Montefiore Hospital and Medical Center

National Labor Relations Board - Board Decisions

Jul 25, 1979

243 N.L.R.B. 681 (N.L.R.B. 1979)

MONTEFIORE HOSPITAL AND MEI)ICAI. CENTER
Montefiore Hospital and Medical Center and Marji
Gold and Michael Fisher. Case 2-CA 14428
July 25., 1979
DECISION AND ORDER
BY MEMBERS JENKINS MURPHY. ANI) TR I-S)AI I
On April 24, 1978, Administrative Law Judge
Charles W. Schneider issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, the General Counsel and
the Charging Parties filed exceptions together with
supporting briefs, and Respondent filed an answering
brief. Amicus briefs were filed, respectivel, b the
Committee of Interns and Residents, an organization
representing house staff officers in the greater New
York City area, and the Hospital Association of New
York State, a multiemployer association representing
virtually all nonprofit and governmental hospitals in
the State of New York.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended. the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings,' findings, and
conclusions2 of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.
I. We agree with the Administrative Law Judge
that Respondent violated Section 8(a)(I) of the Act
by discharging sympathy strikers Doctors Marji Gold
and Michael Fisher because they engaged in pro-
tected concerted activities. The Administrative Law
Judge found, and we agree, that the conduct of Drs.
Gold and Fisher in joining the strike herein without
prior notice to Respondent and in refusing to perform
their customary duties was protected activity under
the Act, and, therefore, that their discharges for such
conduct violated Section 8(a)(1).
The Administrative Law Judge further found that.
insofar as the discharges of Gold and Fisher were on
their attempts to persuade patients not to enter Re-
spondent's struck clinic, the discharges were not for
unlawful reasons. Therefore he concluded that Gold
I Respondent's request for oral argument is hereby denied inasmuch as the
record and briefs adequately set forth the issues and positions of the parties
2 Subsequent to the issuance of the Administrative Law Judge's Decision.
the parties stipulated that, by letter dated May 31, 1978. Respondent notified
both Gold and Fisher that each had been appointed as an assistant attending
physician in the department of medicine. Since the stipulation of the parties
does not affect our conclusions with respect to Respondent's siolations of
Sec. 8(aX I) and (4) of the Act, e leave the question as to the effect oif he
stipulation on Respondent's obligation to remedy its violations to the com-
pliance stage of these proceedings.
and Fisher are not entitled to backpay for the period
from July 22. 1976. the date of their discharges. to
October I, 1976, when they were reinstated. Contrary
to the Administrative Law Judge. we find that Gold
and Fisher are entitled to backpay for that period.
Respondent is a health care institution located in
the Bronx. New York City, New York, where it oper-
ates a hospital (Montefiore Hospital and Medical
Center) and a health center (Martin Luther King
Health Center). The facility involved herein is a satel-
lite clinic, known as Bathgate, located five to six
blocks from the health center. The Bathgate facility is
an outpatient clinic servicing a low income popula-
tion living within walking distance of the facility. The
primary service offered patients at Bathgate is the
availability of physicians to examine them and to pro-
vide health maintenance and preventive care on a
continuing basis. The majorit of patients are regis-
tered at the clinic on a permanent basis and are
treated by scheduled appointment.
The Charging Parties, Marji Gold and Michael
Fisher, are licensed physicians employed hb, Respon-
dent to act in a teaching and consultative capacity as
"preceptors" to residents specializing in l'amily prac-
tice medicine at the Bathgate facilitN.
The majority of the Respondent's employees. in-
cluding service and maintenance employees, technical
employees. and certain professional employees. are
represented by District 1199, National Union of'
Health and Hospital Employees, AFI ('I( (herein-
after referred to as the Union). Fisher and Gold are
not represented by anN labor organization. From July
7 17, 1976, the Union engaged in a strike against Re-
spondent. as well as other nonprofit. voluntary hospi-
tals who are members of the League of Voluntar,
Hospitals and Homes of New York. Inc. The Union
gave proper notice of its intent to strike pursuant to
Section 8(g) of the Act.
Doctors Gold and Fisher joined the strike and, dur-
ing the course thereof: ceased to perform ans services
for Respondent. On July 14. 15, and 16, the Union
picketed Respondent's Bathgate facility. Gold and
Fisher participated in the picketing at various times
on those dates. While on the picket line, Gold and
Fisher approached prospective patients who were at-
tempting to enter the clinic and engaged in the fol-
lowing conduct: Both identified themselves as doctors
to patients who did not know them to be such. in-
formed patients that there was currently a strike in-
volving most of the workers at the Bathgate facilitS.
that normal facilities were not available at that time.
that Bathgate was, accordingly. not a full service fa-
cilits, and that patients would receive better medical
care at a full service nonstruck facilit\.
On Sa(urday, Jul3 17, Respondent and the Union
243 NLRB No. 106
681
DE[(ISIONS OF NATIONAL. LABOR RELATIONS BOARD
reached an agreement concerning the dispute, and the
strike ended.
On July 19, Gold and Fisher were summoned to
separate meetings with the hospital director, Dr. Mar-
tin Kindig, to explain their actions during the strike.3
On July 22, Kindig recommended to Respondent's
president. Dr. Martin Cherkasky, that Gold and
Fisher be discharged on the grounds that they had
engaged in the following objectionable conduct dur-
ing the strike: Each had abandoned his or her duties
and patient care without notice; had refused to carry
out assignments throughout the strike; had interfered
with the operation of Bathgate by obstructing pa-
tients seeking medical care; and had disparaged the
medical services available at the Bathgate clinic. By
separate letters dated July 22, Gold and Fisher were
terminated as employees of the Medical Center.
Respondent thereafter instituted a procedure to re-
view the discharges. Following a hearing on or about
mid-August, a panel of staff physicians recommended
to President Cherkasky that Gold and Fisher be rein-
stated. Upon receipt of the panel's recommendation,
Cherkasky separately interviewed Gold and Fisher on
September 8. He informed them that they had the
right to engage in legal strike action, but that both
doctors had engaged in the following inappropriate
conduct: Joined the strike without notice to Respon-
dent, refused work assignments during the strike, and
interfered with patients' entry into the clinic. Cherka-
sky requested and received assurance from Gold and
Fisher that they would not repeat such conduct in the
future. On the basis of the September 8 meeting,
Cherkasky recommended to Respondent's board of
trustees that Gold and Fisher be reinstated. They
were thereafter reinstated on October I and their dis-
charges were converted to suspensions without pay.
Discussion
As noted, the Administrative Law Judge concluded
that Gold and Fisher had been unlawfully discharged
but they, by attempting to persuade prospective pa-
tients not to enter Respondent's Bathgate facility, had
engaged in picket line misconduct sufficient to re-
move them from the Act's protection and thereby for-
feited their right to backpay. In so finding, he initially
determined that neither Gold nor Fisher engaged in
violence on the picket line, and that their conduct did
not constitute a disparagement of Respondent's ser-
vices under traditional and Board principles. We
agree with those findings.
)The Administrative Law Judge inadvertantly places the date on which
these events occurred as September 19. (All events herein occurred in 1976
unless otherwise indicated.)
The Administrative Law Judge reasoned, however,
that by identifying themselves as physicians together
with their representations to patients at the picket line
that the services available at the clinic were inad-
equate, Gold and Fisher were in effect rendering
"medical advice" designed to prevent prospective pa-
tients from seeking medical care at Bathgate, and
thus their conduct was inappropriate and not pro-
tected by the Act. We disagree.
Assuming without deciding that "medical advice"
given in the circumstances here would remove from
the doctors giving such advice the protection of the
Act, we have carefully considered the statements
made by Gold and Fisher and have concluded that
there is nothing in those statements which realistically
can be construed to constitute "medical advice" or an
attempt to render such advice. The two doctors made
no attempt to examine the clinic's patients. Nor did
they venture an opinion or diagnosis relative to any
patient's condition, or give an impression of doing so.
Their statements were restricted simply to voicing a
question as to whether the strike-depleted staff on
duty had the capacity to provide full and adequate
medical service. Such statements did no more than
reflect the fact of the strike and picketing, and the
apparent impact of those events on the clinic's opera-
tion, since many of the staff members of the struck
facility were on strike and thus unavailable to serve
the patients.
Thus, while the picket line remarks of Gold and
Fisher were related to the subject of medical treat-
ment at the struck clinic in the broadest sense, such
remarks did not constitute "medical advice" as that
term is commonly used and generally understood.
This is especially so where as here the statements ut-
tered were a kind which could have been made by
any of the pickets regardless of their status as employ-
ees. We are willing, therefore, to find that such state-
ments assume a different character and a meaning
simply because the pickets making them identify
themselves as physicians. We do not believe that the
professional status of Gold and Fisher alone is suffi-
cient to convert these utterances into medical advice
or raise such statements to the level of proffered
medical services.
For all of the foregoing reasons, therefore, we find
that Doctors Gold and Fisher did not render medical
advice in their efforts to discourage patients from
using the Bathgate facility, and that they did not for-
feit the protection of' the Act on this basis.
However, the Administrative Law Judge concluded
that even if the statements did not constitute medical
advice the conduct of the two doctors was neverthe-
less unprotected. In doing so the Administrative Law
Judge analyzed the conduct in terms of potential ef-
682
M()N I FIORI tIO)SPI IAL. ANDI) NFID(. ( EN I- R
fect on patients. He found that b identifying them-
selves to prospective patients as doctors and encour-
aging them to seek health care elsewhere by pointing
out that as a result of the strike full services were not
available at Bathgate Gold and Fisher ceased to act
as mere pickets and utilized their professional status
as physicians to discourage patients from seeking
medical care at Bathgate. He concluded that such
conduct is unprotected unless it is done with the
proper precautions. Namely, he found that doctors
can only engage in this conduct if they ascertain the
condition for which treatment is sought, and either
provide adequate medical care or see that the patient
receives competent care elsewhere. Since Gold and
Fisher did not do so, the Administrative Law Judge
found their conduct unprotected. We disagree.
By its very nature, picketing is designed to dissuade
third parties from patronizing the picketed establish-
ment, whether the picketing is directed at a retail or
industrial establishment or, as here, a health care in-
stitution. Further, the picketing may accomplish its
purpose by causing customers or others, such as pa-
tients, to refuse to cross the picket line or to avail
themselves of the products or services, whatever such
might be, at the affected facility. In this regard picket-
ing and its effect make no distinction between estab-
lishments which provide nonessential goods or ser-
vices or those which furnish products or services
which are essential to an individual's or community's
continued well-being, such as food and health care.
