Beth Israel Medical Center

National Labor Relations Board - Board Decisions

Jan 18, 1989

292 N.L.R.B. 497 (N.L.R.B. 1989)

BETH ISRAEL MEDICAL CENTER
Beth Israel Medical Center and District 1199, Hos-
pital and Health Care Employees' Union,
Retail , Wholesale and Department Store Work-
ers' Union , AFL-CIO Cases 2-CA-20622-1
and 2-CA-20622-4
January 18, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On April 16, 1987, Administrative Law Judge
Joel P Biblowitz issued the attached decision The
General Counsel and the Respondent filed excep
tions and supporting briefs The General Counsel
filed a response in opposition to the Respondent's
exceptions, and the Respondent filed an answering
brief to the General Counsel's exceptions
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 exceptions and briefs and has de-
cided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order, to modify the remedy,' and to
adopt the recommended Order
1 We agree with the judge that the Respondent
did not violate the Act by discharging Laura Petra-
cek However, in so doing we find that the Gener-
al Counsel established a prima facie case that the
Respondent's decision to terminate Petracek was
motivated, in part, by her protected union activity,
and that the Respondent met its burden under
Wright Line2 of proving that the same action
would have been taken in the absence of any pro
tected union activity by Petracek
The essential facts, as more fully set out in the
judge's decision, are as follows
Laura Petracek was hired as a full-time perma-
nent chemical dependency counselor on July 12,
1984,3 with a starting date of July 23 On July 13
District Local 1199, representing some 3100 em
ployees of the Respondent, went on strike On July
23 Petracek crossed the Union s picket line to
report for her first day of work at the Respond-
ent's facility The following day Petracek tele
phoned Supervisor Parrish to tell him she would
' In accordance with our decision in New Horizons for the Retarded
283 NLRB 1173 (1987) interest on and after January 1 1987 shall be
computed at the short term Federal rate for the underpayment of taxes
as set out in the 1986 amendment to 26 US C § 6621 Interest on
amounts accrued prior to January 1 1987 (the effective date of the 1986
amendment to 26 U S C § 6621) shall be computed in accordance with
Florida Steel Corp 231 NLRB 651 (1977)
2 251 NLRB 1083 (1980) enfd 662 F 2d 899 (1st Cir 1981) cert
denied 455 U S 989 (1982)
9 Unless otherwise indicated all dates are 1984
497
not report for work because of the harassment she
experienced when crossing the picket line and that
she intended to honor the strike Parrish instructed
Petracek to notify him on a daily basis whether she
intended to work When Petracek called Parrish on
July 30 to say she would not be working, Parrish
encouraged her to cross the picket line and return
to work On July 31 Petracek crossed the picket
line and worked The following day, however, she
telephoned Parrish to inform him that she would
honor the Union's picket line and not work for the
remainder of the strike During their conversation,
Parrish assured Petracek, as he had earlier, that she
would not be fired for honoring the picket line
However, he also told her that her "erratic attend
ance" was unprofessional and that he would place
a memo in her file to that effect In the ` memo to
file," Parrish stated, "I informed Ms Petracek that
she could not return [to work] until after the strike
in any case because her erratic attendance was too
disruptive to the work that needed to be done on
the patients' behalf "
During the afternoon of August 1, Petracek tele
phoned the Respondent to inquire about the loca-
tion of her paycheck After having her call trans-
ferred several times by individuals who could not
tell her how to get the paycheck, Petracek spoke
to Lou Liebhaber, the Medical Center's assistant
director of operations, and asked him where she
could pick up her paycheck When Liebhaber
asked her name, department of work, whether she
was presently working, and whether she was a
union member, Petracek became agitated, argumen
tative, loud, and abusive, despite Liebhaber's assur
ances that he needed the information in order to
locate her paycheck Because Liebhaber was aware
of the special character of the new program for
which Petracek was hired,' he notified the Re-
spondent's vice president for planning, Peter Kelly,
of Petracek's conduct on the telephone, indicating
to Kelly that it was questionable whether Petracek
belonged in a program that required that its coun-
selors be calm, compassionate, and reasonable
Kelly had previously discussed Petracek with
Barbara Gordon, the Program's director, when
Gordon considered hiring Petracek At that time,
Gordon had informed Kelly that Petracek's paper
credentials were acceptable but she was concerned
about the manner in which Petracek conducted
herself during the interview and whether Petracek
could manage the program's patient population
4 The Stuyvesant Square Program was designed to assist privately
paying clients in maintaining their regular employment schedules while
participating in a rehabilitative program All counselors employed in the
Program were expected to be calm reasonable compassionate rational
and professional when communicating with the public
292 NLRB No 51
498 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
After hearing of the August 1 incident, Kelly saw
to it that Gordon and others involved with admin
istering the program were informed of the incident
After discussions among those informed, the deci-
sion was made to terminate Petracek
Parrish attached an addendum to his August 1
memo dealing with Petracek's erratic attendance in
which he wrote that "Petracek bypassed her super-
visor by making direct demands on the administra
tion, an act, which combined with her erratic at-
tendance during the strike raised serious doubts
about her ability to function within the structure of
the institution and reflected an unacceptable lack of
professionalism " Parrish concluded the memo by
noting, "I terminated Ms Petracek's employment
by phone 8/3/84 "
Petracek subsequently filed for unemployment
In its initial responses to the New York State De
partment of Labor, Unemployment Insurance Divi
sion (Unemployment), the Respondent stated that
Petracek did not report for work because she did
not wish to cross the picket line and that she was
discharged for excessive unauthorized and unex
cused absences It asserted that the only excuse for
her absence was that she did not want to cross the
picket line No mention was made of the August 1
telephone conversation with Liebhaber Similarly,
in a statement of position to the Board regarding
the charges in this case, no reference was made to
the August 1 telephone call Instead, the Respond-
ent stated that Petracek was terminated because she
failed to satisfactorily complete her probationary
period It was not until a November 9 letter to Un-
employment that the Respondent gave as a reason
for termination, the call and content of Petracek's
conversation with Liebhaber
The judge concluded that the General Counsel
failed to make a prima facie case of unlawful mots
vation for Petracek's termination In so doing, he
found that the sole evidence supporting the Gener
al Counsel's position is that some of the Respond
ent's early correspondence to Unemployment and
to the Board do not mention the August 1 tele
phone conversation with Liebhaber The judge,
however, found that the failure to mention the call
was "likely due to the unsettling effect of the strike
which was corrected once Respondent got its
house back in order "
We disagree with the judge's analysis of this
matter The documentary and credited evidence es-
tablish that one reason for Petracek's termination
was her erratic attendance Thus, for example, Par-
rish's addendum to the August 1 memo stated that
her erratic attendance, inter alia, demonstrated an
unacceptable lack of professionalism warranting
her termination The Respondent's communications
to Unemployment also indicate that erratic attend
ance was a reason for termination There is no
question that Petracek's erratic attendance was di
rectly linked to her support for the strike and her
unwillingness to cross the picket line Indeed, her
attendance was erratic only because Supervisor
Parrish persuaded her to come to work again after
she had told him she did not want to cross the
picket line and would be supporting the strike This
was not a case, therefore, of an employee's vascilla
tion with respect to support for a strike and man
