Doctors' Hospital of Staten Island

National Labor Relations Board - Board Decisions

May 13, 1998

325 N.L.R.B. 730 (N.L.R.B. 1998)

730
325 NLRB No. 144
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent requests reopening of the record so that it can
submit evidence of the relevant work hours of all its Radiology De-
partment employees. The Respondent contends that this is necessary
because the judge noted that it had failed to put forth this evidence
during the trial. The motion is denied because the Respondent does
not allege that this evidence is newly discovered or has become
available only since the hearing, nor does it state why the evidence
was not presented previously. See Board’s Rules and Regulations,
Sec.102.48(d)(1).
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings. No exceptions were filed to
the judge’s finding that the Respondent unlawfully promulgated and
maintained rules which prohibited employees from distributing union
materials in nonwork areas during the employees’ nonworking time.
3 We adopt the judge’s conclusion that the Respondent’s claim of
misconduct by Mantione was pretextual. However, in doing so, we
do not rely on the judge’s statement that the Respondent failed to
prove that Mantione had in fact engaged in misconduct. The Re-
spondent’s burden (to rebut the General Counsel’s prima facie case)
was simply to show that the Respondent possessed a good-faith be-
lief (e.g., not one that was the result of a discriminatory failure to
investigate) that Mantione engaged in misconduct and that belief was
the motivating cause of the discharge. Compare Goldtex, Inc., 309
NLRB 158, 169 (1991) (discharge lawful where motivated by the
employer’s reasonable belief that employee had engaged in mis-
conduct) with Teksid Aluminum Foundry, 311 NLRB 711, 725–726
(1993) (discharge unlawful where employer, for discriminatory rea-
sons, failed to investigate the basis of reports concerning an alleged
death threat by the discharged employee). We agree that the Re-
spondent did not meet its burden here.
4 In accordance with our decision in Excel Container, Inc., 325
NLRB No. 14 (Nov. 7, 1997), we have modified the Order to re-
quire that, in the event that the Respondent goes out of business or
closes its facility during the pendency of these proceedings, the Re-
spondent shall mail a copy of the notice to all employees employed
by it as of September 16, 1996, the date that the first unfair labor
practice occurred, rather than the date the charge was filed.
5 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
Doctors’ Hospital of Staten Island, Inc. and Local
1199, National Health and Human Service Em-
ployees Union, AFL–CIO. Case 29–CA–20687
May 13, 1998
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HURTGEN
On October 6, 1997, Administrative Law Judge Mi-
chael A. Marcionese issued the attached decision. The
Respondent filed exceptions, a supporting brief, and a
motion to reopen the record.1 The General Counsel
and the Charging Party filed answering briefs in oppo-
sition to the Respondent’s exceptions and motion.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions3 and to adopt the recommended Order as
modified.4
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Doc-
tors’ Hospital Of Staten Island, Inc., Staten Island,
New York, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modified.
Substitute the following for paragraph 2(g).
‘‘(g) Within 14 days after service by the Region,
post at its facility in Staten Island, New York, copies
of the attached notice marked ‘Appendix.’5 Copies of
the notice, on forms provided by the Regional Director
for Region 29, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent 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 Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees
employed by the Respondent at any time since Sep-
tember 16, 1996.’’
Richard Bock, Esq., for the General Counsel.
Marsena M. Farris, Esq., for the Respondent.
Elizabeth A. Baker, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
MICHAEL A. MARCIONESE, Administrative Law Judge.
This case was tried in Brooklyn, New York, on July 23,
1997. The charge was filed by Local 1199, National Health
and Human Service Employees Union, AFL–CIO (the
Union) on February 3 and amended April 1, 1997. The com-
plaint issued April 3, 1997, alleging that Respondent, Doc-
tors’ Hospital of Staten Island, Inc., violated Section 8(a)(1)
of the Act by promulgating and maintaining a rule prohibit-
ing distribution of union materials at Respondent’s facility,
and violated Section 8(a)(3) of the Act by reducing the work
hours of John Mantione on October 1, 1996, and discharging
Mantione on January 19, 1997. Respondent filed an answer
to the complaint denying these allegations.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
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731DOCTORS’ HOSPITAL OF STATEN ISLAND, INC.
1 All dates are in 1996 unless otherwise indicated.
2 Counsel for the General Counsel conceded at the hearing that any
allegation that Montanino’s statements at this meeting were unlawful
was time-barred under Sec. 10(b) of the Act. The General Counsel
stated that this evidence was offered to establish Respondent’s
antiunion animus. The Board has found such statements are relevant
to animus, even though they cannot be found unlawful. See Douglas
Aircraft, Inc., 307 NLRB 536 fn. 2 (1992). See also Gencorp, 294
NLRB 717 fn. 1 (1989).
filed by the General Counsel, Respondent, and the Charging
Party, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, is engaged in the operation
of a hospital providing health care services at its facility in
Staten Island, New York, where it annually derives gross
revenues in excess of $250,000 and purchases and receives
goods and materials valued in excess of $5000 directly from
points outside the State of New York. The Respondent ad-
mits and I find that it 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.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Facts
Respondent operates a 117-bed hospital and employs ap-
proximately 280 full-time equivalent employees at its facility
on Staten Island. The Union commenced an organizing cam-
paign among Respondent’s employees in about April 1996.1
Peter Montanino, Respondent’s assistant executive director of
operations and an admitted supervisor and agent of Respond-
ent, testified that he became aware of the union activity at
the facility in July. John Mantione, who was employed at the
time as a per diem x-ray technologist, testified that he at-
tended his first union meeting on July 25 at a location out-
side the hospital. Mantione signed a card at this meeting to
volunteer for the organizing committee, agreeing to assist the
Union in its efforts. His testimony was corroborated by
Denise Allegretti, the Union’s staff organizer assigned to di-
rect this campaign.
Mantione testified further that, on July 26, the day after
Mantione attended his first union meeting, Montanino called
a meeting of employees in the radiology department. Accord-
ing to Mantione, Montanino told the employees that he be-
lieved their was unionization going on in the hospital and
that Montanino wanted to give the employees the facts.