Thus, as a consequence of picketing, individuals may
be deprived of the goods or services supplied by the
picketed establishment, whether essential or not, or
whether the deprivation is a result of their own choice
or the choice of others not to do business with the
struck facility. 4
It is also true that pickets, besides patrolling, often
appeal to customers or others to support them or at-
tempt to discourage such third persons from availing
themselves of the service or product provided by the
targeted establishment. And, so long as such appeals
and attempts at discouragement are not accompanied
by or made in the form of threats of violence or the
like or do not disparage that product or service, they
are privileged and their authors are entitled to the
protection of the Act. Nor do the pickets lose any of
their rights because the picketing or their comments
have the desired effect.
The Administrative Law Judge apparently does
not disagree with the above analysis of picketing and
its effects as such would apply to most pickets; but he
seems to believe that there is something unique about
It follows. therefore, that the essential nature of the service provided is
not the key to the issue presented.
a picketing doctor urging someone to seek treatment
other than at the picketed establishment.' We per-
ceive no basis for drawing such a distinction behct\en
physicians and nonphNsicians who choose to picket.
Certainly, the Act makes no such distinction nor e% en
hints at one. In passing Section 8(g) of the Act. ('otn-
gress intended to permit strikes and picketing of
health care institutions, such as the one here. after a
labor organization gives the appropriate ()-da; no-
tice to the employer. Surel., (ongress was ab Nare that
strikes engaged in pursuant to that section of the Act
would be accompanied by picketing and related coim-
ments and that such picketing and related conduct
could cause prospective patients to seek medical care
at health facilities other than the one being struck.
('onsequentl., we find that ('ongress did not mean to
deprive pickets of health care institutions, whether
they are doctors or nondoctors, of the Act's protec-
tion simply because they sought by legitimate con-
duct to persuade patients to go elsewhere for treat-
ment.
The remaining question then is whether the con-
duct of Doctors Gold and Fisher ell within these
bounds of legitimate picketing conduct. We tind that
it did. First, as we have found above, the statements
of these two doctors did not constitute medicval ad ice
or disparagement of Bathgate's services. Further,
their statements were of a sort which any of the pick-
ets in the circumstances could have made as a reflec-
tion of their honest opinion of the impact of the
strike. We see no reason, therefore, to penalize (iold
and F isher for making picket line remarks of this na-
ture wholly because of their professional standing.
Nothing in the Act requires pickets or those re-
sponsible for the picketing to act as an insurer, that is.
to take steps to insure that customers, patients, or
others obtain the affected services or product else-
where. And this is so even where. as here. the non-
emergency services provided by the picket establish-
ment contribute to maintaining the health of
members of the local community and constitute one
of the many services which people need to obtain in
the course of their daily lives. Thus. it' any of the
patients of Bathgate at the urging of the two doctors
chose to forgo treatment at the clinic, it was a choice
they made voluntarily. They were not forced to do so.
Further, to the extent any of them failed to follow
through and seek medical treatment elsewhere, that
also was their choice and responsibility. That they
were inconvenienced as a result does not impose an
obligation on the picketing doctors to provide the
health service sought or to insure that the patients
< The Adminlstratlce L.a. Judge left open the quleslioin ot hethcr sIml-
lar principle would appls to nonph~slclan pickets ho il.ttde like remalrk,
t)s
84(DECISIONS OF NATIONAL. ABOR RELAIONS BOARD
would obtain treatment. For such adverse effects of
picketing, as already noted, are to he expected and
were clearly foreseen by Congress.
Contrary to the Administrative Law Judge, there-
fore, we perceive no reason to require picketing doc-
tors to make even a tentative diagnosis of the medical
condition of patients before urging them to seek care
elsewhere. It is clear that the treatment or health ser-
vice sought was not of an emergency nature.6 It is also
obvious that only the individual patients knew why
they came to the clinic and the nature of their condi-
tion. Each one knew or had reason to believe that his
or her condition was such that he or she could or
could not afford even the relatively short time or
added inconvenience entailed in going to a different
health facility for treatment (indeed, in most cases a
patient will be able to ascertain whether he or she
requires emergency care). Thus, the patients, not the
doctors, must, at least in nonemergency situations, be
held accountable for their own decisions and actions,
that is, whether to ignore or honor the picket line or,
as here. heed the picketing doctors' comments.
Accordingly, we find that the failure of Doctors
Gold and Fisher to diagnose the conditions of pa-
tients at the picket line in the circumstances pre-
sented, or to insure that they obtain health care, did
not render their conduct unprotected. Having so
found, and having previously found above that their
conduct did not constitute the giving of medical ad-
vice, we further find that there is nothing in their con-
duct which denies them the protection of the Act.
Accordingly, we shall order that they be made
whole for any loss of pay they may have suffered by
reason of the unlawful discrimination against them,
from July 22, 1976, the date on which they were dis-
charged, until October 1, 1976, the date on which
they were reinstated, to be computed in the manner
described in F. W. Woolworth Company., 90 NLRB
289 (1950), with interest as prescribed in Florida Steel
Corporation, 231 NLRB 651 (1977).7
2. The Administrative Law Judge found the evi-
dence too inconclusive to establish that Respondent
discriminatorily denied Gold and Fisher permanent
admitting privileges. Contrary to the Administrative
Law Judge, and for the reasons fully set forth below,
we find that Respondent violated Section 8(a)(1) of
the Act by delaying consideration of applications
filed by Gold and Fisher for permanent admitting
6There is no contention here that Gold and Fisher sought to turn away
any cases which would be described as emergencies. Furthermore, it is un-
likely that any physician would advise a patient seeking emergency treat-
ment to go elsewhere lbr that treatment because the facility is not at lull
strength. If the situation does arise we will deal with it in the context in
which it occurs.
7 See. generally, Isis Plumbing & Heaing C(,_ 138 NL.RB 716 (1962).
privileges because of those employees' protected
strike activities.
Respondent grants admitting privileges to physi-
cians associated with it which allow the physician for-
mally to admit patients to Respondent's clinic. Under
the procedure followed by Respondent, physicians
are required to apply for admitting privileges which
must then be approved by the Hospital's board of'
trustees following review and recommendation by
Respondent's medical board. Respondent's medical
board meets on a monthly basis, except for the
months of July and August, and generally acts on
such applications within 90 days. Gold and Fisher
applied for permanent admitting privileges in June
1976." In late February 1977, having received no re-
sponses to their applications, Gold and Fisher made
inquiries concerning the delay to the head of the de-
partment of medicine, Dr. Hammerman. In the
spring of 1977, Hammerman recommended to Re-
spondent's medical board that Gold and Fisher be
granted permanent admitting privileges. The applica-
tions of Gold and Fisher were subsequently consid-
ered at a meeting specially called by the executive
committee of Respondent's medical board shortly be-
fore the hearing in the instant case convened in No-
vember 1977. During the course of the meeting, the
executive committee expressed objections to the ac-
tivities of Gold and Fisher during the July 1976 strike
and, as a result, consideration of the applications was
postponed pending further investigation.
Section 8(a)(l) proscribes employer conduct which
"interferes with, restrains or coerces" employees in
the exercise of rights guaranteed in Section 7. As
found, supra. all activities of Gold and Fisher during
the strike fell within the ambit of protected conduct
under Section 7. The applications of Gold and Fisher
for permanent admitting privileges in June 1976 were
filed approximately I month prior to their participa-
tion in the District 1199 strike. The applications were
not thereafter considered by Respondent, however,
until 1-1/2 years later and immediately preceding the
Board hearing in the instant case.
While Respondent indicated that its normal prac-
tice of considering such applications within 90 days is
"not strictly adhered to," it has offered no explana-
tion as to the extended delay and cites no case where
it has failed to consider such applications for an
equivalent period of time. Further, at the meeting
held in November 1977, Respondent deferred consid-
eration of the applications, citing the need for further
investigation of the activities of Gold and Fisher dur-
ing the strike in July. 1976.
8 Although not entirely clear from the record. it appears that Gold and
Fisher were granted temporary admitting privileges at all times on and alter
October I1 1976.
684
MON .i:lORE IOSPI I Al ANI) ID)( AIL (EN ITER
On the basis of the above. we find that Respondent
postponed its considerations of the applications tor
permanent admitting privileges filed h Gold and
Fisher because those employees participated in the
July 1976 strike. In so finding, we relN on the tlact that
Respondent has oflered no business justification to
support its deviation from its normal practice. that
the only "unusual" occurrence following the filing of
the applications was participation b Gold and
Fisher in protected concerted activities. and that. in
November 1977. Respondent admitted that further
postponement in consideration of the applications
was necessary because of those employees' Section 7
activities. Accordingly. we conclude that Respondent
delayed consideration of the applications tir perma-
nent admitting privileges filed by Gold and Fisher
because those employees engaged in protected con-
certed activities in violation of Section 8(a)( I ) of the
Act, and we shall order Respondent to immediately
consider and act upon the applications tiled b (old
and Fisher.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent.
Montefiore Hospital and Medical Center, New York,
New York, its officers, agents. successors, and assigns.
shall take the action set forth in the said recommend-
ed Order, as so modified:
1. Delete paragraph 2(b). insert the following as
paragraphs 2(b) and (c). and reletter the following
subsequent paragraphs accordingly:
"(b) Make Drs. Gold and Fisher whole for any
loss of pay they may have suffered by reasons of their
unlawful discharge from July 22, 1976. the date on
which they were discharged, until October 1, 1976,
the date on which they were reinstated, and for any
loss of benefits they may have suffered by reason of
Respondent's refusal to appoint them to or consider
them for full-time positions. Backpay is to be com-
puted in the manner described in F. W. Woolworth
Compan,, 90 NLRB 289, (1950) with interest as de-
scribed in Florida Steel Corporation. 231 NLRB 651
(1977). (See, generally, Isis Plumbing & Hearing Co.,
138 NLRB 716 (1962).)
"(c) Immediately consider and act upon the appli-
cations filed by Drs. Gold and Fisher for permanent
admitting privileges."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPEANDIX
Noii(f T EI.ONIE:S
Pos rtI) BY ORI)-R () 1111
NA I()NA. IAB(OR Rl. AI()NS Bo)ARI)
An Agency of the United States Government
After a hearing the National Labor Relations Board
has ruled:
(1) That we discharged Drs. Marji (old and
Michael Fisher. because they engaged in con-
certed activity protected by the National Labor
Relations Act.
