St. Barnabas Hospital

National Labor Relations Board - Board Decisions

Aug 9, 2001

334 N.L.R.B. 1000 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1000
St. Barnabas Hospital and United Salaried Physicians
and Dentists. Case 2–CA–31504
August 9, 2001
DECISION AND ORDER
BY MEMBERS LIEBMAN, TRUESDALE, AND
WALSH
On February 24, 2000, Administrative Law Judge Ste-
ven Fish issued the attached decision. The Respondent
filed exceptions and a supporting brief, and the General
Counsel 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 has decided to
affirm the judge’s rulings, findings1 as explained below,
and conclusions and to adopt the recommended Order.2
We agree with the judge that the Respondent violated
Section 8(a)(1) of the Act by terminating four physicians
for engaging in protected concerted activity when they
threatened to stop performing voluntary on-call work.
Facts
The relevant facts are discussed in detail in the judge’s
decision. In essence, they are as follows: On July 1,
1997, the Respondent began providing health care ser-
vices at Lincoln Hospital pursuant to an “affiliation
agreement” that was executed between Respondent and
the New York City Health and Hospital Corporation.
The Respondent, which replaced New York Medical
College as the provider of services, hired most of the
physicians employed by New York Medical College,
including the four discriminatees. The Respondent con-
tinued the New York Medical College practice of paying
physicians an annual salary for working set hours during
the week and an hourly rate for on-call work (work per-
formed after regularly scheduled hours or any weekend
hours) that they chose to perform.

1 The Respondent has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an adminis-
trative law judge's credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stan-
dard 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 In its brief to the Board, the Respondent argues that the Board
should reopen the record to examine the supervisory status of the dis-
criminatees. We do not agree. As the judge stated, the Respondent
presented no evidence at the hearing to support the contention that the
discriminatees are supervisors. Nor does the Respondent’s brief to the
Board present any evidence to support its contention. The Respondent
had the burden to establish that the alleged discriminatees were statu-
tory supervisors and it failed to meet this burden. NLRB v. Kentucky
River Community Care, Inc., 121 S.Ct. 1861 (2001).
In June 1998, the Respondent discharged the discrimi-
natees after it received a letter from them in which, re-
sponding to the Respondent’s proposed policy changes
regarding patient care procedures, they threatened to stop
performing the voluntary on-call work.
Discussion
The judge found that the physicians the Respondent
employs at Lincoln Hospital performed on-call work on a
voluntary basis. We agree. Dr. William Stahl imple-
mented the on-call program when he served as New
York Medical College’s chief surgeon.3 As the judge
explained, Dr. Stahl “was adamant” that the on-call sys-
tem was “entirely voluntary and not a condition of em-
ployment, and that any physician has the right to refuse
to perform on-call work at any time.” When the Re-
spondent took over the affiliation contract in July of
1997, it made no changes in the on-call program. As the
judge explained, “the discriminatees credibly testified
that they believed . . . that the performance of on-call
work was voluntary, and that they had the right to de-
cline to perform such work, if they so chose.” In fact,
the record reflects that on several instances physicians
chose not to perform any on-call work. As one discrimi-
natee, Dr. Prakashchandra Rao, testified, on several oc-
casions he did not perform on-call work for a particular
month because he “just didn’t want to do it.”
Dr. Kenneth Schwartz, the Respondent’s network chief
of surgery, testified that he believed the on-call work was
mandatory. His view, however, was based on experience
at other hospitals, none of which followed the Respon-
dent’s practice of paying physicians on a separate basis
for performing on-call work. We also find it significant,
as did the judge, that, after Schwartz became the Re-
spondent’s chief of surgery, he never informed the em-
ployees that the on-call work would henceforth be man-
datory. To the contrary, the Respondent considered, but
specifically rejected, increasing physician salaries to in-
corporate a set number of on-call hours per month.
In sum, the judge was well warranted in finding that
the discriminatees performed on-call work on a voluntary
basis. Because the on-call work was voluntary, we also
agree with the judge that the discriminatees’ concerted
threat to stop performing on-call work was protected
activity. The Board has long held that a refusal to per-
form voluntary work does not constitute an unprotected
partial strike. Dow Chemical Co., 152 NLRB 1150,
1151–1152 (1965); Jasta Mfg. Co., 246 NLRB 48, 49
(1979), enfd. mem. 634 F.2d 623 (4th Cir. 1980). See
also Riverside Cement Co., 296 NLRB 840, 841 (1989).
3 Dr. Stahl later became the Respondent’s chief surgeon.
334 NLRB No. 125
ST. BARNABAS HOSPITAL 1001
Finally, we agree with the judge that the physicians’
concerted threat not to take on-call work was a substan-
tial factor in the Respondent’s decision to discharge the
discriminatees. As Dr. Schwartz testified regarding his
reaction to the discriminatees’ letter, “I was threatened,
and I had demands made of me by a group of surgeons,
acting, you know, ‘we the undersigned.’” As Dr.
Schwartz further acknowledged, “I could certainly un-
derstand if . . . one of them or four of them separately
wanted to [disagree with my policies],” but “I’m being
threatened by a group.”
In conclusion, we agree with the judge that the General
Counsel established that on-call work was voluntary for
the discriminatees, their threatened refusal to perform
such work was protected conduct, the Respondent termi-
nated them for engaging in this protected concerted con-
duct, and the Respondent failed to show that it would
have terminated them absent their protected conduct.4
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, St. Barnabas Hospital, New
York, New York, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.

Gregory B. Davis, Esq., for the General Counsel.
Joel E. Cohen, Esq. and Jonathan Stoler, Esq., of New York,
New York, for the Respondent.
Ralph DeRosa, Esq., of. New York, New York, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
STEVEN FISH, Administrative Law Judge. Pursuant to
charges and amended charges filed by the United Salaried Phy-
sicians and Dentists (the Union) the Acting Director for Region
2, issued a complaint and notice of hearing on December 28,
1998, 1 alleging that St. Barnabas Hospital (Respondent) had
violated Section 8(a)(1) and (3) by discharging Drs. Joseph Z.
Kazigo, Yilmaz Gunduz, Soula Priovolos, and Prakashchandra
Rao. (the discriminatees.)
The trial with respect to the allegations set forth in the com-
plaint was held before me in New York, N.Y. on March 17, 18
and 19, 1999. Briefs have been filed by Respondent and Gen-
eral Counsel, and have been carefully considered. Based upon
the entire record, including my observation of the demeanor of
the witnesses, I make the following

