Betances Health Unit, Inc.

National Labor Relations Board - Board Decisions

Mar 30, 1987

283 N.L.R.B. 369 (N.L.R.B. 1987)

BETANCES HEALTH UNIT
Betances Health Unit, Inc. and Betances Health
Unit Staff Association. Case 2-CA-17628
30 March 1987
DECISION AND ORDER
By CHAIRMAN DOTsoN AND MEMBERS
BABSON AND STEPHENS
On 13 January 1983 Administrative Law Judge
Raymond P. Green issued the attached decision.
The Respondent and the General Counsel filed ex-
ceptions and supporting briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions2 as modified, and to adopt the recom-
mended Order, as modified.
1. The amended complaint alleges, inter alia, that
the Respondent violated Section 8(a)(3) of the Act
by issuing employee Betty Gonzalez a written
warning on 8 October 1980 because of her union
activities. The judge found that the Respondent
issued Gonzalez this warning because she had at-
tended a meeting held on 7 October 1980 at the
National Health Service Corps at which the Feder-
al employees assigned to the Respondent were re-
minded that they were not entitled to engage in
strike activity. The judge also found that Gonzalez
obtained permission from the Respondent's medical
director to go to the meeting and that she had at-
tended in her capacity as a member of the employ
ees' Staff Association in order to counsel or assist
the Federal employees. The judge, however, con-
cluded that these Federal employees were not em-
ployees within the meaning of the Act and there-
fore that Gonzalez' activity was not protected con-
certed activity as she was not acting in concert
with individuals defined as "employees" within the
1 The General Counsel and the Respondent have excepted to some of
the judge's credibility findings. The Board's established policy is not to
overrule an administrative law judge's credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F 2d 362 (3d Cit. 1951). We have carefully examined the record and
find no basis for reversing the,findings, except as discussed herein.
2 Our decisions in Res-Care, Inc„ 280 NLRB 1670 (1986), and Long
Stretch Youth Home, 280 NLRB 678 (1986), clarified the principles under
which the Board may, in exercising its discretion,,decline to assert juris-
diction over an employer because of its relationship to an entity exempt
from our jurisdiction. Here, however, there were no exceptions to the
judge's finding that the Board' should assert jurisdiction over the Re-
spondent. Thus we need not pass on the discretionary jurisdictional-issue
in this case See, e.g., Gateway Motor Lodge, 222 NLRB 851 (1976).
Member Stephens finds, on the present record, that statutory jurisdic-
tion exists, and in view of the Respondent's failure to raise any issue of
discietionary jurisdiction, he finds it unnecessary to review this case. See
his opinion, concurring and dissenting, in Res-Care„ Inc., 'supra
283 NLRB No. 59
36,9
meaning of the Act. Accordingly, he dismissed this
portion of the amended complaint.
We agree with the judge's dismissal of this com-
plaint allegation. In doing so, however, we rely on
the following. The record shows that Gonzalez
sought permission to attend the meeting from the
Respondent's medical director, Dr. Salomon,3 who
supervised Gonzalez with respect to her medical
duties, rather than from Margaret Joyiens, the Re-
spondent's executive secretary, who supervised her
regarding administrative and personnel matters.
Further, the record shows that Dr. Salomon also
told Gonzalez to speak to Joyiens regarding, her re-
quest to attend the meeting, which Gonzalez did
not do. The Respondent issued Gonzalez a written
disciplinary warning because, as stated in the warn-
ing, she failed to follow procedures for requesting
leave. Accordingly, we find that the Respondent
did not violate the Act when it issued Gonzalez the
warning. We find no evidence that Gonzalez'
warning was related to her union activities. Ac-
cordingly,' we shall dismiss this allegation of the
complaint.
2. The amended complaint also alleges that the
Respondent violated Section 8(a)(3) of the Act
when it discharged, and thereafter refused to rein-
state, employee Burns . The record shows that
Burns was discharged following the Respondent's
decision to close the Health Connection (a.. clinic
affiliated with the Respondent and at- which Burns
was ' employed) due to a lack of funding. Noting
that the Health Connection had been closed due to
legitimate, economic considerations, the judge
found that Burn's discharge did not violate the
Act. The judge also rejected the General Counsel's
contention that the Respondent further violated the
Act when it failed and refused to reinstate Burns.
In support of this contention, the General Counsel
presented testimony from Burns regarding remarks
made to her by the Respondent's project director,
Ramos. According to Burns on 30 September' 1980,
she received a letter informing her that the Health
Connection program had been, suspended due to
lack of funding, that her position there had been
retrenched, and that she was terminated, effective 2
October 1980. At the time she received the letter;
Ramos told her that he felt ",betrayed" by the em-
ployees' walkout4 and that if she "didn't participate
3 The name of the Respondent's medical director appears as Dr. "Solo-
mon" in the judge's decision The correct spelling as based on the record,
including her signature , appears to be "Salomon "'
' The record shows that on 27 August 1980 the Respondent's employ-
ees held a meeting to discuss their concerns over working conditions and
that Burns, then on sick leave, attended the meeting over Ramos' strenu-
ous objections The employees thereafter formed the Staff Association
and presented their demands regarding working conditions to the,Re-
Continued
370 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
with the other .workers in .:. what was going on
that when they reopened the Health Connection
that [she] could come back." The judge found that
although Ramos did not specifically deny making
this statement, Burns' testimony was "too highly
improbable" to be credited in light of evidence that
the decision to close the Health Connection was of
a permanent nature. Thus, he found no violation.
As demonstrated above, the judge did not base
his findings on his observations of the witnesses'
demeanor or conduct at the- hearing. Rather, he
based his findings on his assessment of the inherent
improbability that the statement Burns attributed to
Ramos was made , The Board has held that, in con-
trast to evaluating demeanor, or the conduct of a
witness, the judge is in no better position than the
Board to assess inherent probabilities of testimony,
and that the, Board is not bound by credibility de-
terminations based on such assessments.5 Here, -we
find that the fact the Respondent knew the decision
to close the Health Connection was permanent
does not preclude a finding that Ramos told Burns
that if she did not participate in employee union
activity, she could be rehired when the Health
Connection reopened.- We note that Burns' testimo-
ny stands uncontradicted in the record and further
that Ramos was involved in both employee Zayerz'
unlawful discharge, which occurred prior to this
incident involving Burns, and in employee Garcia's
unlawful discharge, which occurred approximately
8 days after Ramos' comment to Burns. In light of
the above, and contrary to the judge, we credit
Burns' testimony on this point and further find that
the statement violated Section 8(a)(1).6 As there is
no evidence, however, that the Health Connection
ever, reopened, there can be no unlawful refusal to
reinstate Burns to that facility, or to offer her rein-
statement there as alleged in the complaint- and, ac-
cordingly, we dismiss this complaint allegation re-
garding Burns.
3. Finally, the amended complaint alleges that
the Respondent violated Section 8(a)(3) when ' it
discharged employee Pacheco for engaging in a
strike on .27 October 1980. The judge, however,
found that the strike on 27 October was unprotect-
ed .because the employee Staff Association, which
the judge had found to be a labor organization, had
spondent on 3 September. On 9 September employee Zayerz was formal-
ly notified that he was being terminated . The employees' walkout, in pro-
test of his discharge, took place on 10 September.
5 Kelco Roofing, 268 NLRB 456 (1983).
6 Although this statement was not alleged as an independent 8(a)(1) al-
legation, we find it properly before us as it is sufficiently related to the
complaint allegation regarding the Respondent 's discharge and failure to
reinstate or to offer to reinstate Bums. We also find that this matter was
fully and fairly litigated at the hearing, particularly where the record
shows that the statement was made coincident with Burns' discharge.
Photo-Sonics, Inc., 254 NLRB 567 fn. 2 (1981).
-failed to ,give the Respondent 10 days' notice of its
intent to strike as required by Section -8(g). of the
Act. He further found that the proximate cause of
the strike, i.e., the transfer of the Federal employ-
ees, was not an unfair labor practice; that the earli-
er discharge of employees Gonzalez, Feliciano, and
Morales was also not an unfair labor practice; dan
that the unfair labor "practice which he had found
here and which occurred prior to the strike, i.e.,
the discharge of, employee Garcia, did not consti-
tute such a "serious or flagrant" unfair labor prac-
tice to excuse the Staff Association's failure to
tender the requisite notice.
We agree that Pacheco's discharge was lawful
but do so for the following reason . We find that
the strike was not an unfair labor practice strike
and we agree with the judge that the failure to
give the 8(g) notice made- it an, unprotected strike.
With regard to the nature of the strike, as the
judge noted, the evidence shows that the decision
to strike on 27 October was initially prompted by
the transfer of Federal employees on 24 October
and was possibly reinforced by the discharges of
employees Gonzalez, Feliciano, and Morales on the
same date. In agreement with the judge, however,
we have not found these transfers or discharges to
be unlawful. Further, there is no evidence-to estab-
lish a causal relationship between the unfair labor
practices that we have found (i.e., the discharges of
Garcia and Zayerz,7 and the 8(a)(1) statements to
Burns) and the employees' decision to go on strike
on 27 October. On this basis, we find -that the strike
was an economic strike for which the employee
Staff Association failed to give the proper 8(g)
notice and thus the Respondent= did not violate the
Act when it 'discharged Pacheco for engaging in
the strike.
AMENDED CONCLUSIONS OF LAW
Insert the following as Conclusion of Law 5 and
renumber the remaining conclusions of law accord-
ingly.
"5. The statement to Burns that if she did not
participate in the Staff Association's activities, she
could be rehired when the Health Connection re-
opened constituted a violation of Section 8(aX'1),-of
the Act."
ORDER
The National Labor Relations Board adopts the
recommended, Order of the administrative law
7 The judge inadvertently erred in stating that he had found that only
one unfair labor practice (i.e., the discharge of employee Garcia) had oc-
curred before the 27 October strike The judge had also found the dis-
charge of Zayerz in September to be unlawful.
BETANCES HEALTH UNIT
judge as modified below and orders that the Re-
spondent, Betances Health Unit, Inc., New York,
New York, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order as
modified.
1. Insert the following as paragraph 1(b) and re-
letter the remaining pargraph.
"(b) Telling employees that if they did not par-
ticipate in Staff Association , activities , they could
be rehired when the facility at which they had
been previously employed reopened."
2. Substitute the following for paragraph 2(c).
"(c) Remove from its files any reference to the
discharges of William Zayerz on 9 September 1980
and of Martin Garcia on 9 October 1980, and
notify them in writing that this has been done, and
that evidence thereof shall not be used as a basis
for personnel actions against them."
3. Substitute the attached notice for that of the
administrative law judge.
CHAIRMAN DOTSON, dissenting.
I would remand this proceeding for further con-
sideration of whether the Board has jurisdiction
over the Respondent . See Res-Care, Inc., 280
NLRB 670 (1986), and Long Stretch Youth Home,
280 NLRB 678 ( 1986).
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 violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these
rights.
To organize
To form, join, or assist any union
To bargain collectively ' through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT discharge employees because of
their membership or activities on behalf of Be-
tances, Health Unit Staff Association or any other
labor organization.
WE WILL NOT `tell employees that if they do not
participate in Staff Association activities they could
be rehired when the facility, at which they were
previously employed reopened.
371
WE WILL NOT in any like or related manner
interfere with, restrain , or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer Martin Garcia full and immediate
reinstatement to his former position of employment
or, if that position no longer exists, to a substantial-
ly equivalent position , without prejudice to his se-
niority or other rights and privileges previously en-
joyed, and make him and William Zayerz whole
for any loss of pay they may have suffered by
reason of the discrimination against them , with in-
terest.
WE WILL remove from our files any references
to the discharges of William Zayerz on 9 Septem-
ber 1980 and Martin Garcia on 9 October 1980,
and notify them , in writing, that this has been done
and that evidence thereof shall not be used as a
basis for future personnel actions against them.
BETANCES HEALTH UNIT, INC.
David E Leach III, Esq., for the General Counsel.
Martin Schaum, Esq., of Mineola, New York, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
RAYMOND P . GREEN, Administrative Law Judge. This
case was heard by me on 9 days during April and May
1982. The charge in this proceeding was filed on Octo-
ber 31, 1980, and a complaint thereon was issued by the
Regional Director for Region 2 on April 30, 1981.
Thereafter, an amended ` complaint was issued on May
20, 1981 , and a further amendment was made during the
hearing. The issues are:
1. Whether the Respondent is an employer within the
meaning of Section 2(2), (6), and (7) of the Act, or
whether jurisdiction should not be asserted because of its
relationship with the Federal Government under the
U.S. Public Health Service and the National Health
Service Corps . Both of the named institutions are divi-
sions of the United States Department of Health and
Human Services , formerly part of the U.S. Department
of Health, Education, and Welfare.
2. Whether the Betances Health Unit Staff Association,
which was formed on August 27, 1980, is a labor organi-
zation within the meaning of Section 2(5) tof the Act.
3. Whether pursuant to a type of "poll" taken at a
meeting on September 3, 1980 , the Respondent became
aware of the Staff Associations " majority status so as to
require it to recognize and bargain with the Association
as the exclusive collective-bargaining representative of
certain of its employees in separate units of professional
and nonprofessional employees.
4. Whether, on September 3, 1980, at the aforesaid
meeting, the Respondent gave' the impression that the
372 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
union and protected concerted activities of its employees
were being, kept under surveillance.
5. Whether, at the aforesaid meeting of September 3,
1980, the Respondents unlawfully notified its employee
William Zayerz that his employment was being terminat-
ed because of his activities on behalf of the Staff Asso-
ciation. Also at issue is whether Zayerz was an employee
of Respondent or an independent contractor, and wheth-
er his subsequent discharge on September 9, 1980, violat-
ed Section 8(a)(3) of the Act.
