St. Barnabas Hospital

National Labor Relations Board - Board Decisions

Mar 31, 2006

346 N.L.R.B. 731 (N.L.R.B. 2006)

ST. BARNABAS HOSPITAL
346 NLRB No. 70
731
St. Barnabas Hospital and United Salaried Physicians
and Dentists. Case 2–CA–31504
March 31, 2006
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS LIEBMAN, SCHAUMBER, AND WALSH
On March 8, 2005, Administrative Law Judge Ray-
mond P. Green issued the attached supplemental deci-
sion. The Respondent filed exceptions and a supporting
brief, and the General Counsel and United Salaried Phy-
sicians and Dentists (the Union) each filed an answering
brief. The General Counsel and the Union each filed
cross-exceptions and a supporting brief, and the Respon-
dent 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, cross-exceptions, and briefs
and has decided to affirm the judge’s rulings, findings,1
and conclusions2 and to adopt the recommended Order
as modified and set forth in full below.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, St. Barnabas Hospital, New York, New
York, its officers, agents, successors, and assigns, shall
make whole the individuals named below, by paying
them the amounts following their names, plus interest
accrued to the date of payment, as prescribed in New
Horizons for the Retarded, 283 NLRB 1173 (1987), mi-
nus tax withholdings required by Federal and State laws:
Dr. Joseph A. Kazigo $126,442
Dr. Soula Priovolos 296,816
Dr. Prakashchandra Rao 260,753

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 preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 We agree with the judge that Dr. Prakashchandra Rao’s 1997 net
profits from his private practice constitute a reasonable basis to com-
pute his interim earnings and backpay due. See Kansas Refined Helium
Co., 252 NLRB 1156 (1980), enfd. sub nom. Angle v. NLRB, 683 F.2d
1296 (10th Cir. 1982).
3 In adopting the judge’s decision, Member Schaumber views as in-
complete the judge’s statement of applicable case law which could be
read to minimize the employee’s obligation to mitigate his damages.
Further, Member Schaumber does not rely on the language cited by the
judge and the supporting caselaw set forth in sec. II of the judge’s
decision that “a discriminatee is not required to apply for work during
each and every quarter.”
Dr. Yilmaz Gunduz 268,304
TOTAL BACKPAY: $952,315
Rita Lisko Esq., for the General Counsel.
Joel Cohen Esq. and Brett Schneider Esq., for the Respondent.
Ralph DeRosa Esq., for the Charging Party.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. I heard this
case in New York City on December 1, 2, 3, and 8, 2004. This
is a supplemental hearing to determine the backpay of Drs.
Soula Priovolos, Yimaz Gunduz, Joseph A. Kazigo, and
Prakashchandra Rao for the loss of any earnings they suffered
as a result of their discharges on June 15, 1998.
The Board’s underlying decision is reported at 334 NLRB
1000 (2003), and was enforced by the Second Circuit Court of
Appeals on February 28, 2003. In substance, the specification
alleges that the Respondent owes certain amounts to the named
individuals for net loss of earnings during the backpay period
plus dental, medical, and disability expenses that they incurred
which would have been covered by the Respondent had they
not been discharged. The backpay period runs from June 15,
1998, to June 30, 2000.
On the entire record in this case including my observation of
the demeanor of the witnesses and after reviewing the briefs
filed by the parties, I make the following
FINDINGS AND CONCLUSIONS
I. THE GROSS BACKPAY CALCULATIONS
As noted above, the backpay period begins on June 15,
1998, and runs until June 30, 2000, which is the date that the
Respondent no longer was responsible for running Lincoln
Hospital, which is the medical facility involved in this case. As
such, the General Counsel concedes that as of June 30, 2000,
reinstatement by the Respondent was no longer feasible.
The gross backpay is based on the average weekly earnings
of the discriminatees during the period of time immediately
before their discharges by the Respondent. The General Coun-
sel then projected those amounts, with any reasonable wage
increases and benefits, into the backpay period as being the
remuneration that they would have received had they not been
discharged.
The Respondent disputed the inclusion of “on call” work
into the gross backpay figures but I can see no reason to ex-
clude that from the calculation of backpay. While it is true that
the original case involved the question of whether the doctors
had a right to refuse what had been designated as voluntary on-
call work, the evidence was that these doctors almost always
performed that work when asked to do so. There is therefore,
no reason to conclude that they would not have followed the
same practice in the backpay period.
