Service Employees Local 1119 (Staten Island University Hospital)

National Labor Relations Board - Board Decisions

Aug 21, 2003

339 N.L.R.B. 1059 (N.L.R.B. 2003)

SERVICE EMPLOYEES DISTRICT 1199 (STATEN ISLAND UNIVERSITY HOSPITAL) 1059
1199, National Health & Human Service Employees
Union, SEIU, AFL–CIO and Staten Island Uni-
versity Hospital. Case 29–CB–10586
August 21, 2003
DECISION AND ORDER
BY MEMBERS LIEBMAN, SCHAUMBER, AND ACOSTA
On December 17, 1999, Administrative Law Judge
Margaret M. Kern issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the
General Counsel and the Charging Party filed cross-
exceptions and supporting briefs, and the Respondent
filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and affirms the
judge’s rulings, findings1 and conclusions, as set forth
herein, and adopts the recommended Order as modified
and set forth in full below.2
At issue in this case is whether the Respondent Union,
by its organizer and admitted agent, Fabienne Josephs,
unlawfully restrained and coerced employees in the exer-
cise of their Section 7 rights by engaging in a series of
open confrontations with managers, supervisors, and
security guards employed by Charging Party Staten Is-
land University Hospital. As discussed in full below, at a
time when a possible strike was imminent, Josephs sub-
jected the Respondent’s agents to deliberate, repeated,
and unprovoked verbal abuse, including profanity, racial,
and sexual slurs, and threats of physical harm. On two
occasions, Josephs attempted to physically push past the
Hospital’s agents in order to gain access to areas of the
Hospital that had been clearly and lawfully placed off
limits to her.
The judge found that Josephs’ actions violated Section
8(b)(1)(A) by restraining and coercing employees in the
exercise of their right to refrain from supporting the Un-

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule and admin-
istrative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 We have modified the judge’s recommended Order to more closely
reflect the violations found. We reject the Charging Party’s request that
the Board order the Respondent to pay its legal fees. The Board has
ordered attorneys’ fees awards in cases where a party exhibits bad faith
in actions leading to the litigation or in the conduct of the litigation.
Lake Holiday Manor, 325 NLRB 469 (1998). An award of legal fees is
not justified under this standard in the circumstances of this case. For
the reasons stated by the judge in her decision, we also conclude that a
broad order is not warranted in the circumstances of this case.
ion. With one exception,3 we agree with the judge’s
findings. Hospital employees, who were fully aware of
Josephs’ actions, would reasonably tend to fear that they
would be subjected to the same abusive tactics if they
failed fully to support the Union in its bargaining posi-
tion and the impending strike. Indeed, it appears that
Josephs’ intent was to send this intimidating message to
the Hospital employee audience.
Facts
In early 1998,4 the Union sought by various means to
pressure the League of Voluntary Hospitals, an employer
association to which the Hospital belonged, to agree to a
new collective-bargaining agreement. Those pressures
included a “walk in” at the Hospital’s Human Relations
Department, informational picketing on June 10, a strike
vote conducted from June 15 to 17, a citywide demon-
stration, and, on June 18, service on the Hospital of writ-
ten notice that the Union intended to engage in a strike
commencing July 1. As part of its strike preparations,
the Union notified the Hospital, by letter dated June 11,
that it was assigning organizers Fabienne Josephs,
Melanie Swann, and Joseph Biasi to its facility. The
Hospital agreed to allow the organizers to meet with em-
ployees in its cafeteria, but did not agree to give them
access to any other areas of the Hospital.
On June 4, Josephs entered the labor and delivery
waiting area, ostensibly to pick up a letter signed by
some nurses who worked there. She ignored lawful di-
rectives from two Hospital security guards that she re-
main in the cafeteria. The guards were forced to stand
shoulder to shoulder at the door leading from the waiting
area to prevent Josephs from entering the interior of the
labor and delivery department. Josephs made physical
contact with one of the guards when she reached past
them to push an intercom button. Josephs then berated
the guards, in the presence of employees, for blocking
her movement, screaming repeatedly, “[Y]ou can’t stop
me, I can do anything I want, I can go anywhere I
please.” Josephs also shouted at one of the guards,
“[Y]ou should go back to Puerto Rico, you little wet-
back,” and called the other guard a “black gorilla walk-
ing in a white man’s footsteps.”
On June 16, Josephs chose to stand outside the cafete-
ria wearing a T-shirt with a picture of a calendar and the
date “July 1” on the front and the words “Contract or
Strike” on the back. The Hospital maintained a rule pro-
hibiting the wearing of this T-shirt in the Hospital and
3 For the reasons set forth later in this Decision, we reverse the
judge’s finding that the Union violated Sec. 8(b)(1)(A) by threatening
to replace two management officials.
4 All dates hereafter are in 1998.
339 NLRB No. 135
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1060
there is no contention that this rule was unlawful. As a
Hospital security guard approached Josephs, she said,
“[W]ell, I’ll take it off,” and removed her shirt. Josephs
was wearing only a bra underneath. When the guard told
her to put the shirt back on, Josephs responded in a loud
voice that she could walk around the Hospital naked and
the security guard could not stop or touch her, and she
could go wherever she wanted in the Hospital.
Josephs then walked towards the emergency room.
The guard placed himself in front of the doorway into the
emergency room to prevent Josephs from entering and
told her that she could not talk to employees in patient
care areas and must talk to them in the cafeteria. In re-
ply, Josephs shouted, “Go f—k yourself. I can go wher-
ever I want to go.” Josephs next entered the dental area,
where 10–20 patients were waiting to be seen. When the
guard again told her she was not allowed in patient care
areas, she put her hands over her ears and shouted, “I’m
not listening to you. I don’t care what you’re saying. You
touch me and I’ll kick all your asses.”
Josephs then left the dental waiting area and, while re-
turning to the cafeteria, yelled, “La, la, la, la, wherever I
want to go you can’t stop me.” She called a black secu-
rity guard a “little black gorilla” and an “Uncle Tom,”
and while passing through the lobby area, said in a loud
voice accompanied by sexually suggestive hand gestures,
“I should have taken my top off and gotten naked be-
cause I know you white boys like black women.” Later
that same day, a security guard observed Josephs smok-
ing outside the Hospital in a nonsmoking area. When the
guard asked her to move to the smoking area, she re-
sponded in a loud voice, “Go f—k yourself” and “I’ll
stick my foot up your ass.”
On June 18, Josephs approached the Hospital’s execu-
tive vice president and chief operating officer, Dr. An-
drew Passeri, while he was going through the cafeteria
food line. Josephs came within 8 inches of Passeri and
screamed at him that he should be ashamed of himself,
and that he should wear a bag over his head and move
from Tote Hill (an affluent area of Staten Island) to Bay
Street, where his employees lived. As Passeri began
walking towards the cashier with his tray, Josephs and
another individual wearing a union T-shirt repeatedly
stepped in front of him without making physical contact
but blocking his progress and forcing him to stop walk-
ing. After paying for his food, Passeri proceeded to
leave the cafeteria.
Josephs followed Passeri out of the cafeteria and the
Hospital’s security services supervisor, Dawn McMahon,
had to interpose her body to prevent Josephs from pursu-
ing him further. Josephs walked into McMahon, making
physical contact with her while shouting at the departing
Passeri, who was walking down a flight of stairs and
could hear Josephs shouting, that he could be replaced
and that he would be replaced. Josephs then put her fin-
ger in McMahon’s face and told her, “And so can you.”
Josephs went back into the cafeteria and McMahon
remained at the entrance waiting for the police. Josephs
then began to insult McMahon, loudly saying, “Look at
you in your nice suit. I know how you got that suit,
honey. Do you know why she’s wearing pants? To hide
the marks on her knees. You must have sucked a lot of
dick to get that job.” As the organizers began to leave,
Josephs continued in a loud voice, “Well, you better
check her back, too. I betcha you’ll find some scars
there. Dawn. Dawn. Dawn. Dawn does Staten Island
Hospital.” As she descended the stairs, Josephs yelled
toward McMahon, “It’s amazing you can talk with that
mouth as busy as you were to get that job. I know how
you got that job and your suit, honey.” Then, while
walking toward the front door of the hospital, she called
McMahon a “bitch” and repeated three times, “Dawn
does Staten Island Hospital.”
Much of Josephs’ most outrageous behavior on June
18 took place in the Hospital cafeteria during the lunch
hour, when the largest number of employees were certain
to witness it. Employees demonstrated their awareness of
Josephs’ actions and their concern about those actions by
asking McMahon about the incident, and whether she
was all right, on a daily basis thereafter. Indeed, many
other employees heard about Josephs’ intimidating and
insulting behavior towards hospital officers and others,
and all of the incidents were either directly witnessed by
or were disseminated to employees.
Discussion
The interdependent guarantees of Section 7 and Sec-
tion 8(a)(1) and (b)(1)(A) grant to employees the right to
choose for themselves, free of any coercion, whether to
support a union or to refrain from supporting a union.
This includes, among other things, the right to work in
the face of a strike: “The protection afforded by these
sections of the Act extends to the right to work.”5 Even
employees who have chosen to support the union, by
participating in a strike or picketing, “may be coerced
into retaining the status of a striker or even a picket by
the threatening and violent conduct of other pickets (es-
pecially if these include the officers of the local in-
volved) just as much as may a striking employee.”6 A
union violates Section 8(b)(1)(A) by engaging in activi-

5 Woodworkers Local S-426 (W. T. Smith Lumber Co.), 116 NLRB
507, 508 (1956), enfd. 243 F.2d 745 (5th Cir. 1957) (coercing supervi-
sors and independent contractors who crossed picket line to work).
6 NLRB v. Woodworkers, above.
SERVICE EMPLOYEES DISTRICT 1199 (STATEN ISLAND UNIVERSITY HOSPITAL) 1061
ties that reasonably tend to restrain or coerce employees
in the exercise of these protected rights.
The Board has also long recognized that employees
may be restrained or coerced in their protected activities
by union misconduct directed not against them but
against supervisors, managers, and security guards.7
Union misconduct of this character coerces employees
who witness it or learn of it because they may reasonably
conclude that if they do not support the union’s goals,
like coercion will be inflicted upon them.8
Applying these principles to the facts of this case, we
agree with the judge that the Respondent’s harassment of
the Hospital’s managers and security guards violated
Section 8(b)(1)(A). At the time of this harassment, the
Respondent had announced that a strike was imminent,
informational picketing had commenced, and a strike
vote was conducted. The issue of taking sides in an im-
pending strike must surely have been on employees’
minds. Against this backdrop, the Respondent’s agent,
Josephs, embarked on a prolonged campaign of repeated
harassment against the Hospital’s supervisors, managers,
and security guards. Josephs provoked repeated confron-
tations with the Hospital’s agents and then deliberately
escalated these confrontations by subjecting the Hospi-
tal’s managers and guards to extreme and degrading in-
sults. All of this sent a clear message to employees that
they would be subjected to the same kind of harassment,
and perhaps even reprisal, if they failed to support the
planned strike, and that, like the Hospital, they would be
powerless to protect themselves.
The coercive impact of Josephs’ actions was height-
ened because they took place in a hospital setting. The
Supreme Court has observed that hospitals are places
where

human ailments are treated, where patients and rela-
tives alike often are under emotional strain and worry,
where pleasing and comforting patients are principal
facets of the day’s activity, and where the patient and
his family—irrespective of whether that patient and