6,_ Whether about October 1, 1980, the Respondent un-
lawfully laid off Jini Tannenhouse, Anna Burns, and Dr.
Alan Berkman because of their union and protected con-
certed activities. The General Counsel alternatively al-
leges that these layoffs were unlawful because they were
made without prior notice to and bargaining with the
Staff Association. Additionally, there is an issue about
whether Dr."Berkman was an-employee or an independ-
ent contractor.
7. Whether on October 8 and 9, 1980, the Respondent
issued a disciplinary warning to Betty Gonzalez and dis-
charged Martin Garcia because of their union and pro-
tected concerted activities.
8. Whether about October 22, 1980, the Respondent
unlawfully caused the. Federal Government to transfer
certain Federal employees from the facility of Betances
because of their union and protected concerted activities.
The employees in question are Dr,. Patricia Solomon,
Patricia Gleaton, and Ana Paez. Concerning this allega-
tion, it is noted that the three individuals involved were
Federal Government employees who were assigned to
work at the Respondent. It also is noted that there is no
doubt that regarding Patricia Gleaton and Ana Paez the
Respondent sought their transfers because they partici-
pated in, strikes and walkouts on September 10 and Octo-
ber 1, 1,980. With respect to Dr. Solomon, the evidence
indicates that the Respondent sought her transfer because
it believed that she supported the strike of October 1,
1980. Dr. Solomon, during that period of time, was part
of the management of Betances.
9. Whether the discharges of Betty Gonzalez, Nancy
Feliciano, and Elva Morales, about October 24 and 25,
1980, violated Section 8(a)(1) and, (3) of the Act.
10..Whether the Respondent violated Section 8(a)(1)
and (3) of the Act when it discharged Deborah Pacheco
about November. 1, 1980. In this respect, it is not disput-
ed that Pacheco was discharged, at least in part, because
she participated in a strike that commenced on October
27, 1980. However, as it is conceded that no 8(g) notices
were given, there is, an issue about whether her discharge
was therefore privileged.
11. Whether the Respondent violated Section 8(a)(1)
and (5) of the Act when it temporarily closed its facility
from mid-November 1980 to January 26, 1981, without
first having given notice to and affording the Staff Asso-
ciation an opportunity to bargain about that decision.
Based , on the entire record in this proceeding, includ-
ing my observation of the demeanor of the witnesses,
and after considering the briefs filed by counsel, I make
the following
FINDINGS OF FACT
I. JURISDICTION
The-Betances Health Unit, Inc, is a not-for-profit New
York corporation which operates a health clinic on Man-
hattan's lower east side. The services involved include
diagnosis, consultation, and the prescriptions of treatment
including medication. Care is administered by various
types of health' care professionals including physicians,
physician's assistants, and nurse practitioners. Basically,
the facility 'is a subsidized group medical office and
would qualify as a health-related facility within the
meaning of Section 2(14) of the Act.
Annually, .the Respondent derives " gross revenues in
excess of $250,000 and purchases -goods and materials
valued in excess of $5000 directly, from points located
ouside the State of New York.
The Respondent's operations originated in 1968 as a
health project sponsored by the Judson Memorial
Church to handle the health problems of -a transient
youth population located in Greenwich Village. At that
time, the project was completely funded by private
grants. By 1970, however, the project's administrators
took it over from the church and established a health
screening facility. (E.g., it offered tests for the detection
of tuberculosis and other diseases). By 1973, a corpora-
tion was formed and, thereafter, the Employer changed
from a screening facility to a primary care provider that
could perform medical treatment as well as diagnosis. In
late 1977, Betances applied for a Federal grant under
Section 330 of the Public Service Health Act and such a
grant was given in 1978. From that point on, about 60
percent of the money revenues received by Betances
have come from the Federal Government. The remain-
ing money came either from private grants, direct patient
payment, medicare and medicaid reimbursements, or
from insurance held by its patients. Additionally, a sub-
stantial portion of Betances' medical staff have ^ been em-
ployees of the Federal Government who have been as-
signed, cost free, to Betances. In 1980 the value of such
services was in excess of $100,000.1
As a recipient of Federal money, a variety of condi-
tions and controls were placed on Betances by the Public
Health Service. First, the project director of Betances (in
this case Paul Ramos), must be approved by the Govern-
ment. Second, pursuant to statute, the board of directors
must be composed of persons who are representative of
the community served. Third, the ,entire budget for Be-
tances is subject to approval by the Government, which
can and has set conditions on the amount of staff to be
hired and the types of people to be empl9yed.2 Regard-
1 Under the relevant statute, the National Health Service Corps.,
which employs these individuals, is supposed to be reimbursed for its
services However, it is possible for a facility like Betances to receive a
waiver of such payments: In short, Betances has been alloted three to
four health care professionals and has not had to pay for their services.
2 For example, in the grant for the period from July 1, 1981, to May
31, 1982, the following conditions were placed on Betances:
(1) The two outreach workers shall be deleted from,the budget
(2) All vacant positions including the internist position may not be
filled without prior Regional office approval.
Continued
BETANCES HEALTH UNIT
ing the budget, Passer, the director of the division of
health services delivery (a part of the U.S. Public Health
Services), testified that the Government "looks very
critically at staff levels when we review an application.
If, for example, we see too many people in one category,
or if salaries are too high, or "[they] left out an important
discipline which we feel is necessary,, we discuss with
[the] project. We ask for explanations as to why they
need for example, four medical assistants, and why they
need four doctors if productivity is at such a level." He
also testified that "if we grant money . . . our job is to
moniter through [a] project officer, to see that they are
carrying out the program .... They provide us with
semi-annual reports as to whether they are productive,
cost effective . . . we have the right, if we suspect prob-
lenns, or on request of the granter, to go in and monitor
the project on site and try to correct a situation."
In addition to the above, the Federal Government re-
quires, as a condition of a grant, that health projects,
after 2 or 3 years of operation, meet certain Federally
mandated productivity levels. -Basically these are that the
facility's physicians are required to average 4200 medical
encounters per year and that nonphysician providers
(i.e., physician assistants and nurse practitioners), are to
average 2100 medical encounters per year. As will be
shown below, if the grantee does not come up to these
minimum productivity levels, the Government will first
reduce the amount of the 'next year's grant request and
may thereafter refuse to grant any money at all. Obvi-
ously, in the case of a health unit that is dependent on
Federal money for most of its income, the failure to re-
ceive a yearly grant would almost certainly be fatal to its
existence.
Further, as a result of the somewhat unique situation
at Betances, its medical director, Dr. Patricia Solomon,
happened to be an employee of the National Health
Service Corps. That is, although she had been employed
directly by Betances prior to 1978, when Betances
became eligible for assignees from that agency, Dr. Solo-
mon became an employee of the National Health Service
Corps, As medical director, Dr. Solomon was responsi-
ble for all of the medical services provided 'and super-
vised the staff that provided such services, whether they
were employees of Betances or employees of the Federal
Government. Also as medical director, Dr. Solomon was
part of Betances' management team that consisted of her-
self, Paul Ramos, and Wanda Evans.'As part of the man-
agement group, she assisted in the formulation of the
budget, was involved in policy making, and attended
regular meetings of management.
Although it appears that it is not usual for a medical
director at these types -of facilities to be a Government
employee, this was the case - at Betances . Accordingly,
Dr. Solomon, as medical director, was responsible not
only to Betances but was also responsible to her superi-
ors in the Federal Government.
(3) No, personnel identified in this budget may be used to provide
services in any satellite or mobile facility .. .
(4) The progress of the project will be evaluated for continuation
purposes on January 1, 1982 and June 30, 1981 . If Betances fails to
be in full compliance by December 21, 1981 the project will not be
continued.
373
Notwithstanding the above, there are facts that would
mitigate against a conclusion that Betances was totally
under the control of the Federal Government. Although
the Government reviewed Betances' proposed budgets, it
did not as a practical matter tell Betances what salaries
or fringe benefits it should pay to its employees, provid-
ed that such salaries and benefits fell within broadly ac-
ceptable parameters. Second, although the Government
appointed a project officer to monitor Betances' activi-
ties, the day-to-day operations were left to Respondent's
own management. Third; although the Federal Govern-
ment was vitally concerned with Betances' productivity
levels, it nevertheless did not require Betances to take
any specific action to deal with this problem and left its
solution to Betances' management . (Unfortunately, Be-
tances never did solve the ,problem and ultimately lost
the Federal grants.) Fourth, although Betances' medical
director, Dr. Solomon, was also a Federal employee, the
evidence indicates that this was a matter of happen-
stance, and that insofar as she functioned as part of man-
agement, that role was, in reality, neither monitored nor
supervised by her superiors in the Federal Government.
Thus, as a person having two hats, it nevertheless seems
that Dr. Solomon did not play her management role
while wearing her Federal Government hat. Fifth, al-
though the board of directors were required to be repre-
sentative of the community, there is no evidence that
they acted' under the control or influence of, the Federal
Government. Finally, apart from those employees who
were employed by the Federal Government (the, NHSC
assignees), there is no evidence to suggest that the Feder-
al Government was involved in Betances' labor or per-
sonnel relations vis-a-vis its own staff.3 -
Section 2(2) of the Act exempts from Board jurisdic-
tion "the United States or any wholly owned Govern-
ment corporation, or, any Federal Reserve Bank, or any
State or political subdivision thereof." As a private cor-
poration, the Board would normally assert jurisdiction
over a health facility such as Betances assuming that it
met the appropriate monetary standards established by
the'Board. The problem here,,however, is whether juris-
diction should be precluded because of Betances' connec-
tion with the Federal Government, which by any defini-
tion cannot be described as insignificant.4
In National Transportation Service, 240 NLRB 565
(1979), a Board majority spelled out its test for determin-
ing whether jurisdiction should be asserted or denied in
cases when the entity in question has ties to an institution
that would be exempt under Section 2(2) of the Act. The
Board stated:
We see no need to examine the relationship between
an employer and an exempt entity for which it per-
forms services for some abstract "intimate connec-
1, Although not dispositive, the evidence shows that a number of other
health facilities that are Sec. 330 grantees maintain collective-bargaining
relationships with labor organizations that represent certain of their em-
ployees.
4 As Betances' connection is with the Federal Government rather than
a state government , it cannot be argued that Betances should Ibe consid-
ered as a State political subdivision. Radio Free Europe, 262 NLRB 549
(1982).
374 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tion" which has no bearing on the employer's abili-
ty to bargain effectively with a labor organization
as representative of its employees and which re-
quires a meticulous and, in our view, superfluous
analysis of the facts in order to ascertain whether in
the Board's opinion the employer's service are es-
sential to the' purposes of the exempt entity, univer-
sally recognized as a government function, statutori-
ly mandated or non-commercial in nature.
Accordingly, we conclude that the "right of con-
trol" test provides a more objective, precise, and
definitive standard for determining discretionary ju-
risdictional issues than the "intimate connection",
test.
As to the application of the "right of control" test, the
Board made it plain that what it was concerned with -was
"whether the nonexempt employer retains sufficient con-
trol over its employees' terms and conditions of employ-
ment so as to be capable of effective bargaining with the
employees' representative."
A recent case, Youth Guidance' Center, 263 NLRB 549
(1982), will serve to illustrate the application of the
Board's right-of-control test in circumstances very simi-
lar to those in the present case. In Youth Guidance
Center, the employer was a private nonprofit corporation
that operated ' a center that provided outpatient mental
health services, including diagnosis, treatment, consulta-
tion, and educational services. Among the persons who
provided these services were psychologists, psychiatrists,
social workers, nurses, and teachers. Approximately one-
third of its budget came from the Department of Mental
Health of Massachusetts, the remainder coming from pa-
tient payments, third-party insurance, medicaid, and
small private donations. In operating the clinic the center
employed its own employees, but additionally the Com-
monwealth of Massachusetts assigned various state em-
ployees to work,'at the Center, including certain supervi-
sory and managerial personnel. As the Board concluded
that the employer nevertheless "controlled" the labor re-
lations vis-a-vis its own employees, it held that the pres-
ence of state employees at the Center in' supervisory and
managerial roles, was not sufficient to warrant withhold-
ing jurisdiction. In this regard the Board stated, inter
alias
In these circumstances, we conclude that the As-
sociation has not ceded control of its employees
merely because some supervisors are employees of
the Commonwealth inasmuch as these supervisors
apply only Association-determined policy to Asso-
ciation employees, and thus are acting in this regard
as Supervisors for the Association. Nor is the Asso-
ciation's control of its employees lessened because
DMH [Department of Mental Health] makes site
visits to the Center, and the Association files peri-
odic reports or quality assurance evaluations to
which DMH is entitled as a contracting agency.
Consequently, such contracts do not constitute ef-
fective participation or day-to-day supervision of
the Association's employees.
In view of National Transportation Service, supra, and
Youth Guidance Center, supra, it is my opinion that Be-
tances would meet the Board's right-of-control test for
asserting jurisdiction. As there is no dispute about the
fact that Betances meets the monetary standards for as-
serting jurisdiction over similar entities,5 it therefore is
concluded that Betances is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act. It also is concluded that Betances is a health-
related facility within the meaning of Section 2(14) of the
Act.6
IL THE LABOR ORGANIZATION INVOLVED
The second issue presented is whether the Betances
Health Unit Staff Association (Staff Association) is- a
labor organization within the meaning of Section 2(5) of
the Act. This question is of course a foundation issue re-
garding the 8(a)(5) allegation. It also is relevant to the
issue of the discharge of Deborah Pacheco who was dis-
charged about October 27, 1981, because of her partici-
pation in a strike that concededly was not preceded by
the notices required by labor organizations pursuant to
Section 8(g) of the Act.7
To the extent that it may be said that an organization
came into existence, this occurred on August 27, 1980.