(2) That we refused to appoint l)rs. Gold and
Fisher as preceptors in the Residency Family
Practice Program in Social Medicine, or to con-
sider them ftor such positions. because thes tiled
charges of unfair labor practices with the Na-
tional Labor Relations Board against us.
To remedy the effects of such action bh us the Board
has directed that we take certain remedial action. In
compliance with the Order of the Board. vee hereb.
notit' our employees that:
Wit Wiil.I o () discharge or otherwise discrimi-
nate against employees because the\ engaged in
protected concerted activit. nor will e coerce
them for so doing.
Wt. Wit.. N in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them bh
Section 7 of the National Labor Relations Act.
WF \'IIt. offer [)rs. Gold and Fisher full-time
appointment as preceptors in our Residenct
Family Practice Program in Social Medicine.
and Wxv x ii.i. reimburse them. with interest. for
any loss of pay or other benefits they suffered by
reason of their discharge or our refusal to grant
them full-time employment or to consider them
for it.
We: wl.i. consider and act upon the applica-
tions filed by Drs. Gold and Fisher fbtr perma-
nent admitting privileges.
MONIrEFIORE HOSPIIAt. AND MEDI(AI. CIN-
IE R
DECISION
SIATIMENI OF lTI: CASE.
CHARm VS W. SH HNInR. Administratie Law Judge: On
August 4. 1976. Marji Gold and Michael J. Fisher. the
Charging Parties, filed an unfair labor practice charge. and
on March 15. 1977. an amended charge. against Montefiore
Hospital and Medical ('enter, Respondent. pursuant to the
National Labor Relations Act. 29 .S.C. §151. er seq. On
November 17, 1976. the General Counsel of the Board. b3
the Regional Director for Region 2 (New York. New York).
685
6I6)('ISI()NS OF NATIONA. I.ABOR RELAFIONS BOARD
issued a compl;lint and notice of hearing. thereafter
amended on July 15. 1977. and on September 16, 1977.
Service of the charges. the complaint and amendments, was
made upon Respondent. Respondent duly filed answers de-
nying the commission of the unfair labor practices.
Pursuant to notice, a hearing was held before me in New
York, New York, on November 29 and 30, 1977. All parties
appeared at the hearing and were afforded full opportunity
to participate, to introduce and to meet material evidence,
and to engage in oral argument. Hospital Association of
New York State entered an appearance as lticu.s.
Motions thereafter filed by the General Counsel and by
Respondent to correct the transcript are granted, and the
transcript is ordered to be corrected accordingly.
On January 30. 1978, the General (Counsel, Respondent,
and Hospital Association of New York State. filed briefs,.
and on February 13. 1978. Respondent filed a revised brief.
These have been considered.
On the entire record in the case, including my observa-
tion of the witnesses, and their demeanor, and after due
consideration of the briefs, I make the following:
FINI)IN(;S () FA( I
I. JRISI)i( iO)N
Respondent is, and has been at all times material herein.
a corporation duly organized under, and existing by virtue
of. the laws of the State of New York. At all times material
herein, Respondent has maintained its principal office and
place of business at I II East 210th Street. in the City and
the State of New York. herein called Montefiore Hospital.
and at various other facilities in the City and State of New
York, including an out-patient clinic known as the Bathgate
Health Center located at 1633 Bathgate Avenue, Bronx,
New York, where it is, and has been at all times material
herein, continuously engaged in operating a general care
hospital. clinics and other facilities providing health care
and related services to the sick, aged and infirm.
During the past fiscal year, which period is representative
of its annual operations generally. Respondent. in the
course and conduct of its business operations, derived gross
revenue in excess of $500,000 for performance of its ser-
vices. During the past fiscal year, which is representative of
its annual operations generally, Respondent, in the course
and conduct of its business, purchased and caused to be
transported and delivered to its places of business, drugs.
and other goods and materials valued in excess of $50,000.
of which goods and materials valued in excess of $50,000
were transported and delivered to its places of business in
interstate commerce directly from States of the United
States other than the State in which it is located. Respon-
dent is, and has been at all times material herein, an em-
I An earlier heanng on the complaint, as amended through Jul) 15. 1977.
had been held on August 8 and 9. 1977. at the conclusion of which the
presiding administrative law judge withdrew from further participation in
the case. The instant hearing on the complaint as amended through Septem-
er 16, 1977. was de novo. Except as referred to in the November hearing, the
findings herein are based solely on the transcripts and exhibits in the di novo
hearing. The record of the August hearing has not otherwise been consid-
ered.
ployer engaged in commerce within the meaning of Section
2(2), (6). and (7) of the Act.
II. il LNtAIR LABOR PRA( II( S
A. 7h lIssuelt
The basic issue is whether Respondent discriminated
against the ('harging Parties because they engaged in con-
certed activities. including picketing. in support of a legal
strike by a union representing other employees of Respon-
dent. Although other subsidiary contentions and issues are
raised, Respondent's principal defense is that the actions of
the (Charging Parties constituted unprotected concerted ac-
ttvit.
B. 7het' tiact 2
Montefiore Hospital and Medical Center is a health care
institution located in the Bronx, New York Cits. where it
operates a hospital on East 210th Street. and a health cen-
ter. The health center, known as Martin Luther King
Health ('enter, located at Third Avenue in the Bronx. and a
satellite clinic some 5 or 6 blocks awaN known as Bathgate.
offer primary and diagnostic care of area residents on an
out-patient basis. Bathgate services a predominantly black.
Puerto Rican, and lower income, population which lives
within walking distance of' the facility. The Third Avenue
and Bathgate clinics are the principal sources of out-patient
health care services in their geographical area.
I. The charging parties
The Charging Parties. I)octors Gold and Fisher, are li-
censed physicians. Efflective July I, 1976, after a period of'
training as residents with Respondent. they were appointed
preceptors in family practice medicine at the Bathgate
Clinic on a regular part-time basis. As preceptors, they are
members of' Respondent's staff and employees. Their duties
as preceptors are to act in a teaching and consultative ca-
pacity to the residents at Bathgate in their specialty, family
medicine. The residents are graduates of medical schools
who serve on the staff of the clinic, either as interns, or as
postgraduate students who have completed their internship
and are seeking certification as specialists within the par-
ticular area of medicine involved. The preceptor partici-
pates in the treatment of patients by reviewing medical
charts and assisting interns and residents in diagnosis and
treatment. Preceptors also have authority to admit patients
for in-hospital care. They thus have responsibilities directly
affecting patients.
So far as appears, Gold and Fisher were not members of,
or represented by, any labor organization.
2. The strike
As Respondent's testimony. and the history of its em-
ployee relations, discloses. Respondent does not oppose the
2 Most o the facts are undisputed. Where there are differences. the find-
ings are based on the credited evidence.
686
MONT EFIORE HOSPITAL ANt) MEDICAl CENTER
unionization of its employees, or their right to engage in
what Respondent considers to he appropriate concerted ac-
tivities.3 District 1199 is the bargaining agent of certain em-
ployees of employer members of the eague of Voluntary
Hospitals and Homes of New York, Inc.. of which Respon-
dent is a member. On July 7. 1976. District 1199 gave due
notice of its intent to strike, pursuant to Section 8(g) of the
Act. The strike was thus lawful in character.
During the strike, of the 34 to 39 employees ordinarily
working at Bathgate, only 4 to 5 reported for work.4 Only
one physician (Dr. John Seed), three nurses. and one volun-
teer receptionist (Mrs. John Seed). worked at Bathgate dur-
ing the strike. However, the clinic remained open for such
work as those persons could handle. Dr. Seed's testimon is
that he treated only acute cases during the strike, and re-
ferred other patients to the larger clinic on Third Avenue. It
seems fair to conclude that the patients who were treated at
Bathgate during the strike received competent medical care.
but that Bathgate was unable to render its usual services to
its normal complement of patients during the strike.
Though they were not members of or represented bh Dis-
trict 1199. Drs. Gold and Fisher were in sympath with the
objectives of Local 1199. After the strike began thes refused
assignments from their supervisors, joined the strike. and
ceased to perform services for Respondent. They also par-
ticipated in picketing at the Bathgate facilit. The' gae no
advance notice to Respondent of their intention to partici-
pate in the strike. Some residents also joined the sltrike.
3. The picketing
On July 14, 15, and 16, 1976, District 1199 picketed at
the Bathgate facility. Drs. Gold and Fisher participated in
the picketing during some of that time. In addition. while
they were on the picket line, Gold and Fisher sought to
induce prospective patients who approached the clinic not
to enter it for treatment. There was no physical interference
or threats, and the inducement was confined to persuasion.
The procedure used in the inducement was substantially the
following.
Gold and Fisher identified themselves as doctors to those
patients who did not know them to be such. They then
informed the patients that there was a strike involving most
of the workers at the clinic, that normal facilities were not
available at that time, that Bathgate was therefore not now
a full service facility, and that the patients would receive
better medical care if they went to a full service nonstruck
facility, such as Lincoln or Jacobi Hospitals, institutions not
within walking distance of Bathgate.
Gold and Fisher did not inquire as to the nature of the
medical condition which prompted the patient's visit. Their
3 Thus. Respondent voluntarily extended recognition to District 1199. Na-
tional Union of Health and Hospital Employees, AFL-CIO. as the collec-
tive-bargaining representative of most of its employees (excluding, among
others, residents and preceptors). at a time vwhen neither Federal nor state
law gave collective-bargaining rights to employees of nonprofi hospills
Respondent has also recognized. and contracts with, an organization of its
residents. CIR. as the colleclive-bargaining representative of those individ-
uals. Cf. Cedars-Sinai Medical Center. 223 NLRB 251 11976).
4 The normal complement at Bathgate consists of approximately 10 to 12
physicians, 3 nurses, 2 to 3 receptionists, I to 2 lab technicians, 6 to 7 medi-
cal assistants. 8 family health workers, and 4 medical clerks
testimony is that the reason for their actions was that they
did not believe that the clinic was in a position to pro ide
adequate medical care under the circumstances, and that
they deemed it to be their obligation as physicians to do so
advise the patients.
On Saturday July 17, 1976. the parties reached an agree-
ment concerning the dispute. and the strike ended.