4 Given our findings above, we find it unnecessary to pass on the
judge’s alternative theories for finding a violation.
No exceptions were filed to the judge’s dismissal of the allegations
that the Respondent also violated Sec. 8(a)(3) when it discharged the
four discriminatees.
1 Unless otherwise noted, all dates refer to 1998.
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
Respondent is a New York corporation that operates a hospi-
tal with its principal place of business at Third Avenue and
183rd Street, Bronx, New York. Annually, Respondent derives
gross revenues in excess of $250,000 and purchases and re-
ceives at its facility goods, supplies, and materials valued in
excess of $50,000 directly from points located outside the State
of New York. Respondent admits and I so find that it is an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act, and has been a health care institu-
tion within the meaning of Section 2(14) of the Act.
It is also admitted and I so find that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
The Representation Case 2–RC–21912
On November 13, 1997, the Union filed a petition in Case 2–
RC–21912, seeking to represent all regular full-time and regu-
lar full-time and part-time physicans and dentists employed by
Respondent at its Lincoln Hospital location at 149th Street,
Bronx, New York. Thereafter a representation hearing was
conducted over the course of 15 days from December 4, 1997,
through May 6, 1998.
During the course of this hearing, two of the discriminatees,
Drs. Gunduz and Kazigo testified on behalf of the Union. Re-
spondent took the position at the hearing and in its brief, that all
of the employees sought to be represented by the Union, includ-
ing the discriminatees were managerial employees. This issue
was fully litigated. During the hearing Respondent also sought
to subpoena and present evidence seeking to establish that
“many of the physicians and dentists sought to be represented
will be statutory supervisors if a pending petition by USPD’s
sister Union, the committee on interns and residents (CIR)
which seeks to represent residents as employees,” is granted by
the Board, see Boston Medical Center Corp., Case 1–RC–
20574. The hearing officer rejected such evidence.
Respondent specifically asserted and litigated at the hearing
the supervisory status of a number of classifications, primarily
“Section Chiefs.” It also claimed that the position of president
of the medical staff, which was filled by Dr. Kazigo was super-
visory under Section 2(11) of the Act, as well as managerial.2
On September 30, 1998, the Acting Regional Director issued
a Decision and Direction of Election (DDE). He rejected Re-
spondent’s assertion that the physicians and dentists were
managerial employees, and most of its contentions as to super-
visory status. The DDE made no reference to the assertion
made by Respondent on one page of its brief, but not in other
pages where the status of supervisory were referenced, that the
2 However, it must be noted that while Respondent made this asser-
tion on p. 81 of its brief, in the representation case, on p. 80 of its brief
where it lists disputed supervisors in the surgery department, where Dr.
Kazigo worked, Dr. Kazigo’s name is not listed. Further Respondent’s
Brief contained an Appendix A which listed stipulated and disputed
supervisors. Dr. Kazigo’s name is not listed in that document as a
disputed supervisor, nor are the names of any of the other discrimina-
tees.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1002
position of president of the medical staff, held by Dr. Kazigo
was supervisory, and warranted his exclusion on that basis.
In a footnote, the DDE dealt with Respondent’s claim that
the hearing officer was in error by rejecting evidence seeking to
establish that employees will be statutory supervisors if a pend-
ing petition by CIR is granted by the Board. He concluded that
such argument is speculative, not ripe for decision, and will not
be addressed.
Thereafter the Respondent filed a request for review with the
Board. However, the record herein does not reflect what spe-
cific issues Respondent requested that the Board reverse the
Regional Director. Thus it is not clear whether or not Respon-
dent requested that the Board find all or most physicians and
dentists to be supervisors or that it reverse the hearing officer
and permit it to adduce evidence of their supervisory status vis
a vis interns and residents.
On February 8, 1999, the Board denied Respondent’s request
for review, with Member Brame dissenting in part.
On February 11, 1999, an election was held, and the results
were 129 votes yes, 8 no with 10 challenges. Thus, a majority
of votes were cast for the Union, resulting in a certification of
representatives on February 19, 1999.
III. THE STATUS OF THE DISCRIMINATEES
In its answer, Respondent alleges as affirmative defenses that
the discriminatees were supervisory and or managerial employ-
ees and thus not employees within the meaning of the National
Labor Relations Act. In that connection, Respondent did not
seek to introduce any additional evidence in this proceeding,
and was content to rely on the record in the underlying repre-
sentation case which was made a part of the record in the in-
stant matter.
In its initial brief to me, Respondent made no reference
whatsoever to the alleged supervisory status of the discrimina-
tee, but did assert that dismissal of the complaint is required
given that doctors are managerial employees. Respondent at-
tached a copy of its brief in the representation case, and added
that this position was argued and briefed in that matter.
By letter dated December 14, 1999, Respondent asserts that
the Board’s recent decision in Boston Medical Center Corp.,
330 NLRB 152 (1999), requires a finding that the discrimina-
tees are supervisors under the Act. Respondent contends that
since the Board, found therein that a hospital’s staff of interns
and residents were employees under the Act, and “the undis-
puted fact that the four doctors in question exercised a substan-
tial degree of supervisory control over such employees” re-
quires a finding that the discriminatees were supervisors within
the meaning of the Act. Respondent also notes that the Region
did not address this issue in its decision, finding it to be “pre-
mature” since Boston Medical had not been decided.
Charging Party responded by letter dated December 17,
1999, which position was concurred in by the General Counsel
by letter dated December 23, 1999. In that regard, Charging
Party notes that Respondent’s claim that it argued and briefed
the position in the representation case that the discriminatees
were supervisors is simply not true, and points to Respondent’s
brief which failed to list these employees as supervisors.
Moreover, Charging Party disputes Respondent’s assertion that
the doctors exercised a substantial degree of supervisory con-
trol over residents, noting particularly that no record evidence
from the “ULP” or “R” case was cited by Respondent to sup-
port this proposition.
Finally, Charging Party notes that the record establishes that
residents in the Surgery Program at Lincoln Hospital, who the
discriminatees allegedly supervise, were employees of the New
York City Health and Hospital Corporation (HHC). Therefore,
since to be deemed a supervisor, the Act requires that supervi-
sory authority be exercised over other employees of the same
employer, McDonnell Douglas v. NLRB, 655 F.2d 932, 936
(9th Cir. 1981); Douglas Aircraft Co., 238 NLRB 668, 671
(1978); Illinois State Journal Register, Inc. v. NLRB, 412 F.2d
37, 43–44 (7th Cir. 1969); Mourning v. NLRB, 559 F.2d 768,
770 fn. 3 (D.C. Cir. 1977), the discriminatees cannot be found
to be supervisors.
While Respondent is precluded from relitigating issues
which have been decided in the representation case in any “re-
lated unfair labor practice proceeding, that rule does not pro-
hibit Respondent from relitigating the supervisory or manage-
rial status of the discriminatees herein, since the resolution of
the issues in this proceeding turns on the individuals’ status,
rather than representation issues relevant to 8(a)(5) violations.
Union Square Theatre Management, 326 NLRB 70 (1998);
Serv-U-Stores, 234 NLRB 1143, 1149 (1978).
With respect to the issues of managerial status of the dis-
criminatees, that matter was clearly litigated fully in the repre-
sentation case, to which review was denied by the Board. Re-
spondent has made no attempt to supplement the record on this
issue by introducing any additional evidence. In these circum-
stances I shall accord the decision of the Acting Regional Di-
rector “persuasive relevance”, a kind of “administrative com-
ity,” Amalgamated Union v. NLRB, 305 F.2d 898, 905 (D.C.
Cir. 1966), and conclude that in the absence of any new evi-
dence, that Respondent has failed to establish that any of the
discriminatees were managerial employees. Cabinet MFG.
Co., 140 NLRB 576, 585 (1963); Security Guard Service, 154
NLRB 8, 13 (1965); National Freight, 154 NLRB 621, 628
(1965).
With respect to the issue of supervisory status, it does not
appear that the Acting Director’s decision can be accorded any
relevance or comity, since he made no findings on these issues.
Nonetheless, Respondent has the burden of establishing super-
visory status, and in that regard it relies solely on the record in
the representation case.
While Respondent did appear to assert that the position of
president of the medical staff, filled by Kazigo was supervisory
as well as managerial,3 the Decision although finding the posi-
tion not to be managerial, made no reference to the supervisory
status of that job. I have examined the evidence cited by
Respondent in its brief in the representation case in support of
its position that the president of the medical staff is a
supervisor. This evidence consists solely of the bylaws rules
and regulations of the medical staff of Lincoln Medical Center,
which includes provisions that permits the president of the
medical staff along with the me director to recommend dical
3 As noted above, Respondent’s brief was not consistent on that is-
sue.
ST. BARNABAS HOSPITAL 1003
staff along with the medical director to recommend appoint-
ments for medical staff membership to the executive director,
as well as a role in the investigation and corrective action for
physicians accused of impairment by alcohol, drugs, or other
disability. However, no evidence was adduced as to whether
Dr. Kazigo in his role as president of the medical staff ever
exercised any of these responsibilities, or any other actions that
would establish that he was a supervisor under Section 2(11) of
the Act. Indeed, to the contrary, the record tends to show, as
reflected in the DDE with respect to managerial status, that
these “by laws” were rarely followed, and consistently ignored
in practice. Indeed, the DDE rejected Respondent’s contention
that the attendings exercise managerial authority through the
president of the medical staff, by finding that most of the time
the views of the staff, as expressed by the president, are either
ignored or rejected. Indeed, Dr. Kazigo was specifically in-
formed by Dr. Kenneth Cohen, medical director of Respondent
in writing, that the agenda of the medical staff, “do not extend
to matters of employment or compensation.” Further the DDE
found and the record supports the conclusion that the president
of the medical staff “cannot exercise independent discretion of
his own.” Accordingly, I conclude that Respondent has not
established that Dr. Kazigo, by virtue of his position of presi-
dent of the medical staff was a supervisor under the Act.
As for Respondent’s contention, that all of the discriminatees
are supervisors, in light of the Board’s recent decision in Bos-
ton Medical Center, I agree with both the General Counsel and
Charging Party that these assertions should be rejected. Al-
though Respondent claims that it is “undisputed” that the dis-
criminatees exercised a substantial degree of supervisory con-
trol over the residents, it furnished no record support for such a
contention. Moreover, I agree with Charging Party that the
record establishes that the residents, who Respondent asserts
are “supervised” by the discriminatees, are employees of HHC,
and not Respondent. I also agree, based on the cases cited
above, that in order to be considered a supervisor under the Act,
he or she must supervise other employees of the same em-
ployer. Therefore, I find that Respondent has not met its bur-
den of establishing the supervisory status of any of the dis-
criminatees, and they are therefore employees under Section
2(3) of the Act.
IV. FACTS
In 1996, HHC sought bids from health care organizations to
provide physician and other related services at Lincoln Hospi-
tal, which had previously been performed by New York Medi-
cal College on an affiliate basis. Respondent was the success-
ful bidder, and began providing services at Lincoln Hospital on
July 1, 1997, pursuant to an “affiliation agreement’ that was
executed by HHC and Respondent. Respondent agreed to hire
most of the physicans who had been employed by New York
Medical College at Lincoln Hospital, including all four of the
discriminatees.
The president and CEO of Respondent is Dr. Ronald Gade.
Dr. Kenneth Cohen is Respondent’s medical director, who is
the onsite affiliate official in charge at Lincoln Hospital of Re-
spondent’s employees employed at that location. Dr. Lillian
Barrios-Paoli is the executive director of HHC at Lincoln Hos-
pital.
The physicians and doctors employed by Respondent at Lin-
coln Hospital are referred to as “attendings,” who are physi-
cians and dentists who have finished their post graduate train-
ing or residency, and are licensed to practice as specialists.
Physicians known as “interns and residents,” are MDs who are
completing postgraduate training requirements, and are referred
to as “residents” or “housestaff.” As noted above, the residents
at Lincoln Hospital are employed by HHC, and not Respon-
dent.
The physicians and dentists employed by Respondent at Lin-
coln Hospital are divided into departments, such as medicine,
pediatrics, radiology, dentistry, obstetrics-gynecology, emer-
gency medicine, surgery, and psychiatry. Many of these de-
partments are further divided into various specialty sections,
with attendings that hold the titles of “Section Chiefs.”
All of the discriminatees were employed by Respondent in
the department of surgery, as general surgeons. Some of the
other surgical specialists known as “subspecialities” include
hand/plastic, orthopedics, ear, nose and throat, opthamology,
critical care radiothoracic and urology.
Dr. William Stahl, who had also previously been employed
by New York Medical College as director of the department of
surgery, was hired by Respondent in that position when it took
over the operation of Lincoln Hospital. He resigned in October
1997. Thereafter, Dr. Joseph Edwards who had been assistant
chief of surgery at St. Barnabas, replaced Dr. Stahl on a tempo-
rary basis until January 1, 1998. At that time, Dr. Kenneth
Schwartz took over Dr. Edwards’ responsibilities, also on a
temporary basis. Dr. Schwartz had previously been employed
at Respondent’s St. Barnabas location as a surgeon and chief of
surgery. In July 1997, when Respondent began its affiliation
agreement at Lincoln Hospital, Dr. Schwartz was given the title
of network chief of surgery, which emcompassed supervision
of the surgery departments at Respondent’s two locations, St.
Barnabas and Lincoln.4 Thus in effect, both Dr. Stahl and Dr.
Edwards reported to Dr. Schwartz. Dr. Schwartz was therefore
temporarily filling in as chief of surgery at Lincoln Hospital as
of January 1998, until a permanent chief of surgery was hired.5
When the discriminatees were hired by Respondent, they
were notified that they would be paid a salary of $165,000 and
that their hours of work would be a minimum of 80 hours over
a 2-week pay period.6 Their hours were 8 a.m. through 4 p.m.,
Monday through Friday. The discriminatees performed surgery
2 days a week, were assigned to various clinics for 2 other
days, and on the fifth day (Wednesdays) they participated in
educational or administrative matters.
The hours after 4 p.m. during the week, and all day Saturday
and Sunday are known as “on-call” hours. During these hours,
there is no dispute, that a surgeon is required to be available

4 Respondent in January 1998, also took over providing doctors to
Rikers Island, and Dr. Schwartz as network chief of surgery was also in
charge of that operation’s surgical department as well.
5 In fact Dr. Lawrence Bordan was hired as chief of surgery for Re-
spondent at Lincoln Hospital on November 1, 1998.
6 While they were employed by New York Medical College they
worked 70 hours over a 2-week period.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1004
within 20 minutes to respond to a trauma situation. Therefore,
the practice has been that a surgeon performing “on-call” work
at Lincoln Hospital is present at the hospital during these “on-
call” hours.” The surgeons who perform “on-call” work are
paid $50.00 per hour for the performance of “on-call” work.
It is undisputed that all of the discrminatees regularly per-
formed “on-call” work for the entire period of their employ-
ment, as well as for most of their previous employment by New
York Medical College at Lincoln Hospital.
However, the discriminatees credibly testified that they be-
lieved for various reasons to be described fully below, that the
performance of on-call work was voluntary, and that they had
the right to decline to perform such work, if they so chose. Dr.
Schwartz on the other hand, also testified credibly that he be-
lieved, also for reasons described below, that the performance
of on-call work was mandatory for all the discriminatees, and
they were required to perform such work as part of their em-
ployment conditions.
The specific hours for on-call work was 4 p.m. to 8 a.m. the
following morning during the week, and 8 a.m. to 8 p.m. the
following day, on weekends and holidays.
Since when Respondent took over the employment of the
employees at Lincoln Hospital in July 1997, it made no
changes in the on-call system or procedures, it is necessary to
trace the development of on-call assignments at Lincoln Hospi-
tal. In that connection, Dr. William Stahl, the former chief of
surgery for New York Medical College’s surgeons at Lincoln
furnished testimony as to how the on-call system evolved for
the department of surgery. Dr. Stahl began his employment in
that capacity in December 1980. When he assumed that posi-
tion, the majority of the on-call work was being performed by
part-time employees who worked during the day at other hospi-
tals. The full-time surgeons on staff only occasionally took
call, except for one surgeon, who Dr. Stahl concluded was in-
competent.
Dr. Stahl was not happy with this system, primarily because
he believed that it was preferable to have full-time surgeons
performing the on-call work, since he had no control over the
part-time or as Dr. Stahl referred to them as “itinerant” sur-
geons, who were performing most of the on-call work. There-
fore Dr. Shahl decided to attempt to implement a new system.
He began by terminating the one full time surgeon who was
incompetent, and then began to hire additional full-time sur-
geons. He also suggested to part-time surgeons that they be-
come full time. Finally, sometime in mid 1981, when there
were approximately five full-time surgeons on staff, he had a
meeting with them. At that time, Dr. Stahl proposed to them
that he wanted full-time surgeons to do most of the on-call
work, because he wanted those surgeons doing on-call work to
have a commitment to the hospital. Dr. Stahl told the employ-
ees that he would like to achieve this result, and asked them if
they were willing to consider his system. Dr. Stahl made it
clear that he was not ordering this system to be effectuated. All
of the surgeons present agreed with Dr. Stahl that his proposal
was appropriate and agreed to perform on-call work as Dr.
Stahl had suggested.7 Dr. Stahl delegated the responsibility to
the surgeons to work out the on-call schedule amongst them-
selves. Because he was unable to fill all the available slots for
on-call work with full-time general surgeons, Dr. Stahl would
continue to use some part-time surgeons who worked at other
hospitals or some full-time surgeons who were not general
surgeons to fill these slots. An example of the latter category
was Dr. Rohmann who as a full-time thorasic surgeon, per-
formed on-call work as a subspecialist but this on-call work
consisted of being on-call at home, and not at the hospital. This
on-call work was clearly mandatory and was part of his job as a
thoracic surgeon, for which he received no additional compen-
sation. However, Dr. Rohmann also volunteered to participate
in the on-call system for general surgeons, which required his
presence in the hospital, and for which he received the same
additional compensation as the other surgeons who performed
on-call in the hospital.
Dr. Stahl was adamant that he viewed the on-call system that
he implemented as entirely voluntary and not a condition of
employment, and that any physician had the right to refuse to
perform on-call work at any time. He added that he was unsure
if he had the authority to order full-time physicians to take call,
but even if he did, he would not have done so, even if they all
had refused at the same time. He then would have simply re-
turned to the old system of using primarily part-time or “itiner-
ant” surgeons to perform call.
When Dr. Stahl would interview subsequent applicants for
employment, he would inform them of the system at the hospi-
tal. He told them that the surgeons were covering the nights
and that there were eight surgeons involved. Dr. Stahl did not
indicate to these applicants whether on-call work was voluntary
or mandatory, or whether it was a requirement of the job. He
told them that they have to speak to the doctors who were re-
sponsible for scheduling the calls as to the amounts of call that
would be performed. In fact, no applicant ever informed Dr.
Stahl that they did not want to take call, and indeed for the most
part the applicants were anxious to take call, because it would
enable them to make extra money. Moreover, according to Dr.
Stahl most applicants were aware that Lincoln Hospital was a
trauma center, and was very busy in the evenings, when most
trauma cases arise. Thus they are generally eager for the ex-
perience that the surgeons would obtain when they would be
performing on-call work.8
Various surgeons assumed the responsibility of scheduling
on-call hours over the years. From 1989 to the date of the dis-
criminatees’ termination, Dr. Gunduz performed that function.
The procedure has remained essentially the same since 1981,