agement 's need simply to know whether an em
ployee would be working Petracek made her deci
sion about the strike after her first day of work and
changed that decision only after Parrish pressured
her to come back to work Petracek's erratic at
tendance, therefore, was a direct effect of Parrish's
inability to convince her to change her decision
about crossing the picket line In these circum-
stances, we find that the General Counsel estab-
lished that Petracek's strike activity was a motivat-
ing factor in her discharge
We further find, however, that the Respondent
established that it would have terminated Petracek
notwithstanding her support for the strike Thus,
the Respondent adduced evidence that the new
program for which Petracek was hired required
calm and reasonable counselors, that Petracek's
manner of conducting herself had been a matter of
concern at the time she was hired, and that her
August 1 conduct validated these initial concerns
and resulted in the decision to terminate her For
these reasons we agree with the judge's conclusion
that the Respondent did not violate Section 8(a)(3)
of the Act by terminating Petracek
2 We agree with the judge, for the reasons set
forth below, that the Respondent violated Section
8(a)(3) and (1) of the Act by discharging Pena
Bonita because she failed to return from vacation
to work at the commencement of the strike The
relevant facts, as more fully set forth in the judge's
decision, are as follows
Pena Bonita was hired in October 1983 as a half
way house supervisor I in the Respondent's alcohol
treatment program's halfway house Her job was
classified as a nonunion , nonsupervisory, temporary
position dependent on sufficient governmental ap-
propriation of funds 5
On March 7 the Respondent circulated an inter-
office memorandum to all administrators, heads of
departments, and directors of service regarding the
"1984 Vacation Schedule" advising them to inform
5 As more fully explained by the judge s decision there was a griev
ance pending regarding the inclusion of the supervisor I position within
the bargaining unit No contention is made in this proceeding that Bonita
is a unit employee
BETH ISRAEL MEDICAL CENTER
nonunit employees that the master collective bar
gaining agreement with District 1199 would expire
on June 30, and "in the event of a labor dispute all
vacations will be subject to cancellation in order to
maintain continuity of care " In a second interof
Tice memorandum, dated June 11, it was stated
In the event of a strike by District 1199, the
Emergency Staffing plan will be put into
effect immediately which will necessitate the
cancellation of holidays and vacations All em
ployees should be reminded of this contingen-
cy and plan accordingly
On June 21 Bonita attended a meeting with other
halfway house personnel conducted by George
Payne, director of the halfway house program, to
discuss, inter alia, vacation schedules, the possibili-
ty of the District 1199 strike, the necessary staffing
requirements, and the expectations of the adminis
tration if the strike became a reality Payne in
formed the staff that he had been instructed to
treat persons in the supervisor I job classification as
management and that they would be expected to
work during the entire course of a strike Bonita,
apparently referring to the grievance concerning
the supervisor I classification, asserted that she and
the other supervisor I employees were in the unit
and would also be on strike Payne reiterated that
they would be treated as management
The day after the meeting Bonita submitted her
vacation request for the period from July 2 to 26
Payne told Bonita that in the event there were a
strike she would be expected to "report back" to
work Bonita protested that she was `Union" and
said that if there was a strike she would also be on
strike Payne said she would still have to report
back He stated that by July 8 he should know if
there would be a strike Bonita's vacation request
was approved with the statement "Provisional ap-
proval-(strike, union contract )" Bonita was told
that if the strike commenced, they would notify
her by telegram to return Bonita gave an address
at the Mescalero Indian Reservation in New
Mexico where she could be reached
Regarding the Respondent's policy, Payne testi-
fied, "I thought of it as war time conditions, that if
you don't come to work, you're subject to be ter
minated because this was something between per-
sonnel and the union So I told my staff that they
were expected to work during the strike, the ones
who were non union " An interoffice memorandum
dated July 6 to all physicians and administrative
staff, department of medicine, stated
In the event of a strike, all non union employ-
ees are required to report to work at 6 00 a in
on the above date No exceptions will be per-
499
mitted If you are on vacation at that time,
please make alternate plans to be in the city
the night before
Bonita arrived at the Mescalero Indian Reserva
tion on July 3 She stayed there until July 11, when
she left for 2 weeks of travel in Mexico On July
12 a telegram was sent by the Respondent to
Bonita at the reservation address stating "Strike
expected Friday June [sic] 13 at 6AM Call 420-
4256 for strike status If strike is on you must
report to work at HWH Friday at 8PM " Bonita
did not receive this telegram or any other notifica
tion from the Respondent regarding the strike prior
to leaving the reservation on July 11
Bonita notified the Respondent on July 26 that
because of transportation delays her return to New
York had been delayed She was informed that
District 1199 had in fact commenced its strike on
July 13, and because her job classification was con
sidered management and she was a nonunion em
ployee there would be some problems with her re
turning to work When Bonita arrived in New
York on July 28, she spoke with Payne by tele
phone and told him that her vacation was over and
she wanted to return to work He referred her to
Kathleen Dowling, director of personnel
Bonita called Dowling and explained why her
return was delayed and stated that she was ready
to return to work She told Dowling she did not
return at the commencement of the strike because
she did not receive the telegram and she assumed
there was no strike Bonita also told Dowling that
she had telephoned her family in New York on
July 15, but no one told her there was a strike
Dowling suspended Bonita On August 20 Bonita
was terminated
We agree with the judge's conclusion that Boni
to s discharge was unlawful It is well settled that
nonbargaining unit employees have a protected
right to join the common cause of fellow striking
employees by refusing to cross their picket line
The Respondent's communications to nonunion
employees and statements concerning its policy on
the strike suggest that it did not recognize such a
right The "no exceptions" policy stated in its July
6 memorandum, quoted above, particularly when
viewed in the light of Halfway House Program Di-
rector Payne's testimony, makes it clear that non-
unit employees were expected to remain on the
management side of the barricades during the
strike, regardless of their sympathies 6
8In its brief to us the Respondent suggests that we cannot take ac
count of its various prestrike announcements unless they are alleged as
independent violations of Sec 8(a)(i) We agree that we should not find a
violation that was neither alleged nor litigated but we are entirely free to
Continued
500 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Notwithstanding the credited testimony concern-
ing Bonita's post-vacation statements about her
readiness to return to work during the strike, there
is clearly a prima facie case that an unlawful
motive was a factor in the Respondent's decision to
discharge her. As set out above, on at least two oc-
casions prior to the strike, Bonita had indicated to
the Respondent that she intended to join the unit
employees in their strike; and her failure to ac-
knowledge the Respondent's telegram and return
early from her vacation-whether deliberate or
merely the result of the negligent failure to keep
herself apprised of conditions that might require
her return-violated the Respondent's policy of re-
quiring all nonunit employees to work during the
strike, regardless of whether they wished to sup-
port the Union. A change of heart after her vaca-
tion was over would not necessarily exculpate
Bonita. The Respondent's policy, as outlined in its
notices to employees and in Payne's testimony, had
no apparent exceptions for nonunit employees who
agreed to work during part, but not all, of the
strike.
