Greenspan, D.D.S., P.C.

National Labor Relations Board - Board Decisions

Jul 31, 1995

318 N.L.R.B. 70 (N.L.R.B. 1995)

70
318 NLRB No. 5
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The General Counsel has excepted to some of the judge’s credi-
bility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings. 1 Unless indicated otherwise, all dates referred to relate to 1994.
Robert Greenspan, D.D.S., P.C. and Doctors Coun-
cil. Cases 2–CA–27907 and 2–CA–28304
July 31, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND BROWNING
On May 22, 1995, Administrative Law Judge Joel P.
Biblowitz issued the attached decision. The Respond-
ent filed an exception and a supporting brief. The Gen-
eral Counsel filed exceptions and a supporting brief,
and the Respondent filed an answering brief to the
General Counsel’s exceptions.
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,1 and con-
clusions as further discussed below and to adopt the
recommended Order.
1. We agree with the judge, for the reasons set forth
by him, that the bargaining unit dentists employed by
the Respondent are not supervisors within the meaning
of Section 2(11) of the Act. We note additionally that
the record evidence establishes that in at least two in-
stances the Respondent granted the request of a dental
assistant to transfer to work with a different dentist be-
cause of the assistants’ complaints of an unsatisfactory
relationship with the dentist to whom they were origi-
nally assigned. This evidence that the dentists and their
assistants essentially have reciprocal rights to request
transfers further supports the judge’s conclusion that
the dentists’ authority to recommend that a dental as-
sistant be transferred is a means of ensuring compat-
ibility among employees who work closely together
rather than an indication of supervisory status under
Section 2(11) of the Act. As the judge found, ‘‘the evi-
dence establishes that once a dental assistant is as-
signed to work for a particular dentist, that is consid-
ered to be a permanent assignment absent any dis-
agreements that cause one or the other to ask for, or
demand, a reassignment.’’ (Emphasis added.)
We further agree with the judge’s alternative finding
that the dentists’ authority to recommend transfer is
exercised too infrequently to establish supervisory sta-
tus. We note in particular that of the four instances set
forth in the record in which such authority was exer-
cised, two occurred several months after the Respond-
ent claimed in August 1994 that the dentists were su-
pervisors and withdrew recognition from the Union.
Those transfers occurring subsequent to August 1994
are of limited probative value in supporting the Re-
spondent’s affirmative defense that it believed the den-
tists to be supervisors at the time it withdrew recogni-
tion from the Union in August 1994. Even considering
all the record evidence, as did the judge, we agree with
his conclusion that the dentists’ authority to rec-
ommend transfer is exercised too infrequently to estab-
lish supervisory status.
2. We further agree with the judge, for the reasons
set forth by him, that the Respondent did not unlaw-
fully threaten employees with closure of the Respond-
ent’s facility. The General Counsel has excepted to this
finding and contends that the Respondent unlawfully
threatened that its sole client ‘‘would close the facility
because he would not deal with the Union.’’ The judge
discredited the latter testimony, however, and the
record evidence is consistent with this credibility reso-
lution. The General Counsel’s exception is accordingly
meritless.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Robert Greenspan, D.D.S.,
P.C., New York, New York, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the Order.
Burt Pearlstone, Esq., for the General Counsel.
Ira Drogin, Esq. and Laurent Drogin, for the Respondent.
Richard M. Betheil, Esq. (Pryor, Cashman, Sherman &
Flynn), for the Charging Party.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. This case
was heard by me in New York, New York, on April 20 and
21, 1995. The consolidated complaint, which issued on
March 31, 1995, was based on unfair labor practice charges
filed by the Doctors Council (the Union) on October 24,
1994,1 and March 28, 1995. The complaint alleges that on
about August 24, Robert Greenspan, D.D.S., P.C. (Respond-
ent), withdrew recognition from the Union as the exclusive
bargaining representative of the dentists that it employs, and
since that time has failed to recognize and bargain with the
Union. The complaint further alleges that subsequent to Au-
gust 22, Respondent bypassed the Union and dealt directly
with its employees concerning wages and other terms and
conditions of employment, and on about September 6, Re-
spondent unilaterally instituted wage increases of $32 a day
for its unit employees. Finally, the complaint alleges that on
about March 14, 1995, Respondent, by Robert Greenspan,
71GREENSPAN, D.D.S., P.C.
2 Judge McKenna, in his memorandum and order, stated that the
injunctive provisions shall have no further force and effect after June
30, 1995, unless the Administrative Law Judge shall have rendered
a decision on this matter on or before that date, and that, should
there be an appeal from that decision, then the injunctive provisions
would have no further force or effect after September 8, 1995, un-
less the NLRB shall have rendered a decision on the appeal by Sep-
tember 8, 1995.
3 Respondent’s office clerical employees, dental hygienists, X-ray
technicians and dental assistants have been represented by Local
153, Office and Professional Employees International Union, AFL–
CIO (Local 153), since about 1989. The most recent collective-bar-
gaining agreement covering this unit is effective from June 1, 1994,
through May 31, 1996.
D.D.S., its owner, agent, and supervisor within the meaning
of the Act, informed its employees that its facility would be
forced to close if the Union prevailed in its charges filed
with the Board. By Order dated March 21, 1995, Lawrence
M. McKenna, district judge for the United States District
Court for the Southern District of New York, granted the
Board injunctive relief pursuant to Section 10(j) enjoining
Respondent from engaging in the actions alleged,2 except for
the alleged threat to close. The charge alleging that violation
was filed after the Judge’s Order issued.
FINDINGS OF FACT
I. JURISDICTION
Respondent admits, and I find, that it has been an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION STATUS
Respondent admits, and I find, that the Union has been a
labor organization within the meaning of Section 2(5) of the
Act.
III. THE FACTS
Prior to August 22, the Union had been the recognized
collective-bargaining representative of the dentists employed
by Respondent for over 10 years. The last collective-bargain-
ing agreement between the parties expired on December 31,
1993. Negotiations for a new collective-bargaining agreement
had commenced when counsel for Respondent wrote to the
Union by letter dated August 22:
In view of the decision of the United States Supreme
Court on May 23, 1994, in National Labor Relations
Board v. Health Care and Retirement Corporation of
America [114 S.Ct. 1778 (1994)], my client will not en-
gage in collective bargaining negotiations with your
Union concerning the dentists he employs, for the rea-
son that those dentists are supervisors within the mean-
ing of Section 2(11) . . . of the National Labor Rela-
tions Act.