7 Dr. Rao, who was hired by New York Medical College as a full-
time surgeon in 1980, was apparently one of the employees present at
this meeting. Dr. Gunduz was employed as a surgeon by New York
Medical College at Lincoln Hospital sometime in 1981. Thus the re-
cord is unclear as to whether he was employed at Lincoln Hospital at
the time of the meeting. Dr. Kazigo began in October 1981, so it ap-
pears that he was not present at this meeting. Dr. Priovolas started as a
full-time surgeon in 1993. Thus she was clearly not present at the 1981
meeting conducted by Dr. Stahl.
8 In that connection, Dr. Stahl testified that 80 percent of trauma ad-
missions occur after 4 p.m.
ST. BARNABAS HOSPITAL 1005
with the exception of the use of more advanced computer skills
utilized by Dr. Gunduz when he formulated the schedule.
The surgeons who participated in the call system included
the full-time attendings, as well as number of part-time sur-
geons, who generally worked at other hospitals or in other de-
partments in the hospital who were willing to take call in the
department of surgery. All of these individuals would submit
to Dr. Gunduz a calendar with from 10–15 dates to indicate
their availability for on-call work. He would then assign an
average of 4–6 dates per month to each surgeon, but not neces-
sarily an equal amount to each. Thus some surgeons desired to
take more calls and some less, and Dr. Gunduz would try to
accommodate their requests as much as possible. Additionally,
the part-time surgeons would generally be assigned fewer calls
than the full-time surgeons in the department. Dr. Gunduz then
prepares a schedule based on this information, which is than
published and distributed throughout the hospital. Dr. Gunduz
conceded, that once a surgeons name is placed on the schedule
that represents a commitment on that surgeons part to be on-
call at the hospital on those dates.
However, if there is a problem with a surgeon meeting this
commitment, the surgeons are free to arrange a switch or a
substitution with another surgeon. If the surgeon is unable to
arrange for a substitute, the practice has been for the surgeon to
inform Dr. Gunduz, who will in turn find someone else to
cover, or if necessary do it himself. The record discloses no
incidents, where a surgeon could not take his assigned call,
could not find a substitute, and was ordered to perform the on-
call assignment. The record discloses that a substitute was
always found, where a last minute problem required a surgeon
to decline to perform an on-call assignment. Indeed, as Dr.
Stahl testified, on-call work was generally in great demand as a
source of extra income, particular among younger surgeons.
The record also reflects several instances, where full-time at-
tendings did not accept on-call assignments for substantial pe-
riods of time. Dr. Gunduz himself for a 3-month period from
November 1996 through January 1997, did not perform call
because of the illness of his wife. At that time he informed Dr.
Stahl that he would not be taking call because his wife was ill.
Dr. Stahl replied that he understood and he did not care as long
as the night calls were covered. In fact, Dr. Gunduz’ col-
leagues had already agreed to cover for him during this period
of time.
Similarly, Dr. Priovolas, due to the illness of her father, in-
formed Dr. Gunduz that she would be unable to take call some-
time in the fall of 1995. Dr. Gunduz told her not to worry and
he would see to it that whatever calls she would normally be
assigned to, would be assigned to others. Dr. Priovolas neither
notified, nor received permission from Dr. Stahl, when she
declined call for this period of time.
Dr. Guadino had been a full-time surgeon for many years,
and he regularly participated in the on-call system for the de-
partment of surgery. Sometime in 1994, due to his own illness,
he notified Dr. Stahl that he could no longer perform call. Dr.
Stahl replied, that that was reasonable, and as long as the
remaining surgeons were willing to work out coverage, that’s
fine. Dr. Stahl asserts that this conversation was merely infor-
mational, and not a question of Dr. Guadino asking permission
to be relieved on the responsibility for taking call. Dr. Stahl
contends that he had no authority to order Dr. Guadino or any
doctor to accept call, and that he was not concerned as long as
call was covered. He conceded that if all full-time attendings
refused call at once, he would have had a problem, but insists
that in that event he would have had to revert to the old system
that existed prior to his taking over, of using part-time or “itin-
erant” physicians to cover the call.
As noted above, Dr. Michael Rohmann was a thoracic sur-
geon, who when Dr. Stahl took over had been part of the group
that also performed on-call work in general surgery.9 Dr.
Rohmann liked to continue to perform some general surgery, so
he volunteered to perform on-call work in the surgery depart-
ment. He continued to do so for nine years, until he informed
Dr. Stahl that he was not interested in doing it any more. Dr.
Stahl replied that it was okay, just work it out with other sur-
geons.10
Finally, Dr. Rao testified, without contradiction that on sev-
eral occasions in the past, he would inform Dr. Gunduz not to
put him on the schedule for a particular month, and Dr. Gunduz
would comply. These occasions were not for vacations, but
merely because for those particular months, Dr. Rao “just
didn’t want to do it.”
As noted above, Respondent began its affiliation with Lin-
coln Hospital in July 1997, and hired all of the discriminatees.
Dr. Stahl, who was also retained by Respondent as chief of
surgery, informed the discriminatees that their hours would
increase from 35 to 40 hours a week (or 80 hours over 2
weeks). Dr. Stahl also negotiated the salaries for the discrimi-
natees with them and it was agreed to be $165,000 per year.
Dr. Stahl also indicated that on-call work would continue as
in the past. Employees would be paid on an hourly basis for
on-call work, and a pool of physicians would continue to be
used to cover the slots. Dr. Stahl also indicated that Respon-
dent was interested in having compensation for on-call work
incorporated into the general pay received by the doctors. The
surgeons opposed this idea, because they wanted the flexibility
that they had previously had to set their own schedule for call,
and some wanted more and some less. Dr. Stahl agreed with
the employees, and that proposal was not implemented.
In that connection, Dr. Schwartz testified that when Respon-
dent took over, Dr. Stahl, as chief of surgery reported to him,
Respondent’s network chief of surgery. Accordingly, they
discussed various matters. They worked out a budget, dis-
cussed the salaries that Dr. Stahl would offer the surgeons, and
also had a discussion about the on-call system. Dr. Schwartz
indicated that he thought it would be a good idea if Respondent
took on-call money and put it into the base salary. For exam-
ple, instead of paying the surgeons $165,000 per year, Respon-
dent would offer an annual salary of $205,000 “with the under-
standing that that mandates twenty-four hours a day, seven days

9 Dr. Rohmann also took call as part of his job as thoracic surgeon,
but this type of call, did not require his presence at the hospital. He
would merely have to be available, at home or elsewhere, during these
on-call hours. There is no dispute that this type of on-call work was
mandatory and part of Dr. Rohmann’s job.
10 Respondent concedes that Dr. Rohmann’s participation in on-call
work in general surgery was voluntary.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1006
a week coverage.” Dr. Stahl replied that he felt that some of
the doctors wanted to do more call, and some less, and he
would prefer to let the doctors increase their income if they
wished. Thus under Dr. Schwartz’ proposal each employee
would have to work on-call four times a month, while under the
old system sometimes they would work three times a month
and sometimes five. Dr. Schwartz stated he believed that a
better system would be for each physician to know how much
money they would be making each year, and that everyone
would know how often they would be taking call. Thus he
envisioned having seven surgeons, each one taking one call per
week, which he believed was “humane,” and not “burden-
some,” Dr. Stahl preferred to keep the system the way the sur-
geons had been doing it, because it was working well, and it
gives junior people a chance to make more money. While Dr.
Schwartz testified that he could have overruled Dr. Stahl, and
insisted on his “system,” he chose not to, and decided to respect
Dr. Stahl’s opinion on this subject.
As related above, the Union filed its petition to represent the
physicians and dentists employed by Respondent on November
12, 1997. Prior thereto, the discriminatees and other doctors
distributed “polling cards” to the staff to determine interest in
the Union. After determining interest in the Union, a steering
committee was formed, consisting of approximately 20 physi-
cians, including all four of the discriminatees. On November
12, 1997, the steering committee, including the discriminatees
hand delivered a copy of a demand for recognition on the part
of the Union to Dr. Cohen. The letter was signed the USPS
Lincoln Steering Committee, and contained signatures of some
20 physicians, including all the discriminatees. Thereafter the
Steering Committee sent a letter to Dr. Paoli, urging her to
“help” the Union get recognition from Respondent.
On March 12, 1998, a letter from the USPD Lincoln Chapter
was sent to Respondent. The letter reflects that the USPD Lin-
coln Chapter attending physicians passed two resolutions. One
resolution contends that the Respondent’s system of at will
employment was unacceptable, and demanded that no physi-
cian be terminated without just cause and due process. Resolu-
tion two demanded that employment for all physicians be pre-
sumed to continue for the duration of Respondent’s affiliation
with Lincoln Hospital. Finally, the letter again demanded rec-
ognition from Respondent, and attached a copy of petitions
signed by approximately 103 physicians, including all 4 dis-
criminatees demanding recognition of the Union from Respon-
dent.
On April 23, 1998, Respondent distributed employment
agreements to the medical staff, and requested that the agree-
ments be reviewed, signed and returned by May 6. The pro-
posed employment agreement makes no reference to on-call
hours or on-call work. The only reference to hours is section 2
which is entitled hours. It states, “during the term of this
Agreement, you shall be expected to provide a minimum of 80
hours per pay period to fulfill your duties at Lincoln.” On April
30, on emergency meeting of the medical staff, presided over
by Kazigo, was held. By letter dated May 5, from Dr. Kazigo
to Dr. Gade, the medical staff rejected the proposed employ-
ment agreement, and attached a copy of a resolution opposing
the agreement and the reasons for the rejection. Both the letter
and the resolution recommends and requests that Respondent
recognize the Union as the collective-bargaining representative
of the staff, and indicates that such action would permit the
acceptance of a contract mutually negotiated and acceptable.
On May 18, the Union distributed a flyer at the hospital,
which contained a copy of a letter to Dr. Luis Marcos, president
of the HHC. The letter complained about Respondent publish-
ing a large help wanted ad in the New York Times, which the
Union viewed as an attack against its present staff because of
the objections to Respondent’s proposed employment agree-
ments. The letter makes reference to Respondent’s failure to
recognize the Union, although most of HHC’s doctors are al-
ready represented by Union’s. It accuses Respondent of “radi-
cal union-busting tactics,” and asked Dr. Marcos for a meeting
to discuss “this escalatingcalating problem.”
Dr. Cohen sent a letter dated May 20, in response to this let-
ter and to the prior correspondence to him from the staff con-
cerning the employment agreements. Dr. Cohen’s letter re-
sponded to some of the concerns raised by the staff, and as-
serted that the ad in the New York Times “was not intended to
replace physicians offered contracts. The ad was deemed nec-
essary to assure continuity of care in the event of threatened
sudden resignations.” The letter also stated that Respondent
“will not consider the employment contracts binding in the
event of a collective bargaining agreement, if a bargaining
agent is eventually recognized through the legal process. St.
Barnabas Hospital does, however, have serious concerns about
the legality of USPD representing the Lincoln physicians. It is
also my understanding that, unfortunately, these complex legal
issues may take more than two and a half years to finally re-
solve.”
Subsequently, some physicians signed the employment
agreements, but a majority of them did not sign. No discipli-
nary action was taken against any of the physicians for their
failure to sign the agreements.
During the months of their employment with Respondent
from July 1997 through mid-June 1998, all four discriminatees
regularly performed on-call work an average of 4–5 times per
month. For most of this period, on call work was also per-
formed by three other doctors. They were Dr. Guignade, who
was a part-time surgeon, who worked twice a week in the clin-
ics for Respondent, and who chose to also participate in the on-
call system with the full-time surgeons. Additionally, Doctors
Kapoor and Kigongo were both full-time surgeons working in
the emergency room. In that capacity, they did not have call,
but they were obligated to work 12-hour shifts. However, both
of these physicians volunteered to take call in the department of
surgery pool. The record reflects that Doctors Kigongo and
Kapoor performed slightly fewer calls than the full-time sur-
gery department attendings, averaging from 2–3 calls per
month. Dr. Guignade however, performed about the same num-
ber of calls on average than the full-time attendings.
In May 1998, Respondent hired Dr. Robb as a full-time at-
tending surgeon. At that time, Dr. Gunduz credibly testified
that Dr. Schwartz informed him that Dr. Robb was to be sched-
uled a specific number of calls per month, because Dr. Robb’s
on-call responsibilities were part of his full-time commitment.
I note that Dr. Schwartz did not deny Dr. Gunduz’ testimony in
ST. BARNABAS HOSPITAL 1007
this regard, and in fact, appeared to corroborate it. According
to Dr. Schwartz, when he hired Dr. Robb, he explained to Dr.
Robb that his goal was to have seven full-time attendings take
call once a week. Thus he would be expected to take call at
least once a week, although he might do more based on the
schedule.
Dr. Schwartz also testified that he recruited two other doc-
tors prior to the discharge of the discriminatees, Doctors
Eachampati and Daly, but did not recall any discussions with
these doctors about call. They were not scheduled to start work
for Respondent until after the termination of the discriminatees.
Dr. Dennis Bordan, who replaced Dr. Schwartz as chairman
of the department of surgery for Respondent at Lincoln Hospi-
tal, on November 1, 1998, testified about his practice in recruit-
ing new full-time surgeons. According to Dr. Bordan he tells
all applicants that they are required to take call on a regular
basis, and in fact the new employment contracts that these sur-
geons sign has a reference to the obligation to take call. More-
over, Dr. Bordan asserts that at least since he began, new sur-
geons now receive a flat salary, with no extra pay for on-call
work.
Both Dr. Bordan and Dr. Schwartz testified concerning in-
dustry practice with respect to on-call work. Both physicians
testified that based on their experience working at several dif-
ferent hospitals, on-call is always considered mandatory for
full-time physicians, with the exception of the department
chairmen, or illness, or some other valid excuse such as ad-
vanced age. This obligation extends according to Dr. Schwartz,
even to physicians who merely have privileges to admit patients
to hospitals, and who receive no salary from the hospital. In
that regard, Dr. Rao conceded that he had admitting privileges
at St. Joseph Hospital, and although he received no compensa-
tion from that hospital, he does take call. However, Dr. Rao
denied that it is a requirement that he take call at St. Joseph.
Dr. Rao further testified that it varies from hospital to hospital
as to whether call is required in order to obtain admitting privi-
leges.
However, both Dr. Schwartz and Dr. Bordan admitted that
they had never worked at hospitals where physicians were paid
salaries and received extra money for on-call work, as was the
practice at Lincoln Hospital.11
When Respondent began its affiliation agreement with Lin-
coln Hospital, Dr. Schwartz noticed that the involvement of
attending surgeons in patient care was not to the level he
thought was appropriate. In short, he believed that the attend-
ing surgeons were not getting involved early enough in patient
consultations, and were leaving too many areas of responsibil-
ity to residents, particularly the responsibility for telephoning
subspecialists.
In January 1998, after Dr. Schwartz assumed the interim po-
sition of chief of surgery, he began to implement his views in a
series of meetings with the staff, wherein they would be dis-
cussing specific cases. Dr. Schwartz informed the staff during
these meetings that he felt that the attendings should be more
involved in the consultation process, and that they should be