Of course, even during a strike, an employer re-
tains its right to discharge employees for nondis-
criminatory reasons. Thus, even granting the Gen-
eral Counsel's establishment of a prima facie case
of unlawful motivation in the discharge of Bonita,
the Respondent could relieve itself of liability by
showing, pursuant to the Wright Line test, that it
would have discharged Bonita even without regard
to her violation of the "no exceptions" policy re-
quiring nonunit employees to work during the
strike. The Respondent, however, failed to carry its
burden in this regard.' Accordingly, we agree with
the judge's finding that the Respondent discharged
Bonita in violation of Section 8(a)(3) and (1) of the
Act.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Beth Israel
Medical Center, New York, New York, its officers,
agents, successors, and assigns shall take the action
set forth in the Order.
examine such evidence in order to determine the motive for the dis-
charges that were alleged as unlawful . See U.S. Rubber Co., 93 NLRB
1232, 1233 (1951).
° The Respondent's evidence concerning its termination of other non-
unit employees during the strike does not satisfy this burden . This evi-
dence consisted principally of a list entitled "Non-Bargaining Unit Em-
ployees Terminated for Failure to Report to Work for the Entire Period
of the Strike," which suggests that the defining element for the termina-
tion was refusing to remain on the Respondent 's side of the strike lines
rather than disregarding some established policy regarding vacations.
Gwynne A. Wilcox, Esq., for the General Counsel.
Eric Rosenfeld, Esq. and Kevin Leblang, Esq . (Seyfarth,
Shaw, Fairweather & Geraldson), for the Respondent.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. This
case was heard by me on 12, 13 and 20 January 1987 in
New York, New York. The order consolidating cases,
consolidated complaint and notice of hearing, which
issued on 28 November 1984,1 was based on unfair labor
practice charges filed on 28 September 1984 by District
1199, Hospital and Health Care Employees' Union,
Retail, Wholesale and Department Store Workers'
Union, AFL-CIO called (the Union). By Order dated 12
February 1985, the Regional Director for Region 2, with-
drew the consolidated complaint, deferring to pending
arbitration proceedings in the matter. By order dated 7
August 1986, the Regional Director reinstated the con-
solidated complaint.2 The consolidated complaint alleges
that commencing on or about 13 July the Union com-
menced a strike against Beth Israel Medical Center, (Re-
spondent), and that Respondent discharged Laura Petra-
cek on 3 August and Pena Bonita on 20 August because
they supported the Union in this strike by refraining
from working during this strike, in violation of Section
8(a)(1)(3) of the Act.
On the entire record, including my observation of the
demeanor of the witnesses, and after consideration of the
briefs filed, I make the following
FINDINGS OF FACT
1. JURISDICTION AND LABOR ORGANIZATION STATUS
There being no dispute, I find that Respondent is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act and that the Union is
a labor organization within the meaning of Section 2(5)
of the Act.
It. BACKGROUND
In mid-1984 Respondent employed approximately 4800
employees; of this number, approximately 3100 were em-
ployed in two units represented by the Union. The larger
of these units was a wall-to-wall type unit composed of
2300 employees. The other unit was composed of 800
registered nurses. Respondent's contract through the
League of Voluntary Hospitals and Homes of New York
(the League) with the wall-to-wall unit expired 30 June;
its contract with the registered nurses' unit expired 31
October; both units struck on 13 July. The League and
the Union entered into a tentative agreement dated 25
August; shortly thereafter, all the employees returned to
work. The instant matter involves the termination of two
employees-Petracek and Bonita.
1 Unless indicated otherwise , all dates in 1984.
2 The Union took both matters to arbitration and each was determined
to be nonarbitrable; Petracek because she was a probationary employee at
the time of her termination and Bonita because her job classification was
not a unit position at the time of her termination.
BETH ISRAEL MEDICAL CENTER
A Petracek s Termination
Petracek was interviewed for employment with Re
spondent on 10 and 11 July for the position of chemical
dependency counselor (or alcoholism counselor) for Re
spondent s Stuyvesant Square Family Treatment Pro
gram Her interview on 11 July was with Barbara
Cooper Gordon , the director of the program On the fol
lowing day she had a physical examination and was told
that her starting date for employment would be 23 July
Petracek reported for work on that day crossing the
picket line to get to work (some remarks were made)
Her supervisor , Seth Parrish (who died in September)
assistant director of the program , told her that she would
not be performing her regular duties because of the
strike He also asked her whether she was aware that she
did not have to be at work because of the strike Petra
cek told Parrish that she was not sure of her rights or
status She worked that day On the following morning
she called Parrish and told him that she would not be re
porting for work that day because of the harassment she
received the prior afternoon by the pickets- it was too
uncomfortable , I d be honoring the strike Parrish told
her to call him daily to inform him of whether she
would be reporting for work The next morning, while
on the picket line she saw Parrish She approached him
and asked him whether she could be fired for not report
ing for work he said that she could not She called Par
rish again on 27 July telling him that she was on the
picket line and would not be at work that day On
Monday 30 July she called Parrish again telling him
that my status remained the same I would not be
coming to work Parrish asked her to reconsider as
they were anxious to operate the program She asked
what work would be involved and Parrish told her that
she would entail preparing lectures and other material
She asked if she would have to cross the picket line and
he said that it would she said that she would think about
it Later that day she called Parrish and told him that she
would report for work the following day
She reported for work on 31 July She testified that
she was harassed a lot while crossing the picket line
going to and from work that day On the morning of 1
August she called Parrish and told him that she would
be honoring the picket line for the remainder of the
strike and therefore would not be at work She asked
Parrish if she could be fired for honoring the picket line
and he said that she could not He also said that her er
ratic attendance was very unprofessional and he would
put a memo in her file to the effect She asked if it was a
form of discipline he said it was not, that it was to
inform personnel of her erratic attendance Petracek tes
tified , as well , that in this conversation Parrish told her
that I couldn t come to work even if I changed my
mind , that I wouldn t be able to come back to work the
rest of the strike In a memo to file dated 1 August
Parrish wrote
I informed Ms Petracek that she could not return
until after the strike in any case because the erratic
attendance was too disruptive to the work which
needed to be done on the patients behalf I also in
formed her-that this behavior was unacceptable (for
501
the above reasons) and that a written memo to this
effect would be placed in her file
On 1 August , about 1 p in Petracek called Respond
ent to inquire where she could get her paycheck , at least,
for her 23 July workday She testified that she first spoke
to somebody employed in Respondents payroll depart
ment Petracek said that she would like to get her pay
check The person to whom she was speaking said that
she did not really work there and could not help her
The call was then transferred to Respondents social
work department and Petracek asked to speak to Parrish
She asked him how she could get her check he said that
she should call the payroll department and she said
they just transferred me from there Parrish said that
he was not sure, but he would see if he could assist her
and he transferred the call to Respondent 's strike com
mand center 3 She began by saying that she would like
to get her paycheck and wanted to know where to find
it The person to whom she was speaking , Louis Lieb
haber , Respondents assistant director of operations (al
though she didn t know to whom she was speaking)
asked if she was working and whether she was in the
Union She said that she really didn t think that was im
portant in regards to finding out where my paycheck
was She said What difference does it make? All I in
asking for is where to get my check Liebhaber said
that he needed that information in order to locate where
her check was, since checks were then in different loca
tions depending on whether an employee was working