In the meantime, the statements Drs. Gold and Fisher
had made to prospective patients during the picketing had
evoked expressions of disapproval among some nonstriking
supervisors and physicians, who deemed it inappropriate
tf)r doctors to dissuade persons from seeking medical care
at the clinic under such circumstances. In particular. Proj-
ect D)irector I)elores Smith. head of the Bathgate ('linic.
reported to hospital administration that she did not want
Dr. Gold to return to Bathgate.' As a consequence, earl in
the morning of Monday-. September 19. 1976 Dr. CGold w;ls
instructed b her supervisor not to report to wvork at Bath-
gate that da,i. pending disposition of Smith's remonstrance.
Nesvertheless. in response to telephone calls later in the das
from residents at Bathgate to the effect that there w:ere no
preceptors there, Gold went to Bathgate and proceeded to
carry out her regular duties.'
Oti the same day. September 19. [)rs. (iold and FIisher
were sumnlonled o separate meetings with Hospital D)irec-
tor [)r. Kindig. to explain their actions during the strike.
(;old initiall refused to attend unless accompanied b resi-
dents and a lawser. a condition unacceptable to Kindig
lltimatel, (iold attended a meeting with Kindig on .lukl
21. accompanied b, I)r. Jo Buflord, director oft the resi-
denc prograin in social medicine. At that meeting (old
refused to discuss her conduct during the strike to an> sub-
stantial extent. Fisher refused to attend a meeting it h D)r.
Kindig unless accompa;nied bN a resident a condition re-
Jected b Kindig.
4. he discharges
On uly 22, 1976, the das after Hlospital D)irector Kmin-
dig's meeting with (Gold. Kindig met with I)r. Martin Cher-
kasky. president of Respondent. and the cases of Gold and
Fisher were reviewed. Kindig advised Cherkaskx that Gold
and Fisher had abandoned their duties and patient care
without notice. had refused to carr out assignments during
the strike, had interfered with the operations of Bathgate hby
obstructing patients seeking medical care, had disparaged
the medical services available at Bathgate during the strike.
and had refused to report to )r. Kindig's office unless ac-
companied by others. Dr. Kindig recommended that the,
be discharged, and Dr. Cherkasky agreed. On the same da.,
Kindig sent Cold and Fisher termination letters in the tl-
lowing form:
There is no explanation whN Smith's report did nol include Dr Fisher
To cover Bathgiae thal da, I)r Kindig. hospilll director. hd nstructed
Clinical Director Dr France, Siegel to do the precepting in the ahsence ol
Dr. Fisher Iwhose daS off iti .as), and Dr Gold. Hweser, I)r Siegel as
detained and came late I lsher -as ailso alled h the resident,, and he, tm,
came n Both )r (ol and Fisher ,ere in he clinic hen Dr Siegel
arrived.
68X7
DIECISIONS OF NATIONAL LABOR RELATIONS BOARI)
This is to notify you that, effective immediately
your position as a part-time salaried employee of
Montefiore Hospital and Medical Center is terminated.
5. The review of the discharges
The discharges evoked disapproving reaction from some
of the residents, including a short-lived illegal strike de-
signed to secure the reinstatement of Drs. Gold and Fisher.
Respondent then set up a procedure to review the dis-
charges. Gold and Fisher requested a hearing under the
procedure, following which Dr. C(herkasky appointed a
panel of staff physicians to consider the charges against
Gold and Fisher, and to make recommendations to [)r.
Cherkasky concerning them, who in turn would convey his
recommendations to Respondent's board of trustees for fi-
nal decision. Under date of August 4, 1976, letters were sent
to Gold and Fisher granting a hearing and notifying them
of the charges against them. The charges were thus defined
in that letter:
You are charged with failing to fulfill both your profes-
sional and employment obligations to Montefiore tHos-
pital and Medical Center which obligations include
providing continuous supervision of patients: perform-
ing teaching and educational duties: carrying out and
abiding by assignments and directives made by super-
visors and abiding by the principles of medical ethics.
The above charges are made with respect to the follow-
ing circumstances.
I. During the weeks of July 5th and 12th you failed
to perform the duties and obligations for which you
were employed.
2. During the weeks of July 5th and 12th you re-
fused to report and in fact did not report for specific
employment assignments made by your supervisor.
3. During the week of July 12th, you obstructed pa-
tients from being treated at the Bathgate Health C('en-
ter.
Following the hearing the panel found the charges fac-
tual and well-founded, but recommended that since Drs.
Gold and Fisher had been disciplined by the separation,
they be allowed to return to work. This recommendation
was duly transmitted to Dr. Cherkasky.
6. Dr. Cherkasky's meetings with Drs. Gold and Fisher:
the reinstatements
Following receipt of the panel's recommendation. Dr.
Cherkasky called Drs. Gold and Fisher to his office on Sep-
tember 8. 1976, and spoke to each of them separately.
There are some differences in the evidence as to the occur-
rences at these meetings. However, it appears to me that the
testimony is in substantial agreement as to the essentials of
the encounters of the encounters. Thus, Dr. Cherkasky told
Drs. Gold and Fisher that he was to make a recommenda-
tion to the board of trustees on the following day as to the
disposition of their cases, and that before he did so, he
wished to understand their views as to their responsibilities
as doctors. He told them that they had the right to express
their views, to engage in legal strike action. and to support
by appropriate measures whatever causes they believed in.
However, he said that during the strike Gold and Fisher
had abandoned their patients and their responsibilities as
doctors, and had obstructed patients from receiving medi-
cal care. and the those actions were inappropriate. He
asked that they assure him that they' would not engage in
such activities in the future. Both (old and Fisher indi-
cated that, in retrospect, they felt that their actions had
perhaps not been appropriate in all instances, and sug-
gested that they would not repeat them in the future.
It is clear from Doctor Cherkasky's testimony that the
specific activities of Gold and Fisher which he regarded as
inappropriate were their going on strike without notice, re-
fusing work assignments during the strike, and interfering
with patients' entry into the clinic.'
Dr. CherkaskN's further testimony is that he came away
from the interviews with the understanding that D)rs. Gold
and Fisher had changed their views as to the propriety of
their activities, and would desist from them in the future. s
'onsequently, on the following day Dr. Cherkasky recom-
mended to the executive Committee of the board of trustees
that Drs. Gold and Fisher be reinstated as of' October .
1976. a recommendation which was accepted by the board.
(;old and Fisher thereupon returned to work on October I
to their former part-time positions, and their discharges
were converted to suspensions without pay.
7. Ihe full-time positions: the issuance of the complaint
About November or l)ecember 1976. Respondent de-
cided to expand its family practice program effective Feb-
ruary 1. 1977. thus creating two full-time faculty positions
in that specialty. Doctor Gold having previously indicated
her interest in a tfull-time position, an in-house committee
set up to consider applications for the positions recom-
mended to Dr. Jo Boufford. director of' the residency pro-
gram in social medicine, that (Gold be appointed to one of
the positions. I)r. Boufford approved the recommendation
and on January 14, 1977. she signed and sent to Dr. Levine,
deputy director of professional affairs, for his approval, a
professional staff status change form changing Dr. Gold's
status to full-time, effective January 31. 1977.
In the meantime, on November 17, 1976. the original
complaint in this proceeding was issued, charging Respon-
dent with unfair labor practices in the July discharge of
Drs. Gold and Fisher. Dr. Cherkasky considered that ac-
tion to indicate that Gold and Fisher were now asserting
the legitimacy of their actions during the strike, a position
he deemed inconsistent with his understanding of the views
they had expressed to him in the meetings of September 8.
President Cherkasky thereupon met with Hospital Director
He thus identified those specific activities:
as I understand it... the) I{Gold and Fisher] must give 10 days notice.
And the purpose of that is . that when you hae patients at risk . . .
the opportunity would be afforded us to] move them to other hospitals
or do whatever is necessary.. . And secondls. stopping a patient who
wants to come in for medical care.
T8 hus he testified. in part, "I came away with the impression that, on
thinking. they had felt that their activities were not appropriate and he·
indicated that hey would not pursue them."
688
MONIFIORI H()SPIAIL AND) MNtI)ICAL (CENTER
Kindig and the two discussed D)r. Bouflbrd's recommenda-
tion. Cherkask asked Kindig whether the latter would hire
a physician who engaged in such strike conduct. and Kin-
dig responded that he could not recommend such a person.
It was then decided that Gold's application would not be
considered until the National abor Relations Board pro-
ceeding had been completed. Upon being advised of this
decision. Dr. Boul'ord requested a meeting with I)r. ('her-
kasky, which was held on February 10. 1977. In this meet-
ing Cherkasky told Boufford that he respected her recom-
mendation, but that action on Gold's application was being
withheld until the completion of the National ahor Rela-
tions Board proceeding. The reasons he gave Dr. Boulford
for that action were, in sum, that Gold had engaged in
unprofessional conduct during the strike, that the propriety
of that conduct would he decided in the National Labor
Relations Board proceeding, that he had been advised that
to grant Gold's application for full-time employment dur-
ing the pendency of that proceeding might be prejudicial.
and that action on Gold's request would therefore he de-
ferred pending the adjudication.'
On February 2, 1977. Dr. Fisher applied to Dr. Boufford
for full-time employment. She informed him that she as-
sumed that his situation was the same as Dr. Gold's and
that she (Dr. Boufford) could take no action on Fisher's
request until the National Labor Relations Board had dis-
posed of the case.
On May 27, 1977, a committee of residents in the family
practice program met with Dr. Kindig. at their request, to
discuss the shortage of preceptors in the program. Kindig
told the committee, in substance, that he could make no
decision in view of the pending NLRB matter. Neverthe-
less, on June 2, 1977, the selection committee, including Dr.
Boufford. met and unanimously approved Fisher for the
second full-time position.
At the close of the instant hearing, in November 1977,
the two positions were still unfilled.
8. The attending, or admitting, privileges
For a physician to practice at, or to have his patients
admitted to, Montefiore Hospital, the physician must have
attending, or admitting, privileges. Grant of these privileges
requires approval of the hospital's board of trustees, after
various stages of review through departmental channels
and staff committees. including a medical board composed
of departmental representatives and private practitioners.
Employee physicians of the hospital. such as Drs. Gold and
Fisher, are granted temporary attending privileges when
hired.
Prior to becoming preceptors, Gold and Fisher had been
residents at the hospital. They completed their residencies
in June 1976 and then made application for permanent ad-
mitting privileges. In their meeting on September 8. 1976.