As noted below, on this date certain employees of Be-
tances met at the home of employee William Zayerz. At
this meeting, there were nine employees in, attendance,
plus Federal employees Ana - Paez and Patricia Gleaton
and former employee Milagros Sanchez. It was estab-
lished that the employees present decided to call them-
selves, collectively, the Staff Association and that they
elected a grievance -committee. Also, a set of demands
were discussed for presentation to Betances on Septem-
ber 3.
The evidence shows that the Staff Association present-
ed initial demands to management on September 3 and
5 See Youth Guidance Center, supra.
6 Subsequent to the close of the hearing, I was advised by the General
Counsel that on July 7, 1982, Betances was notified by the Public Health
Service that no further grants would be made or given after October 31,
1982. I do not know what has since transpired.
7 If the Staff Association is not a labor organization, it would be a
simple matter to conclude that the discharge of Pacheco was violative pof
Sec. 8(axl) of the Act.
However, Sec. 8(g) provides that
A labor organization before engaging in any ' strike, picketing, or
other concerted refusal to work at any health care institution shall,
not less than ten days prior to such action, notify the institution in
writing and the Federal Mediation and Conciliation Service of that
intention, except in the case of bargaining for an initial agreement
following certification or recognition the notice required by this sub-
section shall not be given until the expiration of the period specified
in clause (B) of the last sentence of Section 8(d) of this Act The
notice , shall state the date and time that such action will commence.
The notice, once given, may be extended by the written agreement
of both parties.
Sec. 8(d) of the Act provides in pertinent part:
Any employee who engages in a strike within any notice period
specified in this subsection, or who engages in any stake within the
appropriate period specified in subsection (g) of this section, shall
lose his status as an employee of the employer engaged in the par-
ticular labor, dispute, for the purposes of sections 8, 9, and 10 of the
Act [Sections 158,159, and 160 of this title], but such loss of status
'for such employee shall terminate if and when he is reemployed by
such employer.
BETANCES HEALTH UNIT
presented revised demands on September 11. Among the
demands was one calling for recognition of the grievance
committee described above.
Subsequent to September 3, the group held a further
election to replace certain people who originally were
elected to the grievance committee. Also the grievance
committee met with the Respondent on September 10 re-
garding the discharge of William Zayerz. It also engaged
in strikes in furtherance of various of its demands,
Apart from the above, the evidence establishes that the
Staff Association never had a constitution or bylaws,
never kept minute's 'of its meetings , and never filed any
reports with either the Federal or State Departments of
Labor. It had no formal membership as such, as no
person ' ever executed any type of document evincing
their membership in the organization or their desire to
have it represent them for collective-bargaining pur-
poses. Also no dues or initiation fees were paid by any
individual, and apart from those people who were elect-
ed to the grievance committee, no persons were elected
to or occupied any officer positions in the organization.
Indeed, no formal structure of any type existed.
Section 2(5) of the Act defines a "labor organization"
as follows:
The term "labor organization" means any organi-
zation of any kind, or any agency or employee rep-
resentation committee or plan, in which employees
participate and which exists for the purpose, in
whole or in part, of dealing with employers con-
cerning grievances, labor disputes , wages, rates of
pay, hours of employment , or conditions of work.
Although not having any formal structure , it seems to
me that the Staff Association was nevertheless an organi-
zation of a kind ., In this regard, the Board has held that
"formal structure or organization is not an essential req-
uisite for fording a labor organization ." Columbia Transit
Corp., 237 NLRB 1196 (1978); Butler Mfg Co., 167
NLRB 308 (1967). It also is evident that employees have
participated in this organization . Regarding its purpose,
it is clear from the two sets of demands issued to the
Employer and its actions since August 27, that the Staff
Association has existed for a purpose of representing em-
ployees concerning grievances„ labor , disputes, or condi-
tions of work . That such purposes have not come to frui-
tion would not,bar a conclusion that it was a labor orga-
nization. Litton Business Systems, 199 NLRB 354 (1972).
'Nor barring such a conclusion is the fact that it never
filed documents with the Department of Labor, such fil-
ings being relevant only when and if the Staff Associa-
tion ' becomes the collective-bargaining representative of
Respondent's employees . Comet Rice Mills, 195 NLRB
671, 674 (1972).
In view of the above, it is concluded that the Staff As-
sociation was a labor organization within the meaning of
Section 2(5) of the Act.
III. THE OPERATIVE FACES
375
A. Background
As noted above, a majority of the Employer's income
is derived from the Federal Government. In the spring
of 1980, Betances was notified by the Public Health
Service that the full amount of its grant application
would not be given. The amount granted was $325,000
as compared to $318,500 granted the previous year,
However, the amount requested for the period from June
1, 1980, to May 31, 1981, was in excess of $450,000 and
it appears that the principal reason for not granting the
full amount requested was that the.Public Health Service
was not satisfied with the productivity of Betances. As
noted above, Betances, pursuant to the Federal guide-
lines, was required to have a minimum of 4200 medical
encounters per year per physician and 2100 medical en-
counters per year per midlevel practitioner. According
to Benard Passer, it was his opinion that Betances had
serious problems relating to productivity and cost per pa-
tient encounter. He testified that the physicians at Be-
tances were less than minimally productive and - that to
solve the problem, Betances either had to reduce the
number of physicians or to increase the number of pa-
tients coming to the Center. Arthur Fernandez, the Fed-
eral Government's project officer for Betances, testified
that during the summer of 1980 there was serious consid-
eration by his superiors for terminating all future grants
to Betances because of the productivity situation.
As a result of the bad news, Paul Ramos held a meet-
ing with the staff in May 1980 to discuss the budget situ-
ation and the productivity problems. At this meeting the
employees were notified of the budget and productivity
situation, but were told that it was not anticipated that
anyone would be laid off. Also, the employees were
urged to canvass the community to get community lob-
bying for additional money from the Government. In a
memorandum to employees dated May 27, 1980, Ramos
stated, inter alias
Most of you are also aware that Betances submit-
ted an application for funding of our third year pro
gram on March 1, 1980. We requested $452,000
from the UHI for the FMP and $251,000 for the
medical component. The total operating budget is
$703,000. The remainder of the funds are generated
by earned income (patient fees, Medicare and Med-
icaid, etc.) and private grants. I am happy to report
that both applications have been approved and
funded. The NHSC will continue funding of our
four practitioners at the level _ requested by Be-
tances. What I am not, happy to report is that while
the UHI application was approved (and recom-
mended by an HEW Objective Review Committee
for funding at the level requested) the final grant
award will be $325,000 which is $127,000 less than
what we need to operate Betances. In fact, the
funds cannot even pay for the cur ent staffing pat-
tern and other costs such as rent, supplies,' equip-
ment, telephone, etc.
376 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
This memorandum is not intended to alarm
anyone, staff or patients . It is the conviction of us
all to fulfill our committment to serve the people
with the best medical/social care we can. I am told
that the actual level of 'funding is determined by
several considerations including the amount of
monies available and the number of programs re-
quested . One other consideration is the productivity
of the Unit (number of patients we serve) and its ac-
curate reporting.
The funding problem , though presently serious, is
not one that we cannot overcome. However, if a
major reorganization of those problem areas does
not correct the deficiency, the results are potentially
devastating to staff and patients alike . Betances,
unlike most other health programs , does not have a
deficit (and never has in its 10 year history), has
never had a payless pay day and has never laid off
staff because of lack of funds. I'm determined not to
let this -happen now either . I'm sure you share this
determination and the notion that tolerance, coop-
eration and the participation of us all is essential.
It is possible that midway through the program
year we can receive a supplemental grant which
can relieve the pressure but this is determined by
several factors . They include an increase in patient
volume, patient fee and Medicaid/Medicare collec-
tions, as well as an efficient management informa-
tion system and its accurate reporting. This is the
area that is the most deficient, thus the first order of
business is to deal with,this problem.
The entire .program and its procedures , including
medical, clerical and administrative functions must
be closely re-examined. This process will take place
in several phases and will begin immediately. This
will be explained and discussed in detail in a subse-
quent memo. As far as funding from the private
sector is concerned, there is additional good news.
Since September, 1979, four private foundations
(the Public Welfare Foundation, Booth Ferris
Foundation, PBP Foundation and Surdua Founda-
tion) have awarded grants to Betances as the result
of proposals submitted to them . Betances has re-
ceived a total' of $63,500 to date. The money will be
used toward administrative costs, patient care and
especially for the Health Connection, which has his-
torically suffered greater funding hardships than the
'Practice.
If it's any consolation to us all, it will be interest-
ing to note that our funding problem is minor com-
pared to that of most health programs, like commu-
nity health centers and other UHI 's that are also
funded by the Feds. One center in the Bronx had to
lay off over 30 staff workers because of declining
patient enrollment and management problems. Still
others have such huge deficits that they have had to
default on their debts in order to maintain oper-
ations; thus losing their credibility in the purchasing
community (which is always disastrous to the sol-
vency of an agency). Betances, however, does not
have to worry about a present deficit and it enjoys
AAA credit rating in the financial community.
It therefore is apparent that notwithstanding Ramo's
expression of guarded optimism to his employees in May
1980 , it was increasingly evident , in light of Arthur Fer-
nandez' testimony , that Betances stood at the brink of ex-
tinction.
In the early part of the summer of 1980, an employee
named Milagros Sanchez was discharged at a separate fa-
cility of the Employer called the Health Connection.,,
Although the reason for her discharge is not relevant to
this case, it does -appear to have generated a degree of
unease among some of the employees . Also, her dis-
charge resulted in a series of anonymous letters, which,
among other things, accused the administration of nepo-
tism and "corrupt" practices . These letters also com-
plained about "arbitrary firings" and the lack of a griev-
ance committee or procedure at Betances . One of the let-
ters was particularly accusatory of Roni Ramos , the wife
of Paul Ramos , who worked at the Health Connection as
a registered nurse. Ramos chose not to reply to these let-
ters that were issued by "Les Comitte To End Worker
Abuse."
Also during the summer of 1980, the- management
committee consisting of Paul Ramos , Wanda Evans, and
Dr. Solomon, held a number of meetings to deal with the
budget and productivity problems. According to Wanda
Evans, it was the opinion of management , at that time,
that the current staffing level could be maintained under
the existing grant9 if no salary increases were given and
assuming that other sources of money (i.e., medicare,
medicaid, third-party payments, and direct patient pay-
ments), met the projected levels set forth in the proposed
budget. Thus, according to Evans, it was the consensus
to defer making any hard decisions and to hope that Be-
tances' request for a supplemental grant of $127,000
would be approved. According to Dr. Solomon (one of
the General Counsel's principal witnesses), there also
was discussion during the summer among the manage-
ment group to the effect that if push came to shove, the
Health Connection should be closed, that' Zayerz' job
was expendable,10 and that of any practitioners had to
be let go, then the ones selected for layoff would be
those not paid by the Federal Government (i.e., Dr.
Berkman and Jini Tanneshouse). Notwithstanding the
fact that major decisions were deferred , the evidence
does show that certain procedures were tightened up
during the summer', especially in an attempt to control
excessive absenteeism and tardiness.
8 The Health Connection was a satellite facility located in a settlement
house and was set up to provide certain health and welfare education
services for adolescents.
9 Evans testified that the request for $450,000 was in part to hire addi-
tional staff and purchase new equipment
10 Zayerz concedes that during the summer of 1980, Ramos suggested
that as Zayerz had obtained a Masters of Social Work , he should apply
to the National Health Service Corps so that he could be paid by the
Government rather than by Betances Zayerz also conceded that in
August 1980, Ramos told him that there soon might not be funds avail-
able for his position
BETANCES HEALTH UNIT
B. Formation of the Staff Association and its
Demands
On August 27, 1980, the staff decided to hold a meet-
ing to discuss the situation at the Health Connection in-
cluding the discharge of Milagros Sanchez. It appears
that this meeting was also called, in part, to discuss some
of the allegations contained in the anonymous letters.
Anna Burns was invited to attend because she was em-
ployed at the location. (Burns was, however, absent for
much of July and August because, as she put it, she had
broken a finger on her left hand and she suffered pain
after it had been set.) When Burns came to the meeting,
Paul Ramos came into the room and strenuously object-
ed to her presence. When the meeting broke up soon
thereafter, a number of the employees went to Zayerz'
home, where they decided to form a Staff Association
and a grievance committee. According to Betty Gonza-
lez, the individuals who participated in this second meet-
ing were herself, William Zayerz, Nancy Feliciano,
Anna Burns, Lisa Garcia, Ann Rosado, Elba Gonzalez,
Dr. Alan Berkman, Jini Tannenhouse, and former em-
ployee Milagros Sanchez. Ms. Gonzalez testified that in
addition to forming the Staff Association, a grievance
committee was elected and a set of, demands were draft-
ed for presentation to Betances on September 3, 1980.
In connection with the above, it is noted that no em-
ployees signed any kind of document evincing their
membership in the Staff Association or evincing their
intent to have the Staff Association represent them for
collective-bargaining purposes.
C. The Meeting of September 3, 1980
Normally, general meetings are held in the first week
of every month. Except for a few people who were
absent on this day (Martin Garcia, Dr. Berkman, and
Anna Burns), the entire staff and administration of Be-
tances was present. Also present were Board Members
Daniel Gonzalez and Bertrum Beck.. During the meeting,
either or both Beck or Ramos said that they heard that a
set of demands was going to be presented. At, this point,
Deborah Pacheco read the demands that were as fol-
lows:
We the staff demand that Paul Ramos and all
other administrators at Betances begin to treat each
and everyone of us with respect, dignity and con-
sideration. The outrageous manner in which Paul
Ramos acted towards our co-worker Ann Burns on
the afternoon of August 27 was not an isolated inci-
dent. On numerous occasions Paul Ramos and/or
other administrators have subjected staff to similar
verbal abuse and/or intimidation. This and other
forms of harrassment must cease now.