Since that time, Respondent has refused to recognize or bar-
gain with the Union as the collective-bargaining representa-
tive of its dentists, claiming, as stated in the August 22 letter,
that they are supervisors as defined in the Act. In fact, Re-
spondent admits that, subsequent to August 22, it bypassed
the Union and dealt directly with its dentists concerning
wages and other terms and conditions of employment, and
that on about September 6, it unilaterally instituted wage in-
creases of $32 (with the exception of one employee who re-
ceived $16) a day to its dentists.
The dental clinic in question is located at One Penn Plaza
in the City and State of New York (the facility). Respondent
has provided dental services to the members of, or partici-
pants in, New York Hotel and Motel Trades Council and
Hotel Association of New York City, Inc. Dental Fund (the
Dental Fund), for a number of years pursuant to agreements
with the Dental Fund. The last such agreement (the agree-
ment) was executed by Respondent on May 27 and was ef-
fective for the period December 1, 1993, until December 31,
1995. The patients cared for pursuant to this agreement rep-
resent 100 percent of Respondent’s business. In addition to
the 10 dentists employed by Respondent at the facility, there
are 3 dental specialists (not in the unit), 5 clerical reception-
ists, a sterilization assistant, an x-ray assistant, 3 hygienists,
and about 15 dental assistants.3 In addition to Dr. Greenspan,
Dr. Findberg, the chief of staff, and Mila Gutterman, the of-
fice manager, are present at the facility. It is the dentists’
working relationship with the dental assistants that was the
principal subject of this hearing.
A. Dentists and Dental Assistants
The dentists at the facility perform normal dental care. Dr.
Michael Kozic testified, ‘‘I treat patients in general routine
dentistry. I do cavities, fillings, root canals, extractions, make
bridges and crowns. General dentistry.’’ The dental assistant
is the other part of the ‘‘four handed sit-down dentistry.’’
There is no conflict between the testimony of Drs. Kozic and
Greenspan regarding the dental assistants’ duties; as Green-
span’s testimony is more complete, it follows:
She has the functions that start before the patient is
in the operatory. She has functions that take place while
the patient is in the operatory. And she has functions
after the patient leaves the operatory.
Before the patient arrives, she has duties, as far as
putting appropriate guards, getting instruments, sterilize
hand pieces, things of that nature that she does inde-
pendently of the doctor.
Then she goes out and brings the patient in from the
waiting room to the operatory. She seats the patient,
places a bib on them.
From that point forward, her functions with the doc-
tor are, as . . . a second set of hands. She’ll retract tis-
sue, she’ll mix materials, she’ll aspirate fluids . . .
when she’s not present, its very difficult to . . . per-
form procedures. She’s essentially part of a team that
works on the patient.
When the doctor is finished with those procedures,
the patient will be brought to the waiting room . . .
and she will have functions with regard to cleaning up
the operatories—bringing the non-sterile instruments to
central sterilization . . . and preparing the operatory for
the next patient.
When the dental assistants are not working directly with a
dentist, they are doing what Dr. Kozic referred to as ‘‘mis-
72 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cellaneous duties,’’ such as cleaning out the suction ma-
chines and the labs and breaking down empty cartons. In ad-
dition, one dental assistant performs the sterilization work at
the facility. Gutterman makes the assignments of the dental
assistants to these miscellaneous duties, as well as assigning
dental assistants to particular dentists. In fact, the evidence
establishes that once a dental assistant is assigned to work
for a particular dentist, that is considered to be a permanent
assignment absent any disagreements that cause one or the
other to ask for, or demand, a reassignment. There is a large
discrepancy in the longevity of the partnerships of dental as-
sistants to dentists. Kozic, who has been employed by Re-
spondent for 15 years, testified that during this period he has
worked with about 50 dental assistants. Although the evi-
dence establishes that he is difficult to get along with, cer-
tainly most of these assistants were meant to be temporary,
such as when his regular assistant was absent. On the other
hand, Dr. Elisa Mello, who has been employed by Respond-
ent for almost 2 years, has had four dental assistants assisting
her. Both Drs. Kozic and Mello testified that Gutterman and
her predecessor, Meri Pifko, assigned the dental assistants to
them without any input from the dentists.
Dental assistants make arrangements for vacations, per-
sonal days, and sick days with the office manager; the den-
tists have no input in these issues. The parties stipulated that
Respondent’s vacation request form has a signature line stat-
ing ‘‘Personnel Department’’ containing the signatures of
Pifko, Gutterman, Greenspan, or no signature. Dr. Kozic tes-
tified that he works overtime during his regular lunch hour
from 12:30 to 1:30 p.m. a couple of times a week, seeing
patients. He asks his dental assistant if she would also work
on those occasions: ‘‘If she wants to work lunch, she can
work lunch. If she doesn’t want to work lunch, I can’t make
her work lunch.’’ On most of the occasions, his dental assist-
ant has worked overtime pursuant to his request, and was
paid for the overtime work. Respondent’s contract with Local
153 provides that the dental assistants and others in the unit
shall work 7-hour days and 35-hour weeks, and that all work
in excess of that is to be paid at time and a half. The con-
tract further provides: ‘‘All employees shall work a reason-
able amount of overtime each week if required by the Em-
ployer.’’
As stated above, there is a dental assistant assigned to
each dentist at the facility. The evidence establishes that dur-
ing most of the procedures performed by the dentists at the
facility, the assistance of the dental assistant is needed. There
are times, however, when the dentist is performing a proce-
dure when the services of the dental assistant are not needed.
Dr. Kozic testified that on these occasions his dental assist-
ants usually perform other tasks on their own. If they do not,
he suggests other work for them to perform: ‘‘If you want
to supply the room now, supply the room.’’ In these situa-
tions, he has released the dental assistant to answer or make
a telephone call, and he has observed other dentists doing
that as well. He has also observed other dentists releasing
dental assistants to get a cup of coffee. He has not done so:
‘‘She’s not chained to the chair. I’m not releasing anybody.’’