' The findings as to Dr. Cherkasky's response to Dr. Boufford are Irom the
testimony of loth. Dr. Boufford's testimony as to the reasons given h) Dr.
Cherkask. were capsulized as follows:
He raised two concerns. One was the pending NI.RB case, and the
other was his concern ahlout their unprofessional conduct uring the
strike.
I)r. Cherkaskv told [)r. Gold that he was required to make
a recommendation as to whether her application tfor such
privileges should be granted.
In late February 1977, having received no responses to
their applications, Gold. and Fisher inquired of Dr. Ham-
merman. head of the department of medicine, as to the
delay. Dr. Hammerman told them that the decision was
basically D[r. ('herkaskN's and that ('herkask would take
care of the matter in Jul'. Sometime after that meeting.
however. D)r. Hammerman recommended to the medical
board that Gold and Fisher be granted admitting privileges.
It appears that a member or members of that board then
requested further information concerning the activities of
Gold and Fisher during the strike. In April 1977, Gold and
Fisher wrote to Dr. Levine. deputy director of professional
affairs, reiterating their inquiries and suggesting that hospi-
tal rules required a disposition of such applications in 90
days. D)r. Levine responded to the effect that the matter was
in process.
Although the executive committee of the medical board
meets monthly. except during July and August. the applica-
tions of Gold and Fisher appear not to have been included
on n agenda of the executive committee until shortly before
the instant hearing began in November 1977. At that time a
special meeting of the executive committee was called to
discuss the matter. The testimony of Hospital Director Kin-
dig is that at this meeting some committee members ex-
pressed objections to the activities of Drs. Gold and Fisher
during the strike, and as a consequence the matter was put
over lbr further investigation. In response to a question at
that meeting as to whether the calling of a special meeting
of the committee had any relation to the imminence of the
Board hearing. Dr. Kindig replied to the effect that he
would be lying if he said that it did not.
This was the situation at the close of the hearing.'0
C. ('onclusio.ns
1. Contentions
The 8(a)(1) violations alleged by the General Counsel
consist of the discharges of Drs. Gold and Fisher. and the
withholding of admitting privileges. The General Counsel's
contention is that Respondent took those actions because
Gold and Fisher withheld their services and picketed in
support of the Local 1199 strike, activities said to be pro-
tected under the Act. An additional allegation of 8(a)(1)
conduct is that in the meetings of September 8. 1976, Dr.
Cherkasky interrogated Gold and Fisher concerning their
activities on behalf of. and sympathy for, Local 1199. The
alleged 8(a)(4) violations consists of the failure of Respon-
dent to grant Drs. Gold and Fisher full-time employment
for the asserted reason that they had filed charges under the
Act.
I B letter of iFehruary 22. 1978. counsel for Respondent. over objection
hs the General Counsel. represents that the executive committee. after inter-
view off Drs. Gold and isher. recommended on February 13 that they he
appointed to the attending staff In the absence of agreement or eidence
those facts ma. not he lound In an eent, the executive conrlmnlee's action
Is only a reconmmendallon to the hoard oI trustees. and not a final action
689
DE[('ISIONS OF NATIONAL LABOR RELATIONS BOARI)
The General ('ounsel's assertions are denied by Respon-
dent. Respondent states a number of contentions in defense.
some procedur;ll, some substantive, but its basic defense is
that Gold and Fisher engaged in practices violative of pro-
fessional ethics and unprotected by the statute. It specifi-
cally denies that the discharges or its other conduct were in
violation of the Act. In addition. Respondent contends that
Gold and Fisher were insubordinate. As to the failure to
grant Gold and Fisher full-time status, Respondent states
that it has not permanently denied them such status, but
has merely deferred decision pending the outcome of the
proceeding. As to the failure to grant admitting privileges,
Respondent's contention is that this is in the hands of' a
committee in charge of' such matters, over which Respon-
dent has exerted no influence, and that the processes nor-
mally required have not been exhausted. Other contentions
of Respondent are stated infra.
We begin the discussion with the observation that medi-
cal care has a special place in labor relations. and is regu-
lated by the National Labor Relations Act to a greater de-
gree than controversies in other industries.
2. Some preliminary conclusions as to the discharges
Respondent's reasons for the July discharges are stated
most succinctly in the August 4. 1976, letters sent by Re-
spondent to Drs. Gold and Fisher. These have been quoted
supra, p. 7.
More specifically, Respondent's position is that Drs.
Gold and Fisher (I) struck without notice. (2) ceased and
refused to perform their regular and assigned duties, thus
abandoning their patients, (3) while on the picket line dis-
paraged the Bathgate clinic, and advised prospective pa-
tients against, and obstructed them from, entering it, and
(4) were insubordinate in reporting to Bathgate after the
strike, after being instructed not to.
With respect to these contentions, it has been found that
Gold and Fisher ceased and refused to perform their regu-
lar and assigned duties, that is to say, they went on strike.
that they did so without giving Respondent any advance
notice, and that they reported to Bathgate on July 19 at the
request of the residents, despite instructions from Respon-
dent not to do so. In addition, it has been found that Gold
and Fisher sought to induce persons not to enter Bathgate
for medical treatment during the strike. However, I do not
find that patients were obstructed. I discern no credible evi-
dence indicating that threats, force. or physical obstruction
were used by Gold and Fisher. So far as appears, no com-
pulsion was exercised. As to their reporting to the clinic on
July 19, I do not construe that conduct, in the light of its
cause, as reflecting insubordination. Nor do I find that it
played any significant part in Respondent's decision to e'
fect the discharges." The mere acts of going on strike and
11 In any event, I find that Respondent's action in later reinstating (old
and Fisher condoned, and thus waived, any such insubordination, preclud-
ing reliance on it here as a defense. The Hoover Co.. 90 NLRB 1614, 1622
25, enfd. in this respect, 191 F.2d 380. 392 (6th Cir. 1951).
Waiver considerations are inapplicable to the remainder of the conduct oft
Gold and Fisher relied on in defense, for the reason that Gold and Fisher
had given Dr. (herkasky assurances in the September 8. 1976. meetings
against repetition of' that conduct.
picketing were not considered inappropriate by Respon-
dent, and were not per .sc reasons for the discharges. Two
other doctors who arranged beforehand with the adminis-
tration to take time off during the strike in order to demon-
strate their support of the strikers were not disciplined. nor
were their actions questioned.
I'he various remaining problems will he discussed scri-
3. The relevance of medical ethics; weight of' the evidence
relating thereto
Respondent introduced a substantial amount of evidence.
in the form of expert testimony and documentary mate-
rial.' designed to establish that the conduct of Drs. Gold
and Fisher violated medical codes of ethics, was unprofes-
sional, and therefore not protected by the National Labor
Relations Act. After consideration of that evidence. I have
concluded that the relevant test of the conduct of Gold and
Fisher in these proceedings is its propriety under the Na-
tional Labor Relations Act, and not under the medical pro-
fession's ethical codes. Professional codes of conduct are
normally devised for intraprofession guidance, regulation.
and discipline, and are largely extra-legal in nature. Except
to the extent that they have been adopted by a government
as basic law, neither their establishment nor their enforce-
ment are normally subject to judicial veto or control other
than in extraordinary situations, such as deprivations of
due process of law. The instant situation is not one of such
character.' Moreover, the evidence here appears to suggest
that what specific conduct is to be justified, and what con-
demned, under the codes of ethics of the medical profes-
sion, in the absence of an adjudication of the specific facts
by a body of competent medical or governmental jurisdic-
tion, to some extent may be a matter of opinion and subjec-
tive iew. The rules themselves are in some instances sus-
ceptible of differing interpretations and applications. Thus,
while the expert witness of Respondent on the subject of
medical ethics found the conduct of Drs. Gold and Fisher
unethical and unprofessional. the expert witness for the
General Counsel found the conduct not only ethical, but
required in the circumstances fbr satisfactory performance
of the obligations owed by doctors to patients under the
ethical codes. It is therefore my opinion that the propriety
of the conduct of Drs. Gold and Fisher here is not resolv-
able by resort to the medical codes of ethics.'? Thus, if the
actions of Drs. Gold and Fisher in refusing to continue to
' Such as the principles of professional conduct of the Medical Society of
the State of New York. the American Medical Association's Pnnciples of
Medical Ethics, and Rules of the New York State Board of Regents.
' Exception must also be made. of course. for situations in which con-
formance to codes of ethics may be a factor in determining fitness to prac-
tice. or to be licensed in, a profession. A familiar example is a proceeding to
discipline or disbar an attorney, instituted in a court to which he has been
admitted to practice.
14 C/ Southern Steamship Co(niparni 316 .S. 31 (1942), where the Su-
preme Court held that in construing the National I.abor Relations Act. other
public policies in the nature of positive law may he of bearing, and public
policies in the nature of position law may be of hearing, and if so must be
considered See also American ;YV (Co. 55 NI.RB 1302 (1944). In the in-
stant case the ethical rules, except to the extent embodied in law. are of
private. and not public. making, though they may have substantial public
effect.
690
M()N l 'IORtE tOSPI AI ANI) 1Mt)I('AI (EN IER
perform their duties during the strike. een without notice,
and to participate in the picketing of Bathgate during the
strike, are protected by the National Labor Relations Act.
the medical profession could not. bh its agreement with it-
self, either legitimatize or llegitimatize the conduct in law.
What the result would be if a duly authorized governmental
body, such as the State of New York, in the exercise of
lawful authority. adjudicated the legiinmac of the conduct
involved, is a question not presented and not decided.
Moreover, it is my judgment that the evidence presented
does not clearly establish whether the conduct of )rs. Gold
and Fisher was violative of, or, on the contrarN. consonant
with, medical ethics."