Montanino told the employees that the Union was trying to
recruit people to spread their propaganda, but not to believe
their lies. Montanino further advised the employees that the
Union would try to get them to sign cards, but that the em-
ployees should not sign them because Respondent would
know who signed. Montanino said that Respondent had ways
of getting information, just like the Union did. Apparently to
prove this point, Montanino looked directly at Mantione and
said: ‘‘we know at least one person from x-ray has attended
at least one union meeting.’’ According to Mantione,
Montanino continued by saying that Respondent was a small
hospital, that if the employees signed cards and forced the
Union to come into the hospital, Respondent would not be
able to afford the benefits package and wage increases and
would have to close its doors. Montanino also told employ-
ees at this meeting that a lot of people, even if they got in-
volved with the Union, would not be eligible to be in the
Union because there are many tiers in the Union. Mantione
testified that he asked Montanino if per diems would be able
to get in the Union and Montanino replied: ‘‘No, you don’t
count.’’2
Montanino admitted holding a meeting with radiology de-
partment employees in July and discussing his personal expe-
riences with the Union. Montanino further admitted at the
hearing that he told employees that Respondent would find
out who signed union cards. According to Montanino this
statement was made in the context of his experience that, on
the filing of a petition for an election, the employer sees the
union cards to determine who is eligible. Montanino admitted
further that he told employees at this meeting that per diem
employees would not be eligible to vote in a union election.
He denied saying anything about the Union directly to
Mantione and further denied being aware of Mantione’s in-
volvement in the Union. This latter testimony was contra-
dicted by an affidavit Montanino signed during the investiga-
tion in which he admitted becoming aware of Mantione’s in-
volvement with the Union some time in the summer. I credit
the testimony of Mantione regarding this meeting. His recol-
lection of the meeting was more detailed than that of
Montanino. Moreover, Montanino corroborated Mantione re-
garding some of the statements attributed to him and did not
specifically deny others. Finally, Montanino’s testimony at
the hearing was at times inconsistent and contradicted by his
pretrial affidavit, making him an unreliable witness.
There is no dispute that Mantione openly displayed his
support for the Union in September when he and Allegretti
handed out leaflets outside the entrance to the hospital and
in the parking lot. One of the leaflets invited employees to
attend a union meeting on September 10, establishing that
this activity occurred before that date. Montanino admitted
seeing Mantione engaged in this activity and further admitted
that he sent a security guard to tell them to move. As part
of his responsibilities, Montanino supervises the security de-
partment.
It is also undisputed that, on September 16, Montanino
held another meeting with radiology department employees.
Minutes of this meeting, signed by Montanino, reveal that he
told the employees that:
[U]nion meetings are still being held on Wednesday
evenings. Union propaganda continues to be spread.
Mr. Montanino again reiterated the ‘‘pros and cons’’ re-
garding unions such as ‘‘1199.’’ He also stated that
union materials can only be distributed outside the hos-
pital. No union propaganda is to be posted on cork
boards or anywhere else on the hospital premises. Mr.
Montanino should be notified if staff members will not
remove it.
Mantione’s testimony regarding what Montanino said about
posting and distributing union literature is consistent with the
minutes signed by Montanino.
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732 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 The stereotactic unit does mammographies in conjunction with
needle biopsies and Respondent’s policy generally is to employ
women to do mammography and related procedures.
4 Perez is now the radiology department supervisor, having been
promoted in March 1997. At the time of the alleged unfair labor
practices, she was employed as a full-time x-ray technologist with
additional responsibilities, including scheduling employees. No party
contends that she was a supervisor prior to March 1997. Moreover,
the evidence in the record suggests that whatever authority she had
was limited to carrying out the instructions of Montanino, who ad-
mittedly was in charge of the department.
At the hearing, Montanino attempted to clarify the no-dis-
tribution rule reflected in the minutes of the meeting. Ac-
cording to Montanino, union material had been found posted
throughout the hospital, on bulletin boards, walls, lockers in
locker room areas, and left on the windshields of cars in the
parking lot. Montanino testified that he was also concerned
about nonemployee union organizers coming into the hospital
handing out union literature. Montanino testified that, in his
statements at the meeting, he meant to limit employee solici-
tation and distribution only in patient care areas and that
when he told employees such distribution could only be done
outside the hospital, he did not include the cafeteria in that
prohibition. He acknowledged that the cafeteria is hospital
property and that there is a bulletin board in the cafeteria for
use by employees to post personal notices.
Respondent already had a rule prohibiting solicitation and
distribution during working time and in patient care areas. A
copy of the written rule was submitted into evidence. The
rule is silent regarding posting of literature on bulletin
boards. Montanino conceded that the rule, which permits so-
licitation and distribution during breaks and mealtime and
specifically defines patient care areas, is not generally dis-
tributed or communicated to employees. Rather, it is kept in
a sizable ‘‘Personnel Policies and Procedures Manual’’
which is accessible to employees on request, but not gen-
erally distributed. Montanino also conceded that he did not
mention this policy at the September meeting or any subse-
quent meetings at which the no-distribution rule was reiter-
ated and that the written rule was not posted. Montanino also
admitted that he did not expressly refer to patient care areas
in his meetings with employees. Regardless of what
Montanino meant to say at the meeting, I find based on the
testimony of Mantione, as corroborated by the minutes of the
meeting and Montanino’s pretrial affidavit, that he told em-
ployees that they could distribute union literature only out-
side the hospital and could not post union materials any-
where on Respondent’s premises.
Mantione also testified in more detail regarding
Montanino’s comments about the Union at the September 16
meeting. According to Mantione, Montanino said that Re-
spondent knew who was involved, that it was mainly dietary
and housekeeping. When Montanino began to ‘‘badmouth’’
the Union, Mantione spoke up and asked why are unions so
bad and related his good experience as a member of the La-
borers’ Union before becoming an x-ray tech. Montanino
then asked Mantione why he was so interested in the Union
since he is a per diem and can’t vote. Montanino described
his experience as an 1199 member and being on strike while
union officials spent union funds on lavish meals. Montanino
admitted at the hearing that Mantione spoke up at this meet-
ing and asked what was so bad about unions. Montanino’s
testimony regarding what he told employees about his per-
sonal experience as a union member is also consistent with
Mantione’s testimony.
Mantione further testified, regarding the September 16
meeting, that Montanino announced that there was an open-
ing for an x-ray tech in the stereotactic unit. According to
Mantione, Montanino said that he understood that Mantione
was in line for a full-time position, but that Respondent was
going to hire a woman for this position.3 Montanino’s min-
utes from this meeting show that he did announce a job
opening for a per diem, rather than a full-time, x-ray tech
with mammography experience preferred. Mantione further
testified that Montanino finished the meeting by saying that
anyone who hadn’t yet received their yearly evaluation
should see Montanino before he left the floor. According to
Mantione, he approached Montanino after the meeting and
told him that he had not received an evaluation and that
Montanino chuckled and said, as he walked away, ‘‘you
won’t be needing it.’’ Montanino denied saying anything
about yearly evaluations at this meeting, testifying that all
employees receive their annual evaluations in January, re-
gardless of their respective anniversary dates, and that there-
fore no evaluations were due in September. Again, I credit
Mantione as a generally more reliable witness.