11 In fact Dr. Schwartz testified that he had never even heard about
this type of system before he started working at Lincoln Hospital.
making the call to the subspecialists. Dr. Schwartz informed
the group that he believed that it was better for the attending
surgeon to make the call, because of their greater experience in
being able to describe symptoms and the patient’s condition,
and because if the attending surgeon requested the sub-
specialist to come in,12 it would have more force or effective-
ness. All of the discriminatees, at one or another of these meet-
ings, disagreed with Dr. Schwartz on this subject. They in-
formed Dr. Schwartz that their past practice at the hospital had
always been for the resident to make the call to subspecialists,
and that this practice had worked well. Further they felt that
Dr. Schwartz’ view would inhibit the proper training for resi-
dents. Finally, the discriminatees told Dr. Schwartz that they
were not subspecialists, but general surgeons, and were not
qualified in these subspecialty areas. While Dr. Schwartz made
it clear during these meetings, that he wanted the attending
surgeon to call the subspecialist, he never phrased it in terms of
an order, or threatened any discipline if his desires were not
followed.
While the discriminatees expressed disagreement with Dr.
Schwartz’ views, as detailed above, they did not expressly re-
fuse to carry out these instructions. Nor did they state that they
would agree to make such calls at all times. In fact, the dis-
criminatees would sometimes call the sub-specialist directly
and sometimes would allow the resident to do it, depending on
their best medical judgment. Dr. Schwartz was aware that the
discriminatees would not always follow his instructions, but he
took no action against them. Nor did he warn them of discipli-
nary action if they continued not to follow his instructions in
this area.
Finally, another incident occurred in early June. A patient
came in with head trauma to the emergency room in the eve-
ning. He was seen by the resident, who in turn called the gen-
eral surgeon on call in the hospital. The general surgeon in-
structed the resident to telephone the neurosurgeon, who was
on call at home. The resident then called the neurosurgeon and
gave him information about the patient that was not entirely
accurate. Therefore based on that inaccurate information, the
neurosurgeon determined it was not necessary to come to the
hospital that day. Although the patient’s treatment was not
affected, Dr. Schwartz felt it could have been a serious prob-
lem, and his policies were again violated. Thus here the sur-
geon not only did not call the subspecialist, but also did not
examine the patient, violations of two of his rules. When Dr.
Schwartz brought this matter up at the weekly meeting, he
again asserted his position, and indicated that had the surgeon
examined the patient, he was more likely to have given accurate
information to the subspecialist, and been able to persuade the
subspecialist to come in that evening, which Dr. Schwartz be-
lieved to have been better for the patient. Once again the reac-
tion from the discriminatees at the meeting was negative, with
their position being that the neurosurgeon should have been
able, with probing questions for the resident, to have elicited
the correct information.
12 Most of these incidents occur while the surgeons were on-call,
when the subspecialists were not physically in the hospital.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1008
Immediately after this meeting, Dr. Schwartz decided that he
wanted to go on record and be specific and clear about his posi-
tion, and wrote a memo, which he sent, to all surgeons, and to
the medical director. The memo dated June 10, reads as fol-
lows:

As I have emphasized many times in the past, the at-
tending surgeon is the responsible physician for all
LMMHC patients on the surgical service. The proper us-
age and obtaining of consults is also the attending sur-
geons’ responsibility. In the same manner that a radio-
logical consult is obtained attending to attending, all other
consults are to be done in this manner.
For example, if a patient with potential neurosurgical
injuries is seen, and a neurosurgical consult is needed, the
surgical attending needs to personally speak with the Neu-
rosurgeon. This will avoid the scenario of the resident (in
training) misrepresenting a patients injury to the consultant
who may then make a judgmental error and in turn blame
the resident. The same principle applies to patients with
trauma who need to be “cleared” by the trauma surgeon
prior to another procedure being performed (for example,
ORIF by the orthopedist.) The attending surgeon must per-
sonally evaluate the patient and discuss the findings with
the other involved attendings.
This is not done to undermine the training of the resi-
dents, but rather to ensure that our patients receive the best
care possible and our residents get the best training possi-
ble.

Dr. Schwartz also contended that the memo applied to all
consultations around the clock, and not just on-call situations,
since there is not always a neurosurgeon or pediatric surgeon
present during the day. Nonetheless, Dr. Schwartz conceded
that most of the problems that arose, where his policies were
not followed, did in fact occur during on-call hours.
On June 12, the discriminatees received the above memo.
They were alarmed, because they felt that Dr. Schwartz was
ordering them to call subspecialists directly, something they did
not feel was medically appropriate in each and every circum-
stance.13 They believed that if they followed Dr. Schwartz’
directives all the time (1) patient care would be delayed inas-
much as they would have to be summoned to the emergency
room, examine the patient and then telephone the sub-
specialist; (2) they would be called upon to assume primary
responsibility for patients with injuries which fell outside their
area of expertise; and their involvement would subvert the
training of the residents.
The four discriminatees met, and at first decided to try to
seek out Dr. Schwartz and discuss their concerns with him.
However, Dr. Schwartz was not present at his office at Lincoln
Hospital, so they decided to draft and sign a response to his
memo. They left a copy with his secretary and faxed a copy of
their response to Dr. Schwartz at St. Barnabas.
The discriminatees all testified that they expected to have a
dialogue with Dr. Schwartz as a result of their response to his

13 The discriminatees felt that the memo was primarily concerned
with on-call hours, although it was sent to all surgeons.
memo. At that time, the June schedule for on-call work had
been made up and all four of the discriminatees were on the
schedule for that month.14 All of the discriminatees credibly
testified that they intended to meet their commitments to take
call for the month of June for which they had been scheduled.
They were hopeful that by then they would had a dialogue with
Dr. Schwartz and resolved the matter, or that Dr. Schwartz
would capitulate to their demands and rescind the dictates of
his prior memo.
The response sent by the discriminatees was as follows:

In response to your memo of June 12, 1998, we the
undersigned would like to make the following observa-
tions:
1. None of us accepts the responsibility of being, “the
responsible physician for all LMMHC patients on the sur-
gical service.” For all the years we have been taking call,
we never did and do not plan to assume that responsibility.
Simply put, we are not House Officers or residents. The
sub-specialists are responsible for the patients on their ser-
vices.
2. We categorically refuse to be made the scapegoats
of the sub-specialists’ failures to fulfill their obligations to
the patients when the residents call them under the pretext
that the information given to them by the residents is in-
correct. We fulfill our obligations to the patients based on
the information the residents give us; the sub-specialists
should be able to do the same. If they feel the information
given to them by the resident is incorrect, they should be
able, as specialists, to ask the residents relevant questions
that would lead them in the right direction. That is what
we do. Of course, if we agree to your mandate we will
have the scenario of a sub-specialist alleging that he or she
did not fulfill his or her obligations to the patient because
the information given by the attending general surgeon
was incorrect. Therefore, we will not call the consultants.
They should come and see the patientsor choose a course
of action based on the resident’s information. We are at-
tendings of equal rank and if we do not require her attend-
ings to describe the patients to us before we accept our re-
sponsibility, we do not see why the sub-specialists should
be treated differently.
3. If you should insist on the dictates of your memo,
we will have no choice but to stop taking call.
Sincerely yours,

On Friday, June 12, between 11 a.m. and 12 noon in his of-
fice, Dr. Schwartz found a copy of the memo. According to
Schwartz’ testimony when he read the letter the first thing he
noticed was the phrase “we the undersigned,” and he seethed
and became upset with the letter and the threat. Dr. Schwartz
elaborated with respect to his reaction:

I was outraged. I was outraged that they didn’t come
to me. We had chatted about it. We talked about it. We
disagreed about it, but to place a letter on my desk without
14 Dr. Gunduz was scheduled for call on June 14, 20, and 29, Dr.
Kazigo June 19, 21, and 27, Dr. Rao June 30, and Dr. Priovolos for
June 16 and 23.
ST. BARNABAS HOSPITAL 1009
talking to me and addressing me really with demands and
threats, I was threatened, and I had demands made of me
by a group of surgeons, acting, you know, “we the under-
signed.”
It’s not an individual letter from an individual to me as
a professional or an individual surgeon complaining about
my policy to me whether they did it in writing or in per-
son. I certainly could understand if they wanted to – if one
of them or four of them separately wanted to say, we dis-
agree with your policy. Here’s our reasons why we dis-
agree. Can’t we do something to change it.

After reading the letter, Dr. Schwartz immediately called his
direct superior, Dr. Cohen, after faxing him copies of both
memos. After Dr. Cohen read the response of the discrimina-
tees, he told Dr. Schwartz that “they can’t work here any
more.” Dr. Cohen gave Dr. Schwartz three reasons. They
were, the attending physician has to be responsible for the pa-
tients, they cannot refuse to do what Dr. Schwartz says, and
they cannot not take call. Dr. Schwartz replied that he agreed
with Dr. Cohen’s recommendation of termination. During this
discussion, Dr. Schwartz also indicated to Dr. Cohen that he
could not understand why the employees made such a vehe-
ment and drastic response to a relatively benign letter, which
merely reminded the employees of his previous instructions.
Thus Dr. Schwartz testified that while in the past the employees
had disobeyed his instructions, they had not done so categori-
cally as they did in the letter. He viewed that as insubordina-
tion. That and the employees telling him and his boss, that they
are not going to do what he (Dr. Schwartz) is saying, com-
pounded by the threat not to take call, convinced Dr. Schwartz
that the conduct of the employees warranted discharge.
Dr. Cohen instructed Dr. Schwartz to telephone, Dr. Gade,
the president of Respondent to obtain his approval. Dr.
Schwartz spoke to Dr. Gade on the phone, after faxing him the
memos as well. Dr. Schwartz informed Dr. Gade that in his
view he could not have these employees working in the hospi-
tal, because “they cannot be responsible and they cannot take
call.” Dr. Schwartz elaborated further on his discussion with
Dr. Gade.