7 Culinary Workers Local 226 (Casino Royale, Inc.), 323 NLRB
148, 162 (1997); Laborers Local 806, 295 NLRB 941 (1989), enfd.
mem. 974 F.2d. 1343 (9th Cir. 1992) (security guards); Retail Whole-
salers Union District 65 (I. Posner, Inc.), 133 NLRB 1555, 1566
(1961) (managerial employee); Communications Workers Local 4372
(Ohio Telephone Co.), 120 NLRB 684, 686 (1958), enfd. as modified
266 F.2d 823 (6th Cir. 1959), affd. as modified 362 U.S. 479 (1960)
(supervisors); Woodworkers (W. T. Smith Lumber Co.), above (supervi-
sors and independent contractors).
Although security guards are statutory employees, the judge found
that they are treated in the same manner as supervisors and other non-
employees for the purpose of this 8(b)(1)(A) analysis, citing Culinary
Workers Local 226, supra, and no party has excepted to this finding.
8 I. Posner, supra.
that family are labor or management oriented—need a
restful, uncluttered, relaxing, and helpful atmosphere,
rather than one remindful of the tensions of the market-
place in addition to the tensions of the sick bed.9

Recognizing these concerns, the Board has permitted curbs
on far less intrusive union activities than occurred here be-
cause of the requirements of effective patient care.10 Jo-
sephs’ intrusions into sensitive patient areas of the hospital,
including the labor and delivery waiting area, the dental
waiting area, and the corridor leading to the emergency
room, as well as other corridors and areas of the hospital
accessible to patients, far exceeded the usual behavior in
that setting.
In finding that Respondent unlawfully coerced em-
ployees by its actions in this case, we are mindful of the
latitude we have afforded parties in the manner in which
they express their positions, not only recognizing the
“industrial realities of speech in a workaday world” but
the full freedom necessarily guaranteed them under the
Act.11 Thus, the Board carefully distinguishes between
statements that reasonably tend to coerce employees, and
mere rudeness, which does not.12 The Board also recog-
nizes the need to distinguish “those cases in which em-
ployees have arguably exceeded the bounds of lawful
conduct during a strike in a ‘moment of . . . exuberance’
from those cases in which the misconduct is so flagrant
or egregious as to require subordination of the em-
ployee’s protected rights in order to vindicate the broader
interests of society as a whole.”13
Josephs’ actions were not limited to mere rudeness and
offensive language, but included two attempts by Josephs
to physically force her way past the Respondent’s secu-
rity guards into patient care areas of the Hospital. The
security guards were required to physically repulse Jo-
9 NLRB v. Baptist Hospital, Inc., 442 U.S. 773, 783, 784 fn. 12
(1979) (quoting Beth Israel Hospital v. NLRB, 437 U.S. 437 U.S. 483,
509 (1978) (Blackmun, concurring)).
10 See, e.g., Brockton Hospital, 333 NLRB 1367, 1368 (2001), enfd.
in pertinent part 294 F.3d 100 (D.C. Cir. 2002), cert. denied 537 U.S.
1105 (2003) (a hospital’s prohibition of solicitation or distribution of
literature in immediate patient care areas is presumptively lawful; pro-
hibition of solicitation, during nonworking time, or distribution of
literature, during nonworking time and in nonworking areas, is pre-
sumptively unlawful).
11 Longview Furniture, 100 NLRB 301, 304 (1952), enfd. as modi-
fied 206 F.2d 274 (4th Cir. 1953) (cursing at employees who crossed
picket line).
12 See Syn-Tech Windows Systems, 294 NLRB 791, 792 fn. 2 (1989)
(protection of the Act not necessarily lost because grievances presented
in a rude manner); Severance Tool Industries, 301 NLRB 1166, 1170
(1991), enfd. mem. 953 F.2d 1384 (6th Cir. 1992) (rudeness during
bargaining not necessarily unprotected).
13 W. C. McQuaide, 220 NLRB 593, 594 (1975), enfd. in pertinent
part 552 F.2d 519 (3d. Cir. 1977).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1062
sephs in order to forestall her entry into these areas. The
verbal abuse itself was highly inflammatory and ex-
tended over a 2-week period. These actions, then, were
not a spontaneous “moment of . . . exuberance.” These
actions were deliberate and calculated. When coupled
with the two physical confrontations described above,
Josephs’ overall conduct may fairly be characterized as
harassment. By her conduct, Josephs sent a message to
employees not only about the lengths to which the Re-
spondent would go to punish those with whom it dis-
agreed, but also that the Hospital was “powerless to pro-
tect its own legal rights in a confrontation with the Un-
ion.”14 Especially in the context of a hospital setting, we
conclude that this message was coercive.
We therefore agree with the judge’s findings that Jo-
sephs’ harassment of and deliberate confrontations with
the Hospital’s management officials and guards violated
Section 8(b)(1)(A). However, we reject the judge’s find-
ing that Josephs’ statement to Passeri and McMahon that
they could be replaced was a threat to cause their dis-
charges. Consistent with well-established precedent, we
find instead that Josephs’ statement was a lawful re-
sponse to the Hospital’s widely circulated memoranda
discussing the possibility of using replacement employ-
ees, and could not reasonably be viewed by employees as
a threat to accomplish the ouster of management offi-
cials.15
Our dissenting colleague does not disagree about what
occurred here. She acknowledges that Josephs’ actions
were offensive and ugly, but nevertheless characterizes
them as “ludicrous” “rants and escapades.” She takes the
position that because Josephs’ conduct was not directed
at unit employees they had no reason to believe that they
would be the subject of Josephs’ harassment and threats.
We respectfully disagree. Josephs’ conduct was not
merely ludicrous. It was threatening. Unit employees
reasonably could fear that they would be subjected to
threats, violence, or similar misconduct if they did not
support the Union.
Our colleague acknowledges that the Board has found
that union harassment of nonemployees violated Section
8(b)(1)(A) because it sent a message to employees that
they too would be subject to reprisal “if they do not sup-
port the labor organization in the activity in which it is

14 Phillips Chrysler Plymouth, 304 NLRB 16 (1991) (nonemployee
union agent engaged in objectionable conduct by invading employer’s
premises immediately before election and repeatedly and belligerently
rejecting employer’s lawful directives to leave).
15 Caterpillar, Inc., 321 NLRB 1178, 1179 (1996), vacated pursuant
to settlement March 19, 1998, see 332 NLRB 1116 (2000) (employees
who wore union T-shirts with slogan “Permanently replace Fites [the
employer’s chief executive officer]” were engaged in protected, con-
certed activity).
engaged.”16 The dissent attempts to distinguish these
cases on the grounds that they involved union reprisals
against nonemployees in retaliation for their crossing the
union’s picket line, while the harassment here was di-
rected at the Hospital’s security guards and managers in
retaliation for their efforts to enforce Hospital rules. We
respectfully disagree with our colleague’s position.
We agree with the dissent that this case does not in-
volve acts of physical violence. It also does not involve
union harassment of nonemployees on a picket line. The
Act’s restriction on restraint and coercion, however, is
not limited to actual violence on a picket line, and there
is nothing in those cases on which we rely that imply
otherwise. Although the link between the union’s actions
and coercion of employee Section 7 rights may be espe-
cially clear during a strike, we find the same link in this
case as well.
We also do not agree that the Charging Party should
have looked to a state court lawsuit or to the police for
assistance, rather than to the Board. We find that Re-
spondent has restrained and coerced employees in the
exercise of their Section 7 rights, and recognize the
Board’s obligation to address the unfair labor practices
committed in this case. We also observe that the Respon-
dent did attempt to enlist the aid of the police, but found
that they would not respond in a timely manner or take
action to effectively prevent Josephs from continuing her
repeated acts of intimidation. Had the Respondent suc-
cessfully obtained the assistance of the police, it might
have provoked the filing of unfair labor practice charges
by the Respondent and inflamed the situation. In any
event, it is well settled that even though a breach of the
peace violates the State’s criminal statutes, it may still
“be noticed by the National Labor Relations Board in
performing its statutory function.”17
In sum, we disagree with our colleague’s view that Jo-
sephs’ actions could not reasonably tend to coerce em-
ployees’ exercise of their Section 7 rights. We conclude
that employees of the Hospital could reasonably fear that
they would be subjected to similar abusive behavior if
they did not submit to the Union’s wishes, and therefore
we hold that Josephs’ conduct violated Section
8(b)(1)(A).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below, and orders that the
16 I. Posner, Inc., supra, 133 NLRB at 1566. See also Casino
Royale, Inc., supra; Ohio Consolidated Telephone Co., supra; W. T.
Smith Lumber Co., supra.
17 NLRB v. Woodworkers, supra at 748.
SERVICE EMPLOYEES DISTRICT 1199 (STATEN ISLAND UNIVERSITY HOSPITAL) 1063
Respondent, 1199, National Health & Human Service
Employees Union, SEIU, AFL–CIO, Staten Island, New
York, its officers, agents, and representatives, shall
1. Cease and desist from
(a) Restraining and coercing employees of Staten Is-
land University Hospital in their right not to join or sup-
port any strike, by refusing, in the presence of employ-
ees, to comply on request with lawful rules and direc-
tions regarding access and conduct on the premises of
Staten Island University Hospital, including the follow-
ing conduct: shouting and cursing that its agents cannot
be stopped from entering immediate patient care areas;
making racist remarks to individuals; making sexually
degrading remarks to individuals; making physical con-
tact with individuals; and removing their clothing and
stating that they can walk unclothed around the premises
of Staten Island University Hospital.
(b) Threatening to physically assault individuals in the
presence of employees.
(c) Blocking individuals’ egress within the premises of
Staten Island University Hospital in the presence of em-
ployees.
(d) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at
all of its offices and facilities within New York, Brook-
lyn, Bronx, Queens, and Richmond Counties copies of
the attached notice marked “Appendix.”18 Copies of the
notice, on forms provided by the Regional Director for
Region 29, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Respon-
dent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to
members are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceedings,
the Respondent has gone out of business or closed its
offices, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employ-
ees and former employees employed by Staten Island
University Hospital at any time since June 4, 1998.
(b) Within 14 days after service by the Region, sign
and return to the Regional Director sufficient copies of