We the staff demand that our co-workers: Ann
Burns, Milagros Sanchez and Andres Rosadoll be
immediately reinstated, and a public apology be
made to each individual and Milagros Sanchez re-
ceive back pay retroactive to the day of her unjust
11 It appears that Anna Burns, as of September 3, 1980, was on suspen-
sion It also appears that Andres Rosado had resigned in August.
377
firing. We the staff believe that these firings were
unjust and without recourse, and were motivated in
an effort by Paul Ramos to protect Roni Sherman
Ramos, the catalyst which led to this chain of
events. We further believe that Rani Sherman
Ramos' presence at Betances is a conflict o F interest.
We the staff demand that Roni Sherman Ramos
no longer be employed at Betances. We the staff be-
lieve that Roni Sherman Ramos has been responsi-
ble for much of the turmoil and injustice at Be-
tances and that these injustices are a direct result of
her presence at Betances.
We the staff demand the recognition of our
Grievance Committee. The unjust firings and nega-
tive situations that have been created and allowed
to flourish by the administration necessitated the
staff to act in its own behalf. As such we have
elected ,a committee composed of workers who will
act in our behalf as liaison between administration
and staff. Betances is a federally funded program
and as such all funding information is a matter of
public record, yet staff workers never know what
the real situation is with the budget. The inconsist-
encies of the administration regarding hiring prac-
tices, raises, starting salaries, evaluations, payroll,
personnel and other policies which have caused
workers concern must be investigated by the Griev-
ance Committee with the power to rectify all dis-
crepancies.
After the demands were read by Pacheco, Bertrum
Beck asked if the staff supported the demands. One of
the employees, Grace Butler, said that she did not sup-
port them, whereupon Beck said that everyone Who sup-
ported the demands should stand up. At this point Wil-
liam Zayerz objected and asked if immunity would be
granted to those employees who supported the demands.
Beck said yes. Zayerz then suggested that instead of indi-
cating support for the demands by standing, those per-
sons who opposed' the demands should stand, Beck
agreed and the "vote" was taken, in which those em-
ployees who' were not in favor of the groups of demands
stood up. According to Betty Gonzalez, of the people
present, 13 stood up and 8 remained seated.1 a No tally
was made and the vote was not broken down so as to
separate which ofthe demands the people supported and
which they did not. Also, the entire group, as a group,
was asked to indicate their support or opposition to the
demands and no distinctions were made between profes-
sional and nonprofessional employees or between super-
visors and employees. Additionally, the Federal Govern-
ment employees participated in the "vote."
12 According to Gonzalez, the standees were Paul Ramos, Roni
Ramos, Wanda Evans, Norita Zayas, Dr. Solomon, Paul Rivers, Marga-
ret Joyiens, Carmen Altus, Grace Butler, Judy Studer, Lisa Garcia,
Alloto Reyes, and Dr. Peter Alpert. She testified that those who re-
mained seated were herself, Nancy Feliciano, Ana Paez (a Federal em-
ployee), Jmi Tannenhouse, Patricia Gleaton (a Federal employee),
Andrea Rosado, William Zayerz, Deborah Pacheco, and Elba Morales.
As noted above, it appears that Dr. Berkman, Anna. Burns, and Martin
Garcia were not present
378 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Also at the meeting on September 3, 1980 , Ramos, at
some point after Zayerz spoke, told Zayerz that there
was no more money for his position and that he there-
fore would no longer be employed.
D. Events Between September 4 and 11: the Discharge
of William Zayyerz,, the Strike of September 10, and
the StaffAssociation 's Revised Demands
'Employee Martin Garcia testified that on September 4,
Paul Ramos visited his home . He states that Ramos told
him that he should watch his step, that Ramos had
helped him in the past, and that Garcia should not go
against him. Garcia states that he told Ramos that al-
though he liked Ramos, he also liked the employees, and
could not see Ramos doing bad things because that
would . not be right. According to Garcia, Ramos re-
sponded by saying, "If that's what you want ." (Ramos
did not controvert Garcia's testimony.)
On September 5 a group of the employees again met
in the building where Zayerz lived and discussed their
next step . At this meeting , Garcia was elected to be on
the grievance committee. It was also decided that a
strike would take place unless Zayerz' termination was
retracted.
On September 9 Zayerz was formally notified that he
was being let go . According to Zayerz, Ramos told him
that there were no funds for his position and that he
could not have Zayerz working because he was not loyal
to Ramos. Zayerz states that Ramos told him that if Be-
tances received more funds , he was not going to give
them to someone who was disloyal. (It is possible, how-
ever, that Ramos' statement of disloyalty centered on the
demand that Ramos ' wife be terminated .) This conversa-
tion was not denied by Ramos . At this point, Zayerz was
handed a letter by Ramos that read:
This is to inform you that, effective Wednesday,
September 10, 1980 , your employment at Betances
is terminated. The reason for this unfortunate deci-
sion is simply that Betances is no longer in a' posi-
tion to meet your fee as consultant.
This past June we discussed the fact that your
field placement from the School of Social Work at
Stonybrook was over-in May. I then informed you
that Betances had been underfunded by the Federal
government and, therefore , would not be able to
employ you full time . Thus, your tenure could not
be guaranteed beyond September 1, 1980 . We ver-
bally agreed that you'would remain at Betances as a
consultant in community relations until the begin-
ning of September . In the interim , you would be
completing application to the National Health Serv-
ice Corps for an assignment here . Had you been ac-
cepted into the Corps and placed at Betances, they
would have picked up the costs of your full time
pay, as in the case of our practitioners. While we
had hoped this would happen, unfortunately things
did not work out.
I have been in contract with the NHSC and they
informed me that they do not have your application
on file. Since you stated you in fact have submitted
an application , I strongly suggest you follow up on
this.
The fact remains, however, that Betances is
unable to continue the present arrangement for the
reasons given herein.
While your status here has been that of consult-
ant, as such you are not entitled to separation pay.
However, in recognition of your past service and
committment to the organization, -Betances will pay
you through September 18, 1980.
While I cannot make any specific committment at
this time, if you look into the National Health Serv-
ice Corps situation, we will give it every consider-
ation when the time comes.
With respect to the contents of the above letter, I have
indicated above at footnote 10, that Zayerz has conceded
that during the summer, Ramos had told him that there
might not be enough money for his position and that
Ramos suggested that ' Zayerz make an application for
employment with the National Health Services Corps.
He denies, however, that he had been specifically told by
Ramos that his employment would end in September.
On'the morning of September 10, a group of employ-
ees met with Paul Ramos. The employees involved were
Dr. Berkman , Ana Paez, Betty Gonzalez, Martin Garcia,
and Nancy Feliciano . Dr. Berkman acted as their spokes-
man. According to Dr . Berkman, when the group asked
for the reinstatement of Zayerz, Ramos said that he had
been "retrenched" for economic reasons, and that this
had been pending for some time. Dr. Berkman states that
he reminded Ramos of the latter's assurances in May to
the effect that there were not going to be any cutbacks
despite the funding level. According to Dr. Berkman, the
discussion became heated, whereupon Ramos said that
Zayerz had betrayed him, that Ramos had taken Zayerz
in when Zayerz needed a job, that Zayerz has- been to
his home, and that Zayerz was stabbing him in the back.
When asked if Zayerz could at least be reinstated until
the board of directors met, Ramos said no. At this point,
according to Dr. Berkman , he told Ramos that the em-
ployees were going to strike and Ramos said that they
could not do that. At the conclusion of the meeting,
some of the employees went on strike. Included in the
strikers were Federal employees Ana Paez and Patricia
Gleaton.13
During the September 10 walkout, Danny Gonzalez, a
member of the board, met with the strikers in an ' attempt
to mediate the problem and get the people back to work.
As a result of these meetings, it was agreed that Zayerz
would be reinstated pending a meeting of the board of
directors to be held on September 15. In consideration
thereof, the strikers agreed to return to work. On Sep-
tember 11 all the strikers returned to work, including
Zayerz. However, on September 10, Betances had con-
13 The other persons who participated in the September 10 walkout
were Betty Gonzalez, Nancy Feliciano, Elba Morales, Elba Gonzalez,
Deborah Pacheco, Jini Tannenhouse , Jose Luces, and Dr. Berkman.
Needless to say, employees of the Federal Government are prohibited
from engaging in strikes Postal Workers Y. Postal Service, 110 LRRM 2704
(9th Cir. 1982). 5 U.S.C. § 7311.
BETANCES HEALTH UNIT
tacted the National Health Services Corps to register a
complaint about the participation in the strike by Federal
employees Paez and Gleaton.
According to Zayerz, when he returned to work on
September 11, he had another conversation with Ramos.
He testified that Ramos said , "You can 't do this to me
and get away with it." Zayerz also states that during this
conversation Ramos ' accused him of being responsible for
the anonymous letters previously described . Zayerz
denied that this was so.
On September 11 the Staff Association revised its de-
mands preparatory to the board of director's meeting to
be held on September 15. The revised demands read as
follows:
We are taking worker -community control and
demand the following:
1. Recognition of our Grievance Committee
2. The immediate termination of Roni Ramos
from Betances and the Health Connection.
3. The reinstatement of the workers Milagros
Sanchez and Andres Rosado.14
4. The immediate removal of Paul Rivers and
that job be opened up and posted in the community.
5. The breaking up of the Administrative family
click.
6. Opening up the Board to truly reflect our
Community.
Grievance Committee Members:
Martin Garcia
Alan Berkman
Betty Gonzalez
Ana Paez
Nancy Feliciano
Alternates:
Billy Zayerz
Debbie Pacheco
E. Events on September 15: Meeting Between Board of
Directors and Employee Group; Letter Denying
Request for a Supplemental Grant
On September 15 the board of directors of Betances,
along with Paul Ramos , met with a committee of em-
ployees, whose spokesman was Dr. Berkman . At this
meeting, Dr. Berkman asked for the reinstatement of Mi-
lagros Sanchez and William Zayerz . He also set forth the
position of the Staff Association that Roni Ramos should
be fired because of her alleged "destructive and divisive"
role at the center. 15 At one point during the meeting,
Ramos became angry and called Dr. Berkman an ob-
scene name . Ramos was calmed down by Beck. In re-
sponse to the Staff Association's demands set forth
14 As noted above, Milagros Sanchez had been discharged early in the
summer of 1980. Andres Rosado, who worked at the Health Connection
hall, resigned before the Staff Association was formed
It is of some interest, although perhaps not relevant, that the revised
demands track the demands made in the anonymous letters distributed in
July and August 1980. '
15 It is not clear froth this record whether Roni Ramos was a supervi-
sor as defined in Sec. 2(11) of the Act
379
above, Board Member Gonzalez read a written docu-
ment that stated, inter alia:
The Board is, of course , cognizant of the recent
difficulties at Betances and wants to do everything
in its power to resolve those problems which gave
rise to the current situation . Failing to radically im-
prove the situation immediately may well result in
the loss of Betances to the community . The Board
knows it does not have to remind the staff how
fragile a structure is one that depends in these times
entirely on federal funds with an occasional grant
from a foundation... .
In respect to your demand that the grievance
committee be recognized, we are basically sympa-
thetic and will recognize a grievance committee. In
order to move in this direction, we, of course, need
to know, how the grievance committee is to be se-
lected and whom it represents . We're sure you can
appreciate the difference between the function of a
grievance committee that might be representative of
a portion of the staff and the function of a commit-
tee which represents the whole staff. We know you
can appreciate the difference between a grievance
committee that may be composed of persons who
select themselves and a grievance committee select-
ed by the entire staff. In summary , we will recog-
nize a grievance committee that represents all staff
excluding Executive 'Director , Medical Director
and Fiscal Officer. The rights and responsibilities of
such a committee can only be determined after
there is greater clarity concerning the mode of elec-
tion or selection and discussions between the Com-
mittee and the Board.
In respect to the staff demand that the Board be
truly reflective of the community, we are also re-
sponsive. An examination of the roster of the cur-
rent Board will demonstrate that practically all of
the members are representative of the community.
There are only three persons who do not fall within
that category and they are all former residents of
the community. Our major source of funds sets up
specific requirements concerning the composition of
the Board and we are in full compliance with those
requirements . At the proper time our Nominating
Committee will 'be glad -to entertain any suggestions
of individuals who might be interested in serving on
the Board.
The Board regrets that the staff demands single
out Ms. Roni S. Ramos as a particular target. The
Board is deeply appreciative of the enormous con-
tribution which Ms. Ramos has made to the evolu-
tion of Betances through the years, long before it
was even possible to employ many of the people
who are now working at Betances . The Board
would view the loss to Betances of Ms. Ramos'
services as a major loss. Therefore , the Board will
not accede to the staffs demand that Ms. Ramos be
terminated as an employee at Betances.
380 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In respect to Mr. Paul Rivers, the Board is un-
willing to accede to the staff demand. Mr. Rivers is
employed as a consultant in order that he may use
his special skills and talents in the interest of Be-
tances . . . . Management is held responsible not
only by the Board but by the sources of funds for a
certain level of performance. This accountability
must be accompanied by certain prerogatives.
Amongst these prerogatives is the right to hire for
positions without tenure and for limited periods of
time individuals who will work as consultants. Any
permanent position will be posted for staff and com-
munity to apply.
In regard to Milagros Sanchez, the Board under-
stands that management terminated Ms. Sanchez's
employment because of questions of work perform-
ance. The staff believes that Ms. Sanchez was arbi-
trarily and unfairly dismissed . . . . Since one of
the major tasks required of Ms. Sanchez was cleri-
cal skills as defined by the program needs, the
Board proposes that if Sanchez wishes there be an
objective, evaluation of Ms. Sanchez's clerical skills.