Insofar as gross backpay is concerned, the Respondent con-
ceded that the General Counsel’s backpay formula and the
calculations thereof were accurate. He also conceded that if the
oncall amounts were found to be properly included in the gross
amounts, then the calculations provided by the General Coun-
sel would be correct. Inasmuch as I have concluded that the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD732
oncall earnings should be included in the gross backpay of each
individual, there is really no dispute regarding the accuracy of
the calculations of those amounts as set forth by the backpay
specification as amended.
The General Counsel calculated net backpay for each indi-
vidual as being the gross amounts minus interim earnings. The
calculations were made on a quarterly basis in accordance with
long established Board and court precedent.
II. GENERAL PRINCIPLES
The general principles governing backpay proceedings are
well settled. The finding of an unfair labor practice is pre-
sumptive proof that some backpay is owed. NLRB v. Mastro
Plastics Corp.. 354 F.2d 170, 178 (2d Cir. 1965), cert. denied
384 U.S. 972 (1966). Once the General Counsel has shown the
gross backpay due in the specification, the employer has the
burden of establishing affirmative defenses which would miti-
gate his liability, including willful loss of earnings and interim
earnings to be deducted from the backpay award. NLRB v.
Brown & Root, Inc., 311 F.2d 447, 454 (8th Cir. 1963); see
also Sioux Falls Stock Yards Co., 236 NLRB 543 (1978).
The Respondent cannot meet its burden of proof merely by
presenting evidence of lack of employee success in obtaining
interim employment or of so-called “incredibly low earnings
but must affirmatively demonstrate that the employee did not
make reasonable efforts to find interim work.” NLRB v. Miami
Coca-Cola Bottling Co., 360 F.2d 569, 575–576 (5th Cir.
1966). The Respondent needs to present credible evidence to
establish that during the backpay period there were sources of
actual or potential employment that the claimant failed to ex-
plore. It also must show if, where, and when the discriminatee
would have been hired had he applied. NLRB v. Inland Empire
Meat Co., 692 F.2d 764 (9th Cir. 1982); McLoughlin Mfg.
Corp., 219 NLRB 920, 922 (1975); Isaac & Vinson Security
Services, 208 NLRB 47, 52 (1973). Champa Linen Service
Co., 222 NLRB 940, 942 (1976).
Although a discriminatee must make reasonable efforts to
mitigate his loss, he is held only to reasonable exertions, not to
the highest standard of diligence. NLRB v. Arduini Mfg. Co.,
394 F.2d 420, 422–423 (1st Cir. 1968); Otis Hospital, 240
NLRB 173, 175 (1979). Success is not the measure of the
sufficiency of the discriminatee’s search for employment. The
law only requires an “honest, good faith effort.” NLRB v.
Cashman Auto Co., 223 F.2d 832, 836 (1st Cir. 1955). A dis-
criminatee is not required to apply for each and every possible
job that might have existed in the industry, or even to apply for
work during each and every quarter. Champa Linen Service,
222 NLRB at 942; Madison Courier, Inc., 202 NLRB 808, 814
(1973); Sioux Falls Stock Yards, 236 NLRB at 551; Cornwell
Co., 171 NLRB 342, 343 (1968). What constitutes a reason-
able effort depends upon the circumstances of each case.
Cornwell Co., supra; Mastro Plastics Corp., 136 NLRB at
1359. In determining the reasonableness of this effort, the
employee’s skill, qualifications, age and labor conditions in the
area are factors to be considered. Id. However, even where the
evidence raises doubt as to the diligence of the claimant’s ef-
forts to gain employment, it is the discriminatee who must
receive the benefit of the doubt rather than the Respondent
wrongdoer whose conduct has created the situation giving rise
to the uncertainty. NLRB v. Miami Coca-Cola Bottling Co.,
360 F.2d at 572–573; Neely’s Car Clinic, 255 NLRB 1420,
1421 (1981); Kansas Refined Helium Co., 252 NLRB 1156,
1157, enfd. 683 F.2d 1296 (10th Cir. 1982); Otis Hospital, 240
NLRB 173, 174 (1979).
Finally, it should be noted that the Board and the courts have
held that:
It is not enough that the respondent thinks that em-
ployees should have been able to secure jobs. Suspicion
and surmise are no more valid bases for decision in [the]
backpay hearing than in an unfair labor practice hearing.