Dr. Greenspan testified that if the dentist is performing an
operation that does not require the services of the dental as-
sistant, the dentist has the authority to give the dental assist-
ant time off until she is needed again, and this occurs regu-
larly at the facility. If a dental assistant is paged for a tele-
phone call, his experience is that the dental assistant usually
asks the dentist if she can take the call. If the dentist is per-
forming a procedure in which the dental assistant is not
needed, she may take the call without first asking. Dr. Mello
testified that when she is performing a procedure in which
she does not need the dental assistant, she has the authority
to release the assistant to have a cup of coffee. She also has
the authority to tell the dental assistant whether she can leave
the operatory to answer, or make, a telephone call. If the
dental assistant tells her that she wants to make a telephone
call at a time when she was assisting in a procedure or is
about the bring in a patient, Dr. Mello would ask her to ‘‘ex-
plain to me what the necessity of the call is. And if I deem
it important, I’ll say, okay, go ahead.’’ Dr. Jaim Oro, who
has been employed by Respondent as a dentist for 4 years,
testified that when he is performing a procedure that does not
require the services of his dental assistant, he usually asks
the assistant to perform some other task such as getting his
files for his work on the following day. He also has the au-
thority to release the dental assistant to have a cup of coffee,
and has done so. He also has the authority to tell the dental
assistant whether she may make or receive a telephone call,
and has exercised this authority as well.
Because dental assistants are assigned to work with a par-
ticular dentist, situations occur fairly regularly when a dental
assistant is absent for a day and the dentist has to obtain a
replacement to cover for the absent dental assistant. Dr.
Kozic testified that when his dental assistant was absent for
a day, he had three options: almost half of the time he would
ask Gutterman (or her predecessor, Pifko) to assign another
dental assistant to him. His second option, also less than half
of the time, was to only perform procedures that he could
do by himself. His final option, about 10 percent of the time,
was to attempt to borrow a dental assistant to help him. On
those occasions, when he sees that the dentist and the dental
assistant are in the operatory with no patient in the chair, he
asks the dental assistant (rather than the dentist) if she would
help him with his patient. If the dental assistant refuses, he
asks Gutterman to assign a dental assistant to work with him.
Dr. Greenspan testified that on some mornings when he ar-
rives at the facility there is a message that a certain dental
assistant will not be in to work that day. If a dentist is also
absent that day, he or Gutterman assigns the two partnerless
individuals to work with each other that day. When there are
more dentists than dental assistants at work, the dentists will
usually work it out amongst themselves. The dentist whose
dental assistant is absent goes to the staff lounge, and if any
dental assistant is there taking a break or having coffee, the
dentist will ask the dental assistant to help him with a proce-
dure. If no dental assistant is obviously available, or refuses
the dentist’s request, the dentist then asks one of the other
dentist whom he sees is performing a procedure that does not
require the dental assistant to borrow his dental assistant, and
the dentists have the authority to release their dental assistant
to assist another dentist. Dr. Mello testified that there have
been occasions when other dentists at the facility did not
have a dental assistant and needed one for a procedure in
which a dental assistant was critical, and have asked her if
they could use her assistant. If she did not need her assistant
at that time, she told her to help the dentist, ‘‘because I don’t
really need you right now and they do.’’ She has done this
without first telling Dr. Greenspan or Gutterman. In addition,
73GREENSPAN, D.D.S., P.C.
a couple of times a month, she has asked another dentist at
the facility to borrow his dental assistant. She testified that
in her 2 years of employment prior to August, her dental as-
sistants were absent from work on about seven occasions, but
they were also absent for portions of a day that required her
to obtain a replacement. The first thing that she does when
she learns in the morning that her dental assistant would not
be at work is to ask Gutterman if a dental assistant is avail-
able to work with her for the day. On some of those occa-
sions Gutterman assigned another dental assistant to work for
her for the day. On other occasions, Gutterman told her to
see if she could find a dental assistant to assist her.
It is clear that the dentists at the facility do not have the
authority to hire or fire, transfer, suspend, lay off, recall, pro-
mote, discharge, assign, reward, or discipline other employ-
ees on their own. In addition, they have no access to em-
ployee files at the facility and have no authority to issue
written warnings to employees. There is an issue, however,
of whether they have the authority to effectively recommend
the discipline or transfer of employees.
Dr. Kozic testified that he was never told that he had the
authority to recommend the promotion, discharge, transfer, or
layoff of an employee at the facility. Dr. Greenspan testified
about Ruth Ladson, a dental assistant who was suspended in
February 1991 and terminated in September 1991. Ladson’s
file contains a letter dated February 21, 1991, from Dr.
Greenspan notifying her of her suspension and final warning.
The letter states that on three occasions over the prior 2
weeks, Pifko and Dr. Wexley spoke to her about her inad-
equate job performance, but that it had not improved. In fact,
2 days earlier, she had failed to conform to the proper infec-
tion control procedures. When asked what input Dr. Wexley
had in Ladson’s termination, Dr. Greenspan testified:
Dr. Wexley’s input was total. I don’t work with each
assistant. We don’t have a regular program with me su-
pervising them or—or looking at their skills. I rely
solely on what the doctors say about the assistants with
regard to what action to take, with regard to their per-
formance. If Dr. Wexley hadn’t brought this to my at-
tention, I probably would still not know about it.
Dr. Greenspan also testified about Marcia Williams, a dental
assistant, who was suspended on January 13, 1993. The letter
notifying her of the suspension states that he and Dr. Mello
have previously spoken to her about her ‘‘unprofessional and
lackadaisical performance.’’ Subsequent to this suspension,
Dr. Mello told Dr. Greenspan that she didn’t want to work
with Williams. His normal practice is to grant such requests,
but none of the dentists wanted to work with Williams, so
she was transferred to another job at the facility and was ter-
minated 3 months later.
Gail Vetrone (formerly Gail Rahaley) testified that she has
been employed as a dental assistant at the facility for 2
years. During 1993 she was the dental assistant for Dr. Kozic
in 1993. In November 1993 she filed a grievance with Local
153 alleging that Kozic ‘‘is impossible to work for.’’ She
stated in the grievance, and testified, that he used to threaten
her by saying that if she did not work for him, she was out
of the door, or would not work at all. She requested a trans-
fer to a different dentist and was subsequently transferred to
work for another dentist at the facility. Dr. Kozic testified
that he told Vetrone that if she continued to speak on the
phone, he would do something about it; he believed that he
had the authority to warn her because: ‘‘she interrupted pa-
tient care.’’ The day after Vetrone was transferred to a dif-
ferent dentist, Dr. Kozic wrote a letter to Dr. Greenspan ob-
jecting to the transfer. He testified that, aside from spending
too much time on the telephone, she was a good dental as-
sistant.
The most frequent form of ‘‘discipline’’ at the facility ap-
pears to be the transfer of dental assistants from one dentist
to another or from one dentist to another position at the facil-
ity. Dr. Mello testified about her relationship with Marcia
Williams who was terminated in 1993 as described above.
