondent denies that its failure to rein-
state the named employees was motivated by their
alleged union, strike, or other protected concerted
activities. On the basis of the pleadings, and in light
of the consideration described above, we are unable
to determine whether Respondent's failure to rein-
state those employees was unlawfully motivated.
In view of the above, we find that the pleadings
and submissions of the parties raise substantial and
material issues of fact and law which may best be
resolved at a hearing conducted before an Adminis-
trative Law Judge.
Accordingly. it is hereby ordered that the General
Counsel's Motion for Summary Judgment be. and it
hereby is, denied.
forth with affirmative defenses.
In lev of our finding that Respondent's answer raises issues requiring a
hearing we deem it unnecessary to determine at this time whether Respon-
dent received from the Uinion the letter offering the strikers' unconditional
return Ihat we do not pass on this issue. however, does not mean that we
cannot examine the contents of the letter for the limited purpose of ascer-
taining whether there eists evidence indicating that the I nion specilfcall?
Idenilfied the alleged six named dlscriminatees.
1331
1332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MEMBER JENKINS. dissenting:
It is clear to me from the admissions in the plead-
ings, the documentary evidence set forth in the Gen-
eral Counsel's Motion for Summary Judgment, and
Respondent's response to our Notice To Show Cause
that there is no genuine dispute as to material facts
and that the Motion for Summary Judgment should
be granted. Accordingly, I must dissent from my col-
leagues' denial of the motion.
The complaint alleges and Respondent's answer
admits that from on or about March 30, 1977, to on
or about June 17, 1977, certain of Respondent's em-
ployees went on strike, and that since on or about
June 16, 1977, Respondent has refused to reinstate
the named employees to their former or substantially
equivalent positions. General Counsel's motion con-
tains a copy of a letter to Respondent from the
Union's International representative dated June 16,
1977, which makes an unconditional offer on behalf
of all striking employees to return to work. Thus, it is
clearly established that a strike occurred and that
Respondent refused to reinstate the striking employ-
ees. The strike could have been only one of two
kinds, either an unfair labor practice strike or an eco-
nomic strike. As to the former, Respondent can have
no defense to a refusal to reinstate. As to the latter, a
possible affirmative defense is that the strikers have
been permanently replaced. However, this is an affir-
mative defense which the defending party must raise
if it seeks to take advantage of such a defense. No
such defense was raised by Respondent here. Re-
spondent makes no claim either in its answer to the
complaint or in its response to the Notice To Show
Cause, that the striking employees have been perma-
nently replaced, that their jobs have been abolished
for business reasons, or that any other reason exists
for refusing reinstatement. These facts clearly estab-
lish a violation of Section 8(a)(3) and (I). The Laid-
law Corporation, 171 NLRB 1366 (1968), enfd. 414
F.2d 99 (7th Cir. 1969), cert. denied 397 U.S. 920
(1970). Since there is no genuine dispute as to any of
these facts, summary judgment should be granted.8
In its response to the Notice To Show Cause, Re-
spondent argues, "most importantly, all allegations
the complaint also alleges that the strike was caused and prolonged b
the unfair labor practices of Respondent alleged in the complaint in Case
15-CA 6504, which was then pending before the Board. On October I .
1977, the Board granted a Motion for Summar? Judgment finding that
Respondent has engaged in unfair labor practices in violation of Sec. 8a)(5)
and ( I ) by refusing to bargain with the Union as the exclusive representative
for employees in the unit since January 13. 1977. Southwest Louisimna Hopi-
tal Association, dh:a Lake (Charles Memorial Hospital, 232 NLRB 1039
(1977). As noted, the strike commenced on March 30, 1977. It thus appears
that the strike was an unfair labor practice strike thereby undermining affir-
mative defenses Respondent might otherwise assert for refusing reinstate-
ment. However, since Respondent has raised no affirmative defenses the
unfair labor practice strike question is irrelevant.
of the commission of unfair labor practices by the
Respondent have been denied." The Board's finding
of an unfair labor practice violation in Case 15-CA-
6504, by the doctrine of collateral estoppel, is bind-
ing on Respondent in this proceeding. Thus, Respon-
dent's "most important" defense, which I believe ir-
relevant in any event for the reasons set forth above,
is completely emasculated.