4. Whether the action of ;old and Fisher in going on
strike without giving advance notice was an unprotected
activitN
As a general proposition. the statute protects employees
from reprisals in employment lfor the act of going on, or
joining in, a strike without advance notice a principle with
which Respondent does not appear to disagree. In certain
circumstances, however. striking without notice is not a
protected activity under the Act. Examples are where there
is a valid contract between the employer and a collective
bargaining representative, in which the representative
agrees that the employees will not strike during term of the
contract, or where a strike without some form of notice is
contrary to Congressionally declared public policy, such as
that provided in Section 8(g) of the Act, or where, because
of the nature of their employment, there is a duty on em-
ployees to take reasonble precautions to protect an employ-
er's plant, equipment, or products from foreseeable immi-
nent danger due to sudden cessation of work, and the do
not perform that duty before going on strike. Marshall ('ar
Wheel and Foundry Co., 107 NLRB 314 (1943). enforce-
ment denied 218 F.2d 409 (5th Cir. 1955). Drs. Gold and
I Illustrative of the possibly subjective character of the interprelations of
the ethical codes may he the case of Dr Seed, who was the only famil
practice physician to continue to perform his duties at the Bathgate clinic
during the strike. Following the strike Dr. Seed wrote to the Office of Profes-
sional Medical Conduct, New York State Health Department, suggesting
that the conduct of Drs. Gold and Fisher during the strike was unprofes-
sional and deserving of some kind of censure. Subsequently. Dr. Levine,
Respondent's director of professional affairs. notified the state authorities
that Respondent had imposed disciplinary action on Gold and Fisher. and
that Respondent therefore considered the matter closed. The record contains
no indication of a disposition by the State of Dr. Seed's charges.
The record indicates that since the strike. out of conviction, undoubtedly
sincere, that the action of the residents and Drs. Gold and Fisher in striking
was not consistent with their professional obligations, Dr. Seed has refused
to discuss with family practice residents the medical problems of their pa-
tients, because he disapproves of their striking: indeed, that since the strike
he has refused to communicate with Dr. Fisher or any of the striking resi-
dents on clinic business except in writing. Since it is the duty of the staff
physicians to assist and advise residents. as students, as to medical care of
patients. a duty which I also find exists in the case of D)rs. Gold and Fisher.
Dr. Seed's action may be subject to the same criticism which Respondent
offers as grounds for terminating Gold and Fisher failure to fulfill profes-
sional obligations to patients as well as obligations as an employee of Re-
spondent. I do not presume to judge Dr Seed's ethics, or his deep personal
beliefs, but the situation illustrates. I think. the possible morass involved
when one profession is asked to determine or to apply the ethics of another
profession. Additionally, it may suggest an inconsistency in Respondent's
application of standards of ethics.
Fisher were not members of a labor organization. nor had
they given a commitment not to strike or join a strike.
Respondent contends that because of the nature iof a
physician's work, and the concern of Congress as evi-
denced b its enactment of Section 8(g) that health care
institutions he given adequate opportunity to provide fir
the care of patients during a strike, Drs. Gold and Fisher
had a duty under the Act (apart from their ethical duts ) to
give advance notice of their intent to strike a notice in-
dependent of that required of Local 1199. The necessary
premise for that contention is that all employees of health
care institutions are required to give advance notice of an
intent to strike. either through their bargaining agent or by
themsels es.
No doubt persuasive argument can be made that such
should he the law. For if nonrepresented employees of a
health care institution may engage or join in a strike such as
the one here, the employer, not knowing of the intent of
nonrepresented employees to strike at the same time, might
not be aware of the necessity to cover their positions against
possible desertion during the strike. However, that question
is no longer an open one, having already been decided by
the Board adversely to Respondent's contention. Thus. in
Halker ierltldi.s Rsidnce iad 1tcalh (art (enter, In..
227 NLRB 1630 (19771, and in Katiltani tospial, 231
NLRB 34 (1977), the Board ruled that the strike notice
required by Section 8(g) of the Act applies only to labor
organizations, and not to individuals. Thus, unrepresented
employees who either initiated (as in Wablktr), or joined (as
in Kaptiolani), strikes were held by the Board not required to
give independent notices. In the instant case the strike by
I.ocal 1199 was legal and called upon proper notice by it.
For Gold and Fisher to support the strike did not constitute
engaging in an illegal strike. The conduct of Drs. Gold and
Fisher in going on strike without notice thus appears to be
protected activits. WVhile Respondent asserts that the
Walker and Kioli cases were incorrectly decided and
are not consistent with the legislative history of the Act, the
Board's decisions are binding on the administrative law
judge. unless overruled bh the Board or the U.S. Supreme
Courts While Walkcer ,fIlellodi.st may be distinguishable
because it did not involve either a strike by a labor organi-
zation, or a sympathy strike by others. Kapiolani is on all-
fours with the notice problem here. I conclude that a prem-
ise of the Board's holding in Kapiolani is that a health care
institution is alerted b the labor organization's strike no-
tice to the possibility that all employees may fail or refuse
to report to work, and thus is given opportunity to prepare
for such an eventuality. And if, because of the limited na-
ture of the labor organization's representation, the em-
ployer does not take advantage of the opportunity, conse-
quent personnel defections in other services are to he
deemed the result of the institution's choice, and not the
Oh Sierra D-velopmen (mpamn, ' d/h,/ C(luh (al eva,. 231 NLRB 22. fn. 5
(1977): Frd Molor Compan,. (Chicago Siamping Plant) 230 NLRB 716. tn.
12 (19771. and cases there cited: lent (rmnipin. 153 NLRB 1399 (1965):
Teamsteri. (haufleurs. Warehousemen & Helpers, Local Union 'No 90., etc
It' & Me Transler. Palm Beach Transfer, and ' 8 Me Transler ,' Bell
Glade, 119 NLRB 852 392 (1957): Scherrer and Da'iss.on Logging Compan.
119 Nl.RB 1587 (1957i: lWorld Carpe 'en }orA. In. 188 NlRB 122
{1971 .
691
I) ECISIONS O()F NATION I.ABOR REIATIONS BOARD)
employees' failure to give notice. The possible adverse con-
sequences of which Respondent speaks must he held to
have been within the contemplation of Congress when it
enacted the notice requirement in Section 8(g) of' the Act.
It is therefore concluded that the conduct of G(old and
Fisher in joining L.ocal 1199's strike without prior notice.
and failing and refusing to perform their customary duties
or to accept assignments during the strike, must be deemed
legal and proper, so far as the National Iabor Relations
Act is concerned, whatever its morality or consonance with
medical ethics. Consequently, their discharges for having
taken such action was a violation of Section 8a ) I1) of the
Act.
5. Disparagement of services; whether the inducement of
patients was a protected activity
What then of the remaining segment of strike conduct by
Drs. Gold and Fisher, namely, seeking to induce patients
not to enter the struck clinic? Unlike my answer to the
previous question, I am of the view that, on the pattern of
facts presented. that conduct constituted unprotected con-
certed activity.
As we have seen, in certain circumstances employees
may owe an obligation under the Act to perform certain
duties before going on strike. As a corollary, once the strike
begins, certain conduct by the strikers in pursuance of the
activity may not be protected under the Act. A familiar
example is violence. In addition, disparagement of an em-
ployer's products and services by employees. strikers or
nonstrikers, thereby discrediting the services in the eyes of
an employer's customer, may not be protected. 7 Respon-
dent asserts that those authorities make the actions of Gold
and Fisher unprotected, for the reason that their induce-
ment of patients disparaged the services available at Bath-
gate.
I find those cases inapplicable, I do not deem the induce-
ment here to constitute disparagement of the clinic's ser-
vices within the principle of those authorities. -lHowever.
those cases do illustrate that in particular circumstances
certain kinds of conduct in pursuance of strike measures are
not protected concerted activity.
Where the patients did not know them. Gold and Fisher
initiated their inducement not to enter the clinic by intro-
ducing themselves as physicians. They thus differentiated
themselves from the main body of strikers, and identified
themselves as persons qualified to render medical opinion
as to the professional merits of the services available at the
clinic. Drs. Gold and Fisher represented that the services
available were inadequate. While not constituting dispar-
agement within the meaning of the Jefrrson Broadcasting
line of cases, that statement was at best ambiguous, and at
worst untrue. For within the limits of technical assistance
" NL R. B. v. Local Union No. 1229, International Brotherhood of Electri-
cal Workers [Jefferson Standard Broadcasting C(o., 346 U S. 464 (1953).' The
Palnerson-Sargent Company. 115 NLRB 1627 (1956): American Arbirrarion
Association, Inc., 233 NLRB 71 (1977). That the statements may be true does
not protect them (Panerson-Sargent at 1929). See also and cf. Communitl
Hospital of Roanoke Valle.', Inc., 220 NLRB 217 (1975), enfd. 538 F,2d 607
(4th Cir. 1976); Black Angus of Lauderhill. Inlc. 213 NLRB 425 (1974)
available, and his own physical limitations. [)r. Seed pro-
vided what was no doubt competent medical care in acute
cases. though the range of services available at Bathgate
was not up to the normal standard. In any event a doctor
was available to see the patient and to determine whether a
medical emergency existed. It facilities at Bathgate were
insufticient. the patient could have been sent to the larger
clinic or to the hospital. )rs. Gold and F:isher made no
attempt to ascertain the patient's complaint or condition:
thev did not seek to learn whether the occasion for the visit
was acute or routine. Nor did they seek to assure them-
selves as I believe a physician in those circumstances
should have done that. when persuaded by their opinion.
the patient did in fact seek medical care at the places they
suggested. or elsewhere. or was in a position financial or
otherwise, to be able to do so. The representations of (Gold
and Fisher to the effect that they were doctors had a natu-
ral tendency to influence patients whom they approached.
however unsuccessful the eflirt may have been in some in-
stances. Though Gold and Fisher testified that they, took
this tack in the interest of the patients, its surest effect
would he to reduce attendance at the clinic, and thus en-
courage its closure." In the light of their status and repre-
sentations to patients at the picket line. [)rs. (Gold and
Fisher were in effect giving medical ad ice designed to pre-
vent prospective patients from seeking medical care at
Bathgate. Except under proper precautions I believe such
action inappropriate and not protected by the National La-
bor Relations Act. However, even if the statements did not
constitute medical advice, I would reach the same result.
I deem it the duty, under this Act, of a physician who
engages in concerted activity, not to seek by individual in-
ducement to discourage patients from seeking medical care
at a reputable establishment involved in a labor dispute.
unless the physician has at least made a tentative diagnosis
of the medical problem, and accepts the responsibility ei-
ther to treat the patient. or to see to it that the patient is
escorted to a facility at which he may secure competent
care. Finall. I do not think it proper under this Act fr a
striking phNsician to give medical advice on the picket line
only to the extent that it will discourage patients from en-
tering a struck health care facility. Since the conduct of
Drs. Gold and Fisher in this respect fell short of these re-
quirements it is not protected by the Act. That Gold and
Fisher felt their actions justified. and in the best interest of
the patients, and were supported in that view by the opin-
ion of the General Counsel's expert medical witness, is not
controlling. The question is not the sincerity of Drs. Gold
and Fisher. which I do not question, but of the effect of
their actions on other innocent, and perhaps neutral, peo-
ple. The public importance of the question is already estab-
lished by the action of Congress in enacting singular provi-
sions and procedures governing unions and concerted
activity at health care institutions.