18 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
the notice for posting by Staten Island University Hospi-
tal, if willing, at all places where notices to employees
are customarily posted.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

MEMBER LIEBMAN, dissenting in part.
Understandably offended by the ugly behavior of un-
ion organizer Fabienne Josephs in a series of incidents
with the Charging Party Employer’s managers, supervi-
sors, and security guards, the majority stretches to find a
violation of Section 8(b)(1)(A) of the Act. The Board
certainly has held that employees may be coerced by a
union’s misconduct directed at nonemployees during the
course of a strike, especially violent acts and threats to-
ward managers, supervisors, security guards, and other
nonemployees who cross a picket line.1 But to establish
a violation of Section 8(b)(1)(A), “there must be ‘an un-
mistakable nexus’ between the misconduct and a respon-
dent’s restraint and coercion of employees’ Sec. 7
rights.” Culinary Workers Local 226 (Casino Royale,
Inc.), 323 NLRB 148, 159 fn. 29 (1997) (quoting Labor-
ers Local 806, 295 NLRB 941, 962 (1989), enfd. mem.
974 F.2d 1343 (9th Cir. 1992)).
Emphasizing the hospital setting here, as well as the
combination of Josephs’ abusive language over two
weeks and her two “physical confrontations” with secu-
rity guards, my colleagues conclude that it was the “ob-
vious” intent of Joseph to “send a message that Respon-
dent would retaliate against anyone, including employ-
ees, who stood in its way.” While I do not condone Jo-
sephs’ behavior—it may well have amounted to action-
able trespass under state law, and it almost certainly was
not protected by the Act—I see no basis for finding a
violation here. It seems dubious to me that employees
would interpret Josephs’ actions as sending them any
message at all, even indirectly. The record simply does
not establish the required “unmistakable nexus” between
Josephs’ conduct and the Section 7 rights of employees,
the only legal interests that Section 8(b)(1)(A) is con-
cerned with.
1 See the cases cited at fn. 7 of the majority opinion. Although secu-
rity guards may be statutory employees, they are treated in the same
manner as supervisors or nonemployees for purposes of this 8(b)(1)(A)
analysis, inasmuch as they are outside of the bargaining units. See Auto
Workers Local 695 (T. B. Wood’s), 311 NLRB 1328, 1337 (1993);
Teamsters Local 507 (Klein News), 306 NLRB 118, 142 (1992); Lum-
ber Workers Local 3171 (Louisiana-Pacific), 274 NLRB 809, 813, 815
(1985).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1064
Factual Background
The facts are more fully detailed in the majority opin-
ion and the judge’s decision. Briefly, in June 1998,2 bar-
gaining for a new collective-bargaining agreement had
broken down, and the Union was preparing for a strike
targeted to begin on July 1. Josephs was one of three
organizers the Respondent had assigned to the Charging
Party’s hospital. The Charging Party agreed to allow the
organizers onto the Hospital’s property, but limited their
access to meetings with unit employees in the cafeteria.
Josephs did not abide by the cafeteria limitation, and
made her way into other public areas of the Hospital on
June 4, 16, and 18. As a result, she was repeatedly con-
fronted by the Charging Party’s security guards and
managers on these dates. It is undisputed that unit em-
ployees either witnessed these confrontations or heard
about them from others.
On June 4, Josephs headed for the labor and delivery
department to retrieve a letter that nurses in the depart-
ment had signed. Two security guards stopped her in the
department waiting area and prevented her from entering
the department itself. In the course of receiving the letter,
she reached past one of the guards and made physical
contact. She shouted that she could go anywhere in the
Hospital she pleased, and she insulted the guards with
racial and ethnic slurs. She then returned to the cafeteria.
On June 16, Josephs was standing outside the cafeteria
wearing a T-shirt that referred to the pending strike. The
Charging Party had banned the wearing of this shirt
within the Hospital.3 As a guard approached her, she
pulled off the shirt, revealing only a brassiere under-
neath. When the guard told her to put the shirt back on,
she announced that she could walk around the Hospital
naked, that no one could stop her, and she would go
where she pleased. She proceeded to an area near the
emergency room, then to the dental department waiting
area, and then through the hospital corridors back to the
cafeteria, all the while shouting, “[L]a, la, la, la, wher-
ever I want to go, you can’t stop me.” She made vulgar
sexual and racially offensive statements to the guards
who followed her, and she said she would kick their
asses if they touched her.
Later that day, a security guard observed Josephs
smoking outside the hospital in a nonsmoking area, and
he instructed her to move to a proper location. She re-
sponded in a loud voice, “[G]o f—k yourself” and “I’ll
stick my foot up your ass.”

2 All dates are in 1998.
3 There is no assertion that the Charging Party’s T-shirt rule was
unlawful.
On June 18, Josephs engaged in confrontations in the
cafeteria with both Dr. Andrew Passeri, the Charging
Party’s executive vice president and chief operating offi-
cer, and Dawn McMahon, the Charging Party’s security
supervisor. Josephs accosted Passeri on the cafeteria
food line, getting up close and shouting personal insults
at him. When he went to pay for his food, she and an
unidentified individual wearing a union T-shirt repeat-
edly blocked his path without making actual contact with
him. As Passeri left the cafeteria Josephs shouted that he
could and would be replaced. When Passeri departed,
McMahon blocked Josephs’ path to prevent her from
following Passeri, and Josephs bumped into her. Josephs
told McMahon that she could be replaced as well. Jo-
sephs then loudly insulted McMahon using sexual vul-
garities, before leaving the hospital property. During
these events in the cafeteria, one unit employee asked
McMahon if Josephs was going to keep her shirt on this
time. Afterward, other unit employees told McMahon
that they were embarrassed and disgusted at Josephs’
treatment of her.
Analysis
The essential question here is not whether Josephs be-
haved badly toward the Employer’s managers, supervi-
sors, and security guards; not whether Josephs violated
the Employer’s rules, committed trespass, or breached
the peace of the Hospital; and not whether Josephs’ ac-
tions were protected by the Act, in connection with some
counterreaction by the Employer. The issue, rather, is
whether, in light of Josephs’ actions, unit employees
could reasonably fear that they would be subject to vio-
lence, threats, or similar misconduct from union agents if
they chose to cross some future picket line. Considered
under established precedent, the record does not support
the conclusion that Josephs’ behavior reasonably tended
to coerce or restrain employees in their decision on sup-
porting the strike projected to start on July 1. There is no
basis here, then, for finding a violation of the Act.
Initially, I underscore my agreement with my col-
leagues, for the reasons set forth in their opinion, that
Josephs’ threats to replace Passeri and McMahon on June
18 did not violate the Act. However, I think it worth-
while to linger for a moment on the image of union or-
ganizer Josephs standing in a crowded cafeteria, shriek-
ing that she would fire the Hospital’s chief operating
officer and its head of security. By any reasonable
estimation, this was a ludicrous scene. Her conduct was
ridiculous—but, as my colleagues agree, certainly not
coercive of the unit employees’ choice to support a strike
or not. In my view, Josephs’ other rants and escapades on
June 4, 16, and 18 are not significantly different.
SERVICE EMPLOYEES DISTRICT 1199 (STATEN ISLAND UNIVERSITY HOSPITAL) 1065
Josephs neither committed acts of violence nor made
any violent threats. Although she made physical contact
with one of the security guards on June 4, in her effort to
gain access to unit employees in the labor and delivery
department, by all accounts this contact was insignificant
and the result of the guards’ effort to block her path. In-
deed, the judge specifically rejected the contention that
Josephs “pushed” a security guard. There is thus no basis
for characterizing this incident as an assault.4 In a simi-
lar vein, Josephs’ statements on June 16 to security
guards that she would kick their asses if they touched her
and (in the nonsmoking area) that she would “stick my
foot up your ass” were, in context, merely figurative and
would not reasonably have been perceived as actual
threats of physical harm. See, e.g., QIC Corp., 212
NLRB 63, 70 fn. 16 (1974).
The remaining conduct alleged to be coercive is the
verbal abuse that Josephs directed at the Charging
Party’s managers and security guards. The possibility of
a nexus between this kind of abuse and potential coer-
cion of employees is significantly dispelled by the fact
that it was not directed at employees, but at managers
and security guards. Although, as discussed, the Board
has found that a union may violate Section 8(b)(1)(A) by
conduct directed at nonemployees, the conduct in those
cases consisted of violence or threats of violence directed
at individuals who crossed a picket line during an ongo-
ing strike.5 The facts in this case are markedly different.
Josephs committed no acts of violence and made no vio-
lent threats.
More significantly, as my colleagues and the judge
recognize, Josephs’ abusive behavior was directed at the
Charging Party’s guards and managers primarily because
they were enforcing the Hospital’s access rules against
her. Her abuse was in no way related to the security
guards’ and managers’ having crossed a picket line or
otherwise taking a contrary position in a labor dispute.
Indeed, distinct from the situation in the relevant case
law, there was no picket line, and no strike, at the time of
Joseph’s misbehavior. Although the strike set for July 1
was certainly part of the background of events on June 4,
16, and 18, Josephs made no reference to it in any of her