She testified that Williams was her dental assistant; however,
she did not pay attention to what Dr. Mello was doing and
was not properly assisting her. She spoke to Williams about
it on three occasions, telling her that she had to pay attention
to her work and not talk to other people or look at a book
during the procedures. Although she had not been specifi-
cally told that she could give her such a warning, she felt
that she had this authority: ‘‘We have a working relationship.
She is supposed to be assisting me. She wasn’t doing it.’’
The next time that Williams did not pay attention to her
work, Dr. Mello spoke to Dr. Greenspan about her problems
with Williams: ‘‘I can no longer work with her. She is not
helping me.’’ About a half hour later, she was transferred
and assigned to a sterilization job at the facility. Dr. Oro tes-
tified about a situation with Symenthia Finley, who had been
employed at the facility as his dental assistant. She was not
performing her job properly in that she was not getting the
patients from the waiting room, properly sterilizing the room,
or giving him the instruments. He spoke to her and told her
that unless her work improved, he would discuss it with Dr.
Greenspan. Her work improved for a brief period, and then
‘‘she went back to her old ways.’’ Dr. Oro then discussed
Finley’s performance with Dr. Greenspan and Finley’s per-
formance again improved for a brief period. About a month
or two later, when Finley’s performance again deteriorated,
Dr. Oro went to Dr. Greenspan, said that he did not want
to work with Finley anymore, and asked for a different den-
tal assistant. Dr. Greenspan said that he would do something
about it and he immediately made that change.
There was testimony about Troy Branch, a dental assistant
who worked with Dr. Kozic at the facility in about 1992. Dr.
Kozic testified that Branch was always on the telephone, ei-
ther making or receiving calls. He kept track of Branch’s
calls noting that in a 1-hour period he had four telephone
calls. He spoke to Branch about the telephone calls and may
have threatened that he would have him fired. He testified
that while he may have made this threat, he did not believe
that he had the authority to effectively recommend that em-
ployees be disciplined. He may have said it because he was
upset that nothing had been done about Branch’s telephone
calls. When the situation did not improve, he then wrote a
letter to Dr. Greenspan stating that he was upset that Branch
spent too much time on the phone and that it disrupted his
patient care. He asked Dr. Greenspan to tell Branch to stay
off the phone. Shortly thereafter, Drs. Greenspan and Kozic
met with Branch and Dr. Greenspan told him to stay off the
phone. Branch continued to spend a lot of time on the phone,
and a few months later, when Dr. Kozic reported for work,
he learned that Branch was transferred to a different dentist.
74 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Prior to this situation, in January 1992, Greenspan gave Branch
a written warning for latenesses. This warning does not mention Dr.
Kozic. On March 6, 1992, he received another written warning from
Dr. Greenspan, this time for his excessive telephone calls during
working hours. This warning refers to the difficult situation that the
phone calls have created for Dr. Kozic.
Dr. Greenspan testified that Dr. Kozic complained to him
about Branch spending too much time on the telephone, and
asked him to talk to Branch about his telephone calls, which
he did. Dr. Kozic did not ask him to discipline Branch.
Shortly thereafter, Dr. Kozic told him that the problem with
Branch was continuing, and showed him a log of Branch’s
telephone calls. Dr. Greenspan said that he would speak to
Branch again, which he did. Subsequently, Branch filed a
grievance with Local 153 alleging that Dr. Kozic was
harassing him, and he transferred Branch because it was ob-
vious that he and Dr. Kozic could not work together.4
Dr. Kozic testified further that on another occasion, when
Vetrone was his dental assistant, at a time that he was pre-
pared to begin a procedure, she received a telephone call and
remained on the phone for 10 minutes. When he could not
get her to get off the phone, he told Gutterman of the situa-
tion, and she sent another dental assistant to work with him
on the procedure. Sometime thereafter (as discussed more
fully above) Vetrone was transferred to work with another
dentist. Dr. Kozic testified that this transfer was made with-
out his prior knowledge. He testified further that, within the
last year, while he and his dental assistant were working,
Finley came into the operatory and began talking to his as-
sistant. He asked Finley to leave and she told him that he
could not tell her what to do. When he again asked her to
leave she commented in an obscene way that he could not
tell her what to do. Dr. Kozic then told Dr. Greenspan about
what had occurred and he said that he would take care of
it. He saw Dr. Greenspan speaking to Finley and she left his
room. Dr. Greenspan later told him that he told her to stay
out of his room. Dr. Kozic did not ask that Finley be dis-
ciplined for the incident, and she was not disciplined. During
his 15 years of employment with Respondent Dr. Kozic has
made a couple of requests that dental assistants be trans-
ferred; although he was never specifically told that he had
this authority, he did it because, ‘‘I thought it was part of
my job.’’
Dr. Greenspan testified that in November, Dr. Peterson,
one of the dentists at the facility, complained that dental as-
sistant Nicolette Brown was rude and didn’t show him the
proper respect; he asked that she be transferred. In December
she was transferred to Dr. Oro. Shortly before this transfer,
Dr. Oro complained that Finley, his dental assistant, spent
too much time on personal telephone calls. Dr. Greenspan
spoke to her and she was transferred to Dr. Peterson. Addi-
tionally, in February 1992 one of the dentists at the facility
complained that dental assistant Brenda Bright was not atten-
tive, and Dr. Greenspan transferred her to another dentist.
Dr. Greenspan testified that on a number of occasions, he
has hired a dental assistant on the recommendation of a den-
tist. The one situation that he testified about involved Dr.
Lea Bram, a dentist whom he hired in February 1995. Dr.
Bram told him that she needed a dental assistant and rec-
ommended Jacqueline Wright, the assistant with whom she
worked at her previous place of employment. Dr. Bram ar-
ranged for Wright to call Dr. Greenspan, and he told her that
he had an opening for a dental assistant and asked if she
would like to come to the facility for an interview. When he
interviewed her, he did not question her about her skills, be-
cause Dr. Bram had spoken so highly about her, and only
spoke to her about salary, the working conditions, and the
Local 153 contract. In hiring her, he ‘‘relied on her rec-
ommendation exclusively.’’
B. The Alleged Threat to Close
The 10(j) hearing before Judge McKenna took place on
Friday, March 17, 1995. Admittedly, on about March 14,
1995, Dr. Greenspan had conversations with some of the
dentists at the facility about the affect that the injunction
would have on the continued viability of the facility. What
distinguishes this case from the normal threat to close under
NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), is that
in the instant case the statement that was made allegedly in-
volved threats of action not by Dr. Greenspan, but by Vito
Pitta, a trustee of the Dental Plan.