There are clerical tests readily available and clerical
skills can be objectively, measured. If Ms. Sanchez's
skills are at a level appropriate .for the position she
held, then the Board would propose a settlement
which would be based on the premises, that there is
not sufficient evidence to support management's
contention. If, on the other hand, Ms. Sanchez's
skills are found to be below the level required, it
would be necessary to conclude that Ms. Sanchez is
not able to perform within the job require-
ments... .
With respect to Mr. William Zayerz and the clin-
icalstaff walkout of September 10, 1980 the Board
recognizes that the job action was a direct result of
Mr. Zayerz's termination at Betances as a field
placement. We have reviewed managements ration-
ale (as stated in the letter of termination) for such
termination as well as the operating budget for the
current fiscal year. The Board agrees with manage-
ment, that there are insufficient funds to maintain
Mr. Zayerz on the payroll beyond September 18,
1980. Thus, Mr. Zayerz's notice of termination still
stands.
Staff is expected to be at their jobs on -time per-
forming their assigned duties. Any, action on the
part of any staff which stops or hinders the safe
functioning of Betances will be considered by the
Board of Directors and management as an automat-
ic resignation on the part, of that staff person. Fur-
thermore, it-should be understood that any National
Health Service Corps designee who participates in
any action that stops, prevents. or hinders the safe
operation of Betances will be,immediately reported
to the Regional 'Office for disciplinary action.
Also,, on September 15, the Federal Government offi-
cially denied Betances' requests for supplemental funds.
In a letter to Betances, Arthur Fernandez wrote:
I wish to express my thanks to you and your staff
for your kind attention during my visit 'to Betances,
'September 4th. -
I thought it would be appropriate for me-to out-
line my concerns-related to your project so that you
may use , them as a guide for the next Budget
Period.
As you know, your total budget request, was for
$452,206 and you were awarded only $325,000. As
we discussed at Kerhonkson, we had hoped to re-
store the additional funds, but quite frankly we have
trouble justifying additional funds. Consequently,
we don't believe that we will be able to restore
very much of the $127,000 difference.
Betances' Application, was reviewed by regional
office staff and was found to be heavy on personnel.
The BCRR for the last reporting period revealed
that your productivity was actually low. Physician
encounters, for example, were annualized to 2213
and the minimum normal rate is 4200.
This resulted in a high cost per encounter of
$44.21. [T]he maximum norm for that is $24.00.
In addition, your administrative cost are running
21% while the norm is 16%.
As you know, these program indicators are the
basis for our central office to allocate funds to the
regions. The region has established policy to moni-
tor these closely in order to save as much of our
funding levels as we can. 16
F. The Termination of Dr. Berkman, Anna Burns;
and Jini Tannenhouse
According to Wanda Evans , the September 15 letter
from Fernandez promoted a series of managerial meet-
ings to deal with the funding and productivity problems.
She credibly testified that in light of the Government's
rejection of the supplemental grant, decisions no longer
could be deferred . According to Evans, although it had
been hoped, during the spring and summer -of 1980, that
no cutbacks in personnel would be needed, it now
became evident that the projected income from medi-
care, third-party payment, and other sources was not
meeting expectations . 117 Evans testified that , in view of
the above, several decisions were made in mid -Septem-
ber as follows: (1) To close the Health Connection,
where Anna Burns worked ; (2) to terminate Judy Stat-
ler;18 ' (3) to not renew a consulting contract` with Paul
Rivers; 19 and (4) to terminate the services 'of Dr. Berk-
16 As noted above, Fernandez testified that during the summer of
1980, there was talk within his agency to cut off all funds to Betances.
He testified that he personally opposed such a drastic action. According-
ly, the letter to Betances of September 15 was, in reality,' a sort of victo-
ry on his behalf to keep Betances funded. Unfortunately, as it turned out,
his victory was shorthved.
11 Evans' testimony regarding the income received by Betances during
this period of time was based on records that were present in the hearing
room and that were available to the General Counsel. ' -
19 Judy Statler had been retained to'work on private grants. It was
hoped that she would generate revenues in excess of her earnings.
19 Paul Rivers had been retained during the summer of `1980 on a con-
sulting line to do some work in relation to the Health Connection
BETANCES HEALTH UNIT
man and Jini Tannenhouse . Regarding the decision to
terminate Dr. Berkman and Tannenhouse , Evans testified
that this was intended to resolve two problems at the
same: time . First, to save money and, second , to increase
productivity. As testified to by Passer , the Federal Gov-
ernment was very concerned by the failure of Betances
to meet the Government 's minimal productivity require-
ments. To resolve that problem, Passer stated that it
could be accomplished in two ways : one by increasing
the number of patients seen by the existing patient pro-
viders or, alternatively , by reducing the number of such
providers and spreading the existing patient load among
the remainder . Concerning the choice of Dr . Berkman
and Tannenhouse, the record shows that at this time
there were six patient providers , four of9 whom were em-
ployed by the Federal Government and therefore were
cost free as far as Betances was concerned . Inasmuch as
Betances paid Dr . Berkman and Tannenhouse from its
,own funds, their selection for termination is hardly sur-
prising . Indeed any other choice would have been in-
comprehensible . Regarding Anna Burns, the General
Counsel seemingly conceded that her layoff was due to
economic factors because she worked at the Health Con-
nection where operations were terminated . He, however,
claims a violation in that Ramos allegedly conditioned
her reemployment on her abandonment of union activi-
ties. In this connection , Burns testified that on October 1,
Ramos told her that he felt betrayed by the walkout and
that if she had not participated in the walkout , she would
come back to work when the Health Connection re-
opened. The Health Connection , however, was never re-
opened.
On September 26 Judy Statler's services were termi-
nated .20 Also, by letters dated September 30, Dr. Berk-
man, Jini Tannenhouse , and Anna Burns were terminat-
ed.2 1 At the same time, the ' Health Connection was
elosed,22 and Roni Ramos ceased working for the Re-
ispondent . In mid-October, River's contract expired and
it was not renewed.
G. The "Sickout" of October 2, Discharge of Martin
Garcia, Warning to Betty Gonzalez, and Transfer of
Federal Employees
In face of the layoffs of Dr. Berkman, Jini Tannen-
house, and Anna Burns, ,members of the Staff Associa-
tion decided to have a "sickout" on October 2. This sick-
out, which lasted 1 day, was participated in by Patricia
Gleaton and Ana Paez. Dr. Solomon did not appear at
work on that date, although it appears that the main
reason was because she did not feel well. (She was preg-
20 Judy Statler was not involved in any way with the other employees
in terms of the Staff Association or its demands. The General Counsel
, does not allege that her termination was violative of the Act.
21 Regarding Dr. Berkman , he agreed with Ramos that he would stay
on for an additional 2 weeks to help Dr. Peter Albert take over his pa-
tients. Dr. Alpert, who was also a NHSC assignee , came to Betances
during August. Later, Dr. Berkman terminated his arrangement because
he objected to certain things said by Ramos in a community bulletin
22 The General Counsel does not allege that the decision to close the
Health Connection was discriminatorily motivated. Therefore, I can only
conclude that he concedes that its closing was caused by economic con-
siderations.
381
nant at the time.) As in the prior walkout, the Staff As-
sociation did not give Respondent any advance notice.
As a result of the sickout and the participation in it by
National Health Service Corps assignees, Betances noti-
fied the Government of the event and a meeting was ar-
ranged on October 7 at 26 Federal Plaza. Betty Gonza-
lez appeared at the meeting and her presence was object-
ed to by Paul Ramos. She was, however, allowed to
remain. (Gonzalez had received permission to take time
off to go to this meeting from Dr. Solomon.) The princi-
pal purpose of the meeting was to remind the Federal
employees that it was against the law for them to engage
in strikes or work stoppages. On the following day, Gon-
zalez was given a warning because of her absence from
work on October 7.
On October 9 Martin Garcia was fired. The reason
given to him was because of his latenesses and absences.
There is, in fact, no doubt that by any normal standard,
Garcia's absence and latenesses were excessive.23 On the
other hand, Evans conceded that excessive absences and
latenesses were not uncommon at Betances and the
record shows that other employees (such as Carmen
Altus), had bad records and did not lose their jobs.
At some point in mid-October, Paul Ramos published
a community bulletin `so as to explain, from his point of
view, the recent events at Betances. In part, this read as
follows:
Betances is now facing a very difficult time.
There are people who are out to destroy Betances
and all it stands for. Most of these people are not
from this community. Most of them are in fact priv-
ileged individuals who can easily find high paying
jobs anywhere they wish. These people say they do
not want to hurt Betances. -Do not believe them.
They already closed down the clinic for one day
and threatened to do worse.
Betances is not the first place .this has happened.
It has happened in other poor communities where
organizations like Betances were, or almost were,
totally destroyed. The path of destruction is always
the 'same. This is the way they ' do it. This is the
way they are trying to do it at Betances.
23 In a decision by an administrative law judge of the New York State
Department-of Labor, Martin Garcia's claim for unemployment benefits
was denied . After an evidentiary hearing the judge stated:
Claimant was less than an exemplary , employee having been on pro-
bation two times in 1979 and received two unfavorable evaluations.
By July 1980, claimant improved his performance and had recently
received a favorable performance rating. Nonetheless , from July
1980, until his termination , claimants punctuality became intolerable.
Although warned repeatedly, claimant was late in excess of 20 times
during his last three months of employment, including the last two
days prior to his termination.
Claimant M. G [Martin Garcia], had an abominable attendance
record. He was warned on numerous occasions . During the Last
three months of his employment, he was late on more than 20 sepa-
rate occasions . Claimant's contention that he was late because of a
work related injury or other excuses, are not persuasive . An employ-
ee is expected to work the schedule of hours set by the employer
and not set his own hours of work. The evidence is overwhelming
that this claimant did not have compelling reasons for failure to
comply with the employer's attendance rules. His termination there-
fore, resulted from misconduct for which unemployment insurance
benefits may not be paid.
382 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
A few disgruntled staff members use the rest of
the staff to create problems between the staff and
the administration . They try to create an atmos-
phere that will lead to a takeover of the administra-
tion by the supporters of this very small clique of
workers . Their ultimate goal is to get their hands on
the money that the organization has, so they can
use it for their own purposes.
Betances had been trying to deal with this prob-
lem for months . Betances is responsible to the feder-
al government because that 's where it gets the
money to operate and Betances is accountable to
YOU-the community -because YOU are who we
serve . Because of the problems these people have
created , the federal government is not going to give
Betances the money Betances needs.
Now Betances had to let some workers go be-
cause there isn't enough money to pay them and the
adolescent program, the Health Connection, has
been suspended idefmitely because of lack of funds.
On the Lower East Side we need more money
and more services-not less . Betances has dutifully
served this community and its people for over ten
years. The destruction of our programs, all of our
programs , can only happen if we let it.
Don't let this evil outside influence destroy what
took a group of dedicated people ten years to build!
Show your support-tell your friends!
H. The Discharges of Gonzalez, Morales, Feliciano,
and Pacheco
According to Deborah Pacheco, about October 17 or
18, she had a conversation with Maintenance Supervisor
Eladio , Reyes, wherein she stated that she had heard that
Betty Gonzalez was going to be fired, and asked if that
was true. She testified that he said yes, and asked how
she had found out. Reyes was not called as a witness by
the Respondent, as it appears that he was not in the
country at the time of the trial.
On October 23 another meeting was held at the offices
of the National Health Service Corps. At this meeting,
Dr. Patricia Solomon, Ana Paez, and Patricia Gleaton
were told by the NHSC that they should accept transfers
out of Betances or face formal charges against them for
participating in the foregoing strikes. The three individ-
uals accepted the ultimatum and thereupon ceased work-
ing at Betances.
Also on October 23 or 24, after becoming aware of the
transfers, certain of the employees at Betances decided to
call a strike on Monday , October 27 . However, no 8(g)
notices were given.
On October 24 a series of events occurred at the facili-
ty that led to the discharges of Betty Gonzalez, Elva
Morales, and Nancy Feliciano. First of all, as Dr. Solo-
mon had been transferred , Dr. Peter Alpert was desig-
nated as the medical director. Also, on October 24, he
was the only practitioner at the facility who was treating
patients, and was therefore faced with a large influx of
patients who had appointments with the transferred prac-
titioners.24 In connection with the events of that day,
Dr. Alpert testified that in early afternoon, he needed to
reach Pacheco so that she could come to the laboratory
to draw blood from a patient . He states that he ' asked the
receptionist, Elva Morales , to page Pacheco, whereupon
Morales said, "If you want her, get her yourself." Dr.
Alpert states that he also asked the other receptionist,
Nancy Feliciano, to page Pacheco, and that she too re-
fused. Morales concedes that although it was part of her
job to page people when necessary, she refused Dr. Al-
pert's request. Dr. Alpert wrote a memorandum to Paul
Ramos that day regarding Morales . This was as follows:
This morning I was looking for Debbie and
couldn't find her. I asked Elva 'to please page
Debbie and she refused. At first she just sat there,
then she said "if you want her, page her yourself,
it's not my job." I feel that this type of behavior
warrants your attention.
Dr. Alpert testified that later in the afternoon, he
asked Betty Gonzalez to prepare a patient he was about
to examine and that she refused . 25 He states that she told
him that he should prepare'the patient himself. Gonzalez
concedes that prepping patients was part of her job (in
fact her principal function), and that she refused Dr. Al-
pert's order. Her excuse was that she was too busy at the
time, deciding which patients- should be seen and which
should be sent home.
According to Dr. Alpert, later that afternoon, he
heard Betty Gonzalez telling patients that he was respon-
sible for the transfers of Gleaton, 'Paez, and Solomon and
that Alpert was a lousy doctor. He states that when he
went back to his office he found an unrolled condom on
his desk and that when he showed this to Danny Gonza-
lez, the three employees, Gonzalez, Morales, and Feli-
ciano, laughed at him . He also states that during that
day, former employee Zayerz dame into the center and
announced that a car outside was on fire . Dr. 'Alpert
states that he went outside to look at his car, saw noth-
ing, and that when he returned , the employees again
laughed at him. In this connection, Zayerz testified that
this did not happen on October 24, but that a similar in-
cident did occur in September.