Mantione’s union activities continued after this meeting.
He testified that he signed a union membership card on Oc-
tober 2, but conceded that he did not know whether
Montanino or any other representative of Respondent was
aware of this. Respondent was aware, however, that
Mantione again leafleted in Respondent’s parking lot on be-
half of the Union in December. Mantione testified that Dr.
Surapaneni, chief of radiology, and Stephen Anderson, Re-
spondent’s chief executive officer, took leaflets from him and
that Montanino observed his activity. Montanino admitted
observing Mantione leafleting in December. Montanino also
admitted that he continued to talk about the Union at radiol-
ogy department meetings on November 20 and January 10,
1997. The minutes of those meetings, neither of which was
attended by Mantione, reflect that Montanino repeated the
no-distribution rule he had first announced in September and
talked about the ‘‘pros and cons’’ of unions at both meet-
ings.
Mantione testified that, after he became involved with the
Union, he noticed a change in Respondent’s treatment of him
with respect to scheduling. Mantione acknowledged that he
was hired as a ‘‘per diem’’ employee and that this meant he
did not have a fixed schedule and received no benefits. In-
stead, he would be called to work, as needed. Mantione fur-
ther testified that from the time he started, in August 1995,
until approximately March 1996, he would generally be
called by Isolina Perez either the day before, or the same
morning, and asked to come in to work a shift.4 There is no
dispute that Mantione never turned down an opportunity to
work and was considered a reliable and dependable em-
ployee. This is reflected in his January 1996 evaluation pre-
pared by Montanino, which is the only one Mantione re-
ceived during his tenure with Respondent. Earnings state-
ments introduced into evidence from this period show that
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733DOCTORS’ HOSPITAL OF STATEN ISLAND, INC.
5 To prove that Respondent had lost money, Respondent offered
the 1996 audited financial statements which show year-end results
for calendar year 1995 and 1996. Obviously, these financial state-
ments were not available to Montanino at the time he made the deci-
sion to reduce expenses by reducing overtime in the radiology de-
partment.
Mantione averaged 59 hours regular time and about 11 hours
overtime biweekly.
According to Mantione, in about March, he was asked to
work the Sunday 4 p.m. to the midnight shift and the on-
call shift on a regular basis. The latter shift covers the period
between midnight and 7 a.m. when no x-ray technologist is
on duty at the hospital. The x-ray tech assigned to this shift
carries a beeper and, if an x-ray is needed during those
hours, is paged to come in. The person working this shift re-
ceives a salary for carrying the beeper and is paid for any
hours actually worked when called in. Mantione testified that
Perez told him that Montanino asked her to offer Mantione
the on-call shift and that the job was his as long as he want-
ed. Mantione further testified that, beginning in about March,
not only did he work the Sunday evening shift and on-call,
but he continued to be called in to work regularly for other
shifts, sometimes being asked to work a particular shift for
a full week. His earnings statements for the pay periods end-
ing April 13 through August 3 show that he averaged 103
hours regular time and 16 hours of overtime biweekly. His
gross earnings, including call and miscellaneous pay, aver-
aged approximately $3000 biweekly during this same period.
Respondent’s witnesses, Montanino and Perez, admit that
Mantione was asked to take the on-call shift when the per
diem employee who previously was assigned this shift re-
signed. They do not dispute that Mantione was regularly as-
signed the Sunday evening shift, or that he was regularly
scheduled to work other shifts during this period. According
to Respondent’s witnesses, Mantione worked so many hours
during this period because he was the only per diem who did
not have a job elsewhere and because Respondent was short
staffed in radiology due to the resignations of several full-
time technologists and vacations being taken by two long-
term employees who had to use accumulated vacation or lose
it.
Mantione testified that after he attended his first union
meeting and Montanino held his meeting with the employees
on July 26, Perez began to send him home in the middle of
a scheduled shift, or to call him in on short notice and then,
shortly after he got there, send him home. In both instances,
according to Mantione, Perez told him it was Montanino who
instructed her to send Mantione home. Mantione identified
only two occasions when this happened. Perez and
Montanino admit this occurred on a couple occasions but tes-
tified that this was consistent with Respondent’s practice of
sending employees home during a shift if, due to cancella-
tions of procedures, it found itself overstaffed on a given
shift. Under this practice, per diem employees were asked to
go home before full-time employees. The complaint does not
allege, and I do not find, that these isolated incidents con-
stitute discrimination in violation of Section 8(a)(3) of the
Act. Moreover, I note that Mantione’s earnings statements
from the period ending August 17, the first pay period after
his involvement with the Union began, through the period
ending October 12, show that he worked an average of 91.5
hours regular time and 8.5 hours overtime biweekly and
grossed an average of approximately $2600 biweekly. This
does not represent a significant reduction in Mantione’s work
hours.
Mantione further testified that, in October, after he had
leafleted and spoken up at the September 16 meeting, he
found that his hours were drastically reduced and that an 8
a.m. to 4 p.m. shift he had been working and had told Perez
he was available to continue working in October, was as-
signed to someone else. In contrast to the slight decline in
Mantione’s hours and earnings between July and October, his
earnings statements from the pay period ending October 26,
the first one covering work scheduled after the September 16
meeting, through the period ending January 4, 1997, show
that Mantione averaged little more than 47 hours regular
time biweekly and had no overtime. His gross biweekly earn-
ings averaged about $1400, less than half his previous aver-
age.
Perez admitted that she reassigned a shift for which
Mantione had previously been scheduled based on
Montanino’s instructions to rotate shifts among the new per
diems. There is no dispute that, when Mantione asked why
his hours were being taken away, Perez told him to see
Montanino. Shortly thereafter, Mantione encountered
Montanino in Perez’ office. Montanino said that he heard
that Mantione wanted to speak to him. Mantione denied
making such a request, but said, ‘‘since you’re here, I don’t
understand what’s going on. I’ve always been a good worker
and dependable, but all of a sudden, in July you start sending
me home, or calling me into work only to send me home.
I don’t understand why you’re doing this.’’ Montanino re-
plied that he couldn’t justify Mantione’s hours anymore and
that he was going to save the department money by cutting
his hours. Montanino admitted having a conversation with
Mantione in which he gave Mantione this reason for the re-
duction in his hours.