Dr. Mello testified that on about March 14, 1995, she and
another dentist were at the facility talking about the injunc-
tion hearing: ‘‘We didn’t know what it meant.’’ Dr. Green-
span overheard the discussion and invited them into his of-
fice to talk about it. He told them that if the injunction was
granted he would have to recognize the Union, at least tem-
porarily. They asked what it meant as far as their jobs were
concerned:
And he said that he didn’t know. He said that he
wasn’t aware of what was going to happen to this clin-
ic. He wasn’t aware of what was going to happen to
his job or our jobs. And he said he . . . had the union
for a long time . . . he’s been dealing with the union
for a long time. And there never really was a problem.
It just seems now there was. And it wasn’t with him.
He said it was maybe the man who hired him, Mr.
Pitta. So, he didn’t know which way it was going to
go.
Regarding whether the injunction proceeding could have
something to do with closing the facility, she testified: ‘‘He
said he didn’t know if it would. He said that Mr. Pitta was
unhappy with our union, not a union per se, but our union.
But he didn’t know what he was going to do with that.’’ The
other doctor asked about other job possibilities for the den-
tists, but Dr. Greenspan did not have much to say on that
subject.
Dr. Kozic testified that on March 14, 1995, everybody in
the office was discussing the upcoming injunction hearing.
Drs. Mello and Oro said that Dr. Greenspan said that Pitta
would close the facility if the Union won the case. Dr. Kozic
approached Dr. Greenspan and said, ‘‘I heard Vito’s closing
the office if Doctors Council wins the case.’’ Dr. Greenspan
said that he thought that he would lose the case and ‘‘that
Vito was not going to deal with Doctors Council in any way,
shape or form.’’ He also said that the New York City Hotel
and Motel Trades Council and Hotel Association of New
York City, Inc. Welfare Fund (the Welfare Fund), had built
a large medical and dental office in Queens, New York, and
‘‘at this point, Vito doesn’t need us anymore, and he could
very easily close the office.’’ On cross-examination he testi-
fied that Dr. Greenspan said that Pitta would close the facil-
75GREENSPAN, D.D.S., P.C.
5 Respondent denied the allegation contained in par. 10(b) of the
consolidated complaint that alleges that the wage increase granted on
September 6 relates to wages, hours, and other terms and conditions
of employment of the unit, and is a mandatory subject of bargaining.
It requires no case citations to conclude that wage increases are
mandatory bargaining subjects, and I so find.
ity because he would not deal with the Union. Dr. Kozic
then said that Respondent had a contract with the Dental
Fund, and Dr. Greenspan responded that the contract was
cancelable at any time at the discretion of Pitta or the Dental
Fund. Dr. Greenspan said that he was concerned that the fa-
cility was going to close, and that ‘‘the issue was more be-
tween Doctors Council and Vito, and not between the den-
tists and his recognition of the union itself, that he always
got along. He always had a good working relationship with
the union. And until Vito got upset with the Doctors Council,
everything was fine.’’
Dr. Greenspan testified that a few days prior to March 14,
1995, he overheard a loud discussion at the facility among
the dentists about the 10(j) proceeding. Because he felt that
it was not appropriate that such a conversation take place in
the vicinity of patients and other employees, he asked Drs.
Mello and Oro to come to his office. He testified (through
hearsay testimony not accepted for the truth of the matter)
that a Dr. Mitchell, a dentist at the facility who was on ma-
ternity leave, had previously told him that she and Dr. Mello
(who did not testify about such a conversation with Pitta)
had met with Pitta. When the three were present in his of-
fice, Dr. Mello asked him what the 10(j) proceeding meant
to them. He told them that he had a contract to provide den-
tal services and intended to keep it. ‘‘What my client’s posi-
tion was going to be, with regard to it, I didn’t know.’’
Mello said that she had met with Pitta and that he made it
clear that he did not want to deal with the Union. He testi-
fied further that on March 14, 1995, Dr. Kozic asked him,
‘‘What’s going on with this 10(j) business?’’ He told him
what he had told Dr. Mello and Oro a few days earlier; he
did not tell him that he would close the office. He also told
him that Pitta had the right to terminate the contract. Dr.
Greenspan also testified that he had no conversation with
Pitta or any other representative of the Dental Fund about the
impact that a 10(j) injunction would have with his contract
with the Dental Fund: ‘‘My only knowledge of the subject
came from the two doctors that went to see him. And they
reported to me on what Mr. Pitta told them.’’ The agreement
between Respondent and the Dental Fund is effective
through December 31, 1995. It is provides that either party
can terminate the agreement on 90-day notice to the other,
or can cancel on 30-day written notice for ‘‘material breach’’
of the agreement. Finally, there was some brief testimony by
Drs. Kozic and Greenspan that offices that had been operated
by Dr. Greenspan in Brooklyn and on 47th Street in New
York City were closed and taken over by either the Dental
Fund or the Welfare Fund.
C. Analysis of the 8(a)(5) Allegations
There are three separate, yet related, allegations involved
herein. It is alleged that Respondent withdrew recognition
from the Union by letter dated August 22 and since that time
has failed and refused to recognize, or bargain with, the
Union as the exclusive representative of its dentists, that sub-
sequent to August 22, Respondent bypassed the Union and
dealt directly with these employees concerning their terms
and conditions of employment, and that on about September
6, Respondent unilaterally granted wage increases of $32 a
day ($16 to Kozic) to each of its dentists in the unit, without
prior discussion with the Union. Respondent admits that it
engaged in these actions, but denies that they constitute un-
fair labor practices under the Act because all the unit em-
ployees constitute supervisors within the meaning of the
Act.5 In fact Respondent’s August 22 letter to the Union spe-
cifically states that Respondent was refusing to bargain with
the Union because the dentists it employs are supervisors
within the meaning of the Act, especially in light of the Su-
preme Court’s decision in NLRB v. Health Care & Retire-
ment Corp., 114 S.Ct. 1778 (1994). The issue therefore is
simply whether the dentists employed at the facility are su-
pervisors within the meaning of Section 2(11) of the Act.