Respondent does not demonstrate that a genuine
dispute exists with respect to any other issue. Re-
spondent denies the allegation in paragraph 7(a) of
the complaint that on or about June 16, 1977, certain
named employees "who had engaged in the strike or
other concerted activities referred to in paragraph
6(a), above, made an unconditional offer to return to
their former or substantially equivalent positions of
employment." It is perfectly clear that the only issue
Respondent intended to raise by this denial in its
answer was that an unconditional offer to return to
work had been made. The suggestion in its response
to the Notice To Show Cause that it also intended to
deny that the named employees were strikers is pre-
posterous. Its answer admits paragraph 7(b) of the
complaint which alleges that Respondent refused "to
recall and/or reinstate the employees named in para-
graph 7(a) above to their former or substantially
equivalent positions of employment." Would it have
us believe that it intended to admit that it refused
reinstatement to the named employees but to deny
that they were strikers? If they were not strikers there
would be no occasion to refuse the reinstatement
which Respondent has admitted. The majority cites
layoffs and terminations as examples where rein-
statement would otherwise be appropriate. However,
they are not the same at all. An employer who has
laid off employees is not required to recall them un-
less and until there is available work for them to do
and that determination cannot and is not influenced
in any way by an employee's request for reinstate-
ment. It is a decision solely for the employer to make.
With respect to a termination, the employer is under
no obligation at all to act favorably on a request for
reinstatement.
If there is any ambiguity in the answer, which I do
not acknowledge, it is dissipated by considering the
pleadings as a whole. The named employees are the
only ones mentioned in the complaint, which deals
only with employees going on strike and being de-
nied reinstatement. The charge, which is referred to
in the complaint and was served on Respondent,
identifies the employees named in paragraph 7(a) of
the complaint as those who were terminated by Re-
spondent and refused reemployment "because of
their protected concerted activities." If Respondent,
in this summary judgment proceeding, claims entitle-
LAKE CHARLES MEMORIAL HOSPITAL 1333
ment to an evidentiary hearing on the issue whether
the employees who it admitted went on strike are the
same employees whom Respondent admitted it re-
fused to reinstate, it is obliged to come forth with
facts showing that a genuine issue is present and can-
not rely on the bare and ambiguous denial in its an-
swer. Federal Rules of Civil Procedure, Rule 56(e):9
Securities and Exchange Commission v. Geyser Miner-
als Corporation, et al., 452 F.2d 876 (10th Cir. 1971).
In support of summary judgment on the issue of
whether an unconditional offer to return to work had
been made on behalf of the striking employees, the
General Counsel attached to his motion a copy of a
letter on the letterhead of the Union which on its
face appears to be addressed to Respondent's execu-
tive director and to be signed by the International
representative of the Union. This letter states that
"[o]n behalf of all striking employees of Lake Charles
Memorial Hospital, a unconditional offer is hereby
made to return these employees to work starting with
the day shift on Monday, June 20, 1977." The letter
contains the notation "CERTIFIED MAIL, RE-
TURN RECEIPT REQUESTED NO 223040" and is
impressed with a stamp mark showing its receipt in
the normal course of business by Region 15, NLRB,
on August 12, 1977.' °
Respondent does not deny that it received a letter
from the Union containing an unconditional offer to
return to work, nor does it set forth any reasons why
the letter does not satisfy the requirements of an un-
conditional offer to return to work. Instead, in its
response to the Board's Notice To Show Cause, Re-
spondent asserts that a copy of the letter was not
attached to the copy of the motion it received from
the General Counsel and that it "has no choice but to
deny the validity and authenticity of whatever docu-
The rule insofar as it relates to the obligations of the adverse parl) reads
as follows: "When a motion for summars judgment is made and supported
as provided in this rule. an adverse parts may not rest upon the mere allega-
tions or denials of his pleading. but his response. bh affidavits or as other-
wise provided in this rule, must set forth specific facts showing that there is
a genuine issue for trial. If he does not so respond. summar) judgment. if
appropriate, shall be entered against him."