Respondent’s witnesses denied taking any action to reduce
Mantione’s hours because he attended the union meeting in
July, leafleted in September, and spoke up at Montanino’s
meeting in September. According to Perez and Montanino,
Mantione’s earnings and hours declined slightly because Re-
spondent had hired two per diems in July, Paul Ventura and
John DiScipio, and one in September, Ann Marie Coletti,
and had more people available to work. As noted above,
however, Mantione’s hours did not significantly decline after
Ventura and DiScipio were hired in July. Montanino also tes-
tified that the excessive amount of overtime that Mantione
had been working since March had ‘‘blown the overtime
budget for the department.’’ According to Montanino, in
view of losses in revenue Respondent had suffered, it was
necessary to reduce expenses throughout the hospital and one
way to do that was to spread the work among the per diems
more equitably to reduce the amount of overtime.5 However,
Montanino admitted that its records showed that Coletti, one
of the new employees, worked 66.25 hours of overtime in
the fourth quarter. There is no evidence regarding how many
regular hours Ms. Coletti worked, nor how many hours the
other new per diem x-ray technologists were working during
this period.
Mantione testified that, in December, after he leafleted the
second time, Perez called him and told him that Mantione
would no longer be working the on-call shift, that those
hours were being spread out among the other per diems.
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734 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
When Mantione asked why, Perez repeated that Montanino
wanted to spread out the work and suggested that Mantione
call Montanino if he wanted a further explanation. Mantione
admitted that he did not speak to Montanino about this. Later
in December, when Perez called Mantione to invite him to
the department Christmas party, he asked her why he was
being alienated from the department and not being called to
work. Perez told him that Montanino had instructed her not
to call him in. Mantione testified that he last worked a regu-
lar shift in December and that he had not been assigned any
hours, nor called into work since then. His earnings state-
ments for January 1997, however, show that he did work 9
hours during the first pay period and 7 hours in the second
pay period of the month. Although Mantione testified that
these were hours he was called in while still on call, they
appear more consistent with Perez’ testimony that the last
time he was scheduled was an on-call sift on January 13,
1997, and the Sunday evening shift (4 p.m. to 12 a.m.) on
January 19.
Perez and Montanino admit that a decision was made to
take away Mantione’s Sunday evening shift and his on-call
shift, effective the beginning of January. Montanino testified
that this was a business decision to reduce overtime costs
and to spread work around more equitably among the per
diem employees. According to Montanino, the newly hired
per diems were asking for more hours and he had to satisfy
them in order to keep them. Montanino admitted that the call
shift had historically been assigned to one employee and was
not rotated and that on-call pay is not counted in overtime
hours. As noted above, no evidence was offered to show how
many hours the new per diems actually worked, other than
Coletti’s overtime hours.
Respondent’s witnesses further testified that, after Re-
spondent began rotating the hours in the radiology depart-
ment, causing a decline in hours and earnings for Mantione,
his attitude changed. Montanino testified that Mantione be-
came aggressive and belligerent after Respondent began to
rotate the call shift. He testified that he received reports from
Perez and others in the department that Mantione was using
derogatory names to refer to Montanino and that incidents of
vandalism and theft began to occur which he attributed to
Mantione. Montanino admitted that he never heard Mantione
refer to him with a derogatory name personally. He also ad-
mitted that he had no proof that Mantione was responsible
for the incidents of theft and vandalism and that he never
confronted Mantione with these allegations. According to
Mantione, he was afraid to confront Mantione because of
Mantione’s intimidating nature. Instead, he told Perez to let
him stay on the schedule, but not to call him for any more
hours. When asked specifically why he never issued a warn-
ing to Mantione for this alleged misconduct, Montanino re-
plied: ‘‘why would I warn somebody that I’m only getting
hearsay on? I can’t go by what everybody else is telling
me.’’
In an attempt to prove that Mantione in fact engaged in
misconduct, Respondent offered the testimony of Perez and
employee Michael Esposito. Perez testified that she com-
plained to Montanino about Mantione’s attitude. She could
not recall when she made this complaint and, when asked
what she complained about, she testified that Mantione
would ‘‘stare people down and make people feel uncomfort-
able doing it.’’ She also testified about a telephone call she
received from Mantione on Sunday, January 5. According to
Perez, Mantione had gone to work at 4 p.m. that day in the
apparent belief he was still working the Sunday evening
shift. When he found that Coletti was working that shift, he
called Perez at home and angrily demanded to know why he
was taken off the 4 p.m. to 12 a.m. shift. When Perez told
Mantione to call Montanino because it was his decision to
rotate the shifts, Mantione referred to Montanino as a ‘‘little
fat [expletive]’’ and hung up. Perez wrote up a report of this
call and gave it to Montanino the next day.
Esposito, a full-time x-ray technologist who worked the 4
p.m. to midnight shift during the week, testified that
Mantione came into the department on the evening of Janu-
ary 8 and said he wanted to make some copies. Mantione
was not scheduled to work at the time. Esposito testified that
Mantione said he needed the copies for his case with the
Labor Board, but Mantione did not tell him what he was
copying and Esposito did not see what Mantione copied.
Esposito also testified that he did not see Mantione take any
original documents when he left. While Mantione was there,
he spoke to Esposito about the Union. According to
Esposito, this was a casual conversation between coworkers
and Mantione did not speak negatively about the department.
Esposito testified that, in accordance with his normal prac-
tice, he wrote a report about this encounter. Esposito ex-
plained that he does this to protect himself in the event any-
one has a question about incidents occurring on his shift be-
cause he is the only employee on duty during those hours.
He also testified that, by writing a report and leaving it for
the day shift, he hopes to avoid being called the next day
at home with questions while he is trying to sleep. Respond-
ent offered into evidence a typed report from Esposito dated
January 10, 2 days after the incident. The report, which
states that Mantione was copying work schedules, contradicts
Esposito’s testimony that he did not know or see what
Mantione was copying. Although the report indicates he is
writing it to inform Montanino of the presence of an off-duty
employee in the department, Esposito acknowledged in his
testimony that it is common for employees to hang around
the hospital even when not scheduled to work.
Perez also testified about this incident on January 8, 1997.
She testified that she arrived for work on January 10 to find
her file cabinet broken into and the work schedules from
early 1996 to late 1996 missing. She prepared an incident re-
port and gave it to Montanino. Perez testified that the file
cabinet is in the reception area accessible to many employees
and that she did not suspect Mantione when she wrote the
report. According to Perez, she wrote the report so that it
could be investigated to determine who broke into the cabi-
net. There is no evidence that any investigation was ever
conducted. No explanation was offered for the gap in time
between Mantione’s alleged visit to the department on Janu-
ary 8, 1997, and the preparation of written reports by
Esposito and Perez on January 10, 1997.
Montanino testified that he also received a report from
Coletti about vandalism she discovered when she was called
in after midnight to do a call shift. This allegedly occurred
immediately after Mantione had worked his last shift, from
4 p.m. to 12 a.m. on January 19, 1997. Montanino reports
that Coletti found the department in a shambles with x-ray
film exposed and strewn about, an ionic iodine solution
squirted over equipment which had crystallized and view
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735DOCTORS’ HOSPITAL OF STATEN ISLAND, INC.