This is not to say that a physician's mere presence on the
picket line at a health care establishment. with its natural
tendency and purpose of inducing persons not to enter the
i' Such a motivation, if taken literally. might seem to make the concerted
activity of Gold and Fisher primarily one for the mutual aid and protection
of patients, and not one for the mutual aid aind protection of the strikers.
which is the actlsl ty protected h) the statute
692
MONTEFIORE HOSPITAAI AND) MEDIC'AI (NTI.R
facility, automatically obligates the physician to provide or
to secure medical care for patients approaching it. It is
merely to say that when the physician, identified as such.
seeks to persuade patients not to enter the place for the
reason that it does not, in his opinion, provide adequate
medical care, it is the responsibility of the physician to as-
certain the condition for which treatment is sought. and
either to provide medical care foir it. or to see that the pa-
tient receives competent care elsewhere. If this is deemed an
onerous undertaking. or an intrusion into privileged areas
of communication, it may be avoided by not volunteering
advice at the outset. Moreover, there is significant differ-
ence between inducing persons not to enter a picketed es-
tablishment by respresenting that the employees are on
strike and inducing them not to enter by representing that
the establishment's medical services are inadequate.
Whether a similar principle would he applicable to picket-
ing personnel of a health care institution who are not phNsi-
cians is a question not presented and not decided.
Thus, the discharges of Drs. Gold and Fisher. insofar as
founded upon their attempts to persuade patients not to
enter Bathgate during the strike were, under the circum-
stances, not a violation of the Act. However. it does not
follow therefrom that the discharges were legal under the
Act, since they were also motivated by Gold and Fisher's
engagement in protected concerted activity. Discharges for
mixed motives, one lawful, one unlawful, are violative of
the Act. N.L.R.B. v. Jamestown Sterling Corporation. 211
F.2d 725, 726 (2d Cir. 1954); N.L.R.B . Great Eastern (o/-
or Lithographing Corporation. 309 F.2d 352 (2d Cir. 1962).
cert. denied 373 U.S. 950(1963).
6. The deferment of full-time employment
As has been seen. Dr. Cherkasky declined to approve the
recommendations of Residency Program Director [)r.
Boufford that Gold and Fisher be given full-time emplos-
ment during the pendency of this proceeding. The record
indicates that the recommendations of Dr. Boufford are
normally accepted. In the absence of assertion or evidence
of any other reason for failure to approve her recommenda-
tions in this respect. I infer that but for this proceeding
Gold and Fisher would have been given the appointments
in the normal course of affairs. Specifically, the ground for
Dr. Cherkasky's refusal to approve was the issuance of the
complaint, which Dr. Cherkasky construed as reflecting a
retraction by Gold and Fisher of the assurances he thought
they had given him on September 8. namely, that in the
future they would not abandon patients (that is. refuse to
report to work, refuse to accept work assignments, strike
without notice), or seek to obstruct patients from entry dur-
ing a strike.
Those are the precise reasons Gold and Fisher were dis-
charged. All but the last reason having been found to be
unlawful bases for discharge, it follows that the withholding
of full-time employment for the same reasons was equally
invalid. That Respondent only postponed decision on the
applications of Gold and Fisher pending adjudication by
the National Labor Relations Board of the charges. does
not excuse the action. For in the meantime Gold and Fisher
have been denied full employment because they persisted in
an attempt to have the legitimnac> of Respondent's conduct.
some of it unlawful, litigated b the Board. I hat is a type tof
conduct forbidden b Section 8(a)(4. Whether the result
would he the same if' the discharges had been laiwful is a
question not presented. and not decided
Respondent thus iolaltd Section X8(a(4) of the Act b'
withholding decision as to. and xwithholding the ppolnil-
ment of: I)rs. (told and Fisher to full-time positions he-
cause the, had filed and pursued charges under the Act.
In an! event, independently of the 8a)(4) iolatlion. I
find that the withholding had a natural tendencs to deter
emplo ees Irom assisting labor organizations and to engage
in concerted activities for mutual aid or protection. ald
thus wa;s iola;ti'e of Section 8ai(l I) of the Act.4
7. he failure to grant permanent admitting pri' ileges
The evidence will not warrant a finding that ResplondeInt
withheld permanent admitting or attending privileges.
True, grant of such privileges was recommended b Dr.
Boufford. and normally such recommendatios are 1;,1-
lowed unless controversy develops within the exelcuti'se
committee. However. here controversy did de'elop. and it
is not clear that [)rs. Cherkasky or Kindig had the author-
ity either to compel action b the executive committee. or
to expedite it. Dr. Kindig's apparent adilission to the effect
that imminence of the Board hearing may ha'.e prompted
placement of the matter on the executive committee's
agenda in August 1977, seems to suggest that the immi-
nence accelerated the processing of the applications of G(old
and Fisher. If so. I see nothing sinister in that. or indicati. e
of illegal motivation or consciousness of guilt. Ihough the
testimony of Drs. Gold and F isher is that they are the only
doctors who applied for admitting privileges who have thus
far not been given them. that fact does not seemll significant
in the light of the entire picture. and in the absence of exi-
dence that objections were made within the executive coml-
mittee to the ranit of the privileges in the other cases.
In an! e,.ent. the aaillable l;lcts seem too inconclusive
and fragmentary to starrant conclusion that permanent
privileges sere xithheld hb Respondent from (Gold and
Fisher because of their concerted activities. It will therefore
be recommended that thlat allegation of the complaint be
dismissed.
8. Interference at the September 8. 1976. meetin
The complaint alleges that Respondent siolated Section
8(a)( 1 ) by Dr. ('herkaskN interrogating Gold and i slher at
the September 8 meeting.
Dr. Cherkasks did interrogate Gold and Fisher concern-
ing their strike actis ities in order to determine their viess ;
to the propriety of such actions. This was for the purpose of
determining what recommendation he should make to the
board of trustees with respect to reinstatement. In that conl-
text I find nothing improper in the interrogation. ioxse'ser,
19 The amendment to complaint of Jul 15. 1977. alleged hat [)D Bullord
was the agent of Respondent who ailed to grant (old nd tlsher lull-ilme
employment The eidence is that Dr Bufford A;. not he person respon-
sible. but rather Drs Kindig and (herkask\ As e hae een Dr Boiffor d
recommended that he appolnimenl he made
693
I)tl('ISIONS OF NAT(IONAL I.ABOR REL.AIIONS BOARI)
intertwined in the discussion was Dr. C'herkasky's iteration
of his view that the action of' Gold and Fisher in going on
strike without notice constituted abandonment of patients
and was improper. lie fIurther requested, and received.
wh;it he regarded as assurances against repetition of' that
conduct in the future.
Since Drs. Gold and Fisher were not required in those
circumstances to give prior notices of their intent to strike,
for I)r. ('herkasky to inform them that their conduct was
improper, and to extract assurances from them against its
repetition. was contrary to the provisions of' Section 7 of the
Act. Respondent thus interfered with, restrained. and co-
erced Gold and Fisher in violation of' Section 8(a)(1).
9. Other defenses
a. Reliance on publicatlion ol'the (enerl l ('ounc/l:
deerence to the panel's decision
Two affirmative defenses raised in Respondent's answer
and amended answer have not been briefed by Respondent.
These are (I) that Respondent's actions against Gold and
Fisher were taken in reliance on a General Counsel's
memorandum (74 49) and one of his monthly reports (3
27 75) to the asserted effect that strike activity by unrepre-
sented employees was unprotected conduct, in the absence
of a 10-day strike notice given by those employees, and (2)
that the Board should defer to the decision of Respondent's
grievance panel as dispositive of' the controversy, and dis-
miss the complaint. Since not briefed, I infer that those
contentions and dismiss the complaint. Since not briefed. I
inter that those contentions have been abandoned. tHow-
ever, I find them not sustainable on the merits. Assuming.
without deciding. that the publications of' the General
Counsel referred to, are interpretable as Respondent sug-
gests, reliance on them would not constitute a valid defense.
Good faith reliance upon an administrative interpretation
of' the Act by the General Counsel. later determined by
adjudication to have been erroneous, does not legalize the
conduct. See Betts-Cadilla-Olds., Inc., 96 NLRB 268
(1950). and cases there cited.
As to the second point, the grievance procedure utilized
here does not meet the standards required by Spielberg
Manufacturing Companv, 1 12 NLRB 1080 (1955), for such
recognition. The hearing panel in this instance had no au-
thority to make a final and binding disposition of the dis-
charges, but only to make a recommendation to the admin-
istration, which in turn made a recommendation to the
Board of Trustees. Finally, the grievance panel disposed
only of the question of the discharges, and not the other
issues in this proceeding.
Thus, even if those contentions are found not to have
been waived by failure to brief them, I consider them not
sustainable.
b. Whether the 8(a)(4) charge can he litigated
The final defense interposed by Respondent is that the
charge of violation of Section 8(a)(4) was withdrawn on
April 15. 1977. that there is consequently no existing 8(a)(4)
charge, or timely amendment to the complaint, and thus no
jurisdictional basis for the 8(a)(4) allegation. his requires
consideration of the sequence of events.
The original charge alleging a violation of Section 8(a)( I)
of the Act by the termination of L)rs. Gold and Fisher. was
tiled on August 4. 1976. The original complaint issued on
November 17. 1976, alleging violation of Section 8(a)( I) of
the discharge of' and refusal to reinstate iold and Fisher.
On March 25, 1977, Gold and Fisher filed a first
amended charge, alleging that since August 14. 1976, Re-
spondent threatened them with loss of their jobs and dis-
criminated against them because of their support of the l.o-
cal 1 199 strike, and because they filed the August 4 charge.
On April 15. 1977, the Cieneral Counsel approved the with-
drawal of the charge insofar as it related to Section 8(a)(4)
of' the Act. The General Counsel then amended the com-
plaint on July 15, 1977. to allege the following additional
violations of Section 8(a)( I ): ( 1 ) that on or about September
8. 1976. Dr. Cherkasky interrogated Gold and Fisher. (2)
that on or about February 3 and March 15. 1977, Respon-
dent withheld admitting privileges from Gold and Fisher,
and (3) failed to grant them full-time employment. On Sep-
tember 16. 1977. the complaint was again amended, this
time to allege that the failure of Respondent to grant Gold
and Fisher full-time employment constituted an 8(a)(4) vio-
lation.