It was . . . I felt it to be a nasty letter. We categorically refuse.
I guess the catch words for me that bothered me besides the
substance, was the, we the undersigned, that I’m being threat-
ened by a group that they could because of their numbers give
me no choice.

Dr. Gade then questioned Dr. Schwartz whether he had a
plan to adequately cover the hospital, if the four discriminatees
were to be terminated on Monday, June 15 as planned. Dr.
Schwartz assured Dr. Gade that he could provide sufficient
coverage by temporarily transferring surgeons from Respon-
dent’s primary location on 183th Street. Dr. Gade concurred in
Dr. Schwartz’ recommendaton, but instructed Dr. Schwartz to
discuss the matter with Dr. Paoli, Lincoln executive director,
before carrying out the decision to discharge the doctors.
On Sunday June 14, Dr. Gunduz was scheduled to perform
call at the hospital. In that connection, Dr. Schwartz knew that
Dr. Gunduz was scheduled for call-on Sunday, but he did not
arrange for a substitute, notwithstanding the discriminatees
threat not to take call in the memo. Dr. Schwartz explained that
he believed based on the memo that the discriminatees would
continue to take call as long as he didn’t insist on the dictates of
his memo. Thus since he didn’t have any contact with the em-
ployees over the weekend, he fully expected Dr. Gunduz to
perform his call as scheduled on Sunday. In fact, Dr. Schwartz
further admitted that he believed that as long as he didn’t insist
on his memo, the discriminatees would continue to perform call
as scheduled. Therefore he did not discuss with either Dr.
Cohen or Dr. Gade the fact that Dr. Gunduz was scheduled for
call on Sunday, or whether he expected Gunduz to perform this
function at that time. There was also no discussion between Dr.
Schwartz and Dr. Cohen or Dr. Gade about the possibility of
speaking to the discriminatees to see precisely when or if they
intended to refuse call.
Dr. Schwartz further testified that whether or not Dr. Gunduz
took call on Sunday made no difference in his decision, because
he believed that the discriminatees thought that he would not
insist on the dictates of his memo and therefore rescind his
memo. They didn’t know that there was no way that either he
or Dr. Gade was going to tolerate their conduct. Dr. Schwartz
conceded that he took no steps to insist on the dictates of his
memo on Friday, Saturday, Sunday or Monday. However, he
contended that, although he didn’t know when the discriminates
were going to start not taking call, he believed that, had he on
Monday morning said that the policy was in effect and he was
insisting on his instructions being followed, he then expected
that from that moment on, they would refuse to take any more
calls.
As previously ordered by Dr. Gade, Dr. Schwartz met with
Dr. Paoli on Monday morning June 15. He showed her the two
memos and indicated that Respondent intented to terminate the
four doctors. Dr. Paoli questioned how the discriminatees
could write such a memo and agreed that they can’t really work
at the hospital any more. Dr. Paoli also asked whether Dr.
Schwartz could cover the loss of four surgeons. Dr. Schwartz
assured her that coverage would be provided unabated; and
gave her a written schedule of how he intended to cover the
hospital from that point forward. They also discussed terminat-
ing the privileges that they discriminatees had at Lincoln
Hospital, and other housekeeping details such as the retrieval of
IDs and keys.
Dr. Schwartz then prepared a memo of termination dated
June 15, which he personally handed to each of the discrimina-
tees. The memo reads as follows:

I am in receipt of your signed letter dated June 12, 1998.
Given your categorical refusal to follow departmental policy
and your refusal to “take call” or be available to the patients
on the surgical service or in the Emergency department in the
hospital on designated days and nights, your employment at
LMMHC in the department of surgery is terminated. This is
effective immediately.

Dr. Schwartz testified further concerning the decision to ter-
minate and the letter of termination that he prepared. He as-
serted that in his mind the decision to terminate the discrimina-
tees was based primarily on their failure to accept responsibility
for patients under their care and their insubordinate refusal to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1010
follow his directions. The third paragraph of the letter, accord-
ing to Dr. Schwartz, the threatened refusal to take call, “only
added to the immediacy.” Dr. Schwartz was asked specifically
whether even if the discriminatees had not threatened not to
take calls, that the other conduct would have been sufficient to
warrant termination? Dr. Schwartz answered, “[I]n my view
yes, but now whether Dr. Gade would agree or Dr. Cohen
would agree, I don’t know. But I would have gone with my
recommendation. And perhaps they would agree and that it
would be sufficient for them. I can’t speak for them.”
Analysis
The Alleged 8(a)(3) Allegation
The complaint alleges, and General Counsel argues that the
record establishes that Respondent has violated Section 8(a)(3)
of the Act by terminating the employment of the discriminatees
because of their activities on behalf and in support of the Un-
ion. In assessing this allegation, it must first be determined
whether or not General Counsel has adduced sufficient evi-
dence to establish that the union activities of the discriminatees
was a “motivating factor” in Respondent’s decision to dis-
charge them. Wright Line, 251 NLRB 1083, 1089 (1980), enfd.
on other grounds 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982).
In that regard, the evidence reveals that all four discrimina-
tees were active supporters of the Union, inasmuch as all four
of them were on the Union Steering Committee. More impor-
tantly, Dr. Kazigo, one of the discriminatees was the acknowl-
edged leader of the Union movement amongst the physicians
and dentists,15 and both he and Dr. Gunduz, another one of the
discriminatees testified at the representation hearing as wit-
nesses for the Union.
Additionally, the union activity extended beyond the repre-
sentation hearing, since Dr. Kazigo on behalf of the Medical
Staff, protested Respondent’s employment contract in a letter
dated May 5, in which he also requested that Respondent rec-
ognize the Union as the collective-bargaining representative of
Respondent’s employees. This letter was followed up by a
distribution of a flyer by the Union at the hospital, which con-
tained a copy of a letter from the Union to Dr. Marcos of HHC,
complaining about among other things the proposed employ-
ment contracts, Respondent’s decision to place a help wanted
ad in New York Times, which the Union characterized as an
attack against the staff, and “radical union-busting tactics,” and
Respondent’s failure to recognize the Union.
Thus the union activities of the employees continued late as
May 18, less than a month before the discharges. In fact, it
could be argued that union activities implicitly continued even
past May 18, since a majority of the physicians refused to sign
the proposed employment contracts, which Respondent in all
probability attributed at least in part to the influence of the Un-
ion. It is also likely that Respondent was not pleased about the
Union’s influence in persuading some physicians to refuse to
sign the agreements. It is also not unreasonable that Respon-
dent might have retaliated against the leaders of the union
drive, because of such a belief on Respondent’s part.

15 Dr. Schwartz admitted being aware of this fact.
However, on balance I am not convinced that the above evi-
dence is sufficient to establish a causal connection between
union activities in general, or the union activities of the dis-
criminatees in particular, and the discharges of the employees
on June 15. I note particularly the absence of any animus by
Respondent towards the Union or the activities of the employ-
ees in support of the Union. Although Dr. Cohen felt com-
pelled to reply to the Union’s and the employees’ correspon-
dence to him, by letter of May 20, the reply was restrained,
reasonable and conciliatory, and was devoid of any evidence of
animus towards the Union or any of its employees. He ex-
plained the reasons for the ad in the paper that the Union be-
lieved was threatening and disavowed any such intention. Dr.
Cohen also explained that it would not consider the proposed
employment contracts binding in the event of a collective-
bargaining agreement, if such an agreement is eventually
reached. While Dr. Cohen did indicate that Respondent had
serious concerns about the legality of the Union, representing
the physicians, and that it might take 2-1/2 years to resolve the
issue, these comments are no more than a statement of Respon-
dent’s legal position, and an accurate assessment of the time it
could take to adjudicate the matter. I do not view either of
these comments as reflective of animus towards the Union or
its employees.
I also note that it is undisputed that based on the election re-
sults, nearly all of Respondent’s physicians supported the Un-
ion,16 and a majority of the physicians refused to sign the pro-
posed employment contracts. Yet, no disciplinary action was
taken against any of the other physicians. While the timing of
the terminations is somewhat suspicious (3 weeks after the last
union action), this suspicion is overcome by the fact that the
terminations occurred immediately after the discriminatees
wrote their memo of June 12. The General Counsel argues in
that regard that “based on the flawed reasoning and abrupt na-
ture of their terminations, it is not credible that Dr. Gade and
Dr. Cohen would not have counseled Dr. Schwartz to meet with
the discriminatees, or take some lesser action, if they were not
anxious to rid themselves of Dr. Kazigo and the discriminatees
because of their support for the Union.” I disagree. General
Counsel’s argument is little more than speculation, unsupported
by record evidence. I see no basis for any assertion of “flawed
reasoning” for the terminations, and as for the admittedly
abrupt nature of the discharges, I find it likely that Drs. Gade
and Cohen, as testified by Dr. Schwartz had the same view as
Dr. Schwartz of the letter written by the discriminatees. They
all believed strongly that the letter constituted sufficiently seri-
ous misconduct, that their employment could no longer be tol-
erated at the hospital. I therefore conclude that Respondent’s
decision to terminate the discriminatees was based solely on
their participation in the June 12 memo. Thus General Counsel
has not met its burden of proving that the union activities of the
discriminatees was “a motivating” or indeed any factor in the
decision to discharge them.
16 I also note that 103 physicians signed the March 12 letter to Re-
spondent, which in part demanded that Respondent recognize the Un-
ion.
ST. BARNABAS HOSPITAL 1011
Moreover, even if it is concluded that the above evidence is
sufficient to establish that a motivating factor in the decision to
terminate was the union activities of the employees, I find that
Respondent has met its burden under Wright Line of establish-
ing that it would have terminated the discriminatees, absent
such union activities.
As detailed above, Respondent discharged the discriminatees
immediately after their seeing the memo of June 12, and I am
thoroughly convinced that it would have terminated any group
of physicians who wrote such a letter, regardless of the Union
or lack of union activities of such employees. Respondent in
my view, believed that physicians who wrote such a memo did
not deserve to continue their employment with Respondent, and
would have been terminated in any event, whether or not they
were supporters of the Union.
In such circumstances, I recommend that the 8(a)(3) allega-
tion in the complaint be dismissed.
V. The Alleged 8(A)(1) Allegation
The complaint also alleges alternatively that Respondent
terminated the discriminatees, because they engaged in pro-
tected concerted activities in violation of Section 8(a)(1) of the
Act. In that regard the General Counsel asserts that the memo
that the discriminatees wrote, dated June 12, which admittedly,
and as I have found above, constituted the sole basis for the
terminations represented the exercise of protected concerted
activity. It is to that contention that I now turn.
Once again it is necessary to utilize the Wright Line analysis
to assess the legality of Respondent’s conduct. It must there-
fore first be decided whether a motivating factor in Respon-
dent’s decision to terminate the discriminatees was their exer-
cise of protected concerted activities. In that regard, the actions
of the employees of jointly protesting Respondent’s consulta-
tion policy by sending the memo is clearly concerted activity.
New York University Medical Center, 324 NLRB 887, 906
(1997); Mainmark Co., 307 NLRB 1059, 1061 (1998); Meyers
Industries (Meyers II), 281 NLRB 882 (1986).
Thus conduct also meets the general definition of protected
conduct, which encompasses activities that can reasonably be
seen as affecting the terms or conditions of employment, suffi-
ciently related to mutual aid or protection. NLRB v. Mike
Yurosek & Son, 53 F.3d 261, 266 (9th Cir. 1995); PALCO, 325
NLRB 305 (1998), enfd. denied on other grounds 163 F.3d 662
(1st. Cir. 1998); Blue Circle Cement, 311 NLRB 623, 624 fn. 9
(1993). However, Respondent asserts that the discriminatees
were terminated because of the unprotected nature of the pro-
test, i.e., their conduct amounted to insubordination and engag-
ing in a partial strike.
Without considering Respondent’s arguments as to the al-
leged unprotected aspects of the employees protest, I conclude
that the evidence establishes that a motivating factor in Re-
spondent’s decision to terminate was protected conduct of the
discriminatees. I base this finding primarily on the testimony
of Respondent’s own witness. Dr. Schwartz testified that when
he first read the memo from the discriminatees he seethed, and
the first thing he noticed was the phrase “we the undersigned.”
Dr. Schwartz then elaborated on his concerns, emphasizing his
objections to the demands made on him by “a group of sur-
geons,” acting as “we the undersigned,” rather than an individ-
ual letter to him complaining about his policy. Further when
Dr. Schwartz discussed the discharge with Dr. Gade, he again
emphasized his objection to the discriminatees use of the words
“we the undersigned,” which he viewed as a threat by a group
which could do so because of their numbers. It is therefore
apparent that at least part of the motivation for Dr. Schwartz’
decision was the concerted nature of the discriminatees protest.
That is an unlawful factor for Respondent to have considered.
PALCO, supra at 306; Sun City Center, 299 NLRB 549, 552
(1990). Indeed, Schwartz’ testimony suggests that, had the four
discriminatees wrote separate letters to him or had separate
conversations with him, during which they made the same
threats, i.e. not to follow his policy or to take call, that he would
not have been so disturbed, and may not have fired them. It
was only when they banded together and made the same threats
in a joint memo, did Dr. Schwartz become so upset that he
recommended their terminations, in part because of their group
action. Therefore a prima facie case under Wright Line has
been established, shifting the burden to Respondent to establish
that it would have terminated these employees absent their
protected conduct, or put another way, that it would have fired
them in any event because of the unprotected nature of their
memo.
Respondent makes two related, but essentially separate con-
tentions in this regard. One argument made by Respondent is
that the discriminatees engaged in a partial strike, by threaten-
ing to refuse on-call work, because of their dissatisfaction with
Respondent’s insistence on its consultation policy being fol-
lowed. Yale University, 330 NLRB 246 (1999); Audabon Hos-
pital Care Center, 268 NLRB 135, 136–137 (1983); Honolulu
Rapid Transt, 110 NLRB 1806, 1809–1810 (1954); Valley City
Furniture, 110 NLRB 1589, 1594–1595 (1954), enfd. 230 F.2d
947 (6th Cir. 1956).
These cases do hold that in certain circumstances, a partial
strike becomes unprotected activity. The rationale for this con-
clusion is set forth in Valley City, supra, and has been fre-
quently cited.