[Laidlaw Corp., 207 NLRB 591, 594 (1973), enfd, 507 F.2d,
1381 (7th Cir. 1974), cert. denied 422 U.S. 1042 (1975).]
III. DR. KAZIGO
Dr. Kazigo testified that soon after being terminated by the
Respondent, which is a public hospital, he started making in-
quiries at other hospitals. Part of that effort was to inquire at
private hospitals including Columbia Presbyterian where he
already had a part-time position. But he was advised that in
order to work at a private hospital he would have to set up his
own private practice, incur the cost of medical malpractice
insurance, and earn his living as a surgeon by having his pa-
tients admitted to the hospital. Feeling that this was a road he
didn’t want to take at his age, Dr. Kazigo also applied for a job
as a surgeon at Nassau County Medical Center. In this regard,
the evidence shows that he applied for and was accepted at
Nassau County Medical Center in July 1998, a date not long
after being discharged by Respondent.1
Having accepted a job offer at Nassau County Medical Cen-
ter, Dr. Kazigo could not immediately start work because of the
process of obtaining privileges. Believing that it would take
some time to go through that process, he decided to take a 1-
month vacation in Uganda, the country of his birth.
The process of obtaining privileges is a process applicable to
all hospitals in New York. It requires a physician to furnish
copies of medical licenses, university and medical diplomas,
work histories, references, etc., to the prospective employing
hospital. Once supplied, a committee of the hospital has to
investigate these and other matters of the applicant. In addi-
tion, a public hospital like Nassau County Hospital requires
some additional red tape.

1 The Respondent asserts that none of the discriminatees made ade-
quate searches for employment because they did not respond to adver-
tisements placed in the New York Times. A review of the set of adver-
tisements introduced into evidence by the Respondent indicates that
only a small subset were for surgery or emergency room physicians
which were the positions for which these discriminatees were certified.
To the extent that there were advertisements for house physicians, there
was testimony that those types of jobs, although performable by the
discriminatees, were not generally equivalent either in pay, prestige, or
interest, to the jobs that they held while at the Respondent. In any
event, the discriminatees went about their job searches by means that
they believed to be reasonable; that being to contact their friends, col-
leagues, and associates in the medical field. This is usually called
“networking” and is perhaps, the most efficacious way of getting a new
job.
ST. BARNABAS HOSPITAL 733
There is no dispute that the granting of privileges is a pre-
condition for a surgeon or other physician to be employed at a
public or private hospital in New York. Nor is there any dis-
pute that it can take from several weeks to several months to go
through the process of obtaining even temporary privileges. (A
physician can be put to work conditionally once having ob-
tained temporary privileges.)
The amount of time that it can take to get privileges or even
temporary privileges is somewhat indeterminate as it depends
upon the amount of information furnished by the job applicant,
the responsiveness of the institutions to which inquiries are
made and the availability of qualified hospital personnel to do
this task at any given time.
Dr. Joan McInerney, the chairman of the department of
emergency medicine at Nassau County Medical Center (now
called Nassau University Medical Center), testified that she
was the person responsible for hiring both Drs. Kazigo and
Priovolos. She made it plain that the process for both individu-
als was quite long. In the case of Dr. Kazigo, he received noti-
fication of his privileges in October 1998 to be effective on
November 6, 1998. He began working at the hospital on No-
vember 17, 1998. (I will discuss Dr. Priovolos’ situation later.)
The Respondent asserts that Dr. Kazigo did not mitigate his
loss because he accepted employment that entailed a “signifi-
cant reduction in pay” from the job he held at the Respondent.
I do not agree.
Dr. Kazigo had been employed as a general surgeon at the
Respondent for many years and the testimony was that the pay
scale at that institution was relatively high compared to other
county and public hospitals. He could have gone into private
practice, but having been employed in the public sector with a
secure salary, I don’t think that he is required to take the risk,
particularly at his age, of starting out anew as an entrepreneur.