6 The key is apparently disguised to look like a knob on a drawer
or stove.
7 Respondent, on brief, makes much of the fact that no more than
5–10 employees attended these meetings. The overly broad rule an-
nounced by Montanino would be unlawful even were it commu-
nicated to only one employee because it would interfere with that
employee’s right to engage in protected activity.
windows taped over. According to Montanino, this was the
last straw and he decided after that not to call Mantione for
work any more. Coletti was not called as a witness and no
written report of this incident was offered into evidence.
Finally, Respondent offered testimony from Esposito about
an incident on February 6, 1997, when Mantione came to the
department to pick up his paycheck. At the time, Respondent
was no longer assigning Mantione any hours. Esposito testi-
fied that he told Mantione, pursuant to instructions from
Montanino, that Mantione could not get his check until he
returned the call beeper. Mantione became angry and started
cursing Respondent and Montanino and punched a door.
Mantione left the department at the same time that Esposito
left to get dinner. Esposito testified that after he returned, he
discovered the key to the portable x-ray machine missing and
reached the conclusion that Mantione had taken it because
only an x-ray tech would know what the key looked like.6
Esposito also wrote a report of this incident which, in con-
trast to his earlier report, was handwritten. Esposito admitted
that he didn’t know if the key was there before he went to
dinner because he had not yet done a portable that shift. He
also admitted that he wrote the report to protect himself be-
cause he did not want to be held responsible for the missing
key.
Mantione specifically denied engaging in the misconduct
alleged, although he admitted that he punched a door when
he went to Respondent’s facility to pick up his paycheck on
February 6, 1997. By that time, the Union’s attorney had al-
ready faxed a letter to Respondent’s chief executive officer,
with a copy to Montanino, accusing Respondent of harassing
and retaliating against Mantione because of his support for
the Union by ‘‘eviscerating his schedule’’ and advising Re-
spondent that the Union was filing a charge with the NLRB
on Mantione’s behalf. Mantione had not yet been told that
he was discharged when he went to pick up his paycheck.
B. Analysis and Conclusion
1. No-distribution rule
The Board, with approval of the Supreme Court, has held
that a health care employer may not lawfully prohibit em-
ployee solicitation and distribution during nonworktime in
nonwork areas unless it can show that such a restriction on
employee exercise of statutory rights is necessary to avoid
disruption of health care operations or disturbance of pa-
tients. NLRB v. Baptist Hospital, 442 U.S. 773 (1979); Beth
Israel Hospital v. NLRB, 437 U.S. 483 (1978); St. John’s
Hospital, 222 NLRB 1150 (1976), enfd. in part 557 F.2d
1368 (10th Cir. 1977). Rules which prohibit employee solici-
tation and distribution in immediate patient care areas, such
as patient rooms, operating rooms, places where patients re-
ceive treatment and adjacent corridors, and waiting rooms
have been found presumptively lawful. Id.; Intercommunity
Hospital, 255 NLRB 468 (1981). Rules which extend beyond
such areas to include places such as the cafeteria, main
lobby, entrances, and gift shops, have been struck down by
the Board as overly broad. Southern Maryland Hospital Cen-
ter, 293 NLRB 1209, 1220 (1989), enfd. in relevant part 916
F.2d 932 (4th Cir. 1990). General prohibitions on solicitation
and distribution anywhere on hospital property are presump-
tively invalid. See Health Care & Retirement Corp., 310
NLRB 1002, 1005 (1993).
The Board has also held that, while employees do not
have a statutory right to use an employer’s bulletin board,
such use receives the protection of the Act when an em-
ployer permits its employees to use bulletin boards for the
posting of personal notices. In these circumstances, an em-
ployer may not remove union notices or discriminate against
employees who post such notices. Container Corp. of Amer-
ica, 244 NLRB 318 fn. 2 (1979). See also Liberty House
Nursing Home, 236 NLRB 456 (1978).
Here, as found above, Montanino told employees at the
meetings on September 16, November 20, and January 10,
1997, that they could only distribute union materials ‘‘out-
side the hospital’’ and that union propaganda could not be
posted ‘‘on cork boards or anywhere else on the hospital
premises.’’ Montanino conceded that Respondent has a cafe-
teria where employees spend meal and break times and a
bulletin board in the cafeteria where employees may post
personal notices. Thus, the rule announced at this meeting
encompasses nonwork and nonpatient care areas and is pre-
sumptively unlawful.
In defense, Respondent takes two approaches. First, it re-
lies on the written solicitation and distribution rule contained
in the personnel policies and procedures manual. While this
rule may be presumptively valid under current Board law,
there is no evidence that employees were aware of it.
Montanino concedes he did not quote this rule, nor post or
otherwise distribute it during his meetings with employees.
In fact, there is no evidence that this rule has ever been com-
municated to any employee. Moreover, the written rule is si-
lent with regard to posting of notices by employees within
the hospital, a subject addressed by Montanino in the meet-
ing. Thus, the only rule employees in the radiology depart-
ment were told about is the overly broad rule set forth in the
minutes of the meetings.7
Respondent also argues that Montanino’s rule was valid
because, in light of the size and physical layout of Respond-
ent’s facility, all areas of the hospital are patient care areas.
While it may be true that the radiology department and adja-
cent areas, which include the corridor separating radiology
from the emergency room and patient waiting rooms, is a pa-
tient care area, Montanino did not limit his prohibition to this
area. On the contrary, he barred employees from distributing
literature anywhere inside the facility, presumably including
the cafeteria and any other nonwork areas. Respondent of-
fered no evidence to show that a restriction on protected ac-
tivity in the cafeteria, for example, was necessary to avoid
disruption of health care operations or disturbance of pa-
tients. Similarly, while it may have been proper for Respond-
ent to have prohibited posting of union notices on cork
boards, walls, and other locations within the radiology de-
partment and other patient care areas, his announced prohibi-
tion was much broader and would apply even to the bulletin
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736 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 In his testimony, Montanino also cited his concern with union
notices being posted on lockers in locker rooms and left under wind-
shields on cars in the parking lot. Such locations clearly are non-
work, nonpatient care areas. This testimony confirms that the broad
reach of the rule he announced at the meetings was intended.