or not and whether an employee was a union member
She said My understanding was all the checks are from
the same place Liebhaber then asked her name and
whom she worked for She said that she would not give
him that information because she felt it would be used
against her He again asked her for her name and for
whom she worked after the third time she told him her
name and her supervisor and he told her where she
could get her paycheck She testified that she did not use
any obscene or abusive language in this telephone call al
though she did raise her voice a little as she was getting
frustrated because she felt that she was getting the run
around
Liebhaber testified that during the period of the strike
he was at the strike command center 6 or 7 days a week
On 1 August, while there he picked up the telephone
and answered as he always did Good afternoon, com
mand center , Lou Liebhaber , may I help you? Petracek
(although he did not know it at the time) said that she
wanted information regarding her paycheck He asked
her whether she was working or not working union or
nonunion She answered in a very agitated way
What difference does it make? Liebhaber told her that
it makes a difference because the payroll distribution at
that time depended on whether an employee was union
s Many of Respondents agents and supervisors worked in shifts man
ning the phones at the strike command center in an attempt to operate
the facility as best they could during the stoke When the strike com
menced these individuals were working shifts up to 12 hours As time
went by employees began returning to work and as procedures began to
fall into place these shifts lessened The command center was located in
Respondents board room
502 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
or nonunion, working or not working Petracek said
Look, I worked and I want my God damn paycheck
He said that he would like to help her get her check, but
he had to know whether she was union or nonunion,
working or not working She said that she had worked a
couple of days and she was not sure if she was union, he
told her where the union employees received their
checks However, since he felt additional clarification
was needed, he asked her what department she worked
in, she said Stuyvesant Square As he knew that Stuyve
sant Square had just opened, he asked when she began
working, she said within the last couple of weeks He
felt that there might still be some difficulty in locating
her check so he asked her name, she said ' what differ
ence does it make? I worked, I want my paycheck She
was very loud and talking over his talking He told her
that the payroll department was particularly hard hit by
the strike and it might be difficult to locate her check
She interrupted him, saying I worked I don t give a
shit about the payroll department I worked I in entitled
to my paycheck He then told her where she could
probably locate her paycheck and during what hours
That was the extent of the conversation and was his only
contact with Petracek
At the conclusion of this conversation Liebhaber told
Peter Kelly, Respondents vice president for Planning
(who was active in creating the Stuyvesant Square Pro
gram) of his conversation with Petracek He described
the call as upsetting' and said that Petracek was very
inappropriate and abusive on the telephone and I think
you ought to know about it " Liebhaber testified that
while at the command center during the strike he an
swered calls and requests from a large number of people
other than Petracek the others were generally courteous
and accepted his responses The nature of the Stuyvesant
Square Program caused him to notify Kelly of the map
propriate' nature of Petracek s responses the Stuyvesant
Square Program was unique in the area and Respondent
had spent hundreds of thousands of dollars marketing it
Because the clients in the program were privately paying
patients who maintained their regular employment while
in the program, the counselors had to be calm, compas
sionate, and reasonable, and all were the kinds of things
that were not exhibited by Ms Petracek That really
struck me as an important issue for Mr Kelly to ad
dress
Kelly testified that on the day in question he was
seated next to Liebhaber in the command center At the
conclusion of a telephone conversation Liebhaber hung
up the phone and asked Kelly if he knew Petracek and
Kelly said that he knew the name and that she was em
ployed in the Stuyvesant Square Program Liebhaber in
formed Kelly of the conversation which he found upset
ting and inappropriate Kelly testified further that al
though he was not directly involved in hiring employees
for the program prior to Petracek being hired, he had
spoken to Gordon, who stated that although Petracek s
paper credentials were acceptable she had some concerns
about the manner that Petracek conducted herself at her
interview Kelly informed Gordon that it was her deci
sion to make and Petracek was hired That was Kelly s
last discussion about Petracek prior to his 1 August dis
cussion with Liebhaber At the conclusions of this con
versation, Kelly informed Jerrold Kirstein, Respondent s
director of social work, of his conversation with Lieb
haber, and instructed him to discuss the matter with Par
rish and Gordon, "and that it was up to them to make a
decision as to what they wanted to do regarding her em
ployment In this conversation, Kelly also informed
Kirstein that Gordon had previously made him aware of
some problems in Ms Petracek s behavior related to
her first two days of work
Kirstein testified that Parrish and Gordon had inter
viewed Petracek and found her potentially an accepta
ble candidate,' but had some questions regarding her
ability to manage this kind of patient population Kir
stein testified further that on 1 August, while in the com
mand center , Kelly informed him that Liebhaber had a
conversation with Petracek in which she acted in a
most unprofessional manner Kirstein stated
Considering the delicate nature of this new program
that we were attempting to establish, individuals
who could not conduct themselves in a professional
way there was real question in terms of their suit
ability for this program
Kelly told Kirstein that Petracek s conversation with
Liebhaber exhibited the lack of ability to control expres
sions of her own feelings and an unacceptable level of
acting out Kirstein further testified
Mr Kelly conveyed to me that in his judgment he
could not truly understand why we could maintain
an employee like this but ultimately I would have
to look at this individual and after consultation with
other members of our clinical staff, decide what her
suitability for the program would be
Kirstein then discussed the situation with Parrish who
then spoke to Gordon on the basis of all these discus
sions they made a decision to ask her not to come
back
In a Memo to File an addendum to the 1 August
memo supra, Parrish wrote that Petracek bypassed her
supervisor by making direct demands on the administra
tion The memo continued
This lack of sensitivity to and observance of neces
sary protocol is a serious issue Combined with the
issues already described in the 8/1/84 memo, it
raises serious questions re Ms Petracek s ability to
function within the structure of this institution
Moreover these issues reflect a lack of professional
ism unacceptable to both the Department of Social
Work and the Stuyvesant Square Program Conse
quently I terminated Ms Petracek s employment by
phone 8/3/84
Kirstein testified that the content of Petracek s conversa
tion with Liebhaber together with their initial questions
about her qualifications for the position convinced him
that she was not a proper employee for the position, con
sidering the care and expense Respondent had expended
in establishing the program
BETH ISRAEL MEDICAL CENTER
Kathleen Dowling , Respondent 's director of person
nel, testified that her only involvement in the Petracek
termination occurred on either 1, 2, or 3 August, when
Kirstein informed her that a probationary employee (Pe
tracek) had been obnoxious and rude in a telephone con
versation with Liebhaber , he asked if there was any
reason why she could not be terminated She testified "I
said there is no reason why you cannot let her go for
that behavior Just you know make sure that that's what
you want to do Make your mind up Let her go
Dowling testified that she knows Liebhaber ' He s not a
provocative person He also would tend not to report
something unless it was really extreme
Received into evidence were documents relating to
Petracek 's claim before New York State Department of
Labor, Unemployment Insurance Division (Unemploy
ment) Respondent , apparently had an organization enti
tled Unemployment Cost Control Inc (UCC), represent
ing it in this matter By letter dated 25 September,
UCC s benefit services director , Natalie Fritz , wrote to
Unemployment that Petracek was hired after the strike
began and was aware of the strike That she worked 1
day one week , and 1 day the following week , that she
did not report for work because she did not wish to