4 Compare, Retail Union District 65 (Eastern Camera), 141 NLRB
991, 994 (1963) (deliberately bumping customers into display windows
when they attempted to cross picket line).
There is no contention that Josephs violated Sec. 8(b)(1)(A) by mak-
ing similarly incidental contact with McMahon on June 18, when
McMahon stepped in front of Josephs to prevent her from following
Passeri.
5 While the majority points out that the relevant precedent does not
expressly limit findings of unlawful conduct to picket-line incidents,
neither do the cases suggest that the analysis should be extended to
other circumstances.
tirades. The only allusion of any kind to the strike was
the T-shirt Josephs wore on June 16, which she promptly
removed before she paraded through the Hospital. Even
if there had been a strike and picket line, and even if Jo-
sephs had directed her verbal abuse toward nonstriking
employees, the Board’s decisions strongly suggest that
no violation of Section 8(b)(1)(A) would have been
found.6 While my colleagues repeatedly assert that it
was the overall intention of the Respondent, through Jo-
sephs, to coerce the employees into supporting a possible
strike, they cite no specific evidence of her intent.
In sum, what we have here is a union organizer run-
ning half-dressed through the Hospital corridors, chant-
ing childish slogans, shouting scatological and racial
insults at guards, and humiliating managers without any
overt motive. No violation is made out by that conduct.
Implicitly acknowledging the weakness of the General
Counsel’s evidence, the majority does not concentrate
solely on attempting to establish the required link be-
tween Josephs’ misconduct and employees’ Section 7
rights. Instead, my colleagues invoke the Charging
Party’s property rights and the maintenance of an appro-
priate atmosphere in a hospital setting.7 These are legiti-
mate interests without a doubt (although it is not imme-
diately apparent why hospital workers would be more
fragile than, say, factory employees). However, the ma-
jority cites no cases, and provides no statutory basis, to
justify the use of Section 8(b)(1)(A) to protect them. The
image evoked by the majority, of a hospital “powerless
to protect its own legal rights,”8 is both dubious on its
own terms9 and irrelevant to the issue here.
6 See, e.g., Masters, Mates & Pilots (Marine Transport Lines), 301
NLRB 526, 531–532 (1991), enfd. in pertinent part 955 F.2d 212 (4th
Cir. 1992) (in absence of threat of bodily harm, picketers did not violate
Sec. 8(b)(1)(A) by calling employees “finks” and “scabs”); Machinists
(General Dynamics), 284 NLRB 1101, 1106 (1987) (calling strike-
breaker “pile of shit” did not violate Sec. 8(b)(1)(A)); Longview Furni-
ture Co., 100 NLRB 301, 304 fn. 38 (1952), enfd. as modified 206 F.2d
274 (4th Cir. 1953) (picket-line name-calling such as “trash, low-down
trash, damn woman, scabs, damn scabs, low-down scabs, yellow scabs,
crummy scabs, damn bitch, son of a bitch, damn son of a bitch, scabby
son of a bitch” held to be protected activity).
7 The majority cites Brockton Hospital, 333 NLRB 1367 (2001), enf.
in pertinent part 294 F.3d 100 (D.C. Cir. 2002), cert. denied 537 U.S.
1105 (2003) (addressing legality of hospital’s no-solicitation/no-
distribution policy); and W. C. McQuaide, 220 NLRB 593, 594 (1975)
(addressing legality of discharge of striking employees for misconduct),
in support of these interests. However, neither case involved allega-
tions that a union restrained or coerced employees in violation of Sec.
8(b)(1)(A).
8 The majority takes this quotation from the decision of a divided
Board in Phillips Chrysler Plymouth, 304 NLRB 16 (1991), which
involved objections to the conduct of a close representation election—
not an alleged 8(b)(1)(A) violation—following a belligerent confronta-
tion between two union organizers and the employer’s president, on
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1066
Searching for a rationale to find a violation, my col-
leagues combine Josephs’ verbal tirades and her isolated,
incidental physical contact with the Charging Party Em-
ployer’s agents to find “harassment,” more serious than
verbal abuse and only slightly less serious than physical
violence. But whatever label is placed on Josephs’ ac-
tions, the evidence still fails to establish an “unmistak-
able nexus” between her conduct and the unit employees’
exercise of Section 7 rights.
Bad as it was, Josephs’ behavior had no impact cogni-
zable under Section 8(b)(1)(A). The complaint should be
dismissed on that basis. Nothing in that result, mean-
while, prevents the Employer from protecting its own
legitimate interests with respect to Josephs’ actions.
That her conduct was not an unfair labor practice does
not mean that it is affirmatively protected by the Act or
that State law remedies are unavailable to redress it.
Because the majority confuses these issues, I dissent.

APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain on your behalf
with your employer
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT restrain and coerce employees of Staten
Island University Hospital in their right not to join or
support any strike, by refusing, in the presence of em-
ployees, to comply on request with lawful rules and di-
rections regarding access and conduct on the premises of
Staten Island University Hospital, including the follow-
ing conduct: shouting and cursing that our agents cannot
be stopped from entering immediate patient care areas;
making racist remarks to individuals; making sexually

employer property, 75 minutes before voting began. Both factually and
legally, the decision has no application here.
9 Every area outside the hospital cafeteria that Josephs “visited” on
the three dates in question was open to the general public. The Charg-
ing Party’s immediate property concern with Josephs’ misconduct was
that she was violating its “cafeteria-only” access rule, not that she was
invading surgical chambers or intensive-care units.
degrading remarks to individuals; making physical con-
tact with individuals; and removing our clothing and stat-
ing that our officials can walk unclothed around the
premises of Staten Island University Hospital.
WE WILL NOT threaten to physically assault individuals
in the presence of employees.
WE WILL NOT block individuals’ egress within the
premises of Staten Island University Hospital in the pres-
ence of employees.
WE WILL NOT in any like or related manner restrain or
coerce employees in the exercise of the rights guaranteed
them by Section 7 of the Act.

1199, NATIONAL HEALTH & HUMAN SERVICE
EMPLOYEES UNION, SEIU, AFL–CIO

Adrienne Connolly, Esq., for the General Counsel.
Veronica Villanueva, Esq., for the Respondent.
Kevin McGill, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
MARGARET M. KERN, Administrative Law Judge. This case
was tried before me in Brooklyn, New York, on June 16, 1999.
The complaint, which issued on November 30, 1998, was based
on an unfair labor practice charge filed on June 22, 1998,1 by
Staten Island University Hospital (employer or hospital) against
1199, National Health & Human Service Employees Union,
SEIU, AFL–CIO (Union or Respondent).
It is alleged that in June 1998, Respondent, through its or-
ganizer and admitted agent, Fabienne Josephs, engaged in a
series of acts of misconduct on the hospital’s premises in viola-
tion of Section 8(b)(1)(A). Respondent argues that many of
these incidents never occurred or, in the alternative, that Jo-
sephs’ conduct did not constitute an unfair labor practice. For
the reasons set forth herein, I find that Josephs engaged in seri-
ous acts of misconduct in violation of the Act. 2
FINDINGS OF FACT
I. JURISDICTION
Respondent admits and I find that the employer is engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
1 All dates are 1998 unless otherwise indicated.
2 By letter dated August 26, Respondent sought to reopen the record
and introduce evidence relating to the disposition of EEOC complaints
which were premised on the same conduct alleged to have taken place
in this case. The General Counsel opposed the application by letter
dated August 31. The motion and response are made a part of this re-
cord as R. Exh. 7. The motion is denied for the reasons set forth in the
General Counsel’s opposition. Even if I were to consider the proffered
evidence, it would not change my findings in this case.
SERVICE EMPLOYEES DISTRICT 1199 (STATEN ISLAND UNIVERSITY HOSPITAL) 1067
II. LABOR ORGANIZATION STATUS
Respondent admits and I find that it is a labor organization
within the meaning of Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The employer operates an acute care hospital on Staten Is-
land at two sites, 450 Seaview Avenue (north site) and 375
Seguine Avenue (south site), and employs approximately 5000
employees. Respondent represents approximately 2000 of these
employees in two collective-bargaining units, one unit at the
north site and the other at the south site. Unit employees in-
clude service, technical, clerical, and professional employees.
With the exception of administration and finance, Respondent
represents employees in every department in the hospital. More
specifically, Respondent represents employees in the emer-
gency and dental departments, patient care associates in the
labor and delivery department, and cafeteria workers.
On the first floor of the north site is a lobby with a gift shop,
a waiting area, a television/telephone rental office, a security
desk, and a volunteer desk. Also on the first floor is the emer-
gency and dental departments. A large circular staircase leads
from the lobby to the second floor where there is a cafeteria
with a food service area and a seating area, which can accom-
modate up to 300 people. This cafeteria is the area designated
by the Employer for Respondent’s representatives to communi-
cate with employees.3 The labor and delivery department is
also on the second floor. Access to the labor and delivery de-
partment is restricted, and the door leading into the department
is kept locked. A person can gain access by communicating
through an intercom.
In the spring of 1998, Respondent was involved in contract
negotiations with the League of Voluntary Hospitals of which
the Employer is a member. Caryl Mahoney, senior vice presi-
dent for human resources, was a member of the hospital’s nego-
tiating committee. Mahoney testified that in May and June
negotiations began to break down and there was talk of a strike.
Strike preparations were made by Respondent which included
specific activities at the employer’s facility. On May 22, Re-
spondent conducted a “walk-in” in the human resources de-
partment to demand that management sign a contract consistent
with Respondent’s demands. On May 26, Respondent con-
ducted a vote in the north site cafeteria to decide if informa-
tional picketing should be conducted. By letter dated May 29,
Ray Camacho, Respondent’s vice president, served an 8(g)
notice of Respondent’s intention to conduct informational pick-
eting on June 10, which picketing did in fact take place at both
the north and south sites. By letter dated June 11, John Reid,

8).