The Health Care case did not change the overall law re-
garding 2(11) supervisors. Rather, as stated by Judge
McKenna in his memorandum and order, the Court rejected
the Board’s interpretation of the phrase ‘‘in the interest of
the employer,’’ because patient care was the business of the
employer in that matter, ‘‘and it follows that attending to the
needs of the nursing home patients, who are the employer’s
customers, is in the interest of the employer.’’ The Court
made it clear that it was not changing any other part of the
law regarding Section 2(11) of the Act and impliedly was
critical of what it considered to be the Board’s rigidity in in-
sisting on the ‘‘in the interest of the employer’’ test, saying:
‘‘If the case presented the question whether these nurses
were supervisors under the proper test, we would have given
a lengthy exposition and analysis of the facts in the record.’’
I will therefore determine whether Respondent’s dentists are
supervisors within the meaning of Section 2(11) under the
‘‘traditional’’ criteria.
The Board has been instructed that in interpreting Section
2(11), it must not ‘‘construe supervisory status too broadly,
for a worker who is deemed a supervisor loses his organiza-
tional rights.’’ Westinghouse Electric Corp. v. NLRB, 424
F.2d 1151, 1158 (7th Cir. 1970); McDonnell Douglas Corp.
v. NLRB, 655 F.2d 932, 936 (9th Cir. 1981). Additionally,
it is the party alleging supervisory status, the Respondent
herein, that bears the burden of proving that such status ex-
ists. Thayer Dairy Co., 233 NLRB 1383 (1977); Tucson Gas
& Electric Co., 241 NLRB 181 (1979); Health Care & Re-
tirement Corp., 306 NLRB 63 (1992). The evidence that Re-
spondent has attempted to produce falls into two categories.
That these dentists responsibly direct the dental assistants
and that they have the authority to effectively recommend the
hire, transfer, suspension, assignment, or discipline of the
dental assistants. The direction of the dental assistants will
be discussed first.
Although there are no major credibility determinations, I
found Dr. Kozic the least credible and convincing of the wit-
nesses at the hearing; he clearly had difficulty admitting to
anything that he felt might assist Respondent’s case. On the
other hand, I found Dr. Greenspan, as well as Drs. Mello and
Oro, to be credible and believable witnesses who appeared
to be testifying in an honest and open manner. The evidence
establishes that the dentists have the authority to ‘‘release’’
their dental assistants to make or receive telephone calls, to
have a cup of coffee, or to attend to brief personal business,
and do so when they are performing a procedure in which
76 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the dental assistant is not needed. In addition, the dentists ask
(but cannot require) the dental assistants to work overtime
with them, and ask the dental assistants to assist them in pro-
cedures in the absence of their regular assistant. Such activi-
ties clearly are not enough to constitute supervisory status.
Section 2(11) requires that the direction of work be done
‘‘responsibly,’’ and not be ‘‘of a merely routine or clerical
nature, but requires the use of independent judgment.’’ Tell-
ing an assistant that she can go for a cup of coffee is a rou-
tine assignment not requiring the use of independent judg-
ment. As the court stated in NLRB v. Security Guard Service,
384 F.2d 143, 147 (5th Cir. 1967): ‘‘Moreover, the statutory
words ‘responsibility to direct’ are not weak or jejune but
import active vigor and potential vitality.’’
More seriously, the evidence establishes that the dentists
effectively recommend the transfer of dental assistants, in
two situations recommended the termination or suspension of
employees, and on one occasion effectively recommended
the employment of an individual. Taking these in inverse
order, Dr. Greenspan credibly testified that he relied on Dr.
Brams recommendation in hiring Wright. He did not question
Wright about her skills in the interview, because Dr. Bram
had spoken so highly about her. Dr. Greenspan also testified
that in deciding to first suspend and then terminate Ladson,
his reliance on Dr. Wexley’s ‘‘input was total.’’ Because he
did not work directly with Ladson, ‘‘I rely solely on what
the doctor says about the assistants with regard to what ac-
tion to take.’’ Williams suspension letter states that Drs.
Mello and Greenspan had spoken to her about her poor per-
formance. Most clearly, however, it appears that the dentists
effectively recommend the transfer of dental assistants.
About a half hour after Dr. Mello told Dr. Greenspan that
she could no longer work with Williams because she was not
helping her, Williams was transferred to another job as none
of the dentists wanted to work with her. After Dr. Oro told
Dr. Greenspan that he did not want to work with Finley any-
more, Dr. Greenspan immediately transferred her to another
dentist. Dr. Greenspan testified that he transferred Brown to
another dentist at the request of Dr. Peterson and transferred
Bright after the dentist with whom she worked complained
that she was not being attentive. Countering this testimony
is the testimony of Kozic that Vetrone and Branch were
transferred without any request on his part. He complained
to Dr. Greenspan about both of them spending an excess
amount of time on the phone, but did not request that they
be transferred. In fact, after Vetrone was transferred, he
wrote to Dr. Greenspan complaining about the transfer.
The credible evidence therefore establishes that on one oc-
casion a dentist effectively recommend that a dental assistant
be hired and that on three occasions dentists effectively rec-
ommended that the dental assistants then working with them
be transferred to another dentist. I find less reliable and not
as convincing Dr. Greenspan’s testimony about Ladson. Con-
trary to this testimony is Dr. Kozic’s credible testimony that
Vetrone and Branch were transferred from him without his
knowledge and, with Vetrone, over his written objections.
It has often been said that it is ‘‘not the exercise of author-
ity, but the delegation of authority which is indicative of the
attributes of a supervisor.’’ NLRB v. Southern Seating Co.,
468 F.2d 1345, 1347 (4th Cir. 1972); NLRB v. Pilot Freight
Carriers, 558 F.2d 205 (4th Cir. 1977). In situations such as
the instant matter, however, when the dentists were never
specifically notified, orally or in writing, that they had such
authority, the frequency of execution of the authority is rel-
evant to a determination of whether they had the requisite
authority and, therefore, their supervisory authority. In NLRB
v. Lindsay Newspapers, 315 F.2d 709, 712 (5th Cir. 1963),
the court stated that ‘‘sporadic exercise of some supervisory
authority does not of itself turn an employee into a super-
visor.’’ In McDonnell Douglas, supra at 937, the court stat-
ed: ‘‘Such an infrequent exercise of supervisory authority
may reasonably be viewed as insufficient to render Section
2(11) applicable.’’ In Artcraft Displays, 262 NLRB 1233 fn.