Nor do I think that the offer from Nassau County Hospital was
so deficient that a reasonable person in his position should have
refused the offer and waited for an indefinite time for a better
one. Nassau County Hospital offered him a surgeon’s position
at a starting salary of $120,000 per year, which compared to his
base annual salary at the Respondent of $165,000. But the
Nassau County Hospital offer does not strike me as a beggarly
wage. And as a new employee, Dr. Kazigo was hardly in a
position to demand the same pay that someone already em-
ployed for many years would be getting. There is no credible
evidence that a better offer was just around the corner. And I
think that the Respondent would have had a better argument
about lack of mitigation if Dr. Kazigo had refused this offer
and had opted to wait for a better paying job to come along.2

2 The Respondent cited a few cases and asserted that they stood for
the proposition that a discriminatee is required, at least for the initial
period of his or her unemployment, to obtain a job at a substantially
equivalent rate of pay. However, in Tubari Ltd. v. NLRB, 959 F.2d 451
(3d Cir. 1992) (one of the cited cases), the respondent there argued that
the discriminatees willfully incurred losses by immediately accepting
employment that provided significantly lower pay. This contention
was rejected by the court and even while stating that a discriminatee
“should not recklessly accept lower paying employment,” the court
went on to state that “a discriminatee who seeks and accepts interim
employment in good faith should not be penalized for his anxiety to
The Respondent also argues that when employed at Nassau
County Hospital, Dr. Kazigo did not work the same number or
hours that he worked while employed at the Respondent. But
the Respondent did not offer evidence that a similar number of
additional hours were offered to him or that he refused to work
such hours.
In sum, the evidence concerning Dr. Kazigo shows that he
made adequate efforts to gain employment in his field shortly
after his discharge; that he soon managed to get an offer from
Nassau County Hospital; and that he started to work at that
institution within a reasonable time after his privileges were
granted. While he took a month off to go to Uganda, he did so
at a time when the investigation of his credentials was being
undertaken by his prospective employer and he had a reason-
able expectation that this process would not be completed until
after he returned to the United States.3
There was no dispute raised as to Dr. Kazigo’s interim ex-
penses, these consisting of travel expenses, union dues, and an
annual membership fee to Nassau Hospital. As I have accepted
the General Counsel’s theory of the case, rejected the Respon-
dent’s contentions and taken into account those facts that are
not in dispute, the total net backpay amount owed to Dr.
Kazigo is $126,442 plus interest.
IV. DR. PRIOVOLOS
Like Dr. Kazigo, Dr. Priovolos made inquiries of friends and
associates immediately after her discharge. And like Dr.
Kazigo, she wound up at Nassau County Medical Center in
July 1998, as her other efforts were not bearing fruit. In early
July 1998, Dr. Priovolos met with Dr. McInerney and she was
offered, “shift work” as an attending in the emergency medi-
cine department. Although not a position with a yearly salary,
the offered pay was about $2 per hour more than a similarly
placed salaried physician because it compensates for the lack of
other benefits.
Being assured of a job offer (conditioned of course on ob-
taining privileges), Dr. Priovolos mailed in her job application
on July 13, 1998. She sent in her application for privileges on
September 18 because she did not receive that application until
September 10, 1998. (There is no evidence that Dr. Priovolos
intentionally delayed sending in her application for privileges.)

comply with the dictates of the Board and the courts, or because he
succumbs to compelling financial pressures, or even if he exercises
what to the comfortably employed or affluent may be seen as bad and
hasty judgment.”
3 Before his discharge from the Respondent, Dr. Kazigo also worked
part time at Columbia Presbyterian Hospital. As that job was essen-
tially a moonlighting job, his earnings at Columbia whether he contin-
ued to work there or quit, would not be relevant to this case. There was
an intimation that he may have increased his hours at Columbia for a
period of time after his discharge but even so, this was not quantified
and the Respondent did not prove that his interim earnings from Co-
lumbia during that time were any different than what he earned there
before his discharge. In this regard, if a discriminatee held a second
job before the unlawful action, and continued to hold that job through
the backpay period, earnings from the second job are not deductible
from backpay. Acme Mattress Co., 97 NLRB 1439, 1443 (1952), and
U.S. Telefactors Corp., 300 NLRB 720, 722 (1990).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD734
Dr. Priovolos had previously placed her name on a roster for
Doctors Without Borders while still employed at the Respon-
dent. She testified that because Dr. McInerney told her that it
would take some time for her to get privileges, she decided that
this would be a good time to volunteer. So she notified that
organization that she was available and was given a 6-week
assignment in Sri Lanka. Dr. Priovolos left on that assignment
on September 21, 1998.4 She subsequently extended her as-
signment to January 1999.