Dr. Alpert testified that faced with the above incidents
it became clear to him that the three employees were
acting in concert to sabotage' his authority. He thereupon
wrote another memorandum to Paul Ramos and Wanda
Evans, and orally advised them that either they be dis-
charged, or that he would leave. The memorandum
reads as follows:
The current turmoil at Betances have made all of
us quite anxious and tense. It has been difficult to
examine patients properly - or render proper care.
This afternoon, Elva refused to page Debbie (as I
have stated in a previous memo). Later in the day
24 On October 24 Dr. Solomon was at the facility , but was not seeing
patients.
25 Preparing a patient involves obtaining the patient's chart and taking
his or her height, weight, blood pressure, etc.
BETANCES HEALTH UNIT 383
while we were all discussing the current state df of
fairs at Betances, the argument became heated and
Elva started calling me a "prick" and a "scum bag."
Both Betty and Nancy supported Elva's actions. A
few minutes later, I went back to my office and
found an envelope on my desk with my name on it.
Inside was an unrolled condom . I-do not know for
certain who put it there , but the handwriting ap-
peared to be Elva 's and when confronted with it
they all laughed.
This type of behavior is childish and inexcusable.
Appropriate disciplinary measure[s] must be taken
immediately.
According to Wanda Evans, Dr. Alpert told her and
Paul Ramos about the aforesaid incidents . She states that
Dr. Alpert said that he was being harassed by Gonzalez,
Feliciano, and Morales , that he was "fed up" and could
not continue to work that way. She testified that as a
consequence of Dr. Alpert 's report, she attended a meet-
ing with Paul Ramos And Danny Gonzalez where they
discussed what to do about these employees. Evans
states that although there was some concern about the
repercussions among the remaining staff which might
result from discharging the three employees , the unani-
mous opinion was that they should be fired . In this re-
spect she testified:
We made Peter Alpert the Medical Director and he
needed our support .... We could not continue to
let people not respect him and not listen to him be-
cause we'd have no practice, there is no point in
having the clinic if we didn't have some order. He
was there for that order and if the people who were
under him weren't going to listen to him they had
to be fired, there was nothing else to do, so we felt
there was no other alternative.
By mailgram dated October 24 , Gonzalez was notified
of her discharge . The reasons given were (1) excessive
absenteeism, (2) gross misconduct, and (3) insubordina-
tion. By letter dated October 24, Feliciano was told of
her discharge. The reasons given were (1) excessive late-
ness and absenteeism and (2) gross misconduct. By tele-
gram dated October 24, Morales was notified of her dis-
charge. The reasons given were (1) gross misconduct
and (2) insubordination.
As in the case of Martin Garcia ,, Betty Gonzalez,
Nancy Feliciano, and Elva Morales filed unemployment
claims and a hearing was held- before an administrative
law judge of the New York Department of Labor. In
those cases
,
the judge, in denying their claims stated:
Claimant, N.F. [Nancy Feliciano], worked as a
telephone receptionist from ' September, 1979
through October 24, 1980, earning approximately
$8,500 per annum . During the period from June
1980 until her , termination on October 24, 1980,
claimant had an abominable attendance record. She
was absent on seven occasions ,' four of which were
on Mondays or Fridays , and was late on 47 occa-
sions. Although warned, ' claimant continued to
report to work late , including the last two days' of
her employment. On her last day of employment,
claimant sat with her co-employees, B.G. & E.M.,
and undermined - the authority of the medical direc-
tor by mocking at him and participating in various
pranks against him with the aid of a former employ-
ee who was socializing with them on the premises
without the employer's authorization.
Claimant, B.G. [Betty Gonzalez], worked as a
medical assistant - from May, 1979 to October 24,
1980, earning approximately $200 per week . Claim-
ant was notified of her termination because of poor
attendance , acts of misconduct and insubordination.
Claimant had a poor attendance record and had
been warned, including having deductions made
from her salary . Between August and October
claimant remained ' away from work on seven sepa-
rate occasions, five of which were before or after
weekends. She was also ' late on five occasions
during that period of time. Claimant was also in-
volved in punching another person 's timecard and
having others punch her timecard when she was
out. Claimant's job primarily required that she
render medical assistance to the physicians. On the
last day of her employment, there were only two
physicians employed at the facility because of the
reductions ordered by the Federal Government.
One of those doctors, who was also the medical di-
rector at the time, requested the claimant assist him
in "prepping patients." Claimant did not assist the
physician in prepping patients on that day because
she was disgusted with the facility 's management
and was upset with the reductions in staff.
Claimant, E.M. [Elva Morales], was employed as
a medical receptionist from January , 1978 through
October 24, 1980, earning approximately $9,500 per
annum. Claimant was terminated because of acts oc-
curring on the final day of her employment . On that
day the facility was crowded with patients because
only two physicians were on duty . The medical di-
rector asked claimant to page the lab technician
who was then needed by the doctor . Claimant, who
was sitting at her desk, refused the doctor's request
stating, "If you want her , do it yourself." Although
claimant knew that the lab technician was indis-
posed in the bathroom at the time , she did not
bother to so inform ' the doctor . Claimant also used
various profanities at the doctor-
Claimants, N.F., B.G., and E.M., were all termi-
nated as a result of incidents occurring on their last
day of employment, October 24, 1980. Whether or
not such terminations arose as a result of miscon-
duct in connection with their employment depends
on the facts as to each individual . Claimant' N.F.,
had an atrocious attendance record which could
have warranted dismissal by the employer prior to
this date . The fact that the employer did choose this
date does not excuse her prior behavior or create a
waiver on the part of the employer . Certainly 47
latenesses over a five-month period warrants action
by the employer . Claimant, B.G.'s, employment also
384 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
terminated under conditions which would- constitute
misconduct under the Unemployment Insurance
Law. Her poor attendance, her misuse of timecard
regulations and her insubordinate conduct in refus-
ing to do her regular work for which she was being
paid, justified the employer's action in terminating
her services. Further, claimant, E.M.'s, conduct on
that last day, also warranted her dismissal for insub-
ordination to the physician medical director of the
institution. Regardless of whether these claimants
had any legitimate grievances for being distressed
by the reduction in staff and budgetary curtailment
by the Federal government, it certainly did not
warrant such behavior on their final day of employ-
ment. By refusing to "prep patients," by refusing to
page other medical personnel, by acting in concert
with a former male employee, who was present in
the facility without authorization and incited them
to undermine the medical director's [authority] was
certainly anathema with rendering patient care at a
medical facility. I have considered claimants' con-
tention that such activity should be protected be-
cause of the industrial controversy occurring at that
time and that their termination was actually pretex-
tual in order to subvert their union activity. I am
not persuaded by such argument. The employer did
not contrive claimants' poor attendance nor the
events and behavior occurring on their last day of
employment. Regardless of one's allegiance to a
union, an employee who refuses to perform reasona-
ble functions as directed by the employer, cannot
hide behind the veil of union protection. To hold
otherwise, would give more favorable protection
because of union activity than to employees who
did not engage in union activities.
On October 27, the Staff Association, without giving
an 8(g) notice, commenced a strike against Betances.
Deborah Pacheco participated in this strike and there is
no dispute that she was discharged on October 27 be-
cause of her participation in the strike. Thus, by letter
dated October 30, Pacheco was told:
We are sorry to inform you that your position as
a Laboratory Technician at Betances Health Unit
has been terminated effective Monday, October 27,
1980.
Please be advised that this action is due to your
absence from work in order to participate in the il-
legal pickets currently demonstrating in front of the
building. Your activities have deterred patients from
entering the premises. As a result, the Board of Di-
rectors and management of Betances feel your ac-
tions constitute your immediate dismissal as an em-
ployee of Betances.
As you know, on September 15, 1980, the Board
of Directors of Betances responded to the demands
of staff, the last paragraph of the response states the
following:
"Staff is expected to be at their jobs on time per-
forming their assigned duties. Any action on the
part of any staff which stops or hinders the safe
functioning of Betances will be considered by the
Board of Directors and management as an auto-
matic resignation on the part of that staff
person."
Needless to mention we regret that you have
taken, this position with regards to the pickets but
your actions leave us no alternative. We are truly
sorry that your relationship with Betances had to
end this way.
I. The Closing of Betances from November 17, 1980,
until January 1981
The record in this case also reveals that the strike that
ensued on October- 27 was attended by various acts of
vandalism. For example, certain patient records were
found to be missing, the telephone lines were cut, and
paint was put on the building. As a result of the turmoil
at the Center, Dr. Alpert left Betances in November.26
Also, Betances closed down on November 17, 1980, and
did not reopen until sometime in January 1981.
In connection with the vandalism, it is noted that the
Respondent did not adduce evidence regarding which
employees, if any,' were responsible.
IV. ANALYSIS
A. The 8(a)(5) Allegations
The General Counsel argues that there were at Be-
tances two separate appropriate bargaining units, one
consisting of physicians, physician assistants, nurse prac-
titioners, and registered nurses27 and the other consisting
of all service and maintenance employees.28
With respect to -the 8(a)(5) allegations, the General
Counsel relies on the- rationale of Sullivan Electric Co.,
199 NLRB 809 (1972), and related cases.29 In Sullivan
Electric Co., a union made a demand for recognition in a
single unit in which it had obtained executed cards desig-
nating the union, as the bargaining agent from 13 of the
unit's 16 employees. When the employer expressed
doubts concerning the union's claimed majority, status,
28 He testified that he left after being threatened by Anna Burns' hus-
band.
27 Consisting of Dr. Alan Berkman and Jun Tannenhouse. The Gener-
al Counsel states that as Patricia Gleaton, Ana Paez, and Dr. Alpert are
Federal Government employees, they would not be included in the unit.
He also states that Dr. Solomon would not be included in such a unit
because she was a supervisory employee who also was employed by the
Federal Government . Concerning Roni Ramos, the , General Counsel , con-
tends that as she is the wife of Paul Ramos, the administrator, she would
not have a community of interest with the unit employees even though
she was employed as a registered nurse.
28 The General Counsel asserts that the nonprofessional unit would in-
clude all service and maintenance employees (Martin Garcia), medical as-
sistants (Betty and Alba Gonzalez), medical receptionists (Elva Morales
and Nancy Felciano), medical records clerks (Jose Luces), laboratory
technicians (Deborah Pacheco), and community health workers (Lisa
Garcia, William Zayerz, Andres Rosado, and Anna Burns) The General
Counsel would exclude from the nonprofessional unit the bookkeeper
(Grace Butler), an administrative assistant (Judy Statler), the upstairs re-
ceptionists (Nereids Zayas), and a researcher (Paul Rivers) Also, she
takes the position that Margaret Joyiens, and Eladio Reyes were supervi-
sors within the meaning of Sec. 2(11) of the Act.
29 See also Adams Book Co., 203 NLRB 761 (1973), Duralee Fabrics,
246 NLRB 677 (1979).
BETANCES HEALTH UNIT 385
the authorization cards were offered to the employer.
Later, the employer, while distributing paychecks, asked
the employees if they had signed union cards and a ma-
jority answered in the affirmative. The following day, 13
employees went on strike in support of the union's
demand for recognition . In concluding that the employer
was obligated to recognize and bargain with the union,
the Board (with Member Kennedy dissenting) stated:
Concededly an employer is not required by the Act
to recognize and bargain with a Union wholly upon
the strength of its assertion that it represents a ma-
jority of the employees involved, notwithstanding
that the Union predicates its assertion upon an ade-
quate showing of signed authorization cards... .
However , where as in this case , the Respondent
rejects the foregoing alternative and unilaterally un-
dertakes to determine the Union's majority or mi-
nority status by means of a poll, under conditions of
its own choosing, the ,Respondentt cannot thereafter
disclaim the results simply because it finds them dis-
tasteful.
In my opinion the facts of this case are distinguishable
from those in Sullivan Electric Co. and the other cases
cited by the General Counsel. First, unlike the cited
cases , the evidence establishes that no employees ever
executed any forms, cards, or other documents whereby
they evinced their interests in becoming members of or
being represented by the Staff Association. Second, de-
spite the General Counsel's assertion that the Staff Asso-
ciation should be accorded bargaining rights in two sepa-
rate bargaining units, the Staff Association never made
such a demand, but rather sought recognition on behalf
of virtually all persons working at Betances, in one group,
including both professional and nonprofessional employ-
ees, plus Federal Government employees . Thus the bar-
gaining units that the General Counsel now seeks to
create, after the fact, were never sought by the Staff As-
sociation and are therefore substantially inconsistent with
its demands.
Third, while the General Counsel asserts that a bar-
gaining obligation should arise out of the poll taken on
September 3, in response to the Staff Association's de-
mands, the evidence shows that the Respondent asked
the people present at the meeting to indicate their sup-
port or nonsupport for all of the demands and the poll
was not limited to the recognitional demand , As the Staff
Association at the same time was making demands that
certain employees be reinstated and that others be fired,
it is virtually impossible to ascertain whether those per-
sons who indicated their support, by remaining 'seated,
were supporting all the demands, or were supporting
some but not all the demands.30
Fourth, the fact remains that when the people present
at the meeting of September 3 were asked ifthey sup-
ported the demands, a majority of those present indicat-
ed their opposition 'by standing up. As the Staff Associa-
30 It is entirely possible, for example, that an employee remained
seated because he or she supported the demand for reinstatement but not
the demand for recognition
tion did not indicate that it was seeking recognition in
two separate bargaining units (or any particular unit for
that matter), the Respondent was entitled to assume,
based on the poll as taken, that a majority of the people
did not support either the demand for recognition or the
other demands. In this respect the "vote" was taken on
the entirety of the demands, and no effort was made to
segregate the voters by separating the professional from
the nonprofessional employees , the regular employees
from the Federal Government employees , or the supervi-
sory and managerial employees from the rank -and-file
employees . In fact , they all "voted" together and no
tally was made.