9 Respondent focuses on Mantione’s total earnings on a quarterly
basis and argues that his earnings decreased by only $900 between
the third and fourth quarters. This method of considering the evi-
dence ignores the downward trend in hours worked and earnings
which is plainly shown on Mantione’s biweekly earnings statements
and which culminates in January 1997 with his working only 7.5
hours per period and earning only $158.25 in his last pay period.
board in the cafeteria which employees had been permitted
to use to post personal notices.8
Having considered the evidence in the record and the argu-
ments on brief, I conclude that Respondent has violated Sec-
tion 8(a)(1) of the Act since September 16, as alleged in the
complaint, by promulgating and maintaining an overly broad
no-distribution rule.
2. Alleged discrimination against Mantione
In cases under Section 8(a)(1) and (3) which turn on em-
ployer motivation, the Board requires the General Counsel to
establish a prima facie case that protected activity was a mo-
tivating factor in the employer’s allegedly unlawful conduct.
On such a showing, the burden shifts to the employer to es-
tablish that it would have taken the same action even in the
absence of protected activity. Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982). Accord: Fluor Daniel, Inc., 304 NLRB 970
(1991); Beth Israel Medical Center, 292 NLRB 497 (1989).
The Supreme Court approved the Board’s burden-shifting
analysis in NLRB v. Transportation Management Corp., 462
U.S. 393 (1983). The essential elements of General Coun-
sel’s prima facie case are protected activity, employer knowl-
edge of that activity, antiunion animus and timing. Employer
motivation may also be inferred from the totality of cir-
cumstances. Abbey’s Transportation Services, 284 NLRB
698, 701 (1987), enfd. 837 F.2d 575 (2d Cir. 1988). It is also
well settled that, where an employer’s stated motive is found
to be false, an inference may be drawn that the true motive
is an unlawful one that the employer seeks to conceal.
Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470
(9th Cir. 1966).
In the instant case, the General Counsel has clearly made
out a prima facie case of discrimination. Thus, there is no
dispute that Mantione was involved in union activity and that
Respondent was aware of this activity. Montanino admitted
in his pretrial affidavit that he knew during the summer that
Mantione supported the Union, and testified at the hearing
that he saw Mantione leafleting on behalf of the Union at
Respondent’s facility in September and December.
Montanino further acknowledged that Mantione spoke up in
favor of the Union at the September 16 radiology department
meeting. Respondent’s antiunion animus is established by the
finding above that Respondent promulgated an unlawfully
overbroad no-distribution rule on September 16, and reiter-
ated it in meetings with employees on November 20 and Jan-
uary 10, 1997. Moreover, Montanino’s statements to employ-
ees at the July 26 meeting included a threat to close the hos-
pital if employees selected union representation and state-
ments creating the impression that employees’ union activi-
ties were kept under surveillance. Such statements would be
unlawful but for the expiration of the Section 10(b) statute
of limitations and provide further evidence of Respondent’s
hostility toward its employees’ exercise of their statutory
right to form, join, or assist a union. Finally, the evidence
in the record supports Mantione’s testimony that it was not
until he openly displayed his support for the union that Re-
spondent reduced his hours and ultimately stopped offering
him work as a radiologic technologist, thus satisfying the ele-
ment of timing.
In order to rebut this prima facie case, Respondent asserts
that Mantione’s hours would have been reduced even absent
his union activity because of a business decision to reduce
overtime hours in the radiology department and because Re-
spondent needed to rotate hours more equitably among
Mantione and new per diem technologists who were hired
between July and November. Respondent further asserts that
it stopped assigning Mantione shifts and calling him for
work because of serious misconduct attributed to Mantione,
including disparagement of his supervisor and theft and van-
dalism of hospital property. As the Board has noted, it is not
enough for an employer to merely assert a good reason for
its allegedly unlawful action. In order to rebut a prima facie
case of discrimination, the employer must show by a prepon-
derance of the evidence that it would have taken the same
action for the asserted reasons in the absence of protected ac-
tivity. Abbey’s Transportation Service, supra; Peter Vitalie
Co., 310 NLRB 865, 871 (1993).
There is no dispute that, prior to his involvement with the
Union, Mantione was considered a satisfactory employee
who was dependable, and willing and able to work whenever
needed. Payroll records establish that, in fact, Mantione
worked long hours to assist Respondent at a time when it
was short-staffed in the radiology department because of res-
ignations and vacations of full-time employees. Respondent
argues that the need for Mantione to work such long hours
ended when Respondent hired additional per diem employees
who were also available to work the hours previously offered
only to Mantione. Moreover, according to Montanino, as a
result of being the only per diem available to work whenever
needed, Mantione worked an extraordinary number of over-
time hours, particularly in the third quarter of 1996.
Montanino testified that Mantione ‘‘blew’’ the department’s
overtime budget single handedly. Montanino further testified
that it was necessary to reduce expenses, including overtime,
because Respondent had lost $2 million in revenue in 1996
and that Mantione’s hours were reduced to accomplish this
savings.
Although it may be true that the hiring of additional em-
ployees who were available to fill open shifts would have a
tendency to reduce the hours worked by Mantione, Respond-
ent has not proved by a preponderance of the evidence that
Mantione’s hours would have been reduced as drastically as
they were absent his union activity.9 If, as Montanino
claimed, he sought to keep the new per diem technologists
happy by rotating shifts and call-ins, one would expect an
‘‘equitable’’ distribution of hours among the per diems.
However, the record reflects that between October and Janu-
ary 1997, Mantione went from working essentially full time,
averaging more than 80 hours regular time every 2 weeks
with additional overtime, to working only one shift per pay
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737DOCTORS’ HOSPITAL OF STATEN ISLAND, INC.
10 Absent records to the contrary, it must be inferred from the
amount of overtime Coletti was working that she also was working
a substantial amount of hours at regular time as well. Overtime ordi-
narily would not be paid unless an employee had worked a full 8
hours/day, or 40 hours/week.
11 Respondent asserts that it hired five new per diem employees
between June and November. In fact, Montanino admitted that one
of those was hired to replace another per diem, Leo Pompeo, who
was terminated in August. Thus, the net increase was four per diem
employees by November.
period. Moreover, payroll records show that Mantione
worked no overtime after October 12. Montanino admitted
that Ann Marie Coletti, an inexperienced per diem hired right
out of school in September, worked more than 66 hours of
overtime during this same period.10 Because Respondent did
not offer payroll records to show how many hours other per
diem’s worked during the same period that Mantione’s hours
were reduced, it has not carried its burden of showing that
shifts and hours were rotated ‘‘equitably’’ among per diems,
the asserted goal of Montanino’s actions, once a full com-
plement of per diems had been hired.11
Moreover, Respondent did not seriously dispute
Mantione’s testimony that, in March, he was asked to work
the Sunday evening shift and the on-call shift as his regular
shifts and that he continued to be regularly assigned these
shifts through December. Montanino acknowledged that,
prior to December, the on-call shift had always been as-
signed to one employee. Respondent offered no explanation
for admittedly taking these shifts away from Mantione in De-
cember. Because the on-call shift did not count as overtime,
and because Mantione could have worked his regular Sunday
evening shift without incurring overtime if other hours were
being assigned equitably, Respondent’s asserted need to re-
duce overtime costs does not explain this decision. Nor does
the hiring of additional per diems explain the departure from
Respondent’s historic practice of not rotating the on-call
shift.