cross the picket line The letter does not mention the 1
August telephone call Another letter written by Fritz to
Unemployment 2 weeks earlier also does not mention
this telephone call, it states She was discharged for her
excessive unauthorized and unexcused absences '
In a letter to the Board , dated 19 October , regarding
these charges , counsel for Respondent stated that Petra
cek was terminated because she failed to satisfactorily
complete her probationary period The 1 August tele
phone call to Liebhaber was not mentioned in this letter
In a letter to Unemployment dated 9 November, Mark
Hausmann of UCC stated inter alia
The claimant was not terminated for her refusal
to cross a picket line This was not, and is not the
Medical Center s policy and, in fact, the Medical
Center has never terminated anyone for failure to
cross a picket line The claimant work 7/23/84 and
returned 7/31/84 working the entire day During
that day (7/31/84), the claimant became insubordi
nate and abusive with the Assistant Director of the
Medical Center Mr Liebhaber As a result she was
terminated by telephone on 8/3/84 by her supervi
sor The claimants reluctance to cross the picket
line was not at issue The claimant had in fact been
told by the employer that if she did not wish to
cross the picket line to report to work, that this
would not be held against her
In another statement of position dated 13 December,
regarding Petracek's termination, Fritz stated
During the strike, the Assistant Director of Oper
ations received a telephone call from the claimant
inquiring about her paycheck When the Director
started to ask her a few questions to ascertain her
status, the claimant became annoyed and displayed
a very poor attitude The director reported the con
versation to claimants supervisor who decided that
503
if the claimant showed such a poor attitude at the
beginning of her employment, it would be best to
terminate her immediately
On 3 August Parrish called Petracek and informed her
that she was being terminated for her unprofessional be
havior, not being at work and her erratic attendance
Petracek protested that it was unfair, that he promised
her that she would not be fired for refusing to cross the
picket line
Dowling testified that when the strike commenced,
about 98 percent of the employees in the two union units
refused to work By the 5th or 6th week about 20 per
cent of the employees in the RN unit and about 50 per
cent of the non RN unit employees had returned to
work Dowling testified that the Respondent's position
regarding unit employees was as follows
We wanted employees to make a decision If they
wanted to come to work welcome to do so Happy
to have them We could use them If they didn t
want to come to work fine too But we found it dif
ficult if not impossible to deal with in again and out
again type of situations We wanted people to make
up their minds
It was of no use to us to have someone say they
were going to come in and then not come in We
would work planned for them [sic] and it wouldn't
get done
If they came in unannounced there might not be
work for them to do So we didn t want this kind
of-what s been called erratic behavior
Absent the Petracek situation, there is no evidence that
Respondent discharged any unit employee who refused
to work during the strike In fact Respondent supplied a
listing of a large number of unit employees who were
absent during the strike and were not terminated
In Wright Line, 251 NLRB 1083, 1089 (1980), the
Board set forth the rule it will henceforth apply in dis
cnmination cases such as the instant matter
First, we shall require that the General Counsel
make a prima facie showing sufficient to support the
inference that protected conduct was a motivating
factor in the employers decision Once this is es
tablished, the burden will shift to the employer to
demonstrate that the same action would have taken
place even in the absence of the protected conduct
As I found Respondents witnesses credible, I would
credit Liebhaber s testimony over that of Petracek re
garding their 1 August conversation In addition to the
fact that I found Liebhaber to be an extremely credible
witness, the fact that immediately on the conclusion of
the conversation he informed Kelly of the conversation
supports his testimony of the nature and seriousness of
the conversation
I find that General Counsel has not sustained her
burden regarding Petracek s termination No persuasive
evidence was introduced to establish why Respondent
would discharge Petracek and not the other 3000 unit
504 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
employees who refused to report for work in mid-July.
In fact shortly before her 1 August conversation with
Liebhaber, Parrish told her that she could not be fired
for refusing to cross the Union's picket line during the
strike. Rather, I find that Petracek was terminated be-
cause of the contents of her 1 August telephone conver-
sation with Liebhaber. Although she may have felt that
she was being given the "run around" in her attempt to
obtain her paycheck, she should have considered that
Respondent was operating its facility with 3000 fewer
employees than it normally does; these were obviously
trying times for Respondent. While Respondent may
have excused Petracek's language and attitude from a
maintenance employee or a truckdriver, it felt that this
was unacceptable for a counselor in its Stuyvesant
Square Program, because of the unique nature of this
program and the large sum of money Respondent had
spent in preparation for its opening. I find this position
reasonable. The sole evidence supporting the General
Counsel's position is that some of Respondent's early
correspondence opposing Petra.cek's claims before Un-
employment and the Board do not mention the 1 August
conversation with Liebhaber as the reason she was dis-
charged. However, I find that this was likely due to the
unsettling effect of the strike, which was corrected once
Respondent got its house back in order. I therefore rec-
ommend that this 8(a)(1)(3) allegation be dismissed.
B. Bonita Term ination
Bonita was hired by Respondent in October 1983 as a
halfway house Supervisor 14 at an Alcoholic Treatment
Center operated by Respondent. She testified that when
she was hired she was told that the position was a tem-
porary position because J t depended on governmental
funding, which was reviewed regularly, and that her job
was a Union (really unit) position. At the time she was
hired her position was a nonunit position, and "Non
Union" was checked on her approved preemployment
application. At the time, however, a grievance was pend-
ing over whether these positions were properly unit posi-
tions. By letter to the Union dated 11 May, Respondent
wrote, inter alia:
If this letter accurately outlines the terms of our
agreement, please so indicate by signing below for
District 1199 and return a signed copy to me. We
will include the three involved employees in the
bargaining unit and apply to them the provisions of
the current League/Division 1199 contract, except
as otherwise provided herein, effective the date I
receive the signed copy and notice from the AAA
that the pending arbitration has been withdrawn.
The Union did not return this agreement, signed, to Re-
spondent until 25 September. Even then, Respondent
wrote to the Union (by letter dated 30 October) that
4 Although her job classification contains the word "supervisor," this
refers to her supervision of the patients in the program and there is no
evidence that she is a supervisor within the meaning of Sec. 2(11) of the
Act. In addition, Respondent produced no evidence at the hearing that
Bonita was a supervisor within the meaning of the Act, nor did counsel
for Respondent allege so in his brief.
they still had not received formal notification that the
subject arbitration had been withdrawn; this notice was
given to Respondent by letter dated 16 October. On 24
October Dowling wrote to the Union that she was in re-
ceipt of this notice and that the effected employees
would be included in the bargaining unit effective 19 Oc-
tober.
Bonita testified that in May, George Payne, the direc-
tor of the Halfway House Program (and Bonita's super-
visor) called a meeting of the employees of the program,
and said "Congratulations, you guys, you're in the union
now. Beth Israel has signed the papers." Payne never
specifically testified regarding this statement; however,
he testified that he attempted to keep the employees in
the program up to date on the issue as he learned the
facts from Dowling. On 1 June, Bonita filled out a dues-
checkoff card as well as an enrollment card for the
Union. The first formal notification Respondent received
from the Union of this was by letter dated 28 August,
stating: "Enclosed please find list and authorization cards
for the deduction of dues. The deduction of dues and ini-
tiation should be made at the proper time." Bonita's
name was one of the names on the list. As she had al-
ready been terminated, no deductions were made.