In conclusion , it seems to me that the facts of this case
are so removed from the facts of Sullivan Electric and re-
lated cases, so as to make the rationale of those cases en-
tirely inapplicable . It therefore is found that the poll
taken on September 3 did not impose any obligation on
the Respondent to recognize and bargain with the Staff
Association . As such I shall recommend the dismissal of
all of _the 8(a)(5) allegations of the comiplaint.3 t With' re-
spect to the same transaction, I shall also recommend
dismissal insofar as the General Counsels allegation that
the Respondent gave the impression of surveillance when
it stated at the September 3 meeting that it was aware
that certain demands were going to be made . As it clear-
ly was the intention of the Staff Association to make
these demands at this very meeting, ][ cannot see how
this single statement of anticipation would violate the
Act.
B. The Discharge of William Zayerz
It initially is noted that I reject Respondent 's conten-
tion that Zayerz was in September 1980 an independent
contractor. In deciding whether an individual is an em-
ployee or an independent contractor , the Board uses a
"right to control" test. See, e.g., NLRB v. United Insur-
ance Co. 390 U.S. 254, 256 (1968). In Caribe Hilton Hotel
v. NLRB, 690 F.2d 318, 320 (2d Cir. 1982), the court
stated:
Under the common law test an employer-employee
relationship exists if the purported employer con-
trols or has the right, to control both the result to be
accomplished and the "manner and means" by
which the purported employee brings about the
result.... Factors which may be considered in de-
termining employee status include: whether the pur-
ported employee is engaged in a distinct occupation
or business; whether the work involved is usually
done under the employer's direction or by an unsu-
pervised specialist ; the skill involved; who supplies
the instrumentalities' and place of performance; the
length of employment; the method of payment (by
Si Included in the allegations dismissed are the contentions that the
Respondent violated Sec . 8(a)(5) by failing to bargain with the Staff As-
sociation before closing the Health Connection and laying off employees
Dr. Berkman, Tannenhouse, and Anna Burns. Also dismissed is the alle-
gation that the Respondent failed to bargain when it did not notify or
give the Staff Association an opportunity to bargain before temporarily
closing the facility in November 1980
386 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the time or by the job); whether the work is part of
the employer's regular business and/or necessary to
it; and the intent of the parties creating the relation-
ship. Restatement (Second) of Agency § 220(2). No
single factor is determinative ... .
In the present case Zayerz originally began working at
Betances as a student placement while going to college.
In the spring of 1980 he obtained his Masters of Social
Work and no longer was a student placement. Neverthe-
less, he continued to work at Betances doing certain
projects under the direction and supervision of Paul
Ramos. Although no withholdings for social security or
income taxes were made from Zayerz' earnings, and he
apparently was paid from a "consulting" line on the
budget, this by itself does not establish that Zayerz was
an independent contractor. As it is my conclusion, based
on the record as a whole, that Betances through Paul
Ramos, controlled the results to be accomplished and the
manner and means by which Zayerz was to bring about
those results, it is found that he was an employee.
As noted above, the Staff Association was created on
August 27 at the home of Zayerz. Also, at the meeting
on September 3, when Respondent asked those present if
they supported the Staff Association's demands, Zayerz
raised an objection and asked- if immunity would be
given to those who supported the demands. At some
point after the demands were ready by Deborah Pa-
checo, Paul Ramos'told Zayerz, in front of the assem-
blage, that funds for his position had just run out. Thus,
it was in this context that Zayerz was told that he was
being let go. Additionally, on September 9, when Zayerz
spoke to Paul Ramos, the latter told him that there were
no funds for his position and that he would not have
Zayerz working because he was not loyal to Ramos.
When members of the Staff Association met with Ramos
on September 10 to ask for Zayerz' reinstatement,
,Ramos, while asserting that Zayerz had been "re-
trenched" for economic reasons, also said that Zayerz
had betrayed him and was "stabbing him in the back."
In juxtaposition to the above, Zayerz conceded that in
the summer of 1980, and therefore before the Staff Asso-
ciation was formed, he had been told by Ramos that
money for his position might not be available and that
Zayerz ought to consider applying for a position with
the National Health ,Service Corps as that would elimi-
nate Respondent's cost for his position. The evidence
also establishes that when the Federal Government did
not grant all the money requested, by Betances, there
was, in the summer of 1980, an incipient crisis as far as
the. Respondent was concerned. In this respect, Dr. Solo-
mon conceded that at management meetings, held during
the summer, it was the consensus opinion that Zayerz'
job was expendable in a fiscal crunch.32
Although Paul Ramos testified that the management
group had made its decision in the summer to terminate
Zayerz, the testimony of Wanda Evans indicates to the
32 In Dr. Solomon's report to the National Health Service Corps, she
also stated that Zayerz had "long been out of favor with the project di-
rector," and that this dated back a year or so in connection with Zayerz'
complaint that Roni Ramos was undermining his efforts at the Health
Connection.
contrary. In this regard, Evans stated that when the Fed-
eral Government in May denied Betances full request for
funds, it was the opinion of the management committee
during the spring and summer that if projected revenues
from other sources met projected levels, it was "hoped"
that no cutbacks in personnel would have to be made.
She testified, therefore, that decisions regarding person-
nel were deferred. Evans also testified that during this
time it was "hoped" that Betances' request for a supple-
mental grant might be approved by the Federal Govern-
ment. According to Evans, the "crunch" came, on Sep-
tember 15 when Arthur Fernandez officially notified Be-
tances that the supplemental grant request was not ap-
proved. It was at this point, according to Evans, that a
hard decision had to be made because other revenues
were not coming in as projected. Thus, according to
Evans, the decisions to cut back on personnel came after
September 15.
In light of the above, it is my opinion that, the an-
nouncement of Zayerz' discharge on September 3 was
not motivated by Respondent's financial situation, but
rather was motivated because Ramos was angered at
Zayerz' participation in and support of the Staff Associa-
tion and its demands-. As Zayerz' activity in this respect
is construed as protected concerted activity within the
meaning of Section 7 of the Act, it is my belief that his
discharge violated Section 8(a)(1) and (3) of the Act.
However, it also is clear to me that Zayerz would never-
theless have been let go for economic reasons either at
the same time as Judy Statler, on September 26, 1980, or
at the latest, on September 30, when Dr. Berkman, Jini
Tannenhouse, and Anna Burns were let go for economic
reasons. As the record indicated that Zayerz was paid
through September 18, the Company's backpay-liability
should be, at most, for 12 days. Also, as I conclude that
the facts show that Zayerz would have been let go
within a short time for legitimate economic reasons, I
shall recommend that Respondent not be required to
offer him reinstatement.
C. The Layoffs of Tannenhouse, Dr. Berkman, and
Burns
The record in this case indicates that when the Federal
Government, in the spring of 1980, did not grant the
entire amount requested by Betances, it was the hope of
Betances' management that its operations could continue
at current staffing levels without the additional money.
Nevertheless, the record also indicates that this was,
indeed, only a "hope," based on the expectation that in-
creases in salaries and fringe benefits would be deferred
and that projected revenues from sources such as medi-
care, medicaid, patient, and third-party payment would
meet certain expectations,'
It also was established that during the spring and
summer of 1980 the Federal Government was seriously
considering cutting - off all future grants to, Betances be-
cause medical productivity, was not meeting the mini-
mum level required as a condition of the grants. This
was made clear by the testimony of Arthur Fernandez
who stated that he had to convince his superiors to con-
tinue the grants. Also, in this respect, Passer testified that
BETANCES HEALTH UNIT 387
the productivity problem was the great concern to the
Federal Government and that there were essentially two
ways that Betances could solve this problem: (1) by re-
ducing the number of physicians, or (2) by increasing the
patient load per physician.
In addition, the evidence establishes that during the
same period of time, Betances applied for a supplemental
grant and urged the community to lobby the Federal
Government for additional funds.
In the face of the above, the management committee
of Betances (Paul Ramos, Wanda Evans, and Dr. Patri-
cia Solomon) held a series of meetings during the
summer of 1980. As testified to by Evans and Dr. Solo-
mon, it was the consensus to defer any personnel deci-
sions in the hope that additional money would be forth-
coming from either the Federal Government or from
other sources.33 Dr. Solomon testified, however, that the
management group did decide that if a financial crunch
did develop, then the Health Connection should be
closed (where Anna Burns and Roni Ramos worked),
that Zayerz' job was expendable, and that the patient
providers not being paid by the Federal Government
(Dr. Berkman and Jini Tannenhouse) would be let go.
On September 15, 1980, Fernandez, on behalf of the
Federal Government, notified Betances that its request
for supplemental funds was being rejected because of the
continued low level of productivity. It was at this point,
according to the credible testimony of Evans, that hard
decisions had to be made as expected revenues from
other sources were not meeting projected levels. She tes-
tified that the decisions made at that time included: (1)
terminating the Health Connection, (2) terminating the
services of Judy Statler, (3) terminating the services of
Paul Rivers, and (4) terminating the services of Dr.
Berkman and Jini Tannenhouse. Regarding the closure of
the Health Connection, which resulted in the termina-
tions of Anna Burns and Roni Ramos, the General Coun-
sel does not allege that this decision was motivated by
discriminatory considerations. He therefore concedes
that this decision was motivated by economic consider-
ations. With respect to Dr. Berkman34 and Jini Tannen-
house, Evans credibly testified that their selection for
layoff was motivated by two factors. First, she testified
that the decision was made so as to save money. Second,
she testified that in view of the productivity problem, it
made sense to eliminate two of the patient providers and
to relegate the existing patient load to the other provid-
ers, thereby increasing productivity. As all the other pa-
tient providers (Dr. Solomon, Dr. Alpert, and Ana Paez)
were employees of the Federal Government, whose sala-
ries were not being paid by Betances, the choice of Dr.
Berkman and Jini Tannenhouse was therefore obvious,
even though Dr. Berkman was, himself, very productive.
Although there is no question but that Dr. Berkman
was at the forefront of the Staff Association and had en-
gendered Paul Ramos' anger because of his activities in
that regard, there is little doubt in my mind that the de-
99 For example, Judy Statler 's services were retained to write up grant
proposals . She was retained on the condition that her pay would be'ex-
ceeded by whatever grants she could generate.
14 For the same reasons applicable to Zayerz , I find that Dr. Berkman
was an employee of Betances, rather than an independent contractor.
cision to terminate the employment of Dr. Berkman and
Jini Tannenhouse was the result of the financial and pro-
ductivity problems that necessitated this result. I there-
fore conclude that their terminations were not motivated
because of their protected concerted activities or activi-
ties on behalf of the Staff Association. Accordingly it is
concluded that their discharges were not violative of
Section 8(a)(1) and (3) of the Act. Also, as I have al-
ready concluded that Betances was not under any obliga-
tion to recognize or bargain with the Staff Association, it
is concluded that the Respondent did not violate Section
8(a)(5) when it chose to close the Health Connection and
terminate the employment of Dr. Berkman, Jini Tannen-
house, and Anna Burns, without first having given the
Staff Association an opportunity to bargain about those
decisions.
With respect to Anna Burns, there is no doubt that as
she worked at the Health Connection, which was closed
due to legitimate economic considerations, that her dis-
charge cannot be violative of Section 8(a)(1) and (3) of
the Act. The General Counsel postulates, however, that
the Respondent violated Section 8(a)(3) when Paul
Ramos told her that because of her involvement in the
Staff Association's activities, he would not rehire her
when the Health Connection reopened. Although this
was not specifically denied by Ramos, the evidence indi-
cates that the decision to close the Health Connection
was of a permanent nature , and this alleged statement
therefore seems too highly improbable to be credited. In
fact, the Health Connection was never reopened.
D. Discharge of Garcia
As noted by the judge in his unemployment case,
Garcia had a record of excessive absenteeism and late-
ness . Moreover, he had previously been placed on proba-
tion. There is, in fact, little dispute about that findings of
fact, which is amply supported by this record.
There are, however, other facts that came to my atten-
tion which may not have been known to the judge or the
State Department of Labor when he denied Garcia for
unemployment insurance benefits.35
Notwithstanding Garcia's longstanding and chronic
problem with absences and lateness, the evidence shows
that Ramos' overlooked this problem and placed a certain
degree of trust in Garcia before September 3, 1980.
Thus, Garcia was asked by Ramos; during the summer of
1980, to take care of his house while Ramos was on va••
cation. Also, Garcia was given the key to open Betances
when he arrived in the morning.36
After the September 3 meeting in which the Staff As-
sociation made its demands, Ramos visited Garcia at his
home and warned Garcia to "watch his step ." In this
regard, he told Garcia that he had helped Garcia in the
past and that Garcia should not go against him. Garcia
85 The Board has consistently held that decisions by judges in unem
ployment cases are admussable in unfair labor practices proceedings and
are of some probative value. They are not, however, controlling as to
their findings of fact or conclusions of law. Western Publishing Ca, 263
NLRB 110 (1982).
36 On September 11, 1980, the key was taken away from Garcia be-
cause he failed to arrive on time and other employees were locked out,
388 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
responded that, although he liked Ramos, he also liked
the other employees. Ramos, in turn, told Garcia, "If
that's what you want."
About September 5, Garcia was, elected to be on the
Staff Association's grievance committee and he was
present when that committee met with Ramos on Sep-
tember 10 to ask for the reinstatement of Zayerz. At the
conclusion- of the meeting, ' when Ramos - refused to
change his mind about Zayerz, a 1-day strike com-
menced and there is little doubt about Ramos' adverse
reaction to' this and the other strikes that thereafter
ensued. (See for example his comments in the community
bulletin referred to above.)