Finally, Respondent has not proved that lost revenues were
the cause of the actions it took against Mantione. As noted
above, the year-end financial statements offered into evi-
dence to show Respondent’s loss in revenue during calendar
year 1996 were obviously prepared after Montanino made
the decision to take shifts and hours away from Mantione.
No other contemporaneous evidence was offered to establish
that there was a particular need to reduce expenses at the
time Montanino made his decision which would have re-
sulted in the drastic reduction in Mantione’s hours after Oc-
tober 1996. As noted above, the 66 hours of overtime
worked by Coletti in the fourth quarter of 1996 belies any
real effort to reduce overtime expense in the radiology de-
partment. Respondent also did not offer any evidence to
show any other steps it took to reduce expenses around the
time that actions adversely affecting Mantione were taken.
Based on the above, I conclude that the asserted business
justification for reducing Mantione’s hours during the period
from October through January 19, 1997, was pretextual and
that the true motivation was retaliation against Mantione for
his open support of the Union.
The complaint also alleges that Respondent dis-
criminatorily discharged Mantione on January 19, 1997.
There is no dispute that January 19, 1997, was the last date
that Mantione was scheduled for work and that Respondent
has not called Mantione to work since that date, even though,
according to Perez, Mantione’s name still appears on the
schedule as a per diem employee. Montanino testified that he
instructed Perez not to schedule or offer work to Mantione
because of his belief that Mantione had engaged in serious
misconduct. Montanino conceded that he made this decision
even though he had no proof that Mantione engaged in the
misconduct alleged and that he never confronted Mantione
with the accusations against him.
At the hearing, Respondent attempted to prove that
Mantione broke into Perez’ filing cabinet and stole work
schedules on January 8, 1997, that he vandalized the depart-
ment on his last scheduled shift on January 19, 1997, and
that he stole a key from the portable x-ray machine on Feb-
ruary 6, 1997. Respondent also offered evidence that
Mantione referred to Montanino in a derogatory way during
a telephone conversation with Perez on January 5, 1997, and
in a conversation with a fellow employee on February 6,
1997. Significantly, all of these incidents occurred after Re-
spondent took away Mantione’s Sunday evening and on-call
shifts and otherwise reduced his hours, conduct found unlaw-
ful above. Respondent cited no misconduct by Mantione be-
fore the December decision to reduce his hours. On the con-
trary, the evidence in the record, including the only perform-
ance evaluation received by Mantione, paints the picture of
a hard-working, dependable employee not prone to mis-
conduct. Thus, this case is not like those cited by Respondent
where the Board and courts have found the discharge a union
supporter lawful because the employee had a documented
history of poor performance or misconduct prior to engaging
in protected activity.
Moreover, Respondent has failed to prove that Mantione
in fact committed the alleged acts of misconduct. The testi-
mony of Esposito with regard to the January 8, 1997 incident
was inconsistent with the typed statement he prepared on
January 10, 1997. Although in his unsworn statement,
Esposito says that Mantione came to the department to copy
work schedules, in his sworn testimony at the hearing,
Esposito specifically denied seeing what it was that Mantione
copied. Moreover, at no time did Esposito say that he saw
Mantione break into the file cabinet or take company docu-
ments from the department. Because Perez did not discover
the file cabinet broken into and records missing until January
10, and admitted that the file cabinet was in an area acces-
sible to people in addition to Mantione, the possibility exists
that someone else broke into the file cabinet between
Mantione’s alleged visit to the department on the evening of
January 8 and the morning of January 10, 1997. Yet Re-
spondent offered no evidence of any investigation undertaken
in response to Perez’ and Esposito’s January 10, 1997 state-
ments and admittedly never questioned Mantione regarding
its suspicions. Respondent, on little more than suspicion, ap-
parently reached the conclusion that Mantione was guilty of
this serious accusation.
Respondent did not even attempt to prove that Mantione
vandalized the department during his last shift on January 19,
1997, offering only hearsay testimony from Montanino re-
garding what Coletti told him. Coletti herself was not called
as a witness, nor were any contemporaneous incident reports
or other documentation offered to prove that such vandalism
in fact occurred. Thus there is no proof that it even hap-
pened. Moreover, even if such an incident occurred, it could
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738 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 Montanino and Perez offered generalized complaints about
Mantione’s ‘‘attitude’’ and his ‘‘intimidating’’ nature which were
not specific as to time, other than to acknowledge that Mantione’s
‘‘attitude’’ changed after his hours were reduced. Montanino also
made an unsupported and uncorroborated claim that Mantione’s
work slowed down after his hours were reduced. None of these con-
tentions, even if I were to credit them, negates the above finding that
Mantione was a good employee before Respondent began to
discriminatorily reduce his hours.
not have been the basis for Montanino’s decision not to as-
sign any more work to Montanino. Because Perez admitted
preparing the schedules at least 2 weeks in advance, and be-
cause there is no dispute that January 19 was Mantione’s last
scheduled shift, the decision to terminate Mantione had to
have been made before the alleged January 19, 1997 vandal-
ism.
Similarly, the alleged February 6, 1997 theft of the key for
the portable x-ray machine occurred after Montanino had
made a decision to terminate Mantione. Thus, Mantione went
to the radiology department that evening to pick up his last
paycheck and Montanino left instructions for Esposito to ask
Mantione to return the beeper, a clear indication that
Mantione would no longer be employed by Respondent.
Anything that may have occurred on February 6, 1997, could
not have been a basis for a decision already made. Moreover,
Esposito’s speculation that Mantione stole the key cannot be
a basis for a finding that he in fact did so inasmuch as
Esposito admitted that he did not know if the key was there
before he went to dinner, he only knew that it was not there
when he went to use the machine after dinner. Again there
is no evidence that Respondent undertook any investigation
of this alleged theft of hospital property. Certainly, Mantione
was never questioned by Respondent regarding this allega-
tion.