3 No evidence was introduced regarding any provision of the collec-
tive bargaining agreement relating to Respondent’s right of access to
employees and there is no claim by Respondent that the designation of
the cafeteria was unlawfully restrictive. Generally, a health care facility
can prohibit solicitation and distribution in immediate patient care
areas, which are inclusive of patient rooms, operating rooms, places
where patients receive treatment, adjacent corridors, and waiting
rooms. Cooper Health System, 327 NLRB 1159 (199); Doctors’
Hospital of Staten Island, 325 NLRB 730 (199
Respondent’s executive vice president, notified the employer
that Fabienne Josephs, Melanie Swann, and Joseph Bias14 were
the organizers assigned to the hospital. From June 15 to 17, a
strike vote was conducted in the north site cafeteria. On June
18, Respondent conducted a citywide demonstration in Times
Square in support of its contract demands and, on that same
date, Dennis Rivera, Respondent’s president, served written
notice on the Employer of Respondent’s intent to engage in a
strike as of July 1.
In response to Respondent’s strike preparations, the Em-
ployer distributed two memos to employees dated June 8 and
18. Each dealt with the potential impact of the strike on the
hospital and the employees, the issue of striker replacements,
and the rights of employees to participate or not to participate
in the strike. Mahoney testified that the June 18 memo was
distributed to employees through the interoffice mail on June
18 and 19.
B. The Events of June 4
Troy Boone is a uniformed security officer who observed Jo-
sephs in the cafeteria at about 9:45 p.m. on June 4. He was
unfamiliar with who she was and he went downstairs to the
lobby and inquired of Security Sergeant Rafael Velasquez as to
Josephs’ identify. As Boone was speaking with Velasquez,
Josephs entered the lobby and the two security guards asked her
where she was going. Josephs said she was going to the emer-
gency room. Boone said she was not allowed in patient care
areas and Josephs walked past him. Boone radioed to security
officers in the emergency room to keep an eye on her.
About 10 minutes later, Josephs returned to the lobby from
the direction of the emergency room. According to Velasquez,
she was accompanied by a male and was distributing flyers.
Both Boone and Velasquez testified that they told Josephs at
that time that she had to remain in the cafeteria. Josephs did not
respond but walked up the stairway followed by Boone and
Velasquez. She stayed in the cafeteria for a minute or two and
then walked down the second floor hallway towards the labor
and delivery department. As she walked, Boone again told her
she needed to stay in the cafeteria but she ignored his directive.
As Josephs got to the labor and delivery waiting area, Boone
and Velasquez repeated that she could not be in that area. Jo-
sephs said she needed to get a paper from the nurses about the
strike and that they were not going to stop her. Boone and
Velasquez stood shoulder to shoulder in front of the door lead-
ing from the waiting area to the interior of the department and
repeatedly told Josephs she could not enter. Josephs responded
that she was going in and that no one was going to stop her.
Josephs reached past Boone to hit the intercom and in doing so
made physical contact with him. Her voice became very loud
and she stated repeatedly that they were not going to stop her.
A nurse opened the door and asked what was going on. Josephs
said she needed to get a letter that had been signed by the
nurses. The nurse went back inside the department and came
out with a piece of paper and handed it to Josephs. By that time,
Josephs was yelling and screaming repeatedly, “You can’t stop
me, I can do anything I want, I can go anywhere I please.” Jo-
4 Biasi is an admitted agent of Respondent.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1068
sephs told Velasquez, “You should go back to Puerto Rico, you
little wetback.” Boone radioed to the lobby and told them to
call 911 to have Josephs removed from the premises. After that,
Josephs began walking back to the cafeteria. She called Boone
a “black gorilla walking in a white man’s footsteps.”
The confrontation at the door to the labor and delivery de-
partment lasted approximately 10 to 20 minutes and according
to Velasquez “a lot of people” stopped to observe the commo-
tion including employees.
Josephs testified that this confrontation never took place. She
acknowledged having entered the hospital that day for a 6 p.m.
meeting but testified that she left the hospital at around 7 p.m.
and went home. Josephs testified that she did see Boone and
Velasquez in that 1-hour period of time and that she chatted
pleasantly with them.
C. The Events of June 16
1. Outside the cafeteria
On June 16, at about 3:30 p.m., security officer Gerard Nel-
son was posted at the entrance to the cafeteria. Employees and
visitors were inside. Nelson noticed Josephs standing outside
the cafeteria in the second floor hallway in front of a bulletin
board on which there were job postings. Josephs was wearing a
T-shirt on the front of which was a calendar and the date “July
1” and on the back were the words “contract or strike.” Nelson
had been given instructions that no employee or organizer was
allowed to wear strike T-shirts in the hospital. According to
Nelson, as he approached Josephs, she spontaneously began to
raise the T-shirt over her head and said, “Well, I’ll take it off.”
Nelson observed that all Josephs had on under the T-shirt was a
bra. Nelson told her to put the shirt back on. Josephs responded
in a loud voice that she could walk around the hospital naked
and that Nelson could not stop her. Nelson advised her that she
could not walk around the hospital naked and that if she wanted
to try, he would call the police and have her removed for inde-
cent exposure. Josephs told Nelson that he could not touch her,
that he could not stop her and that she could go wherever she
wanted in the hospital. She began to walk down the staircase
and Nelson radioed to Sergeant Velasquez who told Nelson to
follow Josephs to make sure that she did not enter any patient
care area. As Nelson proceeded to follow Josephs, he told her
that she had to go back to the cafeteria where she could conduct
any type of union business. Josephs responded that she could
go anywhere she pleased.
Josephs testified that Nelson instructed her to remove the T-
shirt and that she told him that the T-shirt was all she had to
wear. She further testified that she told Nelson that she was not
going to go home to change because in her opinion there was
nothing offensive about the T-shirt. She denied having made
any attempt to remove the shirt and denied raising her voice to
Nelson.
2. In the emergency and dental departments
According to Nelson, Josephs descended the staircase to the
lobby and walked the length of a 75-foot hallway to the emer-
gency room waiting area. The door to the emergency room
itself was locked, and Nelson stood in front of the door block-
ing Josephs from proceeding further. He repeated that she could
not talk to employees in patient care areas and that she must
talk to them in the cafeteria. Josephs shouted in a very loud
voice, “[G]o f—k yourself. I can go wherever I want to go.”
Nelson testified that this area of the hospital is regularly fre-
quented by patients, visitors, and employees, and that at the
time of this incident, the hallway was used as a walkthrough to
the cafeteria, and to the main part of the hospital. Employees
were present in the hallway when this incident occurred. Jo-
sephs turned and headed toward the dental department located
off the same hallway. She entered the waiting room, where
from 10 to 20 patients were waiting to be seen, and Nelson
again advised her she was not allowed in patient care areas.
Josephs put her hands over her ears and shouted, “I’m not lis-
tening to you. I don’t care what you’re saying. You touch me
and I’ll kick all your asses.” Nelson was joined by Boone who
heard the commotion. Boone testified that a wall with a win-
dow and a door separated the waiting room from the interior
patient care area and he observed employees through the win-
dow.
Josephs left the dental department and walked back to the
lobby heading toward the staircase. En route, she yelled, “[L]a,
la, la, la, wherever I want to go, you can’t stop me.” Referring
to Boone, she yelled, “[Y]ou little black gorilla, you’re an Un-
cle Tom.” When she reached the middle of the lobby, in the
area in front of the security desk and the volunteers’ desk, she
stated in a loud voice, “I should have taken my top off and
gotten naked because I know you white boys like black
women.” Her statement, according to Boone, was accompanied
by sexually suggestive hand gestures. Nelson testified that em-
ployees and visitors were present in the lobby at the time.
Eventually, Josephs ascended the staircase and returned to the
cafeteria.
Josephs testified that when she went to the emergency de-
partment, Nelson and Boone were not present and no one at-
tempted to prevent her from entering. She spoke to the employ-
ees in the department and reminded them that she was in the
cafeteria and that they should come in to vote. The employees
told her they would be there on their lunchbreak. Josephs testi-
fied that she gave the same reminder to the employees in the
dental department. She denied having had an argument with
Nelson and Boone, denied raising her voice, and denied calling
Boone a “black gorilla” or an “Uncle Tom.”
3. At the flag pole
Walter Cyran is a security guard who recalled that on the
afternoon of June 16 he was dispatched to the cafeteria. Upon
his arrival, he observed Josephs walking toward him wearing a
strike T-shirt. Cyran asked her name and she responded, “Joe
Blow.” Cyran again asked her name and she did not respond.
Josephs walked down the staircase, exited the building, and sat
down by a flagpole. There were signs posted indicating that this
was a nonsmoking area. Josephs lit a cigarette and Cyran, who
had followed her, asked her to move to the smoking area. She
responded in a loud voice, “[G]o f—k yourself” and “I’ll stick
my foot up your ass.” According to Cyran, employees, nurses,
and patient care employees as well as patients and visitors were
present at the time. Josephs threw the cigarette down and re-
entered the building.
SERVICE EMPLOYEES DISTRICT 1199 (STATEN ISLAND UNIVERSITY HOSPITAL) 1069
Josephs testified that this incident involving Cyran never oc-
curred.
D. The Events of June 18
1. The General Counsel’s version
Dawn McMahon is the hospital’s security services supervi-
sor. At about 1:10 p.m. she received a call from Pacheco of
human resources who reported that there was an unidentified
union organizer in the cafeteria who had to be asked to leave.
When McMahon arrived, she observed that the cafeteria was
very crowded with employees, visitors, and patients and there
were no empty seats. She recognized employees from their
uniforms and from their identification badges. McMahon fur-
ther observed Josephs and Biasi seated at a table with an uni-
dentified male. David Greenberg, another organizer, was seated
a few tables away, in the center of the seating area of the cafe-
teria, talking with several employees. McMahon conferred with
Pacheco and confirmed that Greenberg was not on the June 11
list of authorized union representatives.
McMahon, who was dressed in a business suit, approached
Greenberg in the center of the seating area and asked if she
could speak with him for a moment. As he stood, Josephs and
Biasi approached and Josephs stepped between McMahon and
Greenberg. Josephs asked McMahon what she was saying to
Greenberg and McMahon replied that there was something she
needed to discuss with him and that if Josephs wanted to join
the conversation she was welcome to do so. McMahon showed
Josephs the June 11 letter and stated that since Greenberg was
not listed in the letter they needed to discuss the situation. Ac-
cording to McMahon, Josephs responded by shouting, “Dawn,
don’t waste my time. Just call the police.” McMahon explained
that the problem was with Greenberg, not Josephs or Biasi, and
if there was going to be a decision not to cooperate, it should be
Greenberg’s decision. Josephs repeated that McMahon should
call the police. According to McMahon, people’s attention was
drawn to Josephs’ shouting.
McMahon stepped to the side of the cafeteria and ordered
security officer Destafano to call the police. McMahon re-
mained at the entrance to the cafeteria to observe Josephs, Bi-
asi, and Greenberg. After a short while, Josephs walked toward
the area where McMahon was standing and where there was a
payphone. Josephs repeatedly picked up the receiver and put it
down without placing a call. McMahon heard her say, “[L]ook
at her. She’s so ridiculous. Look at her and her guards. This is
ridiculous. They’re a damn joke.” Employees were passing by
as Josephs was making these comments and one unidentified
employee, dressed in a patient care uniform, said to McMahon,
“[I]s she going to keep her shirt on this time?” McMahon saw a
New York City police sergeant coming up the main staircase.
She stepped outside the cafeteria into the hallway and asked the
sergeant, who was in the hospital on other business, why there
was a delay in the police response and the sergeant placed a
second radio call for assistance. As McMahon was speaking to
the police sergeant, she observed Dr. Andrew Passeri, the Em-
ployer’s executive vice president and chief operating officer,
enter the cafeteria.
Passeri walked to the food service area and was pouring him-
self a bowl of soup when he was approached from behind by
by Josephs. Passeri turned to face her and she came within 8
inches of his face and body but without making physical con-
tact. According to Passeri, Josephs began screaming at him.
Taken aback, Passeri asked Josephs who she was. Josephs iden-
tified herself as a representative of the Union. Among the
statements that Passeri could recall being uttered by Josephs
was that he ought to be ashamed of himself, that he should wear
a bag over his head, and that he ought to move from Tote Hill
(an affluent section of Staten Island) to Bay Street where his
employees live. While Josephs was standing in front of Passeri,
he observed a male wearing a union T-shirt approach him. The
male stood to Passeri’s side and also yelled at him. Passeri
began to try to walk to the cashier carrying his tray and as he
did so Josephs and the male stood in front of him, blocking his
progress. They stopped and gave him room to move. As Passeri
attempted to go around them, they stepped in front of him
again, forcing him to stop. This pattern continued as Passeri
made his way to the cashier with Josephs’ and the male con-
tinuously shouting at him. After Passeri paid for his meal he
walked towards the entrance/exit of the cafeteria, a distance of
about 75 feet through the crowded seating area. As he got to the
entrance, Josephs and the male approached him from his right
and resumed shouting at him. He walked through the entrance
to the staircase. As he proceeded down the staircase, he heard
Josephs at the top of the stairs shouting to him that he could be
replaced and that he would be replaced.
When McMahon finished speaking with the police sergeant,
she reentered the cafeteria and observed Passeri in the food
service area with Josephs and Biasi pursuing him.5 She heard
Josephs saying that Passeri should be ashamed of himself and
that he should give up his house on Tote Hill. She then saw
Passeri passing through the cashier area and walking toward her
at the entrance. He appeared to be distressed: his face was red
and twisted and he was walking quickly. McMahon maintained
her position at the entrance to the cafeteria and let Passeri pass
by her. Josephs was following Passeri and McMahon stepped in
her path to block her from pursuing Passeri further. Josephs
walked right into McMahon making physical contact. She
reached with one arm over McMahon’s shoulder and shouted
that Passeri should be ashamed of himself, that he should give
up his Tote Hill house, and that he should move to Bay Street.
According to McMahon, by the time Passeri was at the turn of
the stairs, Josephs stepped around McMahon and shouted to
Passeri that he could be replaced. She then turned, put her fin-
ger in McMahon’s face and said, “and so can you.” A small
crowd of 10 to 20 people, including employees, gathered at the
entrance to the cafeteria and observed this confrontation.
Josephs, Biasi, and Greenberg went back into the cafeteria
and McMahon remained at the entrance to continue waiting for
the police. Greenberg asked McMahon why he had to leave and
she reiterated that he was not authorized to be on the premises
as an organizer. Josephs then addressed McMahon in a loud
voice, “Look at you in your nice suit. I know how you got that
suit, honey.” She continued, “do you know why she’s wearing
pants? To hide the marks on her knees. You must have sucked a