Dr. McInerney testified that the credentialing committee at
Nassau County Medical Center would have begun reviewing
Dr. Priovolos’ credentials shortly after receiving her submis-
sion. But she also testified that a necessary condition for grant-
ing privileges would be a personal face-to-face interview. And
since Dr. Priovolos was not available for a personal interview
until her return from Sri Lanka on January 6, 1999, that step in
the process could not be completed while she was out of the
country. Thus, although Dr. Priovolos started working at the
hospital in February 1999, shortly after receiving her privileges
effective on January 18, 1999, her receipt of privileges was
delayed because she was unavailable to have the personal in-
terview.
Acting as a volunteer physician in places where medical care
is not readily available, is a worthy pursuit. But if a physician
wants to do this kind of charitable work, he or she does so at
her own expense. The Board does not require Dr. Priovolos’
former employer to subsidize her charity. The question here is
whether she took herself out of the job market for at least some
portion of the backpay period.
When Dr. Priovolos left the United States she did so imme-
diately after she had received and sent in her application for
privileges. And based on the testimony of Dr. McInerney, it is
probable that the granting of temporary privileges to Dr. Prio-
volos would have taken a similar amount of time that it took in
Dr. Kazigo’s case. (About 3 months.)
Thus, while Dr. Priovolos’ first tour in Sri Lanka would not
have impacted on the start of her employment at Nassau
County Medical Center, the extension of her tour most cer-
tainly did. This is because she was not available for a personal
interview which was a precondition for obtaining her privileges
and, therefore, for the commencement of work. Assuming that
she had been available for an interview, it seems probable to
me that she would have received privileges by late November
or early December 1998. That being the case, her sojourn in
Sri Lanka would, in my opinion, be responsible for her being
unavailable for work from say December 1, 1998, to the date
that she actually commenced work which was in early February
1999. For convenience sake, I shall round off the period of her
unavailability by delineating that period as being from Decem-
ber 1, 1998, to January 31, 1999. (Rounded off as 5 weeks in
December 1998 and 4 weeks in January 1999.)
As in the case of Dr. Kazigo, the Respondent asserts that Dr.
Priovolos should have waited for a better job to come along.
For the same reasons stated above, I reject this argument as

4 Although essentially a volunteer job, Dr. Priovolos did receive a
small stipend from Doctors Without Borders, which the General Coun-
sel included in her interim earnings.
there was no showing that a better (or at least a higher paying
job), was on the foreseeable horizon. The Respondent con-
tends that the job offered to her at Nassau County Medical
Center was even worse than the job offered to Dr. Kazigo be-
cause it was a “part-time” job with no fixed income. But the
evidence shows that soon after Dr. Priovolos started her em-
ployment, her hours of work went up to about 40 hours per
week. And as noted above, her rate of pay was essentially the
same as that of salaried physicians who were employed at the
hospital.
In the ensuring period of time, Dr. Priovolos also managed,
in May 1999, to get another part-time job, performing surgery
at Kings County Hospital. At some point toward the end of
1999, when her hours increased sufficiently at Kings County
Hospital, she left Nassau County Medical Center and started to
work exclusively at Kings County Hospital.
Because I have concluded that Dr. Priovolos removed her-
self from the labor market for a short period of time in the
fourth quarter of 1998 and the first quarter of 1999, I am going
to reduce her gross and net backpay accordingly. In this re-
gard, I am going to reduce her backpay for the fourth quarter of
1998 by $20,615 and reduce her gross backpay for the first
quarter of 1999 by $16,492.
As I have rejected the other contentions made by the Re-
spondent and because there are no other disputes regarding the
General Counsel’s backpay calculations (including such ex-
penses as union dues, AMA dues, license fees, etc.), I conclude
that the Respondent owes Dr. Priovolos backpay in the amount
of $296,816 plus interest.
V. DR. RAO
Prior to his discharge, Dr. Rao had a part-time private prac-
tice. He testified that on average, he spent about 20 hours per
week at his private practice. This set of patients mainly were
those admitted to Our Lady of Mercy Medical Center in the
Bronx.
After being discharged by the Respondent, Dr. Rao made
some inquiries about obtaining permanent employment at other
hospitals but chose, after a time, to forego that route and at-
tempt to expand his own private practice. Clearly, self em-
ployment was a legitimate means for Dr. Rao to mitigate his
losses, especially in the field of medicine where many or per-
haps most physicians are self employed. And despite the con-
tention that Dr. Rao did not effectively make efforts in this
direction until around August 16, 1999, at the earliest, Dr.