As stated above, supra, at the time the strike com-
menced Respondent employed approximately 5000 em-
ployees, of whom approximately 3000 struck Respondent
beginning 13 July. During the 6-week strike period Re-
spondent continued to operate. Dowling testified regard-
ing Respondent's procedure for attempting to continue
its operation during the strike:
A policy decision was made up front and prior to
the commencement of the strike that in the event a
nonbargaining unit employee did not work during
the strike that we would terminate their employ-
ment for good reason we made that decision.
Beth Israel Medical Center as an institution
needed everybody, every able bodied person to try
to take care of our patients in the event that the ma-
jority of our staff went on strike, R.N.'s and non
R.N.'s. We felt very strongly that if it was a rule it
was a rule and applied to everybody and would be
enforced across the board.
Vacations were accordingly-vacations that were
planned were done so with the knowledge that they
would have to be cancelled and interrupted or fail-
ure to do so would be at the risk of losing your job.
Subsequently, Dowling was asked whether Respondent's
policy was that nonbargaining unit employees who did
not work during the strike were to be terminated. After
hedging a bit, she testified:
No, not in every case. People got. sick and didn't
come in to work. People were hospitalized as pa-
tients. Each case was looked at, individually. It was
a long strike. If-if a bargaining-a non-bargaining
unit employee missed one day of work, it did not
mean they would be fired. But if bargaining-non-
bargaining unit employees took vacation instead of
strike duty, they were let go.
BETH ISRAEL MEDICAL CENTER
Beginning in March Respondent sent memos to the
staff regarding the possible strike An interoffice memo
randum to administrators department heads and direc
tors of service dated 7 March and entitled 1984 Vaca
tion Schedules, stated that the present agreement ex
pires 30 June and you should plan the vacation sched
ules for your department according The memo contin
ued that they were hopeful of a settlement, but that only
tentative approval would be given for vacation schedules
for nonunion employees between 1 June and 30 August
The memo concluded Obviously, in the event of a
labor dispute all vacations will be subject to cancellation
in order to maintain continuity of care An interoffice
memo to the same parties dated 11 June on a different
subject, contained an underlined segment entitled Note
at the bottom
In the event of a strike by District 1199, the Emer
gency Staffing Plan will be put into effect immedi
ately which will necessitate the cancellation of holt
days and vacations All employees should be re
minded of this contingency and plan accordingly
An interoffice memorandum to all physicians and ad
ministrative staff, department of medicine, dated 6 July,
stated that the Union had served a formal notice of strike
commencing 13 July, the memo continued
In the event of a strike, all non union employees are
required to report to work at 6 00 a in on the above
date No exceptions will be permitted If you are on
vacation at that time, please make alternate plans to
be in the City the night before
By interoffice memo to All non union employees,
dated 12 July Respondent set forth the procedure to be
followed during the anticipated strike This memo stated
All days off must be cancelled
Payne was asked whether he was aware of Respond
ent s policy regarding the rights of Respondent s nonbar
gaining unit employees during the strike He testified
I think those of us who were directors of programs
you also wanted to inform your staff of what the
policy might be in case people chose to do some
thing other than work if they weren t in the bar
gaining unit So I was told that it-it was you
know, my-I have to use my own words now be
cause I can t remember the medical center s words
but I thought of it as war time conditions, that if
you don t come to work, you re subject to be terms
nated because this was something between person
nel and the union So I told my staff that they were
expected to work during the strike, the ones who
were non union
On 21 June there was a meeting of the Halfway House
personnel Bonita testified that at this meeting Payne said
that there was the possiblility of a strike and if it did
occur they would be expected to work Bonita asked
Were union so it doesn t apply to us, right? Payne
said that he had been instructed to treat them as manage
ment
505
Received into evidence was the minutes of the meeting
of 21 June, the first item on the agenda is review vaca
tions The minutes stated
Mr Payne opened the meeting by asking for vaca
tion schedules and reminding every one that non
Union employees would be expected to return to
work from vacations should there be a 1199 strike
Ms McCoy said that she wouldn't be taking any
vacation time until after July 18 Ms Bonita5 said
she plans to be on vacation from July 2 to July 25
Mr Monahan will be on vacation from August 1
until after Labor Day
Bonita testified that on 22 June she made her vacation
request to Nurit Schwartzbaum the program administra
tor the vacation period she selected was from 2 to 26
July Schwartzbaum told her that it was all right with
her, but that she should get Payne s approval She imme
diately went to see Payne and told him of her request
He told her that if there were a strike she would have to
report back He also said that there probably would be
no strike Bonita objected, saying that since I in union,
if there were a strike she would also be on strike Payne
said Well you still have to report back, even if you go
on strike He also told Bonita that he was considering
her as management since Respondent had instructed him
to do so She asked Payne when he would know wheth
er the strike would occur Payne said that he would
know by 5 July 8 July at the latest Payne asked her
where she would be on her vacation She told him that
she could be contacted at the Mescalero Indian Reserva
tion, c/o Coffee Family, Mescalera New Mexico 87401
There was a telephone at that address, but Payne did not
request it and Bonita did not provide it (Schwartzbaum
testified that she asked Bonita for a phone number at
where she could be reached but Bonita said that there
was no phone) She testified that she had previously in
formed Payne that she would be traveling there to
attend religious ceremonies at this Indian reservation
Both Schwartzbaum and Payne approved her vacation
request stating Provisional approval [strike union con
tact ] Schwartzbaum told her that if there were a strike
they would send her a telegram to return In this regard
Bonita s testimony differentiates between returning to the
facility and returning to work
Q Did you have any doubt that in the event of
an 1199 strike you would be required not just ex
pected, required to return to work?
A I knew that I would be expected to return
Q Return and do what?
A To report
Q For work?
A No to report
Q To whom?
A It was my understanding
Q To whom?
A To the hospital
5 Bonita testified that she made this vacation request the following day
infra
506 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Q Thank you For what purpose9
A And to the union
Q For what purpose were you to report to the
hospital'?