5 It is not clear if Biasi was the same male who blocked Passeri’s
path to the cashier.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1070
lot of dick to get that job.” When she was making these re-
marks, Josephs was about 4 to 5 feet from McMahon and em-
ployees and visitors were walking between them. The three
organizers began to leave and as they did so Josephs continued
in a loud voice: “[W]ell, you better check her back, too. I
betcha you’ll find some scars there. Dawn. Dawn. Dawn. Dawn
does Staten Island Hospital.” Josephs began to descend the
staircase and when she reached the turn of the stairs, she yelled
toward McMahon, “It’s amazing you can talk with that mouth
as busy as you were to get that job. I know how you got that job
and your suit, honey.” She then called McMahon a “bitch.”
McMahon followed Josephs, Biasi and Greenberg down the
staircase with two other security officers and as Josephs walked
toward the front door of the lobby she repeated three times
“Dawn does Staten Island Hospital.” The New York City Po-
lice Department arrived at approximately 1:30 p.m., at the same
time that Josephs, Biasi, and Greenberg exited the building.
During the 20 minutes that McMahon was in the cafeteria,
the room was filled to capacity. The second floor hallway, the
staircase, and the main lobby was heavily traveled with the
hospital’s normal midday traffic.
McMahon’s office is in a trailer located in front of the hospi-
tal. In order to get from her office to the building, she passed
through a smoking area usually heavily populated by employ-
ees. On the days following this incident, each time she passed
the smoking area, employees addressed her, stating that they
had heard what had happened and inquired as to her well being.
Some of the employees said they were members of the Union
and they were embarrassed and disgusted at how she had been
treated.
2. Respondent’s version
Greenberg testified that around noontime he was seated at a
table in the cafeteria talking to employees when he was ap-
proached by a male and told that he could only meet with
workers in the back of the cafeteria. Greenberg responded that
this was not the back of the bus and that the Union had access
to the entire cafeteria. Greenberg moved to the middle of the
cafeteria and was sitting at another table with employees when
McMahon approached him and asked if she could speak with
him in private. He stood up and they moved about 10 feet from
the table. McMahon stated that he was not on the list of organ-
izers allowed to be at the hospital and that he had to leave. He
told her he was a union organizer and that he had a right to be
there. McMahon walked away and Greenberg notified Josephs
of what was happening. Josephs, Biasi, and Greenberg then
approached McMahon and Josephs reiterated Greenberg’s right
to be present. McMahon said if he didn’t leave she would call
the police. McMahon left and Greenberg resumed talking with
employees at one of the tables. He heard a comment come from
unidentified persons in the cafeteria asking how McMahon got
her job.
Josephs testified that at around 11:30 a.m., she was present
in the cafeteria, which was “pretty quiet,” and she had a copy of
the June 18 memo in her hand. She approached Passeri and
cordially stated, “Good morning. My name is Fabienne Jo-
sephs. I’m from 1199.” She told Passeri that she needed to talk
to him about his June 18 memo. Passeri responded that Josephs
should talk to his attorney and Josephs said no, she needed to
talk to him because his name was on the memo. She asked him
how he could sleep at night and that he should be ashamed of
himself for putting out information that caused a great deal of
confusion in the hospital. She also told him he should walk
around the hospital with a brown bag over his head. Passeri
said to Josephs, “[P]lease, I’m here to have my lunch,” and he
kept on walking. According to Josephs, she walked alongside
of Passeri as he got his soup, paid the cashier, got napkins and
utensils, and left the cafeteria, all the while talking to him in a
conversational tone. Josephs denied yelling or raising her voice
to Passeri. She also denied seeing McMahon at any time during
her encounter with Passeri.
According to Josephs, it was not until some time later that
afternoon that she encountered McMahon in the cafeteria, and
by that time the cafeteria had become very crowded. McMahon
approached Josephs near the entrance to the cafeteria and
McMahon had a letter in her hand. She said that Josephs and
Biasi were allowed access to the hospital but that she had not
been given any information regarding Greenberg. Josephs said
he was a union organizer. McMahon said he nevertheless had to
leave. Josephs asked why and suggested McMahon talk to
Pacheco. McMahon said she had been instructed by Pacheco to
tell Greenberg to leave. Josephs acknowledged in her testimony
that McMahon made it clear that she and Biasi did not have to
leave, only Greenberg. McMahon said that if Greenberg didn’t
leave, she would have to call the police. Josephs said fine, call
the police. Josephs denied yelling at McMahon and denied that
she was the one who was the first to suggest calling the police.
She did recall hearing unidentified persons in the cafeteria
shouting comments to McMahon. “Someone made a comment
in regards to, yelled out, ‘we know how you got your job.”’
Josephs was unable to recall at the time of her testimony how
long she had been assigned to the Employer’s facility as an
organizer at the time of the events at issue. She could not recall
why she was present in the hospital on June 18 other than to
talk to members. She could not recall the date that she received
a copy of the June 8 memo and she could not recall the date
that she received a copy of the June 18 memo:

Q: When? When did you get Respondent’s 3? That’s
the June 8th memo. When did you first receive that?
A: I can’t recall, but I did receive them.
Q: When did you first receive Respondent’s 4, the
June 18th memo?
A: I’m going to say the same, I can’t recall the ap-
proximate dates, you know, they were given to me.
Whether it was morning or afternoon, or, but they were
given to me.
. . . .
I don’t recall approximately the date and time that I re-
ceived them. If it was June 4th, June 5th, I can’t, but I
know definitely it was the end of June.
IV. ANALYSIS
A. Credibility
Resolution of the factual issues in this case turns purely on
credibility. Witnesses for the General Counsel and Respondent
SERVICE EMPLOYEES DISTRICT 1199 (STATEN ISLAND UNIVERSITY HOSPITAL) 1071
presented irreconcilable versions of the same events. Without
hesitation, I credit the testimony of the General Counsel wit-
nesses over Respondent’s witnesses.
Anthony Passeri and Dawn McMahon were impressive wit-
nesses with excellent recall of events. Neither was given to
exaggeration and their testimony was internally consistent as
well as consistent with the observations of the security guard
witnesses. Both were equally responsive on direct and cross -
examination. The professional restraint which both exhibited
during the course of their confrontations with Josephs was re-
flected in their demeanor on the witness stand. I fully credit
both of these witnesses’ testimony and where there is a conflict
between their testimony and that of Respondent’s witnesses
Josephs and Greenberg, I credit Passeri and McMahon.
Security officers Nelson, Velasquez, Boone, and Cyran were
also entirely credible witnesses. None of these witnesses had
any prior dealing with Josephs and the evidence failed to ad-
duce a motive for them to fabricate their testimony. Indeed,
Cyran described his utter bewilderment at Josephs’ behavior, a
woman he had never spoken to before and hasn’t spoken to
since. Boone did appear somewhat reluctant to discuss the inci-
dent involving Josephs calling him a “black gorilla.” I do not
construe this hesitancy to mean that this statement was not
made, but rather, that Boone was personally embarrassed by
this particularly offensive confrontation. In all other respects,
Boone testified, as did the other witnesses, in a clear and
straightforward manner. Where there is a conflict between their
testimony and that of Josephs and Greenberg, I credit Nelson,
Velasquez, Boone, and Cyran.
I thoroughly discredit the testimony of Josephs. On the wit-
ness stand she testified in a soft-spoken voice in what appeared
to be a contrived attempt to present herself as a person incapa-
ble of engaging in the loud behaviors attributed to her by the
General Counsel’s witnesses. She could not recall how long she
had been assigned as an organizer at the Employer’s facility at
the time of her testimony. She could not recall why she was
present in the hospital on June 18 other than to talk to members.
Despite the fact that she claimed that the June 18 memo was the
reason she approached Passeri in the cafeteria, she could not
recall when she received the memo. Her recollection of times
and dates were blurred. I consider Josephs repeated denials of
having engaged in the conduct alleged in the complaint to have
been motivated purely by self-interest and the interest of Re-
spondent.
I similarly do not hesitate to discredit the testimony of
Greenburgh. Particularly noteworthy was his weak attempt to
explain away the testimony of Dawn McMahon wherein she
described how Josephs loudly accused her of engaging in sex-
ual behavior in order to obtain her job as security supervisor.
Attempting to corroborate Josephs’ testimony on this point,
Greenburgh testified that he heard unidentified voices emanat-
ing from somewhere in the cafeteria asking how McMahon got
her job. Spontaneous utterances from unknown persons not
otherwise involved in the events unfolding in the cafeteria
strike me as highly suspect. When juxtaposed with McMahon’s
credible testimony that it was Josephs who made these com-
ments, Greenburgh’s testimony becomes plainly incredible.
B. Specific Acts of Misconduct
Having resolved the credibility issues in this case, I make the
following findings with respect to specific acts of misconduct
engaged in by Josephs.
Paragraph 7 of the complaint contains four allegations relat-
ing to the events of June 4: (a) that Josephs shouted while
pounding on the door of the labor and delivery department in an
attempt to gain access; (b) that she cursed and shouted at secu-
rity guards; (c) that she made racist remarks; and (d) that she
pushed a security guard. With respect to the first allegation,
there is ample evidence that Josephs continually shouted re-
marks as she was being blocked by Boone and Velasquez from
entering the labor and delivery department. She repeatedly
yelled that they were not going to stop her, that she could do
anything she wanted and that she could go anywhere in the
hospital she pleased. There is no evidence, however, that she
pounded on the door. Boone and Velasquez testified that they
stood shoulder to shoulder in front of the door, thus blocking
her ability to pound on the door. The second allegation is
largely repetitive of the first. Clearly Josephs was shouting
during the confrontation with the security guards although nei-
ther Boone nor Velasquez testified to her use of profanity dur-
ing this particular confrontation. With respect to the third alle-
gation, I find that Josephs did call Velasquez a “little wetback”
who “should go back to Puerto Rico,” and that she called
Boone a “black gorilla walking in a white man’s footsteps.”
With respect to the fourth and final allegation of this paragraph
in the complaint, there is no evidence that Josephs actually
pushed either Boone or Velasquez. The extent of the physical
contact made was when Josephs reached past Boone in an ef-
fort to hit the intercom buzzer and gain access to the depart-
ment. I therefore find that on June 4 Josephs engaged in three
acts of conduct encompassed by the complaint: she repeatedly
shouted at two security guards who were performing their law-
ful duty that she could not be stopped from entering patient care
areas, directed racist remarks to each of them, and made physi-
cal contact with one of them.
Paragraph 8 of the complaint contains three allegations relat-
ing to the events of June 16 which occurred in the vicinity of
the cafeteria: (a) that Josephs threatened security guards with
physical harm; (b) that she informed them that she could do
anything she wanted and could not be stopped; and (c) that she
directed racist remarks to them. No evidence was adduced re-
garding the first and third allegations. Nelson did not testify as
to any threats of physical harm or to Josephs having made racist
remarks to him during this particular confrontation. He did,
however, credibly testify that Josephs spontaneously took her
shirt off in his presence and that when Nelson told her to put
her shirt back on, Josephs stated in a loud voice that she could
walk around the hospital naked if she chose to, that he could
not stop her, and that she could go anywhere she pleased in the
hospital.
Paragraph 10 of the complaint contains the single allegation
that sometime in late June, Josephs made racist remarks in the
area of the dental department. The evidence shows, and I find,
that on June 16, while leaving the dental area and walking to-
ward the lobby, Josephs called Boone a “black gorilla” and an
“Uncle Tom.” The evidence further establishes several other
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1072
acts on June 16 which arguably violated Section 8(b)(1)(A) but
which were not specifically alleged in the complaint. Neverthe-
less I find that these events occurred as part of one continuous
event with the dental department incident, that the issues raised
by these events are identical to the issues raised by other com-
plaint allegations and that these matters were fully litigated at
the hearing. Williams Pipeline Co., 315 NLRB 630 (1994);
Pergament United Sales, 296 NLRB 333, 334 (1989), enfd. 920
F.2d 130 (2d Cir. 1990). I therefore make the following find-
ings: in the emergency room department, Josephs shouted that
she could go wherever she pleased in the hospital and that Nel-
son should “go f—k” himself; in the dental department, Josephs
shouted to Nelson that if he touched her she would “kick all
your asses”; in the lobby, Josephs made sexually suggestive
gestures to Nelson and Boone while stating that she should
have taken her shirt off and gotten naked because “you white
boys like black women.”
Paragraph 9 of the complaint alleges that Josephs threatened
a security guard with physical harm. The evidence establishes
and I find that on June 16, when Cyran told Josephs not to
smoke in a no-smoking area, Josephs told Cyran, “[G]o f—k
yourself” and “I’ll stick my foot up your ass.”
Paragraph 11 of the complaint contains five allegations relat-
ing to the confrontation in the cafeteria involving McMahon
and Passeri: (a) that Josephs shouted at security guards to call
the police after she was informed that Greenburgh was not
entitled to be present in the cafeteria; (b) that she threatened
Passeri with loss of his job; (c) that she attempted to grab
Passeri’s arm and attempted to block his egress from the cafete-
ria; (d) that she told McMahon that she would be replaced in
her job by the Employer; and (e) that McMahon engaged in
sexual conduct to secure her job. The evidence establishes, and
I find, that Josephs shouted at security guards to call the police,
that she threatened both Passeri and McMahon that they could
be replaced in their jobs, and that she accused McMahon of
engaging in sexual conduct to secure her job. I further find that
Josephs repeatedly blocked Passeri’s egress from the cafeteria
by standing directly in his path and forcing him to walk around
her. There is no evidence, however, that Josephs made physical
contact or attempted to make physical contact with Passeri.
C. Presence of Employees
Having determined that Josephs engaged in the foregoing
acts of misconduct, the next issue is whether she committed
those acts in the presence of employees. In every instance, Jo-
sephs’ actions were directed toward nonemployees: managers,
supervisors, and security guards. Since acts of intimidation
directed against security guards are treated in the same manner
as those directed against nonemployees and supervisors, Culi-
nary Workers Local 226 (Casino Royale, Inc.), 323 NLRB 148,
160 (1997), the standard to be applied in each case is whether
the act was committed in the presence of employees or under
such circumstances as to insure that employees would hear
about it. Furniture Workers Local 309 (Smith Cabinet Mfg.
Co.), 81 NLRB 886, 888–889 (1949). I find that in each in-
stance the General Counsel has met this standard by a prepon-
derance of the evidence.
As to the June 4 incident by the door to the labor and deliv-
ery department, the credible testimony of Boone and Velasquez
establishes that employees stopped to observe the confronta-
tion. Josephs’ behavior during this incident was characteristic
of her behavior throughout. Each event was marked by her
screaming, yelling, or speaking in a very loud tone of voice.
The significance of this behavior cannot, I think, be overesti-
mated. The place of these occurrences was not a casino in Las
Vegas, but a hospital. Josephs’ continual screaming and shout-
ing had the inevitable effect of drawing attention to herself.
Indeed, the General Counsel argues, and I agree, that the whole
point of Josephs engaging in this conduct was to draw attention
to herself and once that attention was drawn, to engage in such
outrageous behavior as to have the effect of restraining and
coercing employees to support the Union’s strike efforts. There
is no doubt that employees’ attention was drawn to Josephs
during the June 4 incident.
With respect to the June 16 incident outside the cafeteria,
Nelson did not specifically testify that employees were present
in the hallway when Josephs lifted her shirt over her head, ex-
posing her underwear. There were, however, employees present
inside the cafeteria and McMahon’s testimony recalling the
employee comment, “[I]s she going to keep her shirt on this
time?” establishes that word traveled fairly quickly. This was a
hospital, and Josephs’ removal of her shirt in that particular
setting was a provocative act and one certain to be learned of
by employees.
With respect to the emergency room incident, the credible
and uncontradicted testimony is that employees were physically
present. With respect to the dental department incident, a wall
with a glass partition separated the dental department employ-
ees from the waiting area where Josephs was yelling. Neverthe-
less, Josephs’ behavior was such that the employees were cer-
tain to learn about it. In the presence of about 20 patients, Jo-
sephs’ put her hands over her ears and shouted, “I’m not listen-
ing to you. I don’t care what you’re saying. You touch me and
I’ll kick all your asses.” A screaming woman with her hands
over her ears was likely to draw the visual attention of the em-
ployees working behind the glass partition. It is also fair to
infer, barring some evidence that the wall was a soundproof
barrier, that her shouting could be heard through the glass. In
any event, it seems inevitable to me that at least a few of the 20
patients who witnessed this encounter would have made men-
tion of it to the employees once they were admitted to the im-
mediate patient care area.
Continuing in her effort to draw attention to herself, as Jo-
sephs walked down the 75-foot hallway to return to the lobby,
again a hallway frequented by employees, she yelled, “[L]a, la,
la, la, wherever I want to go, you can’t stop me.” She then
called Boone a “black gorilla” and an “Uncle Tom.” When she
entered the lobby, she made the sexually suggestive gestures
and comments about being naked in the presence of employees.
Similarly, employees were present and in a position to witness
the incident by the flagpole and all of the incidents in the cafe-
teria on June 18.
One issue not specifically addressed by any of the parties ei-
ther at the hearing or in their briefs, is whether the employees