The vice in a such a strike derives from two sources. First, the
Union sought to bring about a condition that would be neither
strike nor work. And second, in doing so, the Union in effect
was attempting to dictate the terms and conditions of em-
ployment. [Id. at 1594–1595.]

Employees do not retain their statutory protection when they
perform only part of their job functions while accepting their
pay and avoiding the risks of and disadvantages of a complete
strike action. They must choose between working and striking,
and if they strike must be willing to assume the status of strik-
ers, contemplating the risk of replacement and loss of pay. An
employee may not continue to work and at the same time strike.
Yale, supra, and cases cited therein.
However. it is well settled that where the duties that the em-
ployees refuse to perform are voluntary or discretionary, the
refusal to perform them cannot be deemed a partial strike.
Yale, supra; Central Ilinois Public Service, 326 NLRB 928
(1998), KNTV, 319 NLRB 447, 452 (1995); Riverside Cement,
296 NLRB 840, 841 (1989); Paperworkers Local 5 (Interna-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1012
tional Paper), 294 NLRB 1168, 1171 (1989); Jasta Mfg. Co.,
246 NLRB 48, 49 (1979), enfd. 634 F.2d 623 (4th Cir. 1980);
Dow Chemical Co., 152 NLRB 1150, 1152 (1965). This is
because where an employer has permitted employees to decide
for themselves whether they wish to perform the work in ques-
tion, it cannot be said that employees by refusing to volunteer
for such work, lost the protection of the Act, because they
sought to impose on their employer their own conditions of
employment. Dow Chemical, supra. Therefore it is important
to determine whether on-call work for the discriminatees was
voluntary or mandatory.
In my view, the answer to this question must be viewed pri-
marily through the eyes of the employees. Thus the primary
vice of a partial strike is the employees electing to both strike
and work at the same time, and not subject them to the risk of
replacement. Also, employees cannot be allowed to unilater-
ally impose their own terms of employment. However, in both
instances employees must be aware of the mandatory nature of
the particular job, so that they can be said to have chosen to
“both strike and work,” at the same time, and that they can be
said to have imposed their own terms of employment.
Here the evidence demonstrates that on-call work had been
voluntary for employees while they were employed by New
York Medical College, and that when Respondent took over the
affiliation contract in July 1997, it made no announcement of
any changes in the nature of on-call work for the discriminatees
or any other former employee of New York Medical College.
In that regard, while Respondent did indicate its intention to
change the prior system, by folding the on-call payments into
the regular salary of surgeons, it did not institute the change for
the discriminatees or any other former employee. While the
evidence discloses that when it hired Dr. Robb as a surgeon,
after it took over, Respondent may have instituted this system
with him, thereby evidencing an intent to do so with new hires,
that cannot be construed as applicable to the discriminatees,
since they were not affected. In fact, this fact demonstrates that
for these former employees of New York Medical College,
Respondent was content to allow them to retain the prior sys-
tem, which was voluntary, as far as the employees were con-
cerned, as well as in the view of Dr. Stahl, the prior director of
surgery for New York Medical Hospital, who instituted the
system that the employees utilized for on-call.
It is also significant that when Respondent took over, it made
a change in employees hours from 70 to 80 hours over a 2-
week period, but made no changes in on-call work, and that in
its proposed employment agreement that it distributed to physi-
cians, it made specific reference to this change in hours, and
made no reference at all to on-call work, or any obligation on
the part of physicians to perform such work.
Most importantly of all is the fact that neither Respondent,
nor New York Medical College, ever informed the employees
that on-call work was considered mandatory. This has been
deemed to be a critical and crucial factor, in numerous Board
cases finding a particular assignment to be voluntary, rather
than mandatory. KNTV, supra (employer never told employee
that job of substitute anchor was a required element of his job,
or that he could not refuse anchoring requests); International
Paper, supra (employer never informed employees that they
were required to remain in nonunit positions once they entered
program of employer where employees occupy these jobs);
Coast Engraving Co., 282 NLRB 1236, 1252 (1987) (no evi-
dence that employer ever informed employees that overtime
work was mandatory); Jasta Mfg.; supra (although employees
were told that overtime work was “expected,” even this was
insufficient to establish that work was voluntary, in absence of
warning that failure to work overtime would result in disci-
pline); Central Illinois, supra (Employer did not tell applicants
that overtime was mandatory. While applicants were told that
overtime was “part of the job”, administrative law judge con-
cludes that this “begs the question, since the f act that overtime
is part of employees work,” does not necessarily mean that
individuals had an obligation to perform overtime work.).
Another factor indicating the voluntary nature of the on-call
system is the method of payment to the surgeons. While not
conclusive, it does demonstrate that employees had a choice of
whether to accept or reject on-call work, particularly coupled
with the fact surgeons did not perform equal amounts of on-call
work, and had for various period of time been permitted to
refuse overtime without any penalty.17
I note additionally, the system that Respondent kept in place,
of allowing the physicians to compile and administer the
scheduling of on-call hours of physicians. This factor has been
held to be further reflective of the voluntary nature of the over-
time, as has the fact that the record reveals differences in the
amounts of overtime taken by employees over the years, for
various periods of time. Central Illinois, supra.
Respondent places substantial reliance on the fact that the
four discriminatees all worked between 4–6 days of on-call for
the entire time of their employment with Respondent, and that
even when they worked for New York Medical College, they
performed such work on a regular basis, except for instances of
personal illness or of a family member. However, I find such
evidence unpersuasive, since the record demonstrates that on-
call work was considered both a vehicle for career development
(giving surgeons the additional opportunity to perform surgery
in trauma cases), and an opportunity for physicians to make
extra money, which for many was important since they had
loans to pay off. Thus the fact that the discriminatees have
regularly performed on-call work can viewed as attributable to
these factors, rather any belief on their part that they were obli-
gated to perform this work. See KNTV, supra (that employee
“had previously agreed to requests to substitute as news anchor
is a reflection of his interests and career goals, not his obliga-
tions to the Respondent”). Id. at 452.
Respondent also relies on the testimony of Drs. Schwartz
and Bordan, that on-call work is a “universally expected job
function of attending surgeons.” However, a close examination
of their testimony reveals that it can be given little weight in the
circumstances herein. Both physicians admitted that their tes-
timony based on their experience at other hospitals, did not

17 I note in this connection, that when Dr. Priviolos refused to accept
call for an extended period, she merely notified Dr. Gunduz, the physi-
cian in charge of scheduling. Thus she never even notified Dr. Stahl,
much less requested permission not to take call, which Respondent
asserts is required.
ST. BARNABAS HOSPITAL 1013
involve any other hospital where extra payment was made to
physicians for on-call work. Thus in all of the experience that
they testified about, on-call work was “folded” into physicians
regular salary. While I recognize that this factor is not conclu-
sive as to the voluntariness of the work,18 it is an indication of
same, particularly since the system is so unusual among hospi-
tals. In any event, it does severely detract from the significance
of the testimony concerning “industry practice.”
Respondent also argues that even if on-call work was con-
sidered voluntary, it was understood that once a physician vol-
unteers, and is scheduled, it in effect becomes mandatory, and
their refusal to perform such work is therefore unprotected.
Dow Chemical, supra at 151–152. However the problem with
Respondent’s argument is that there is no evidence that the
discriminatees ever threatened to or refused to perform “sched-
uled” on-call work. To the contrary, the evidence reveals as I
have found that the discriminatees intended to fulfill their com-
mitments to perform on-call work for the month of June, as per
the schedule already published. This position was confirmed
by Dr. Gunduz in fact performing his on-call assignment on
Sunday, June 14, the day before the terminations. While Dr.
Schwartz testified that he believed based on his reading of the
memo that the physicians intended to refuse call at a somewhat
earlier time, such testimony is hardly sufficient to establish
unprotected conduct. Since Dr. Schwartz knew prior to the
terminations, that Dr. Gunduz had performed call the day be-
fore, notwithstanding the prior memo, such knowledge, at the
very least, should have created an ambiguity in his mind as to
the actual intentions of the discriminatees. It would not have
been difficult for Dr. Schwartz to at least meet with the dis-
criminatees before discharging them to determine precisely
when or even if they were going to refuse call. Since Respon-
dent failed to take that action, it cannot now rationally argue
that the discriminatees intended to refuse scheduled on-call
time, and thereby engaged in unprotected conduct.
Finally, Respondent relies on Audubon Health Care Center,
268 NLRB 135, 136–137 (1983), allegedly for the proposition
that the refusal to perform call by the discriminatees is unpro-
tected, whether such work is voluntary or not. I do not agree.
In Audubon, employees at a nursing home concertedly, refused
to perform work in “open sections,” caused by the absence of
other employees. The Board found that though initially, the
performance of this work may have been voluntary, it became a
practice so routine that no assignment was needed. Further it
found that both the employees and their supervisors assumed
that the employees would cover the work in question. Thus the
Board concluded that the performance of this work became part
of their job duties. Based on that finding, the Board found that
the employees engaged in a partial strike, by refusing to per-
form this work while continuing to perform their regular duties
of working in their regularly assigned sections.