Rao’s testimony was that he did make some efforts to find
interim employment before taking steps to expand his practice.
For example, he testified that he sought employment at Metro-
politan Hospital.
In September 1998, Dr. Rao made a proposal to Bronx
Lebanon Hospital to provide services starting in the beginning
of November 1998. In 1998, he earned $4320 from his ser-
vices at Bronx Lebanon Hospital. His income tax returns show
that his 1999 earnings from Bronx Lebanon were $66,337 or
$1276 per week and that his 2000 earnings were $43,620 or
$839 per week. On a quarterly basis, Dr. Rao’s earnings from
Bronx Lebanon Hospital are summarized as follows:
Q3 1998 0
ST. BARNABAS HOSPITAL 735
Q4 1998 $4,320
Q1 1999 16,588
Q2 1999 16,588
Q3 1999 16,588
Q4 1999 16,588
Q1 2000 10,907
Q2 2000 10,907
In his efforts to increase his private practice, Dr. Rao noti-
fied colleagues that he was available on a full-time basis to
perform surgery. In November 1998, he opened a new and
bigger office in the Bronx where he hired a secretary.
In September 1999, Dr. Rao rented additional office space in
Nyack, New York, after having applied for privileges in June
1999 at two hospitals located in that area. He received tempo-
rary privileges at Nyack Hospital on November 30, 1999, and
received privileges at Suffern Hospital on September 14, 2000.
In sum, I think that the Respondent has not met its burden of
proving that Dr. Rao did not make an adequate search for work
after his discharge on June 15, 1998. NLRB v. Arduini Mfg.
Co., 394 F.2d 420, 422–423 (1st Cir. 1968); Otis Hospital, 240
NLRB 173, 175 (1979).
Dr. Rao’s tax returns show the following with respect to his
private practice. In 1996, his net profit from his private prac-
tice was $55,413. In 1997, his net profit from that practice was
$79,106. In 1998 (the year he was discharged by the Respon-
dent), his net profit was $98,170. In 1999 (the year after his
discharge), his net profit was $134,016. In 2000, his net profit
was $132, 475, this reflecting, according to the General Coun-
sel an increase in his office rental, employment cost, and other
expenses.
In calculating Dr. Rao’s interim earnings, the General Coun-
sel correctly points out that the calculation must be based on
his net earnings (profits) and not his gross earnings. Boiler-
makers Local 27 (Daniel Construction), 271 NLRB 1038, 1041
(1984). Moreover, his expenses in setting up, or in this case
expanding his private practice needs to be taken into account.
California Dental Care, Inc., 281 NLRB 578 (1986). Finally,
in Dr. Rao’s case, we can attribute to interim earnings only
those net profits over and above what he earned while conduct-
ing similar business at the time of his employment at the Re-
spondent.
Dr. Rao was discharged halfway into 1998 and, therefore,
his net profit for all of 1998 would, in my opinion, be an in-
flated figure in comparison to his prior earnings from his prac-
tice when employed by the Respondent. Thus, even though
incurring some additional expenses starting in November 1998
when he rented new office space, I think it is reasonable to
conclude that his ability to devote more time to his private
practice after June 1998 would have resulted in an increase in
his profits during 1998. Put another way, I think it is probable
that had it not been for his discharge in June 1998, Dr. Rao’s
net profits from his preexisting private practice for 1998 would
have been substantially similar to those in 1997 because of the
limitation on his time imposed by his duties as a full-time em-
ployee of the Respondent. Although not perfect, I think that it
would be fair to use Dr. Rao’s 1997 net profits as the base from
which to measure his additional income by virtue of the expan-
sion of his private practice after his discharge.
Based on his annual tax returns, Dr. Rao’s net profits in
1997 were $1521 per week; his net profits in 1998 were $1888
per week or $24,544 per quarter; his net profits in 1999 were
$2577 per week or $33,501 per quarter; and his net profits in
2000 were $2548 per week or $33,124 per quarter. Therefore,
in calculating his net interim earnings based on the expansion
of his private practice after his discharge, I shall calculate these
as the difference between his 1997 weekly rate and the suc-
ceeding years’ weekly rates.5 Thus, in 1998, from June 15 to
December 31, 1998, the interim earnings obtained from Dr.