who witnessed these acts were members of the bargaining unit.
SERVICE EMPLOYEES DISTRICT 1199 (STATEN ISLAND UNIVERSITY HOSPITAL) 1073
There is no direct evidence establishing this fact since in every
instance, the testimony is that “employees” were present. The
General Counsel appears to suggest, without specifically stat-
ing, that because the Union represented 2000 employees in all
but two departments in the hospital, that it is fair to infer that
the employees who were present at these incidents must have
been bargaining unit employees, or alternatively, that bargain-
ing unit employees must have learned of these incidents. I agree
that this inference may be fairly drawn from all of the circum-
stances of this case. I will nevertheless address this issue of
whether Section 8(b)(1)(A) is implicated if these acts were
witnessed or learned about only by nonunit employees as the
evidence allows for this possibility. Of concern is the language
used by the administrative law judge in Casino Royale wherein
he noted the presence or awareness by “individuals . . . em-
ployed by the Casino Royale in job classifications normally
represented by Respondent” in determining whether there had
been an 8(b)(1)(A) violation. I do not, however, read this deci-
sion, affirmed by the Board, as limiting the finding of an unfair
labor practice to only those cases involving coercive conduct
directed toward nonemployees in the presence of bargaining
unit employees. The Board’s decision in Masters, Mates &
Pilots (Marine Transport), 301 NLRB 526 (1991), is informa-
tive on this point. In that case, the bargaining unit consisted of
licensed deck officers. The Board nevertheless found a viola-
tion of Section 8(b)(1)(A) when pickets threatened supervisors
and nonemployees in the presence of unlicensed seamen, non-
unit employees. I therefore conclude on the basis of the ruling
in Marine Transport that it is sufficient that Josephs’ conduct
was observed or made known to statutory employees and the
finding of a violation does not turn on whether or not those
employees were members of the bargaining unit.
D. The 8(b)(1)(A) Violations
Having found that Josephs engaged in the acts set forth
above, in the presence of employees or under such circum-
stances that employees were likely to learn of them, the issue is
whether this conduct violated Section 8(b)(1)(A) of the Act.
Important to this analysis is the timing of these events.
This case involves a period of time when the Union was ac-
tively engaged in prestrike preparations. By the time of the first
incident in this case on June 4, the Union had already con-
ducted a demonstration in the human resources department,
taken a membership vote to decide if informational picketing
should conducted, and served an 8(g) notice of its intent to
conduct informational picketing. By the time of the second set
of incidents on June 16, the Union had conducted informational
picketing at both the north and south sites and was in the proc-
ess of conducting a strike vote. The June 18 incidents occurred
the day after the strike vote was completed and the same day
that Respondent served an 8(g) notice of its intent to call a
strike on July 1. For bargaining unit employees, this was a pe-
riod of time when they were necessarily reflecting on whether
they would join the prospective strike. For other statutory em-
ployees, it was a period when they were confronted with the
issue of whether they should support the Union in its prospec-
tive strike by refusing to cross a picket line or by engaging in
other forms of sympathizing activity. On this latter point, it is
well established that nonstriking employees who refuse to cross
a picket line maintained by other employees have made com-
mon cause with the strikers and are engaged in protected con-
certed activity, regardless of whether they are members of the
picketing union or in the same collective-bargaining unit as the
striking employees. ABS Co., 269 NLRB 774 (1984). For all
statutory employees, Section 8(b)(1)(A) and Section 7 of the
Act protect the right to work, W. T. Smith, supra at 508, and
every employee in the hospital was faced with the individual
decision of whether to support Respondent’s strike effort or
whether to refrain from giving support. The strike deadline of
July 1 was looming large and it is improbable that these inci-
dents, occurring in the 3 weeks before the deadline, would have
been forgotten by that time. NLRB v. Union Nacional de Traba-
jadores, 540 F.2d 1, 7 (1st Cir. 1976) cert. denied 429 U.S.
1039 (1977). It is against this backdrop that Josephs’ conduct
must be viewed.
On June 4, two security guards unsuccessfully sought to pre-
vent Josephs from entering the waiting area of the labor and
delivery department and had to physically block her from enter-
ing the interior of the department. In as loud a voice as physi-
cally possible, Josephs shouted that she could do anything she
wanted and that she could not be stopped. She physically
pushed past the guards in an effort to hit the buzzer to open the
door. When the guards were unyielding in their attempts to stop
her, Josephs verbally assaulted them with racial epithets, one
reserved for each of them: she called the Latino guard a wet-
back and told he should go back to Puerto Rico; the African-
American guard she called a black gorilla walking in a white
man’s footsteps. Any employee witnessing or learning about
this conduct would be impressed by Josephs’ willingness to
disobey a lawful directive to stay out of an immediate patient
care area and to deliberately escalate a situation to the point of
physical confrontation and racial slurs. Employees could rea-
sonably anticipate that the same physical and verbal abuse
might be visited upon them should they choose not to support
the Union’s efforts in the upcoming strike. Accordingly, I find
Josephs conduct violated Section 8(b)(1)(A).
With respect to the June 16 incident outside the cafeteria, I
reject Respondent’s argument that Josephs was somehow pro-
voked to take her shirt off. The credible evidence establishes
that Nelson did no more than walk toward Josephs when she
removed her shirt. He did not tell her, as Respondent claims in
its brief, that she could not wear the shirt outside of the cafete-
ria. When Nelson told her to put the shirt back on, a not unrea-
sonable request in my view, she stated in a loud voice that she
could walk around the hospital naked if she chose to and that he
could not stop her. Once again, any employee witnessing or
learning of Josephs’ ridicule for a lawful directive by the hospi-
tal’s security personnel could reasonably feel intimidated or
coerced to support the Union’s efforts in the upcoming strike. I
therefore find that this incident violated Section 8(b)(1)(A) of
the Act.
Josephs’ behavior on June 16 in the emergency department,
the dental department, the hallway and the lobby, should not be
viewed as isolated events. This was a single ongoing confronta-
tion as security guards followed Josephs’ from department to
department attempting to lawfully prevent her from entering
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1074
immediate patient care areas. Their lawful efforts were met
with loud exclamations that she could not be stopped, cursing,
threats of physical assault, racial epithets, and sexually degrad-
ing comments. I find this conduct violated Section 8(b)(1)(A)
of the Act.
As to the flag pole incident, Josephs’ threat to Cyran that she
would stick her foot up his ass constituted a threat of physical
harm and violated Section 8(b)(1)(A).
With respect to the first incident on June 18 when Josephs’
shouted that the security personnel should call the police, I do
not consider this to be a violation of Section 8(b)(1)(A). This
was an attention-getting device utilized by Josephs to focus
employees’ attention on herself. The General Counsel does not
cite any cases to support its argument that a demand to call the
police, no matter how loudly made, violates Section 8(b)(1)(A),
and I decline to find a violation.
With respect to Josephs’ threats to Passeri and to McMahon
that they could be replaced in their jobs, I find that these ac-
tions, when considered in context, violated Section 8(b)(1)(A).
The confrontation with Passeri began when Josephs positioned
herself within 8 inches of his face and began screaming at him.
As Passeri proceeded to leave the cafeteria, Josephs’ physically
pursued him at a quick pace. After McMahon stepped in her
path, Josephs continued her verbal assault, maintained physical
contact with McMahon, reached over McMahon’s shoulder,
pointed her finger at Passeri, shouted his name and threatened
that he could be replaced. She had the same warning for
McMahon who was attempting to physically restrain her. Un-
doubtedly, Josephs’ behavior had the singular effect of drawing
the attention of many and the relevant inquiry is not whether
Josephs’ or Respondent was in a position to carry out these
threats, but the impact these threats had on listening employees.
Electrical Workers Local 396 (Central Telephone Co.), 229
NLRB 469, 470 (1977). I conclude that the net effect of Jo-
sephs’ conduct was the creation of an impression that Respon-
dent would go to extreme lengths to maintain support for the
strike, and I find that this impression was intimidating and co-
ercive to employees in violation of Section 8(b)(1)(A). I further
find Josephs’ several attempts to block Passeri’s egress from
the cafeteria by standing in front of him and forcing him to
walk around her violated Section 8(b)(1)(A).
Finally, I turn to the verbal barrage directed toward McMa-
hon. This was not an occasion of sotto voce name-calling and
Respondent’s reliance on Teamsters Local 856 (Holiday Inn),
302 NLRB 572 (1991), is misplaced. Josephs’ disgusting and
sexually demeaning comments, shouted over and over again in
the crowded hospital cafeteria and main lobby in the middle of
the day could have had only one effect: to make employees
believe that they had better support the Union’s strike efforts or
face similar degradation. This violates the Act.
In conclusion, the findings of unfair labor practices in this
case are not based solely on Josephs’ words but on her words
and her conduct. The Supreme Court has noted that words can
readily be so coupled with conduct as to constitute intimidation.
“if a sufficient number yell any word sufficiently loudly show-
ing an intent to ridicule, insult or annoy, no matter how innocu-
ous the dictionary definition of that word, the effect may cease
to be persuasion and become intimidation and incitement to
violence.” Youngdahl v. Rainfair, 355 U.S. 131, 138 (1957).
The type of conduct engaged in by Respondent’s agent in this
case has been found by the Supreme Court and the Board to be
inherently coercive of employees’ Section 7 rights, whether
engaged in by an employer or by a union. Linn v. United Plant
Guard Workers, 383 U.S. 53, 63 (1966); Orbit Lightspeed Cou-
rier Systems, 323 NLRB 380, 394 (1997); Domsey Trading
Corp., 310 NLRB 777, 793 (1993), enfd. 16 F.3d. 517 (2d Cir.
1994); Romal Iron Works Corp., 285 NLRB 1178, 1182
(1987); Nassau Insurance Co., 280 NLRB 878 (1986); Team-
sters Local 777 (Crown Metal Mfg. Co.), 145 NLRB 197, 204
(1963). The sum of Josephs’ behavior was the conveyance of a
clear message, to both unit and nonunit employees, that Re-
spondent and its agents viewed themselves as immune to lawful
direction and willing to engage in acts of verbal and physical
abuse to further their agenda. This message, delivered in a pe-
riod of active prestrike preparations, necessarily had the effect
of restraining and coercing employees in the exercise of their
Section 7 rights and violated Section 8(b)(1)(A) of the Act.
CONCLUSIONS OF LAW
1. The employer is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Respondent is a labor organization within the meaning of
Section 2(5) of the Act.
3. In the presence of employees and under such circum-
stances as to insure that employees would become aware of
such acts, Respondent, by Josephs, violated Section 8(b)(1)(A)
on June 4, 1998, by:
(a) Repeatedly shouting that she could not be stopped from
entering immediate patient care areas.
(b) Directing racist remarks to individuals.
(c) Making physical contact with an individual.
4. In the presence of employees and under such circum-
stances as to insure that employees would become aware of
such acts, Respondent, by Josephs, violated Section 8(b)(1)(A)
on June 16, 1998 by:
(a) Removing her shirt and stating in a loud voice that she
could walk around the hospital naked and that she could not be
stopped from entering any area of the hospital.
(b) Directing racist remarks to an individual.
(c) Cursing and shouting that she could go wherever she
pleased in the hospital.
(d) Threatening to physically assault individuals.
(e) Making sexually degrading remarks to individuals.
5. In the presence of employees and under such circum-
stances as to insure that employees would become aware of
such acts, Respondent, by Josephs, violated Section 8(b)(1)(A)
on June 18, 1998 by:
(a) Threatening to cause individuals to lose their jobs.
(b) Blocking an individual’s egress within the Employer’s
premises.
(c) Making sexually degrading remarks to an individual.
6. Respondent has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(b)(1)(A) and Sec-
tion 2(6) and (7) of the Act.
SERVICE EMPLOYEES DISTRICT 1199 (STATEN ISLAND UNIVERSITY HOSPITAL) 1075
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. The General Counsel seeks a broad
order on the grounds that Respondent has twice previously been
adjudged to have violated Section 8(b)(1)(A) under similar
circumstances. Service Employees District 1199 (Frances
Shervier Home), 245 NLRB 800 (1979); Service Employees
District 1199 (Southport Manor Convalescent Center), 227
NLRB 1732 (1977). The Charging Party points out the addi-
tional case of Service Employees District 1199 (J. J. Jordan
Geriatric), 312 NLRB 90 (1993). I do not view these three
cases, spread out over a 22-year period, as sufficient to estab-
lish that Respondent has a proclivity for violating Section
8(b)(1)(A) of the Act and I decline to recommend a broad or-
der. I further decline to recommend an award of attorneys’ fees.
[Recommended Order omitted from publication.]