18 Indeed, in the normal industrial setting, overtime is generally
compensated for by payment of extra money, and still can be consid-
ered mandatory in certain situations. Once again however the critical
factor is such cases, absent here, is clear evidence that employees were
informed by the Employer that overtime was mandatory.
However, in my view Audobon does not hold as Respondent
asserts that the refusal to perform on-call work whether volun-
tary or not is unprotected. It merely concludes that work origi-
nally considered voluntarily, can be transformed to a regular
part of employees’ job by practice, and therefore in effect be-
coming mandatory. The critical finding in Audubon, not pre-
sent here, is the conclusion that the employees therein assumed
that they would do the work, and that although they might have
not been happy about it, they believed that it was part of their
job. Here, on the contrary, I have found that the discriminatees
believed, supported by the numerous factors detailed above,
that on-call work was always and continued to be voluntary for
Respondent, and that they had the option of declining to par-
ticipate in the on-call system if they so chose.
Moreover and equally as significant, in Audobon unlike Re-
spondent here, the employer served notice on the employees
that it considered this assignment to be mandatory, by inform-
ing the employees several times that they would be discharged
if they did not perform the work in the open section. Here, the
discriminatees were never so informed by Respondent, and
therefore were not given the option, as were the employees of
Audubon of withholding all their services or engaging in a par-
tial strike. Since they were not aware that Respondent consid-
ered on-call work mandatory, they cannot be considered to
have engaged in a partial strike.
Accordingly, based on the above analysis and authorities, I
conclude that on-call work was voluntary for the discrimina-
tees. In such circumstances, their threatened refusal to perform
such work is protected conduct, and Respondent’s decision to
terminate them for this reason is violative of Section 8(a)(1) of
the Act.
General Counsel argues alternatively that even if on-call
work was considered mandatory, the conduct of the discrimina-
tees would still be protected, since at the time of the discharge,
Respondent had no reason to believe that the employees would
engage in the type of intermittent strike prohibited by the Act.
E. B. Malone, 273 NLRB 78, 81 (1984); Polytech, 195 NLRB
695 (1972); Serv-Air, 162 NLRB 1369, 1376–1378 (1967). I
agree.
Thus where employees refuse to perform a particular as-
signment, whether the work is voluntary or mandatory, this is
not necessarily considered a partial strike, unless it is part of
plan of recurring or repeated, intermittent strikes. Thus the
Board views such action as a one time spontaneous work stop-
page, which is protected by the Act. Sawyer of Napa, 300
NLRB 131, 137 (1990); Regency Service Carts, 325 NLRB
617, 621 (1998); Mike Yurosek & Sons, 310 NLRB 831 (1993);
J. P. Harner, 241 NLRB 613, 619–620 (1979); First National
Bank of Omaha, 171 NLRB 1145, 1147–1151 (1968), enfd. 413
F.2d 921, 923–925 (8th Cir. 1969).
The question of whether a particular work stoppage is a one
time spontaneous stoppage or part of a plan of recurring or
repeated stoppages is dependent on the facts of each case. The
Board does utilize a presumption in such an analysis that a
single refusal to work overtime or other job function “is pro-
tected strike activity, and that such presumption should be
deemed rebutted when and only when, the evidence demon-
strates that the stoppage is part of a plan or pattern of inter-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1014
mittment action which is inconsistent with a genuine strike or
genuine performance by employees of the work normally ex-
pected of them by the employer.” Polytech, supra at 695.
Here, the discriminates did not engage in any work stoppage,
but instead merely threatened to so, by stating that they would
not take call, if Dr. Schwartz “insisted on the dictates of his
memo.” It seems to me that a similar presumption should apply
in this instance. Thus if an actual work stoppage should be
presumed to be a single one time spontaneous time stoppage,
then a spontaneous threat to engage in a stoppage, as here,
should be entitled to the same characterization. The constant
use of the word “spontaneous” in the characterization of one
time stoppages, suggests that employees are entitled to a certain
amount of exuberance in protesting working conditions, which
includes the ceasing of work, even where it includes mandatory
assignments. Thus even though the refusal to work mandatory
overtime once or ten times has the same general effect of per-
mitting employees to determine their own conditions of em-
ployment for some period of time, employees are in effect
given one “spontaneous” opportunity to cease work, without
transforming the conduct into an unprotected partial strike.
Therefore this reasoning should surely apply to a mere threat to
engage in a stoppage.
It is not entirely clear whether a mere threat to engage in a
partial strike, can in and of itself be considered unprotected
conduct. While there are cases that so suggest, Sawyer, supra, I
have found no case where a finding has been made that the
mere threat to engage in a partial is unprotected by itself. In-
deed, while many cases, 19 including Yale have relied on the
expressed intent to engage in a partial strike, to support a find-
ing of unprotected conduct, these cases included an actual stop-
page as well. Indeed in Yale, supra, dissenting Member Lieb-
man, citing Hotel Holiday Inn, 259 NLRB 496, 500–501
(1981), enfd. 702 F.2d 268 (1st Cir. 1983), concluded that “un-
executed future plans cannot be relied on to determine whether
actual, transpired conduct is protected.” While the majority
disagreed with this assertion, it did make reference to the case
cited by Member Liebman which had held that conduct was
protected despite the Union’s plans to stage an unprotected sit
down strike, because the plan for the unprotected conduct was
forestalled. The majority did not overrule Hotel Holiday, su-
pra, but distinguished the case on the grounds that the plan for
the unprotected conduct there was forestalled. However in
Yale, by contrast, the activity occurred, i.e., a grade strike in
one semester, while also threatening to engage in another grade
strike the next semester. Therefore, the Board consistent with
prior authority, combined the intent to engage in a partial strike,
with the actual occurrence of a partial strike, to comprise un-
protected activity.
Here, as noted there has been no strike, partial or otherwise.
However, I shall assume based on at least the dicta in cases
such as Sawyer, supra, that in certain circumstances, the threat
or an intent to engage in a partial strike can be sufficient in
itself to constitute unprotected activity. However, I do not
believe that the facts here are sufficient to establish that the

19 Valley City, supra; John Swift Co., 124 NLRB 394, 396 (1959),
enfd. 277 F.2d 64l (7th Cir. 1960).
discriminatees intended to engage in a recurring or repeated
partial strike. Indeed, an analysis of the facts reveal a substan-
tial ambiguity as to the intentions of the discriminatees.
In that regard, the letter states that they would “stop taking
call,” if Dr. Schwartz insists on the dictates of his memo. It
does not say whether they would stop taking call one time, or
more than once, or whether they would continue to take call for
the month of June for which they were already scheduled.
Further, as detailed above, the employees had decided to in fact
continue to take call through at least the end of June, a position
which was confirmed by Dr. Gunduz performing his call on
Sunday, June 14. Moreover, the statement “if you should insist
on the dictates of your memo,” is also ambiguous and suscepti-
ble of a number of meanings, some of which would clearly
result in no work stoppage at all. One such reasonable interpre-
tation of that phrase would be if Dr. Schwartz took no further
action with respect to his memo, i.e., neither rescinding it or
reaffirming it, the employees would take no action, and con-
tinue to take call.
Therefore, the above facts simply “cry out” for Dr. Schwartz
to have simply spoken to the discriminatees in order to deter-
mine their true intentions, before discharging them. Indeed,
Board cases deem this factor to be crucial, in assessing whether
or not a stoppage was intended to be recurring. In First Na-
tional Bank of Omaha, supra, the administrative law judge de-
tailed the then current law on the subject, and concluded that
the critical areas of inquiry was whether the employer had
sought to determine what the intentions of the employees were
to as the future, as well as whether the employer had warned
the employees that it would regard future refusals to work
scheduled overtime as grounds for disciplinary action. Thus
the administrative law judge found, affirmed by the Board, that
based primarily on the absence of such action by the employer,
the strike was not a partial recurrent strike that would deprive
employees of Section 7 protection.
Subsequent cases have continued to rely on those factors to
conclude that the strike involved was not a partial strike. ava-
tion-Construction, 248 NLRB 649, 661 (1980) (employer made
no attempt to ascertain what the employees intentions were
with regard to future Saturday work before discharging them);
E. B. Malone, supra (employer did not even attempt to find out
about whether there would be any other disruptions). See also
Serv-Air, 162 NLRB 1369, 1377 (1967) (employer’s refusal to
discuss grievance with employees, deprived them of the oppor-
tunity or occasion to make clear what they would have done).
Therefore, based on the foregoing, I conclude that the sub-
stantial ambiguity that existed in the memo of the discrimina-
tees, as to their true intentions with regard to taking call, cou-
pled with the fact that Dr. Gunduz performed call on June 14,
in these circumstances required Respondent to have made some
attempt to ascertain their true intentions, and or to warn them of
possible discipline, should they engage in a partial strike. In
the absence of such action, Respondent cannot prevail in its
assertion that the mere threat by the employees here to refuse
call amounts to unprotected conduct.
Therefore, the discriminatees have engaged in protected ac-
tivity by threatening to refuse call, and a termination for their
engaging in such conduct is violative of the Act. Respondent
ST. BARNABAS HOSPITAL 1015
argues however, that even if this activity is considered pro-
tected, Respondent has not violated the Act, since it has estab-
lished that it would have discharged the discriminatees in any
event, absent such conduct, because they engaged in “unques-
tionably unprotected activity,” of refusing to follow Respon-
dent’s consultation policy. I cannot agree. In that regard, Re-
spondent argues that Dr. Schwartz’ testimony establishes that
the “primary reason” for discharging the discriminatees was not
their refusal to take on-call assignments, but rather their un-
qualified refusals to assume ultimate responsibility for patients
under their care or to follow his consultation policy.” Even
assuming that the record supports the above contention, which
it does not, that would not be sufficient to meet Respondent’s
Wright Line burden. Whether alleged unprotected conduct is
the “primary reason” or not is not the test of Wright Line. As
long as protected conduct, as here, is one of the reasons for the
discharge, it is unlawful, regardless of whether there is another
“primary reasons” for the termination. What Respondent must
demonstrate in order to meet its Wright Line burden is that, it
would have terminated the discriminatees whether or not they
refused to take call, or put another way, whether the refusal to
follow its consultation policy and/or to accept responsibility for
patients, would have been sufficient by themselves to have
caused their terminations. Respondent has fallen far short of
establishing such a contention.
In that regard, Respondent relies on the testimony of Dr.
Schwartz that in his view the alleged other unprotected conduct
(paragraphs one and two in the discharge letter), would have
been enough to warrant termination. However, in that same
testimony, Dr. Schwartz conceded that he did not know
whether Dr. Gade or Dr. Cohen (his superiors) would agree,
adding, “I can’t speak for them.” Moreover, neither Dr. Cohen
nor Dr. Gade testified herein, so there is no confirmation of Dr.
Schwartz’ view by the ultimate decisionmakers.20
Additionally, the record reveals that during the discussion
between Dr. Cohen and Dr. Schwartz about the memos, Dr.
Cohen immediately stated that the employees can’t work there
any more, and gave three reasons for his position, one of which
was “they cannot not take call.” Further, Dr. Schwartz men-
tioned the refusal to take call to Dr. Cohen as one of the factors
that persuaded him to concur with the discharge recommenda-
tion by Dr. Cohen. Dr. Cohen then instructed Dr. Schwartz to
speak to Dr. Gade. When he recounted the events to Dr. Gade,
Dr. Schwartz recommended discharge and again made specific
reference to the discriminatees threat not to take call. He fur-
ther elaborated by telling Dr. Gade that he was bothered by the
phrase “we the undersigned,” and the fact that he was being
threatened by a group that they could because of their numbers
gave me no choice.”21