Respondent also relies on Mantione’s alleged use of de-
rogatory names to refer to his supervisor as a basis for termi-
nating Mantione. The only incidence of this which occurred
before Respondent stopped offering work to Mantione was
the January 5 telephone conversation with Perez. Even As-
suming Perez is credible regarding this conversation, Re-
spondent has failed to show that it would have terminated or
refused to schedule Mantione for this reason absent his union
activity. Respondent offered no evidence to show that other
employees have been terminated based on such conduct, par-
ticularly where this is the first instance of misconduct from
an otherwise good employee.12 Moreover, the alleged name-
calling occurred in the context of a discussion of Respond-
ent’s discriminatory reduction in Mantione’s hours and may
well have been provoked. In any event, Respondent took no
immediate action regarding this alleged misconduct, even
though Montanino was aware of it from Perez’ memo about
her telephone conversation with Mantione that she submitted
the next day. A delay between alleged employee misconduct
and an employer’s disciplinary action is evidence of pretext.
See Care Manor of Farmington, 314 NLRB 248, 255 (1994);
Aquatech, Inc., 297 NLRB 711, 717–718 (1990), enfd. 926
F.2d 538 (6th Cir. 1991); Abbey’s Transportation Service,
supra at 699–700.
For the above reasons, particularly the fact that most of
the alleged misconduct occurred after Respondent made a de-
cision not to employ Mantione and noting that Respondent
failed to investigate the alleged misconduct and failed even
to apprise Mantione of the accusations against him, I find
that the alleged misconduct was pretextual. Accordingly, Re-
spondent has not established by a preponderance of the evi-
dence that it would have terminated, or failed to offer work,
to Mantione after January 19, 1997, in the absence of his
union activity. Respondent has thus violated Section 8(a)(1)
and (3) of the Act as alleged in the complaint.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By promulgating and maintaining a rule that restricted
employees to distributing union materials outside the hospital
and prohibited the posting of union material anywhere on
hospital premises, Respondent has interfered with, restrained,
and coerced its employees in the exercise of their Section 7
rights in violation of Section 8(a)(1) of the Act.
4. By taking away John Mantione’s Sunday evening and
on-call shifts and otherwise reducing his work hours and by
thereafter terminating Mantione, the Respondent has dis-
criminated against its employees in order to discourage mem-
bership in the Union in violation of Section 8(a)(3) and (1)
of the Act.
5. Respondent’s unfair labor practices described above af-
fect commerce within the meaning of Section 2(6) and (7)
of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having discriminatorily discharged John
Mantione on January 19, 1997, it must offer him reinstate-
ment and make him whole for any loss of earnings and other
benefits, computed on a quarterly basis from date of dis-
charge to date of proper offer of reinstatement, less any net
interim earnings, as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest as computed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987). In order to
remedy the discriminatory reduction in Mantione’s hours
which preceded his discharge, Respondent shall be ordered
to reinstate Mantione to the Sunday evening and on-call
shifts he previously had and to offer him additional shifts
and hours on a nondiscriminatory basis. Respondent shall
also be ordered to make Mantione whole for any earnings
lost between October 12, 1996, and January 19, 1997, as a
result of Respondent’s discriminatory failure to assign him
shifts and hours of work during that period. At a minimum,
this would include pay for the Sunday evening and on-call
shifts taken away from Mantione in January 1997 and the
shift which Perez admitted taking away from him in October
1996 at Montanino’s instructions. The precise amount of any
additional backpay owed to Mantione will be left to deter-
mination at the compliance stage. As noted previously,
Mantione’s hours of work and earnings would have de-
creased to some extent as a result of Respondent’s hiring of
additional per diems, particularly after November. By com-
paring the number of hours assigned to Mantione with those
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739DOCTORS’ HOSPITAL OF STATEN ISLAND, INC.
13 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
14 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
assigned to other per diems during this period, it can be de-
termined how often Mantione would have worked but for the
unlawful discrimination against him.
Respondent shall also be ordered to rescind the overly
broad no-distribution rule announced by Montanino at meet-
ings with employees on September 16, November 20, and
January 10, 1997, and to post the notice to employees at-
tached hereto as an appendix.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended13
ORDER
The Respondent, Doctors’ Hospital of Staten Island, Inc.,
Staten Island, New York, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Promulgating and maintaining any rules which prohibit
employees from distributing union materials in nonwork
areas during the employees’ nonworking time.
(b) Reducing the work hours, discharging or otherwise dis-
criminating against any employee for supporting Local 1199,
National Health and Human Service Employees Union,
AFL–CIO or any other union.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Rescind the overly broad no-distribution rule promul-
gated by Peter Montanino at employee meetings on Septem-
ber 16 and November 20, 1996, and January 10, 1997.
(b) Within 14 days from the date of this Order, offer John
Mantione immediate and full reinstatement 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.
(c) Restore Mantione to the Sunday evening and on-call
shifts he previously was assigned and offer him additional
shifts and hours of work on a nondiscriminatory basis.
(d) Make Mantione whole for any loss of earnings and
other benefits suffered as a result of the discrimination
against him in the manner set forth in the remedy section of
the decision.
(e) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge and
within 3 days thereafter notify Mantione in writing that this
has been done and that the discharge will not be used against
him in any way.
(f) Preserve and, within 14 days of a request, make avail-
able to the Board or its agents for examination and copying,
all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this Order.
(g) Within 14 days after service by the Region, post at its
facility in Staten Island, New York copies of the attached no-
tice marked ‘‘Appendix.’’14 Copies of the notice, on forms
provided by the Regional Director for Region 29, after being
signed by the Respondent’s authorized representative, shall
be posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are customar-
ily posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or cov-
ered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out
of business or closed the facility involved in these proceed-
ings, the Respondent shall duplicate and mail, at its own ex-
pense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since February 3, 1997.
(h) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsible
official on a form provided by the Region attesting to the
steps the Respondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated 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 representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT promulgate and maintain any rules prohibit-
ing our employees from distributing union materials in non-
working areas during employees’ nonworking time.
WE WILL NOT reduce your hours of work, discharge, or
otherwise discriminate against any of you for supporting
Local 1199, National Health and Human Service Employees
Union, AFL–CIO or any other union.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL rescind the overly broad no-distribution rule pro-
mulgated by Peter Montanino, assistant executive director of
operations, at employee meetings on September 16 and No-
vember 20, 1996, and January 10, 1997.
WE WILL, within 14 days from the date of the Board’s
Order, offer John Mantione immediate and full reinstatement
to his former job, including the Sunday evening and on-call
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740 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
shifts he previously was assigned and offer him any addi-
tional shifts and hours available on a nondiscriminatory basis
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.
WE WILL make John Mantione whole for any loss of earn-
ings and other benefits resulting from the discriminatory re-
duction in his hours of work and his discharge, less any net
interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlawful
discharge of John Mantione and WE WILL, within 3 days
thereafter, notify him in writing that this has been done and
that the discharge will not be used against him in any way.
DOCTORS’ HOSPITAL OF STATEN ISLAND, INC.
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