Although I have not cited the remaining portion of Rule 56(ei, I have not
ignored it as my colleagues assert. I recognize the obligations of the mos ing
party under Rule 561e). but as I have indicated not only has the General
Counsel met the burden of going forward. he has In m) judgment estab-
lished a prima facie case. Again, in my judgment. the General Counsel has
clearly demonstrated by the material facts and Respondent's admissions
that there are no genuine triable issues. Furthermore. the majority has mls-
characterized my position in Florida Steel Crporalion. 222 NLRB 586
(1976). In that case, the Board inferred that respondent's denial of unlawful
conduct was not frivolous and that the General Counsel did not support his
Motion for Summary Judgment. MN position here is easily distinguishable
In this case, the General Counsel has met his burden with supporting ei-
dence
In The copy of the letter was obviously received b the Regional Office In
connection with its investigation of the charge on which the present com-
plaint s based. The charge was filed on August 3, 1977, and the complaint
was mailed on September 2, 1977.
ment it is that the General Counsel has submitted to
the Board."
It should be noted that the General Counsel's Mo-
tion for Summary Judgment contains a certification
of service which certifies that a copy of his motion
was served on Respondent's counsel by certified mail
on September 19, 1977. Presumably if the papers
served on Respondent's counsel through inadver-
tence or otherwise were incomplete or failed to in-
clude documents not in Respondent's possession,
this omission could have been readily rectified by
informal communication. Unless such an effort
proved fruitless, the Board should not be called upon
to conduct a full-blown hearing because of such an
easily remediable omission. More important, how-
ever, is the fact that Respondent carefully avoids de-
nying that it received a communication from the
Union which contained an offer on behalf of the
strikers to return to work. Certainly it knows whether
or not it has received such a communication." By
deliberately avoiding a specific denial that it ever re-
ceived such a letter from the Union and cryptically
questioning the authenticity of the letter because a
copy was not attached to the copy of motion served
on it, rather than denying it ever received such a let-
ter or specifically challenging the authenticity or va-
lidity of the letter offering the return to work, Re-
spondent does not establish that there is a genuine
issue requiring a hearing. As stated in Earle Mont-
gomer' v. John P. Ellis et al., 364 F.Supp. 517, 527
(N.D. Ala. 1973) "in the interest of expediting the
decision of cases . .. as to which there is no genuine
[issue] as to material facts, one party cannot withhold
his evidence until trial but must show, on a motion
for summary judgment, that there is a reasonable dis-
pute of facts." The court quoted from Surkin e al. v.
Charteris, 197 F.2d 77 (5th Cir. 1952), which held, in
granting a Motion for Summary Judgment, "that 'the
opposing party must sufficiently disclose what the
evidence will be to show that there is a genuine issue
of fact to be tried.'" Moreover, the majority has not
stated what facts it expects to be presented at a full
evidentiary hearing. The General Counsel, by his
pleadings, has established that the six named em-
ployees engaged in protected concerted activities.
Respondent, by its admissions, established that its
employees engaged in a strike. Thus, in this case,
there is simply nothing to hear.
Respondent has not come forward with the evi-
I The majority states that the six employees are not named in the L nlon's
letter offering an unconditional return to work. Contrar' to the majority
assertion. the pleadings clearly show that the offer was given for all striking
employees hen. curiously, the majorit states that it is unnecessary to
determine whether Respondent received such offer The majority wants it
both wass,. relying on one hand on failure to name the six employees n an
unconditional offer to return to work. and asserting on the other that it does
not reach the question of the offer
1334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dence with which it hopes to rebut the unchallenged
facts supporting the claimed violation. It apparently
regards its response to the Notice To Show Cause
why summary judgment should not be granted as an
exercise in gamesmanship by its artful dodging of the
controlling facts which the General Counsel claims
are not in dispute. I would grant his Motion for Sum-
mary Judgment.
: U.S. Government Printing Office: 1980-311 458,/4