I find the 8(a)(4) allegation procedurally correct for the
following reasons.
(1) The 8(a)(4) allegation in the complaint is not based on
the withdrawn amended charge of March 25. 1977, but on
the timely charge of August 4. 1976. That that charge al-
leged no 8(a)(4) violation is not controlling. A complaint is
not restricted to the allegations of the underlying charge. A
charge merely serves to initiate an investigation of' the situ-
ation, and the General Counsel may allege as an unfair
labor practice whatever he finds to be part of the contro-
versy which produced the charge. N.L.R.B. v. Fant Milling
Company, 360 U.S. 301 (1959): .L.R.B. v. Kohler Com-
pan,. 220 F.2d 3 (7th ('ir. 1955): N..LR.B. v. Pecheur oz-
enge ('o.. In., 209 F.2d 393 (2d Cir. 1953). cert. denied 347
U.S. 953 (1954). and cases there cited.
Here the 8(a)(4) conduct grew out of and was a conse-
quence of the events which were the subject of the 8(a)(I)
charge. Hence the 8(a)(4) and the 8(a)(1) conduct were part
of a continuing series of events, all of which together consti-
tute one basic controversy. The 8(a)(4) complaint in Sep-
tember was thus properly founded on the August 4, 1976,
charge.
The March 25, 1977, amended charge was neither essen-
tial to, nor a basis for, the September amendment of the
complaint. So far as Section 10(b) of the Act is concerned, it
added no significant jurisdictional or procedural basis for
the proceeding, and its withdrawal subtracted none.
(2) Respondent's 8(a)(4) conduct, which also constituted
a violation of Section 8(a)(1), initially evidenced in Febru-
ary and March 1977, was reaffirmed on May 27, 1977. by
Dr. Kindig to the committee of residents. That action con-
stituted a reiteration of Respondent's refusal to grant full-
time status to Drs. Gold and Fisher because of the pen-
dency of' the Board proceeding. It was thus another and a
new violation of Section 8(a)(4). Since it occurred within
the 6-month period prior to the amendment of the com-
694
MONITEFIORE HOSPITAL ANI) MEDICAIl (CENI ER
plaint in September. the amendment was thus timely. Sec-
tion 10(b) of the Act, being a statute of limitations and not
a rule of evidence (A- xelson Co., 88 NLRB 761 (1950): Lo(al
Lodge No. 1424, Ilternational 4s.sociation of Machinitls.
A FL CIO Bran Manu/clturing Compan!,] v. N.L. R. B..
362 U.S. 411. 416 (1960)). Respondent's prior conduct may
be reviewed to illuminate the nature and character of its
action on May 27. 1977. Thus reviewed, Respondent's re-
fusal and its 8(a)(4) nature seem clear.
(3) In addition to the foregoing reasons. even if it be
assumed that the April withdrawal of the amended charge
would normally foreclose further litigation of 8(a)(4) based
on the then existing record. Dr. Kindig's reiteration in May
1977 of Respondent's refusal to consider Gold and Fisher
for full-time employment because of the Board proceeding.
constituted new evidence not available at the time in April
1977 that the General Counsel approved withdrawal of the
amended charge. In such a circumstance, as I understand
the Board's decision in the case of Calif/ornia Pacific Signs.
Inc.. 233 NLRB 450 (1977), the discovery of new evidence
authorizes the General Counsel to proceed on a previously
dismissed charge. The cases of Champion Pneumatic Ma-
chine, Co.. 152 NLRB 300 (1965): Koppers Company , Inc..
Forest Products Division. 163 NLRB 517 (1967). and Prince
Pontiac. Inc.. 174 NLRB 919 (1969). cited by Respondent
are inapplicable. The Champion and Prince cases turned on
the question as to whether there was a relationship between
the matter charged and the matter alleged in the complaint.
The Koppers case involved a withdrawal of the entire
charge and a later attempt to reinstate it. Neither situation
is involved here. The 8(a)(4) matter alleged in the complaint
is related to the matter which was the subject of the charge
timely filed and never withdrawn or dismissed.
In any event, Respondent's conduct relating to the full-
time positions has been found to constitute a violation of
Section 8(a)(1) of the complaint independently of the
8(a)(4) finding.
it. ITH RMEDY
A. Cease-and-Desist Provisions
Having found that Respondent has engaged in unfair la-
bor practices, it will be recommended that Respondent
cease and desist therefrom and take certain affirmative ac-
tion necessary to effectuate the policies of the Act.
It will be recommended that Respondent cease and desist
from (I) discharging employees because they engaged in
concerted activities protected by the Act. (2) withholding
employment from employees because they have filed
charges under the Act, and (3) interfering with, restraining,
or coercing employees in the exercise of their rights to en-
gage in protected concerted activity under the Act.
In addition, it will be recommended that Respondent
take the following affirmative action, which I find necessary
to effectuate the policies of the Act.
B. Instaleienl to Full-Time Positions
It will be recommended that Respondent instate Drs.
Gold and Fisher to full-time positions in accordance with
their applications therefor, and without prejudice to their
seniority or other rights and pri, ileges.
C(. Bai( Ativ
1. For the ull-time positions
It will be recommended that Respondent make )rs.
Gold and Fisher whole for ans loss of pal incurred as a
result of Respondent's refusal to appoint them to, or to
consider them for, the full-time positions.
Dr. Boufford's testimonyv indicates that her recornmenda-
tions in such situations are usuallN followed. It will there-
fore be recommended that the backpa period for I)r. Gold
with respect to the full-time position shall begin Janumlar 31.
1977. the date approved by Dr. Boufiord. Hlowexcr. the
record is less definitive as to when Dr. Fisher's hackpa;
period should begin.
Fisher applied for the position n Februars 22. 1977. ai
which time [)r. Boufford advised him that. in iesN of I)r.
('herkasky's position as to I)r. Gold's application. she (I)r.
Boufford) could not take any action on Fisher's application.
Nevertheless, the committee whose dutx it was to resie
such applications, including Dr. Boufford. met on June 2.
1977, and unanimously approved Dr. Fisher's appointmenl
full-time. In the light of Dr. Boufford's initial statement to
Fisher. it is possible that the delaN from F ebruar) 22 to
June 2 to act upon his application is ascribable to belief
that further action was futile in view of I)r. Cherkask's
position. and thus that consideration of FIisher's application
was withheld by Dr. Boufford and the committee tfor thal
reason. If so, the delay m a have resulted in a wage loss bN
Fisher as earl, as Fehruar or March 1977. On the other
hand, the delas ma, have been ascribable to others tictors.
On the evidence I can reach no conclusion on that polint.
There is additional uncertaint as to when. ater l)r. Bout-
ford's approval of Fisher's application, his appointment
could be expected to begin that is. what the time lapse
would normally be in such a situation. For those reasons. I
shall recommend that Dr. Fisher be reimbused for an', loss
in wages or other benefits attributable to the failure to ap-
point him to the full-time position. If the parties are unable
to reach agreement on the point. the problem can be re-
solved in compliance proceedings.
2. Backpa fobr the period of the discharges
Since some of the concerted activity engaged in hb [)rs.
Gold and Fisher during the strike was not protected hb the
statute, no order lor hackpay will he recommended for the
period of their discharge. That some of Respondent's rea-
sons for the discharges constituted unfair labor practices
does not require the Board to condone unprotected acti it,.
and thus to encourage it. I conclude that in these circum-
stances a backpay award to I)rs. Giold and Fisher lor the
lapse of' their emplo ment during the periodl of the dis-
charges. Jul 22. 1976. to the date oft their reMinsatmt l on
October I. 1976, would not etlectute the policies of the
Act.
Upon the foregoing findings and coinclusions, atid upon
the entire record in the case, I herebx issue the t'ollo lnle
recommended order:
695
DI)l('ISIONS OF NAIONAL. I.ABOR REI.ATIONS BOARD
ORI)F R2"
'[he Respondent, Montefiore HIospital and Medical ('en-
ter, New York. New York. its offices, agents. successors,
and assigns. shall:
I. ('ease and desist from:
(a) Discharging, or otherwise discriminating. or threat-
ening such action, against employees because they engaged
in protected concerted activities. or because they have filed
charges under the National Labor Relations Act.
(b) In any like or related manner interfering w ith, re-
straining, or coercing employees in the exercise of the rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessar\ to ef-
fectuate the policies of the Act:
(a) Offer Drs. Marji Gold and Michael Fisher full-time
positions as preceptors in Respondent's family practice resi-
dency program in social medicine, without prejudice to
their seniority or other rights or privileges.
(b) Make Drs. Gold and Fisher whole for any loss of pa
or other benefits they may have suffered by reason of Re-
spondent's refusal to appoint them to or to consider them
for full-time positions, with interest.
20 In the event no exceptions are filed as provided bh Sec. 10246 of he
Rules and Regulations of the National labor Relations Board the findings.
conclusions. and recommended Order herein shall, as provided in Sec 10248
of the Rules and Regulations, be adopted by the Board and become its
findings. conclusions. and Order, and all ohiections thereto shall be deemed
waived or all purposes.
(C) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all p-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze the amount of hackpay due under the terms
of this Order.
(d) Post at its places of business copies oft the attached
notice marked "Appendix." 2! Copies of said notice, on
forms to he provided by the Regional Director for Region
2. shall be posted by Respondent immediately upon receipt
thereof and be maintained by Respondent for 60 consecu-
tive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to ensure
that said notices are not altered, defaiced or covered by any
other material.
(e) Notift the Regional Director for Region 2. in writing,
within 20 days from the date of this Decision what steps
Respondent has taken to comply herewith.
It IS FLRrHllR RE()MMItNDFI) that the allegation in the
July 15, 1977, amendment to complaint to the effect that
Respondent withheld admitting privileges from Drs. (;old
and Fisher because of their activities on behalf of and sm-
pathy in and for District 1199 he dismissed.
21 In the event that this Order is enforced hb a Judgment of a United
States Court of Appeals. the words in the notice reading "Posted b5 Order of
the National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals enforcing an Order of the Na-
tional abor Relations Board."
696