A For the hospital-let me put it this way The
hospital had their plan The union had their plan
Q For what purpose were you to return to the
hospital9
A The hospital expected me to work
Bonita testified that she felt this way because on 10 May
Respondent had signed the letter agreeing that her job
classification would be a union position So there was
an agreement reached that we were part of that union
Therefore, Beth Israel would have honored the fact that
I was to come back here and report that I was on
strike
Bonita further testified that before leaving for her va
cation she left an itinerary of her trip on a desk at the
Halfway House It stated that she would be in Mexico,
but did not give the dates she would be there nor her
address while there She did not give this itinerary to
either Payne or Schwartzbaum because the reason
being that they didn t ask for it I didn t know it was im
portant to them It was my itinerary left there for no
purpose at all other than just it was there
Payne testified that he had a number of discussions
with Bonita regarding her vacation She told him where
she was going and he told her that he could not believe
that she was spending so much money for a vacation
when Respondent require her to return if there were a
strike He told Bonita, as he told others that if there
were a strike and they did not return there was a possi
bility that she would be fired Schwartzbaum also testi
fled regarding conversations she had with Bonita about
her vacation
The subject came up on several different occa
sions I believe she first raised her request to go on
vacation during one of the team meetings and that
was when we had discussed the possibility of the
strike and informed the staff that they would be re
quired to work the non union staff would be re
quired to work She also gave me her written vaca
tion request which I signed with a note that it was
provisional and at the time, I told her that she
would be required to report back to work in the
event of the strike And again inform-informally
this came up at other times Anytime I had the op
portunity, anytime she mentioned her vacation, I re
minded her that she would have to work if there
was a strike
Bonita left New York early in the morning of 2 July
and arrived at the reservation on 3 July She left the res
ervation on the evening of 11 July traveling by bus,
train and boat and crossed into Mexico on 12 July,
where she travelled for the next 2 weeks A telegram
dated 12 July at 12 54 p in was sent by Respondent to
Bonita at the Mescalero address she left, although the
telegram spells it Mescalario ' The telegram states
`Strike expected Friday June [sic] 13 at 6 a in Call 420-
4256 for strike status If strike is on you must report to
work at HWH Friday at 8 p in Bonita testified that she
did not receive this telegram , or any notification from
Respondent about the strike, prior to leaving on 11 July
Payne had told her that Respondent would know by 5 or
8 July if there would be a strike and, as those dates
passed without any notification she felt free to leave I
had not heard, so I didn t worry anymore
Bonita missed her flight to New York and, instead
took a flight to Los Angeles on 26 July When she ar
rived in Los Angeles on that day, she called Schwartz
baum who answered the telephone herself, Bonita asked
her why she was answering her own phone Schwartz
baum said that there was a strike and that she would
have to contact Payne `because there is a problem, ' al
though she did not know what Payne s plans were for
Bonita Bonita testified that she said Well, if there s a
strike, then I'm on strike, right9 Schwartzbaum an
swered yes, but that she would still have to call Payne to
learn his plans Bonita said that she would not cross the
picket line Schwartzbaum testified that when Bonita
called her about being late returning to the facility she
told her about the telegram Respondent sent her and
Bonita said that she must have left the reservation before
it arrived, because she never received it Because she
was not sure at the time how Respondent would treat
Bonita when she returned, she told her to call Payne
Schwartzbaum testified that in this conversation Bonita
never told her that when she returned she would join or
support the strike
Bonita returned to New York on 28 July at which
time she called Payne at the Halfway House 6 She testi
fled that she explained about being late and Payne told
her that as she was considered management she was ex
pected to work, but before she could do so she would
have to speak to Dowling and he would attempt to ar
range for them to talk, as soon as possible She told
Payne that if there was a strike ' I in on strike and I m
honoring that strike Payne told her that they would try
to fire her Payne also told her not to go near the picket
line he said there was violence and it wouldn t be
good for you to seen there either Payne testified that
when Bonita did not return when the strike commenced
he informed Dowling of this because I wanted to know
what the medical center s view was Bonita called him
when she returned asking to come back to work You
know, her vacation s over she s ready to work He in
formed her that because she was not included in the bar
gaining unit it was not that simple and that she would
have to speak to Dowling before returning to work He
testified that Bonita did not tell him that she was not
going to return to work because she was going to par
ticipate in the strike nor did she object to being treated
as management for purposes of the strike
Payne then called Bonita and told her that Dowling
wanted Bonita to call her which she did She testified
that she explained to Dowling why she was late return
ing from vacation Dowling asked why she should make
an exception for her and Bonita said that she did not
6 Of the other two employees with Bonita s job classification at the
Halfway House one worked during the strike and the othei was on med
ical leave at the time
BETH ISRAEL MEDICAL CENTER
expect to be made an exception She said that if there
were a strike, she was honoring it because I am union
Dowling asked where she got the idea that she was
union and Bonita said that Payne had told her and she
knew that the agreement was signed on 10 May Dowl
ing said that she would be put on suspension and she
would get back to her at a later date Dowling testified
that she initially heard from Schwartzbaum that Bonita
had not returned in response to the telegram Dowling
told Schwartzbaum that when Bonita returned she
should not be allowed to return to work until she had
spoken to her A few weeks later Schwartzbaum told her
that she had received a call from Bonita that she was de
layed, but she would return shortly Dowling again said
that Bonita would have to speak to her before returning
to work A few days later Payne called her and told her
that Bonita had returned and he wanted to arrange a
meeting with them Dowling said that a meeting was not
necessary a phone call was adequate I want to talk to
her before a final decision is made on her case Bonita
called Dowling and Dowling asked her why she did not
return at the commencement of the strike, she said that
she never got the telegram She said that when she left
the reservation she assumed that since she had not heard
anything that there would be no strike
I asked her if she had talked to anyone in New
York since July 10th and she said yes that she had
called people she knew and then she specified her
family on July 15th They had not told her that
there was a strike She did not ask I asked her why
she hadn t called the Halfway House to see about
the strike and she said it didn t fit into her budget
She wanted to go back to work She was calling me
at Mr Payne s instructions as he had told her she
couldn t work till she spoke to me I told her that
she was no different from anyone else who wanted
to go on vacation and that the rules of the Medical
Center would apply to her but I hadn t fully looked
at her case yet and that I would suspend her pend
ing final determination of her case and she was not
to report to work
Dowling testified that, in this conversation Bonita said
that she had returned from vacation and was ready to
return to work, she did not say that she was going to
join or honor the strike A few weeks later Dowling told
Liebhaber to have Payne call Bonita and terminate her
she testified that she took this period of time to consider
the matter because of the still open issue as to whether
the supervisors were in the Union-she wanted to be
sure that the Union had not yet signed the agreement in
cluding her job classification in the unit
On about 20 August Payne called Bonita and told her
that she was being terminated she asked if she could
return once the strike was over and he said that she
could not Dowling testified She was terminated be
cause she failed to return to work as all others were re
quired to do when the strike began Yes she took a va
cation instead "
Respondent presented evidence of 10 other nonbar
gaining unit employees who were terminated during the
507
strike supported by a list of these individuals captioned
Non Bargaining Unit Employees Terminated for Fail
ure to Report to Work for the Entire Period of the
Strike The job classification of these employees ranged
from physicians to secretaries Eight of the ten employ
ees on the list were terminated because they either left to
go on vacation after the strike commenced or refused to
return from vacation when the strike commenced,
against Respondents orders Of the other two one did
not perform his strike assignment duties because he did
not like them and he was terminated The remaining em
ployee left without permission during the strike to
defend her thesis and was terminated
The Board law regarding a nonbargaining unit em
ployee s right to refuse to cross a picket line at his em
ployer s premises was clearly set out recently in ABS