Although the reasons given for Garcia's discharge
would be.plausible in most other circumstances, the evi-
dence shows that lateness and absenteeism at Betances
was common, indeed chronic, among Respondent's em-
ployees. It also was shown that this was generally dealt
with by docking an individual's pay. There clearly were
other employees who were often late or absent and
Carmen Altus, who was absent and late a substantially
similar number of times as Garcia, did not lose her job.
Accordingly, it is concluded that Garcia was not fired
because of his admitted excessive absence and latenesses,
but rather because of his association with the participa-
tion in the activities of the Staff Association. In this re-
spect, I therefore find that his discharge violated Section
8(a)(1) and (3) of the Act.
E. Transfer of the Federal Employees Dr. Solomon,
Paez, and Gleaton, Warning to Gonzalez on October
8, 1980
The simple and conclusive answer to whether the Re-
spondent violated,the Act when it successfully requested
the Federal Government (i.e., the National Health Serv-
ice, Corps) to transfer the Federal assignees out of Be-
tances is that these persons were neither employees of
Respondent nor employees within the meaning of the
Act.
'At the hearing, the General. Counsel proposed the
analogy that in certain circumstances the Board has held
that the discharge of supervisors is violative of the Act,
even though such supervisors are not employees as de-
'fined in the Act. After the hearing closed, the Board, in
Parker-Robb Chevrolet, 262 NLRB 402 (1982), overruled
the line of cases with which the General Counsel was
seeking to make his analogy. Therefore, it is recommend-
ed that the complaint, insofar as it alleges the illegality of
the transfers of Dr. Solomon, Gleaton, and Paez should
be dismissed.
With respect to the warning issued to Betty Gonzalez
on October 8,'1980, it is apparent that this warning was
issued to her because she attended a meeting on October
7 at the National Health Service Corps in which the
Federal assignees were reminded that they were not enti-
tled to engage in strikes. It appears, therefore, that she
attended this meeting (with the permission of Dr. Solo-
mon) in her role as a member of the Staff Association in
order to assist or counsel those persons. Nevertheless, as
the Federal employees were not and cannot be construed
as employees enjoying the protection of the National
Labor Relations Act, Gonzalez' appearance at this meet-
ing cannot be said to have constituted protected concert-
ed activity within the meaning of Section 7 of the Act.
This is so because she was not
_
acting ' in concert with
"employees" as defined in the Act. As such, it is con-
cluded that this allegation of the complaint should also
be dismissed.
F. The Discharges'of Gonzalez, Feliciano, and
Morales
Although an employer may not discharge employees
because of their union or protected concerted activities,
the fact that employees engage in such actions does not
give them an impregnable shield from otherwise justifi-
able discipline. Such, I think, is the case herein.
Although there may be some differences about detail,
the principal events of October 24, 1980, are not in seri-
ous dispute. On that morning Dr. Alpert, who had just
been 'designated as medical director, was the only medi-
cal practitioner at the center, and was attempting to cope
with patients who were scheduled to see not only him-
self, but also-Dr. Solomon, Patricia Gleaton, and Ana
Paez. At some point, he needed to see Debrorah Pa-
checo, the laboratory technician, and asked the recep-
tionist, Elva Morales, to page Pacheco. Instead of carry-
ing out Dr. Alpert's order, Morales at first ignored him,
and then told him to -page Pacheco himself. As this was
a part of Morales' job, Dr. Alpert was understandably
annoyed and wrote a memorandum about this incident to
Paul Ramos. Later in the day, Dr. Alpert asked Betty
Gonzalez to prepare a patient (her normal job) and she
told him to do it himself. Still later, Dr. Alpert found a
condom on his desk and when he came out with it, the
three employees, Nancy Feliciano, Betty Gonzalez, and
Elva Morales, laughed at him. At still another point
during the day, Dr. Alpert heard Ms. Gonzalez telling
patients that he was a lousy physician who had caused
the transfer of the others. In face of these events, Dr.
Alpert wrote another memorandum to Paul Ramos and
Wanda Evans complaining of the behavior of the three
employees and demanding that disciplinary action be
taken immediately. He also orally told management that
either they should be fired or that he would leave.37
There is no question in my mind that the three em-
ployees, from Dr. Alpert's and- from any objective point
of view, were involved, in a series of transactions de-
signed to ridicule and undermine Dr. Alpert's authority
as medical director. In short, their conduct on October
24 can only be described as highly insubordinate.
Although there is evidence in this record to the effect
that the Respondent, before October' 24, was thinking of
firing Betty Gonzalez because of her role in the Staff As-
sociation,38 the facts 'show that Gonzalez, by her con-
37 In this context, an alleged statement to Pacheco by Dr Alpert, on
October 24, that Betances was going to get rid of the troublemakers does
not imply that the Company was motivated by the-employees' union ac-
tivities.
88 See the testimony of Pacheco concerning her conversation with- Su-
pervisor Eladio Reyues wherein he allegedly told her, around October
18, that Betty Gonzalez was going to be fired.
BETANCES HEALTH UNIT 389
duct on October 24, gave the Respondent ample and
good cause to discharge her. Indeed, the credible testi-
mony of Wanda Evans was that to the extent that the
employees' support for the Staff Association was dis-
cussed, it was mentioned not as a reason for discharge,
but rather as a reason for not taking such action. Thus,
according to Evans, management was concerned that if
they did discharge the three employees, this might lead
to an adverse reaction by the remaining staff and precipi-
tate another strike. She testified that given the lack of re-
spect shown to Dr. Alpert as medical director there was
no alternative but to discharge the three employees. I
agree, and shall recommend that these allegations of the
complaint be dismissed.'
G. Discharge of Deborah Pacheco
When the three National Health Service Corps assign-
ees were transferred out of Betances, the employees
comprising the Staff Association decided to commence a
strike on Monday, October 27, 1980. Such a strike did
ensue on that date and Deborah Pacheco participated in
that strike. There is ' no dispute about the fact that she
was discharged because of her participation in the strike.
The Staff Association did not, however, give the written
10-day notices required by Section 8(g) of the Act. In
support of his case, the General Counsel states:
Although the undersigned strenuously agrees that
the Association herein is a labor organization within
the meaning of Section 2(5) it, is far from a sophisti-
cated labor organization and it possesses no affili-
ation with such a labor organization. It is a loosely
organized band of employees which sought mutual
aid and protection. Certainly it is not the type of
entity envisioned by Section 8(g). Further, and per-
haps more compelling, is the fact that on October
27, everyone in the Association, with the exception
of Lisa Garcia, who abandoned her support for it,
had been discharged. Pacheco was an employee
working alone. Finally, there can be' no question
that the pervasive and insidious , pattern of unfair
labor practices committed by Respondent caused
the walk out by Pacheco and therefore no notice
was required.
I agree with the General Counsel to the extent that if
there had never existed a Staff Association, the ensuing
strike by the employees would not have required the
8(g) notices.39 However, it seems to me that the General
Counsel is, in effect, seeking to have his cake while
eating it. On the one hand he asserts that the Staff Asso-
ciation is a labor- organization within the meaning of Sec-
tion 2(5)'of the Act, with which the Respondent has an
obligation to bargain, while asserting, on the other hand,
that it is not a labor 'organization within the meaning of
Section 8(g) of the Act. I can see no statutory support
for this proposition, and the case cited by the General
Counsel is inapposite. In A & D Davenport, Inc., 256
39 In Walker Methodist Residence, 227 NLRB 1630 (1977), the Board
held that Sec. 8(g) only applies to labor organizations and does not apply
to work stoppages engaged to by unorganized employees.
NLRB 463 (1981), the Board held that 8(g) notices were
not required from an employee group that was unaffili-
ated with -any existing labor organization, was unstruc-
tured, and was only presenting grievances. However, the
Board also concluded that the group in question was not
a "statutorily defined labor organization."
Regarding the contention that the strike of October 27
was caused by the "pervasive and insidious pattern of
unfair labor practices" the facts show that the proximate
cause of the strike was the transfer' of the Federal em-
ployees out of Betances that was not an unfair labor
practice. Also, to the'extent that the decision to strike
may have been reinforced by the Company's decision to
discharge Betty Gonzalez, Nancy Feliciano, and Elva
Morales, I have previously concluded that such dis-
charges were not violative of the Act. The, only unlawful
action by the Respondent proceeding this strike was the
discharge of Martin Garcia on October 9. However, to
the extent that the strike may have been called to include
a protest over his discharge, this is not considered'by me
as such a "serious" or "flagrant" unfair labor practice so
as to excuse the failure to tender the proper 8(g) no..
tices.40
The General Counsel asserts that on October 27 every..
one in the Association with the exception of Lisa Garcia
had been discharged. I am not sure what is intended by
this statement other than to reassert, as previously assert-
ed, that the Employer's conduct was flagrant. Yet, ][
have concluded above that most of the discharges, with
exception of William Zayerz -on September 9 and Martin
Garcia on October 9, were for good cause shown.
In view of my agreement with the General Counsel
that the Staff Association was indeed a labor organiza-
tion within the meaning- of Section 2(5) of the Act, l[
must also ' conclude that it was required to give the
proper 8(g) notice prior to the` strike of October 27. As it
did not do so, and as I do not view the Employer's con-
duct as being of such a serious or flagrant-nature so as to
-nullify the notice requirements, I conclude that the dis-
charge of Pacheco was privileged under Section 8(d) of
the Act.
H. Closing of Betances on November 17, 1980
It is the General Counsel's theory that the Employer
violated Section 8(a)(5) of the Act when it temporarily
closed its facility from November 17, 1980, to mid-Janu-
ary 1981 without first having given notice to and offer-
ing to bargain about, the decision with the Staff Associa-_
tion. As I have concluded above that ithe Staff Associa-
tion was not entitled to bargaining rights, and was not
therefore the exclusive collective-bargaining, representa-
tive of Betances' employees, I shall recommend that this
allegation be dismissed.
40 In Cedercrest Inc., 246 NLRB 870, 876 (1978), the judge, in an opin-
ion adopted by the Board, concluded that "serious" or "flagrant" unfair
labor practices which provoke a strike, may abrogate the 8(g) notice re-
quirements See also Mastro Plastics Corp. v. NLRB, 350 U.S. 270 (1956).
390 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAw ORDER
1. Betances Health Unit, Inc. is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act and a health-related facility within the
meaning of ,Section 2(14) of the Act.
2. The Betances Health Unit Staff Association is a
labor organization within the meaning of Section 2(5) of
the Act.
3. The discharge of William Zayerz constituted a vio-
lation of Section 8(a)(1) and (3) of the Act.
4. The discharge of Martin Garcia constituted a viola-
tion of Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices affected com-
merce within the meaning of Section 2(6) and (7) of the
Act.
6., Except to the extent herein found, the Respondent
has not violated the Act in any other manner.
THE REMEDY
Having found that the Respondent had engaged in cer-
tain violations of Section 8(a)(1) and (3) of the Act, I
shall recommend that it be ordered to cease and desist
therefrom, and that it take certain affirmative action to
effectuate the policies of the Act.
With respect to Martin Garcia, I shall recommend that
he be made whole and that the Employer offer him full
and immediate reinstatement to his former position of
employment or, if it no longer exists, to a substantially
equivalent position of employment, without prejudice to
his seniority or other rights and privileges.
In the case of William Zayerz it is my conclusion that
this case essentially involves one of an accelerated dis-
charge. Thus, although I have concluded that his dis-
charge on September 9 was motivated by discriminatory
reasons, I have also concluded that because of the Com-
pany's financial situation after September 15, he would
have been let go either on September 26 or no later than
September 30. As Mr. Zayerz was paid through Septem-
ber 18, his loss would only be for 12 days at most. Also,
because I have concluded that Zayerz would have lost
his job no later than September 30 for legitimate reasons,
I shall not order that the Company be required to offer
him reinstatement.
In both cases of lost pay, the amounts of backpay shall
be computed in the manner set forth in F. W. Woolworth
Co., 90 NLRB 289 (1950), with interest computed in the
manner set forth in Florida Steel Corp., 231 NLRB 651
(1977). See, generally, Isis Plumbing Co., 138 NLRB 716
(1962). Additionally, it is recommended that the Re-
spondent remove from its files any reference to the dis-
charge of Martin Garcia and to notify him, in writing,
that this had been done, and that evidence thereof shall
not be used as a basis for future personnel actions against
him.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed41
41 If no exceptions are filed as provided by Sec. 102 46 of the Board's
Rules and Regulations , the findings , conclusions, and recommended
The Respondent, Betances Health Unit, Inc., New
York, New York, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Discharging employees because of their member-
ship in or participation in the activities of the Betances
Health Unit Staff Association, or any other labor organi-
zation, or because of their protected concerted activities
protected by Section 7 of the Act.
(b) 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) Offer Martin Garcia immediate and full reinstate-
ment to his former job or, if that job no longer exists, to
a substantially equivalent position, without prejudice to
his seniority or any other rights, or privileges- previously
enjoyed, and make him whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against him in the manner set forth in the remedy
section of the decision.
(b) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(c) Remove from its files any reference to the dis-
charge of Martin Garcia on October 9, and notify him,
in writing that this has been done, and that evidence
thereof shall not be used as a basis for future personnel
actions against him.
(d) Post at its place of business copies of the attached
notice .marked "Appendix."42 Copies of the notice, on
forms provided by the Regional Director for Region 2,
after being signed by the Respondent's authorized repre-
sentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure' that the notices
are not altered, defaced, or covered by any other materi-
al.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges violation not specifically
found.
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to' them shall be deemed waived for all pur-
poses.
42 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 Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."