7 (1982), the Board commented on a leadman’s testimony
that he had laid off employees out of seniority: ‘‘Even if
leadmen do possess this authority, it is so restricted and exer-
cised so sporadically that it is not an indicium of supervisory
status.’’ In NLRB v. Orr Iron, Inc., 508 F.2d 1305, 1307 (7th
Cir. 1975), on one occasion the alleged supervisor told an
employee to do his work or to go home, and on another oc-
casion, he sent an employee to the superintendent and told
him of the employee’s poor attendance. The court stated:
But these were incidental and extraordinary excep-
tions to Collins’ regular practice, and when looked at
against a total background do not in any way show that
Collins had the authority to discipline or recommend
the discipline of employees as one of his regular func-
tions.
See also Highland Superstores v. NLRB, 927 F.2d 918 (6th
Cir. 1991). The words of the court in Orr Iron, supra, apply
to the instant matter as well. The work of the employees
herein is to perform dental work on Respondent’s patients for
about 7 hours a day. If once a year they ask Dr. Greenspan
to transfer their dental assistant to another dentist, and he fol-
lows that recommendation, these activities are ‘‘incidental
and extraordinary exceptions’’ to their dental practice and
does not, without more, make them supervisors within the
meaning of the Act.
There is an additional reason why I find that they are not
supervisors under the Act. A number of Board cases have
found that when two people work together closely, what
might otherwise be considered an indicia of supervisory au-
thority (the power to hire, fire, transfer, or effectively to rec-
ommend such) is really a means of ensuring compatability of
the employees. Willis Shaw Frozen Food Express, 173
NLRB 487 (1968), involved a driver and assistant driver who
worked long hauls together. The driver had the authority to
choose the assistant he wants to work with and, if he feels
that the assistant is incompatible, the assistant is transferred
to another driver. The Board found that the driver was a non-
supervisory employee: ‘‘We are persuaded that the role they
play in such matters is, under the Employer’s policy, prin-
cipally in their own interest to ensure a harmonious relation-
ship between themselves and their assistants.’’ See also Ke-
nosha News Publishing Corp., 264 NLRB 270 (1982). In
Lipsey, Inc., 172 NLRB 1535 at fn. 2 (1968), the Board stat-
ed:
. . . it has been the practice of Respondent, whenever
possible, to grant the request by a welder for a particu-
lar helper, and to honor a welder’s request that a spe-
cific individual be hired for such assignment. To the
extent that this arrangement may be viewed as bestow-
77GREENSPAN, D.D.S., P.C.
ing on welders authority to effectively recommend per-
sonnel action, it is basically a limited and personal au-
thority exercised not ‘‘in the interest of the employer’’
but, as the Trial Examiner found, in their own interest
to suit their own particular needs and desires.
In Soil Engineering Co., 269 NLRB 55 (1984), the Board,
in finding that the employees were not supervisors within the
meaning of the Act, quoted from Southern Bleachery & Print
Works, 115 NLRB 787, 791 (1956):
We have no doubt that almost any employer, when told
by a skilled craftsman that his helper is incompetent
and that he needs a new helper if he is properly to per-
form his functions, would accept the judgment of the
craftsman. While this may be called effective rec-
ommendation, it is inherent in the craftsman-helper re-
lationship . . . .
Likewise, it is also inherent in the dentist-dental assistant re-
lationship. For ‘‘four handed sit-down dentistry’’ to operate
properly, the dentist must get along with, and have con-
fidence in, the dental assistant that he/she is working with.
Dr. Greenspan is correct that when a dentist asks him to
make a change in his/her dental assistant he follows that rec-
ommendation because it is the dentist, not him, who worked
with the dental assistant. But that alone should not, and does
not, convert a dentist-unit employee into a supervisor within
the meaning of the Act. It only means that the dentist wants
to work with a dental assistant with whom he can work effi-
ciently, and his employer agrees with that conclusion.
Finally, although the Supreme Court rejected one of the
Board’s criteria for supervisory status for nurses in the
Health Care case, above, it approved another:
To be sure, in applying Section 2(11) in other indus-
tries, the Board on occasion reaches results reflecting a
distinction between authority arising from professional
knowledge and authority encompassing front-line man-
agement prerogatives. It is important to emphasize,
however, that in almost all of those cases (unlike in
cases involving nurses) the Board’s decisions did not
result from manipulation of the statutory phrase ‘‘in the
interest of the employer,’’ but instead from a finding
that the employee in question had not met the other re-
quirements for supervisory status under the Act, such as
the requirement that the employee exercise one of the
listed activities in a non-routine manner.
Similarly, the Board in Golden West Broadcasters, 215
NLRB 760 fn. 4 (1974), stated: ‘‘an employee with special
expertise or training who directs or instructs another in the
proper performance of his work for which the former is pro-
fessionally responsible is not thereby rendered a supervisor.’’
And in The Door, 297 NLRB 601 fn. 7 (1990): ‘‘In other
contexts we have also found that the routine direction of em-
ployees based on a higher level of skill or experience is not
evidence of supervisory status.’’ Most professional employ-
ees employed in a commercial setting have some authority
over their subordinates pursuant to their training and posi-
tions. A finding that the dentists herein are supervisors with-
in the meaning of the Act would severely limit the applica-
bility of Section 2(12) of the Act.
For all of the above reasons, I find that the dentists em-
ployed at the facility are not supervisors within the meaning
of Section 2(11) of the Act. I therefore find that since Au-
gust 22, Respondent has violated Section 8(a)(1) and (5) of
the Act by withdrawing recognition from the Union, and by
refusing to recognize and bargain with the Union, as the ex-
clusive bargaining representative of its dentists. I also find
that since August 22, Respondent violated Section 8(a)(1)
and (5) of the Act by bypassing the Union and dealing di-
rectly with its dentists concerning wages and other terms and
conditions of employment, and by unilaterally granting wage
increases to its dentists on about September 6.
D. Analysis of the 8(a)(1) Allegation
Admittedly, on March 14, Dr. Greenspan had conversa-
tions with several employees when he told them of the possi-
bility that the facility would close if the Board were success-
ful in the 10(j) proceeding before the court on March 17.
What makes this unusual is that Dr. Greenspan’s ‘‘threats’’
were that another (Pitta) would (or might) cancel the agree-
ment with him if the injunction was granted. As stated supra,
I found Drs. Mello and Greenspan more credible than Dr.