20 Indeed, the absence of their testimony on these crucial matters,
permits an adverse inference to be drawn that if they had testified, their
testimony would have been unfavorable to Respondent with respect to
this issue. Reddy Mix Concrete, 317 NLRB 1140, 1143 fn. 16 (1995);
International Automated Machines, 285 NLRB 1122, 1123 (1987).
21 The reference to “gave me” no choice, could only have referred to
no choice but to rescind his directive concerning consultations, or else
the employees would refuse call.
It is therefore clear from the above evidence, that contrary to
the testimony of Dr. Schwartz, the threat by the employees not
to take call was a substantial factor in Respondent’s decision to
discharge them. Indeed, while Respondent now seeks to em-
phasize the employees refusal to obey Respondent’s consulta-
tion policy as the alleged “primary reason” for the terminations,
the record reveals that all four discriminatees had been failing
to adhere to this policy for months, Dr. Schwartz was aware of
it, and took no action against them for their failure to do so.
Moreover, it is significant to note the constant reference by
Dr. Schwartz to his objection to “we the undersigned” as a
factor in his decision. He mentioned it several times in his
testimony as something that bothered him greatly, and as out-
lined above, specifically mentioned this to Dr. Gade, as well as
his objection to being “threatened by a group.” This suggests,
consistent with the aforementioned fact that Dr. Schwartz never
disciplined or even warned any of the discriminatees for failing
to adhere to his directives for months or for publicly disagree-
ing with him at meetings about such policy, that Dr. Schwartz
was concerned not so much with the discriminatees failure to
follow his policies, but rather their decision to band together,
and make their protest in writing with a copy to his superior.
As I have set forth above, it is unlawful for Respondent to pe-
nalize employees for the concerted aspects of their conduct, and
that is what Respondent has clearly done here. PALCO, supra;
Sun City, supra. See also E. B. Malone, supra (Employer
seemed as interested in the fact that the employees had a meet-
ing. The essence of concerted activity as in the walkout itself.).
Accordingly, based on the foregoing, I conclude that Re-
spondent has not met its Wright Line burden of proof, and that
Respondent has violated Section 8(a)(1) of the Act by its termi-
nation of the four discriminatees, for their participation in pro-
tected concerted conduct.
In view of any conclusion in that regard, I need not, and do
not decide whether the discriminatees conduct consisting of
their refusing to follow Dr. Schwartz’ directives concerning
consultations amounts to unprotected conduct. However, I do
deem it appropriate to discuss the issue, principally because I
view Board law as unsettled and somewhat inconsistent in this
area. Respondent cites a number of cases in support of its ar-
gument, that the discriminatees by refusing to obey Dr.
Schwartz’ directives concerning consultation policy was en-
gaged in unprotected conduct, because it was an attempt by
employees to remain on the job and determine for themselves
which terms or conditions of employment they would observe,
and which is insubordination and or a partial strike. Bird Engi-
neering, 270 NLRB 1415 (1984) (employees refused to obey
Employer’s directive not to leave premises during lunch. Held
to be insubordination and attempt to set their own rules in de-
liberate defiance of management’s authority); Highlands Hos-
pital, 278 NLRB 1097 (1986) (Refusal by guards to clean up
nails or transport individuals through picket line. Held to be
within their job duties, and their refusal to perform this work to
be a partial strike, since employees refused to work on terms
lawfully prescribed by their employer.); Audubon, supra (Em-
ployees refusal to work in “open section,” to fill in for absen-
tees held to be an unprotected partial strike. Employees “can-
not pick and choose the work they will do or when they will do
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1016
it. Such conduct constitutes an attempt by the employees to set
their own terms and conditions of employment in defiance of
their employer’s authority to determine those matters and is
unprotected.” Id. at 137); Interlink Cable Systems, 285 NLRB
304, 306–307 (1987) (employees refused to obey order of su-
pervisor to sign warning slip, held unprotected insubordina-
tion); Accord, Lake Development Management, 259 NLRB
791, 797 (1981) (employees refusal to follow employer’s as-
signment to take beepers constitutes unprotected partial strike);
Carolina Freight Carriers, 295 NLRB 1080 (1989) (em-
ployee’s assertion of right under contract by persistently refus-
ing direct order to clock out, unprotected insubordination);
Mead, 275 NLRB 323, 324 (1985) (Employee refused a direct
order to perform certain work. Although based an interpreta-
tion of the contract, held by Board to be unprotected insubordi-
nation and an attempt by employee to dictate the terms of his
employment); Yellow Freight System, 247 NLRB 177, 181
(1980) (Employee protested job assignment by refusing to per-
form extra run, based on his interpretation of contract. Held
unprotected insubordination and an attempt by employee to
work only on his own terms.).
The General Counsel makes two arguments, specifically di-
rected to this issue. Initially, he argues that Respondent con-
doned the unprotected nature of the conduct, by virtue of hav-
ing tolerated the discriminatees prior failures to follow his in-
structions. United Parcel Service, 301 NLRB 1142, 1144
(1991); General Electric, 292 NLRB 843, 844 (1989). While
these cases do establish that once an employer condones unpro-
tected conduct of employees, it cannot use any unprotected
aspect of that activity as a basis for discharge, they are not con-
trolling herein. “The doctrine of condemnation applies when
there is clear and convincing evidence that the employer has
agreed to wipe the slate clean and resume or continue the em-
ployment as though no misconduct occurred. The doctrine
prohibits an employer from misleadingly agreeing to return its
employees to work and then taking action for something appar-
ently forgiven.” General Electric, supra at 844. Additionally
condonation “is not to be lightly inferred.” Yale, supra; Inter-
national Paper, 309 NLRB 31, 38 (1992).
Here there are no statements made or other conduct by Re-
spondent which constitute such clear and convincing evidence
that Respondent would “wipe the slate clean,” or anything mis-
leading about its conduct. The fact that Respondent may have
overlooked previous instances of the discriminatees failing to
comply with Dr. Schwartz’ directives, is insufficient to estab-
lish such intent of forgiveness, since in their June 12 memo, the
discriminatees categorically refused to comply, which is some-
what different from merely at times, failing to do so in the
past.22
Additionally, the General Counsel argues that since the
memorandum of June 12 was intended to apply to on-call situa-
tions, and therefore since on-call work was voluntary, the re-

22 However, as I have related above, I do deem it appropriate to con-
sider Dr. Schwartz’ failure to even warn the discriminatees about their
prior refusals to comply with his directives as probative of his motiva-
tion in discharging them, and Respondent’s inability to meet its Wright
Line burden of proof.
fusal to comply with the consultation policy cannot be consid-
ered unprotected. I do not agree. Initially, I note that the re-
cord supports the inference that the memo of the employees
was primarily directed towards on-call situations, inasmuch as
all the incidents described by Dr. Schwartz which motivated his
memo dealt with on-call situations, and the response of the
employees specifically referred to “taking call,” in connection
with their arguments. However, Dr. Schwartz’ memo is not
restricted to on-call work, was addressed to all attendings, and
the evidence reveals that there are some situations during the
work day when subspecialists are not available, and Dr.
Schwartz’ instructions would be applicable.
Moreover, even if the response of the discriminatees could
be said to apply only to on-call work, that would still not elimi-
nate Respondent’s argument that the refusal to comply with Dr.
Schwartz’ instructions was unprotected. The refusal to perform
a discretionary duty is plainly distinguishable from striking
while continuing to do it. Yale, supra. Employees cannot seek
to maintain the benefit of remaining in a paid employee status,
while refusing nonetheless to perform all of the work they were
hired to do. Polytech, supra at 696. Therefore, whether on-call
work is voluntary or not, once the discriminatees agree to and
actually perform such work, (and receive pay for it), they must
complete this work in the manner directed by Respondent.
Yale, supra.
However, while I have rejected the General Counsel’s argu-
ments for finding the refusal to comply with Respondent’s di-
rectives protected, I must note that although the cases cited by
Respondent and others that I have cited in accord seem to sup-
port Respondent’s position, there also exists a substantial body
of cases which do not. These cases, in one form or another find
actions of groups of employees or a concerted refusal of a sin-
gle employee based on a alleged contract violation, to be pro-
tected even though the conduct encompasses a refusal to obey
an order or instructions from the employer. PALCO, supra
(employees refusal to drive truck that they believed to be un-
safe protected. Board ads that as long as complaint not made in
bad faith, reasonableness of belief is irrelevant); Springfield Air
Center, 311 NLRB 1151, 1155 (1993 (refusal by two employ-
ees to install undocumented engine that they believed would
violate FAA regulations); Hi-Tech Corp, 309 NLRB 3, 11–12,
(1992) (employees refused to drive truck they believed to be
unsafe); Cintran, Inc., 297 NLRB 178, 180 (1989) (employees
refuse to comply with employer’s driving schedule, because
they believed the orders violated DOT regulations); Ryder
Truck Line, 287 NLRB 806, 808–909 (1987) (individual em-
ployee’s refusal to drive truck based on belief that truck unsafe
and violative of contract); Wheeling Pittsburgh Steel, 277
NLRB 1388, 1394 (1985), enfd. 821 F.2d 342, 346 (6th Cir.
1987) (refusal of employee to work on equipment based on his
belief that contract allowed him to refuse until union safety
representative inspected the equipment); Quality C.A.T.V., 278
NLRB 1281, 1283 (refusal to install utility poles because they
were wet, and employees believed work was dangerous);
Marlene Industries, 255 NLRB 1446, 1461–1462 (1981) (em-
ployees refusal to perform assignment made by supervisors
protected even though it embraced the disobedience of an order
by management); Bob Henry Dodge, 203 NLRB 78 (1973)
ST. BARNABAS HOSPITAL 1017
(Employee refused to obey order of management with regard to
days off. Board concludes that “protections accorded employ-
ees under the Act are not dependent upon the merit of the con-
certed activity in which they engage, even though such activity
embraces the disobedience of an order of management.”) See
also City Disposal Systems, 465 U.S. 822, 104 S.Ct. 1505
(1984), decision on remand 766 F.2d 969, 973–974 (6th Cir.
1985) (employee’s refusal to drive truck based on reasonable
belief that contract permits such action, protected concerted
activity).
Thus based on this line of cases, one could argue that the
discriminatees had a reasonable belief based on their interpreta-
tion of appropriate medical practices, and based on their prior
practice, that Dr. Schwartz’ consultation practice was not ap-
propriate.23 Therefore, even though their conduct clearly en-
compassed the disobedience of an order or insubordination, or
the unilateral determination by the employees of their own
terms and conditions of employment, it could still be construed
as protected.
However, fortunately I need not attempt to reconcile these
two seemingly inconsistent lines of cases, or attempt to fit the
facts herein into one or the other of the holdings therein. I have
concluded above, that Respondent has fallen far short of estab-
lishing that it would have terminated the employees, absent
their protected conduct of refusing call and protesting Respon-
dent’s policies, or put another way that the refusal to follow
Respondent’s consultation policy alone, would have caused
Respondent to terminate them. Therefore, I need not and do
not decide, whether the discriminatees refusal to follow Re-
spondent’s policies constitutes unprotected conduct.24
Therefore, based on the foregoing analysis and authorities, I
conclude that Respondent has violated Section 8(a)(1) of the
Act by terminating the discriminatees.
CONCLUSIONS OF LAW
1. Respondent is an Employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. By discharging Drs. Joseph Kazigo, Yilmaz Gunduz,
Soula Priovolos, and Prakaschanda Rao because they engaged

23 It is clear that the employees do not have to be correct in this as-
sertion, and under PALCO, supra, it is sufficient if the assertion is not
made in bad faith.
24 While Respondent makes some reference in its brief and Dr.
Schwartz emphasized in his testimony, the discriminatees “declining to
accept responsibility” to patients, I agree with General Counsel that this
issue is essentially “a non starter,” that does not form an independent
basis for Respondent’s action. The statement by the employees in their
memo clearly had reference only to on-call situations and did not re-
flect on overall threat not to be responsible for patients. It merely re-
flected a disagreement with Dr. Schwartz concerning when the respon-
sibility for patients commences, vis a vis subspecialists, and relates to
their disagreement with his instructions that subspecialists be called by
the discriminatees and not the residents. Moreover, it is clear as de-
tailed above, that Respondent has not shown that it would have termi-
nated the discriminatees solely for their “refusal to accept responsibility
for patients.”
in protected concerted activities, Respondent has violated Sec-
tion 8(a)(1) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
5. Respondent has not violated the Act in any other manner
as alleged in the complaint.
THE REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I shall recommend that it cease and desist there-
from and take certain affirmative action designed to effectuate
the policies of the Act.
Having found that Respondent discriminatorily discharged
the discriminatees, I shall recommend that Respondent offer
them immediate and full reinstatement to their former job or a
substantially equivalent position without prejudice to their sen-
iority or other rights and privileges, and make them whole for
any loss of earnings they may have suffered by reason of the
discrimination against them. All backpay provided shall be
computed with interest on a quarterly basis, in the manner de-
scribed by the Board in F. W. Woolworth Co., 90 NLRB 289
(1950), and with interest computed in the manner and amount
prescribed in New Horizons for the Retarded, 283 NLRB 1173
(1987). See also Isis Plumbing Co., 138 NLRB 716 (1962).
Additionally, I shall recommend that Respondent expunge
from its files any reference to the discharges of the discrimina-
tees, and to notify them in writing that this has been done and
that evidence of same will not be used as a basis for future per-
sonnel actions against them.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended25
ORDER
The Respondent, St. Barnabas Hospital, Bronx, New York,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging employees because they engage in protected
concerted activities.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Drs. Jo-
seph Kazigo, Yilmaz Gunduz, Soula Priovolos, and Prakas-
chanda Rao, full reinstatement to their former job or, if that job
no longer insists, to a substantially equivalent position, without
prejudice to their seniority or any other rights or privileges
previously enjoyed.
(b) Make Drs. Kazigo, Gunduz, Priovolos, and Rao
whole for any loss of earnings and other benefits suffered as a
result of the discrimination against them in the manner set forth
in the remedy section of the decision.
25 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1018
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharge of Drs. Kazigo,
Gunduz, Priovolos, and Rao and within 3 days thereafter notify
them in writing that this has been done and that the discharge
will not be used against them in any way.
(d) Preserve and, within 14 days of a request, make avail-
able to the Board or its agents for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records including
an electronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under the
terms of this Order.
(e) Within 14 days after service by the Region, post at its
Bronx, New York facility, copies of the attached notice marked
“Appendix.”26 Copies of the notice, on forms provided by the
Regional Director for Region 2, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent and maintained by it for 60 consecutive days in
conspicuous places including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, 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 the facility involved in this
proceeding, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees and for-
mer employees employed by the Respondent as any time since
June 15, 1998.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.

26 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.”
IT IS FURTHER ORDERED that the complaint insofar as it
alleges violations not found above be dismissed.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated
the National Labor Relations Act and has ordered us to post and
abide by this notice.

Section 7 of the Act gives employees these rights.

To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.

WE WILL NOT discharge our employees because they have
engaged in protected concerted activities.
WE WILL NOTin any like or related manner interfere with,
restrain, or coerce our employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL within 14 days from the date of the Order, offer
our employees Drs. Joseph Kazigo, Yilmas Gunduz, Soula
Priovolos, and Prakaschandra Rao immediate and full rein-
statement to their former position or, if that position no longer
exists, to a substantially equivalent one, without prejudice to
their seniority or any other rights or privileges previously en-
joyed by them and make them whole for any loss or pay they
may have suffered as a result of the discharge.
WE WILL remove from our files any reference to the and
discharge of Drs. Kazigo, Gunduz, Priovolos, and Rao, and
notify them in writing that this has been done and that dis-
charge will not be held against them in any way.

ST. BARNABAS HOSPITAL