Co, 269 NLRB 774 774-775 (1984)
It is well established that nonstriking employees
who refuse to cross a picket line maintained by
their fellow employees have made common cause
with the strikers are engaged in protected concert
ed activities as defined in Section 7 of the Act, and
may not be lawfully discharged for these activities
According to Board policy, it is not material that
the employee who refuses to cross the picket line is
not a member of the picketing union is not repre
sented as part of the collective bargaining unit, or is
motivated solely by personal fear
In this regard see also Congoleum Industries 197 NLRB
534 (1972), Limpert Bros, 276 NLRB 364 (1985), NLRB
v Peter Cailler Kohler Chocolates Co, 130 F 2d 503 (2d
Cir 1942) and NLRB v Southern Greyhound Lines, 426
F 2d (5th Cir 1970) The issue therefore is whether
Bonita was terminated because she would not cross the
Unions picket line to work The determination is not
that simple Although Respondents witnesses testified
that Respondents policy was to terminate nonbargaining
unit employees who refused to work during the strike,
and Respondents brief restates this policy 7 Respondent
alleges that Bonita was terminated (as were others) be
cause she refused to return from vacation when the
strike commenced
Is there a difference between terminating a nonunit
employee for refusing to cross a picket line at his em
ployer s premises (which is clearly unlawful under the
Act) and terminating that employee for refusing to
return from vacation to report for work at the com
mencement of a strike? I think not Either way Re
spondent s intention is to force nonbargaining unit em
ployees to cross the Union s picket line and work under
threat of discharge Although one cannot fault a hospital
for attempting to maintain its operation during a strike, it
is unlawful when that objective is accomplished by
firing, or threatening to fire, an employee for refusing to
7 Respondent s brief states
The Medical Center had decided prior to the strike to require all
non bargaining unit employees including any on vacation when the
strike began to work during the strike on pain of termination if they
didn t
508 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cross a unions picket line during the strike Evidence
submitted by Respondent establishes that if Bonita had
returned to Respondents facility on 14 July, as directed
and had refused to cross the picket line to report to
work she would have been discharged by Respondent at
that time I find no substantive difference between that
and the actual facts-the discharge for her failure to
return from vacation at the commencement of the strike
I find irrelevant Bonita s intentions at the time she re
turned She testified that she informed Payne and Dow]
ing that although she returned to report, she would
honor the picket line and not return to work Payne and
Dowling refute this They testified that when Bonita re
turned she said that she had returned and was prepared
to work Although I find this conflict immaterial to my
ultimate finding as it is relevant to the remedy, a credi
bility finding must be made I found Payne the most
credible and persuasive of the three He clearly was in
an uncomfortable position He had been a personal friend
of Bonita and had gotten her the job with Respondent at
the Halfway House On the other hand, he had been em
ployed by Respondent for 17 years until July 1986, usu
ally in positions of authority A close reading of his testa
mony reveals an attempt to tell the truth while not
being too harsh on Bonita Although found Bonita to be
generally credible a few aspects of her testimony did not
ring true She is an intelligent woman who, at the time,
was concerned with when she would become covered by
the union contract 8 I find unpersuasive her testimony
that she left the reservation on 11 July because she had
been told by Payne that he would know by 5 or 8 July
whether there would be a strike, and since she had not
yet received a telegram by that time she felt assured that
the matter had been settled Dowling testified credibly
that after Bonita returned she asked Bonita if she had
spoken to anyone in New York since 10 July and she
said that she had but they had not told her of the strike
I find it more likely that she did learn of the strike in this
call My observation of Bonita together with a careful
reading of her testimony (especially how much she
valued the job and her strong interest in becoming a
member of the Union together with the fact that upon
leaving she did not give Respondent the telephone
number where she could be located at the reservation-
they didn t ask for it -and that she left her itinerary
on a desk at the Halfway House rather than giving it to
Payne) convinces me that Bonita acted as best to protect
herself She wanted to satisfy Respondent by returning
but she did not want to have to cross the Union s picket
line in order to work How best to accomplish this? By
leaving the reservation before receiving notification of
the strike and pretending to be unaware of it That
would explain the somewhat suspicious circumstance of
leaving the reservation approximately 1 day prior to the
commencement of the strike On the basis of all the
above, I credit Payne and Dowling that when Bonita re
turned to New York on 28 July she indicated a willing
ness to return to work She had done her best by staying
8 As ABC Co sura states that it is not a member of the union I need
not decide that issue
out for 2 weeks , but was not willing to jeopardize her
job any further by staying out any longer
On the basis of all the above I find that Respondent
violated Section 8(a)(1)(3) of the Act by discharging
Bonita on 20 August for refusing to return from vacation
to work during the Union s strike
CONCLUSIONS OF LAW
1 Respondent is an employer within the meaning of
Section 2 (2) (6) and (7) of the Act
2 The Union is a labor organization within the mean
ing of Section 2(5) of the Act
3 Respondent by discharging Bonita on 20 August,
violated Section 8(a)(1) and (3) of the Act
4 Respondent did not violate the Act in any other
manner as alleged in the consolidated complaint
THE REMEDY
Having found that Respondent has engaged in and is
engaging in certain unfair labor practices, It will be rec
ommend that it cease and desist therefrom and take cer
tam affirmative action designed to effectuate the policies
of the Act, to wit that Respondent offer Bonita immedi
ate reinstatement to her former position or, if that pose
tion no longer exists to a substantially equivalent posi
tion without prejudice to her seniority or other rights
and privileges I also recommend that Respondent make
Bonita whole for any loss of earnings she sustained by
reason of her discharge Backpay liability begins on 28
July, the day she returned and indicated a willingness to
work Backpay shall be computed in accordance with
F W Woolworth Co 90 NLRB 289 (1950), and Florida
Steel Corp 231 NLRB 651 (1977) See generally Isis
Plumbing Co 138 NLRB 716 (1962) I find the visitator
ial clause requested by General Counsel unnecessary
O L Willis Inc 278 NLRB 203 (1986)
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
ed9
ORDER
The Respondent Beth Israel Medical Center, New
York New York its officers agents, successors, and as
signs shall
1 Cease and desist from
(a) Discharging terminating or otherwise discriminat
ing against its employees in retaliation for their refusal to
cross a lawful picket line established at its premises
(b) In any like or related manner restraining or coerc
ing 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 Pena Bonita immediate and full reinstatement
to her former job or if that job no longer exists, to a
9 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
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
BETH ISRAEL MEDICAL CENTER
substantially equivalent position, previously enjoyed, and
make her whole for any loss of earnings and other bene
fits suffered as a result of the discrimination against her,
in the manner set forth in the remedy section of the deci
sion
(b) Remove from its files any reference to the unlawful
discharges and notify the employees in writing that this
has been done and that the discharges will not be used
against them in any way
(c) 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
(d) Post at its New York, New York location copies of
the attached notice marked Appendix 10 Copies of the
notice, on forms provided by the Regional Director for
Region 2, after being signed by the Respondents author
ized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu
tive days in conspicuous places including all places
where notices to employees are customarily posted Rea
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material
(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
10 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
509
IT IS ORDERED that the consolidated complaint be dis
missed insofar as it alleges violations of the Act not spe
cifically found
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 or
dered us to post and abide by this notice
WE WILL NOT interfere with the rights of employees
to engage in protected concerted activities by discharg
ing them for refusing to cross a lawful picket line estab
lished at our premises
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act
WE WILL offer Pena Bonita, immediate and full rein
statement to her former job or if that job no longer
exists to a substantially equivalent position, without prej
udice to her seniority or any other rights or privileges
previously enjoyed and WE WILL make her whole for
any loss of earnings and other benefits resulting from her
discharge less any net interim earnings, plus interest
WE WILL notify her that we have removed from our
files any reference to her discharge and that the dis
charge will not be used against her in any way
BETH ISRAEL MEDICAL CENTER