Kozic and, when there is a conflict, I would credit their testi-
mony over his. Dr. Mello, who obviously was an impartial
witness, testified that on March 14, Dr. Greenspan overheard
her and another dentist discussing the upcoming court hear-
ing and called them into his office. When they asked him
how it would affect their jobs, he said that he didn’t know
what was going to happen to the facility or their jobs and
that he had no problem with the Union, he had been dealing
with it for a long time. Regarding whether the court hearing
could result in closing the facility, he told them that he did
not know. ‘‘He said that Mr. Pitta was unhappy with our
union. . . . But he didn’t know what he was going to do.’’
Dr. Greenspan testified that, in this conversation, the dentists
told him of statements that Pitta had allegedly made, and
they asked him what effect the injunction hearing would
have on them. He told them that he did not know what Pitta
would do. When Dr. Kozic spoke to him about the situation
on March 14, 1995, he told him what he had told Dr. Mello
and that Pitta had the right to terminate his contract. He also
testified that he never spoke to Pitta or anybody from the
Dental Fund about the court hearing.
In Gissel, 395 U.S. at 618, the Court stated:
He may even make a prediction as to the precise effect
he believes unionization will have on his company. In
such case, however, the prediction must be carefully
phrased on the basis of objective fact to convey an em-
ployer’s belief as to demonstrably probable con-
sequences beyond his control or to convey a manage-
ment decision already arrived at to close the plant in
case of unionization. If there is any implication that an
employer may or may not take action solely on his own
initiative for reasons unrelated to economic necessities
and known only to him, the statement is no longer a
reasonable prediction based on available facts, but a
threat of retaliation based on misrepresentation and co-
ercion, and as such without the protection of the first
amendment.
78 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 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.
7 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.’’
The credited testimony establishes that when Dr. Greenspan
overheard some of the dentists discussing the situation at the
facility, he called Dr. Mello and another dentist into his of-
fice and told them that he did not know what would happen
with the facility, that he had no problem with the Union, the
problem was with Pitta, who was unhappy with the Union.
I find that Dr. Greenspan did not cross the line into imper-
missible threats under Gissel. He did not initiate these con-
versations; rather, he brought them into his office rather than
a more public area of the facility. When Mello spoke about
her conversation with Pitta, which was not accepted for the
truth of what was said, he told them that he did not know
what Pitta would do. He never said that Pitta would not deal
with him if the injunction was granted and never said that
he would close the facility if the injunction was granted or
that he would do anything as a result of the Court hearing.
In fact, he told them that he had no problem with the Union.
He basically said that he didn’t know what would happen,
that it was up to Pitta. These statements were carefully
phrased statements that were based upon facts beyond his
control. I therefore find that these are lawfully permissible
statements and recommend that this allegation be dismissed.
CONCLUSIONS OF LAW
1. 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. The following employees of Respondent constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All full-time and regular part-time dentists employed by
the Respondent at its facility, but excluding all other
employees, clerical employees, guards, and supervisors
as defined in the Act.
4. Respondent violated Section 8(a)(1) and (5) of the Act
by engaging in the following activities:
(a) Withdrawing recognition from the Union as the exclu-
sive bargaining representative of its dentists on August 22,
1994.
(b) Failing and refusing to recognize or bargain with the
Union as the representative of these employees since that
time.
(c) Bypassing the Union and dealing directly with the em-
ployees since that time.
(d) Unilaterally granting wage increases to its employees
on about September 6, 1994, without prior discussions with
the Union.
5. Respondent did not further violate the Act as alleged in
the consolidated complaint.
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I shall recommend that it be ordered to
cease and desist therefrom and to take certain affirmative ac-
tion designed to effectuate the policies of the Act. Prin-
cipally, I shall recommend that Respondent be ordered to
recognize and, on request, bargain with the Union over the
terms and conditions of employment of the dentists at the fa-
cility and, on the request of the Union, to rescind the unilat-
eral wage increases that it granted to its dentists on about
September 6, 1994. Nothing herein, however, shall be con-
strued as requiring Respondent to revoke the wage increases
granted to the employees, absent the written consent of the
Union.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended6
ORDER
The Respondent, Robert Greenspan, D.D.S., P.C., New
York, New York, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Withdrawing recognition from the Union as the exclu-
sive collective-bargaining representative of its employees in
the following appropriate unit:
All full-time and regular part- time dentists employed
by the Respondent at its facility at One Penn Plaza,
New York, New York, but excluding all other employ-
ees, clerical employees, guards, and supervisors as de-
fined in the Act.
(b) Failing and refusing to bargain with the Union as the
exclusive bargaining representatives of its employees in the
above-described unit.
(c) Bypassing the Union and dealing directly with its em-
ployees concerning their terms and conditions of employ-
ment.
(d) Unilaterally changing the wages or other terms and
conditions of employment of these employees.
(e) 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) Notify the Union, in writing, that it recognizes the
Union as the exclusive bargaining representative of the em-
ployees in the above-described unit and that, on request, it
will bargain with the Union over the terms and conditions of
employment of these employees.
(b) Upon the request of the Union, rescind the unilateral
wage increases that it granted to its dentists on about Sep-
tember 6, 1994.
(c) Post at its facility copies of the attached notice marked
‘‘Appendix.’’7 Copies of the notice, on forms provided by
the Regional Director for Region 2, after being signed by
Respondent’s authorized representative, shall be posted by
the Respondent immediately upon receipt and shall be main-
tained for 60 consecutive days in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken to ensure that the no-
79GREENSPAN, D.D.S., P.C.
tices are not altered, defaced, or covered by any other mate-
rial.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the consolidated complaint
herein be dismissed insofar as it alleges violations 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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT withdraw recognition from Doctors Council
(the Union), or any other labor organization, absent a good-
faith doubt of the Union’s majority status based on objective
considerations.
WE WILL NOT deal directly with our employees who are
represented by the Union regarding their terms and condi-
tions of employment, and WE WILL NOT unilaterally change
their terms and conditions of employment without prior ne-
gotiations with the Union.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of their
rights guaranteed them by Section 7 of the Act.
WE WILL forthwith notify the Union, in writing, that we
recognize it as the exclusive bargaining representative of our
employees in the following appropriate unit:
All full-time and regular part-time dentists employed at
our facility located at One Penn Plaza, New York, New
York, but excluding all other employees, clerical em-
ployees, guards and supervisors as defined in the Act.
WE WILL, on request, bargain with the Union about the
terms and conditions of employment of these employees and,
if agreement is reached, put said agreement in writing.
WE WILL, on request, rescind the unilateral wage increase
we granted to these employees on about September 6, 1994.
ROBERT GREENSPAN, D.D.S., P.C.