Rao’s increased private practice would be at the rate of $367
per week. In 1999, the interim earnings obtained from his in-
creased private practice would be at the rate of $1056 per
week. And for the 6 months in 2000, the interim earnings ob-
tained from Dr. Rao’s increased private practice would be at
the rate of $1026 per week. (I have rounded off the numbers to
the nearest dollar.)
Recalculating Dr. Rao’s interim earnings by combining his
income from Bronx Lebanon Hospital and his earnings from
the net increase in his private practice leads us to the following
calculations:
Private
Practice
Bronx
Lebanon Total
Q2 1998 $734 0 $734
Q3 1998 4,771 0 4,471
Q4 1998 4,771 $4,320 9,091
Q1 1999 13,728 16,588 30,316
Q2 1999 13,728 16,588 30,316
Q3 1999 13,728 16,588 30,316
Q4 1999 13,728 16,588 30,316
Q1 2000 13,338 10,907 24,245
Q2 2000 13,338 10,907 24,245
There was no dispute raised at the hearing about the General
Counsel’s calculations regarding Dr. Rao’s expenses for reim-
bursement for medical insurance and for reimbursement for
disability insurance.6 These were calculated respectively at
$20,842 and $1851. Accordingly, I shall also recalculate Dr.
Rao’s net backpay as follows:

5 I am using Dr. Rao’s yearly tax returns as the basis for determining
the base line for his predischarge private practice income because that
is how the information was available. Dr. Rao’s gross income and
expenses were not summarized on a monthly basis. I do note that it
would be possible to use a different baseline; that being the 12-month
period preceding his discharge by averaging his annual net profits from
1997 and 1998. Under that formula, his average net profit for the 12-
month period prior to his discharge would be $1704.50. Accordingly,
his predischarge private practice profit would be $183 per week higher
that his weekly 1997 profits. Therefore, the calculations for his postdis-
charge private practice interim earnings would be $183 per week lower
and his net backpay would correspondingly be $183 per week higher.
This formula is a bit more complicated than the one I used to calculate
his average predischarge private practice profits and that is why it was
not chosen. But I would have no difficulty in accepting this alternative
approach for determining his postdischarge interim earnings.
6 I really don’t know what these items refer to. But I assume that the
parties do and since they don’t disagree, I won’t worry about it.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD736
Gross
Backpay
Interim
Earnings
Net
Backpay
Q2 1998 $8,031 $734 $3,776
Q3 1998 52,200 4,471 47,729
Q4 1998 52,200 9,091 43,109
Q1 1999 52,200 30,316 21,884
Q2 1999 52,200 30,316 21,884
Q3 1999 52,200 30,316 21,884
Q4 1999 52,200 30,316 21,884
Q1 2000 52,200 24,245 27,955
Q2 2000 52,200 24,245 27,955
TOTAL $238,060
Therefore, based on all of the above, I conclude that the total
amount of backpay owed to Dr. Rao is $260,753 plus interest.
VI. DR. GUNDUZ
Even before being discharged by the Respondent, Dr. Gun-
duz had contemplated changing or expanding his field of ex-
pertise from general surgery to vascular surgery. (This is sur-
gery involving blood vessels.) His initial plan was to get a 1-
year fellowship.
Dr. Gunduz testified that in pursuit of this goal, he contacted
Dr. Asher at Maimonides Medical Center who told him that
certified 1-year fellowships were rare and that most, including
his own at Maimonides, were 2-year programs. Under normal
circumstances, and usually done after completing one’s resi-
dency in surgery, the 2 fellowship years, where the doctor
would have some attributes of a student, would be paid at the
rate of about $47,000 per year. Dr. Asher told Dr. Gunduz that
normally the program would consist of 1 year doing mostly
clinical work and 1 year doing a significant amount of research.
In any event, Dr. Gunduz, prior to his discharge, sent out ap-
plications to various fellowship programs. On May 20, 1998,
he received notification from the National Matching Resident
Program that he had been matched with Maimonides for a fel-
lowship to start on July 1, 2000. Dr. Gunduz testified that a
few days after his termination from the Respondent, he sent a
letter to Dr. Asher and accepted the fellowship. He also testi-
fied that although he was unsure before, he ultimately decided
to take the fellowship because his inquiries into the availability
of other employment had indicated to him that there was noth-
ing out there with any certainty.
In late June 1998, Dr. Gunduz met with Dr. Asher and they
reached a different arrangement. Instead of a starting the fel-
lowship on July 1, 1998, it was agreed that it would be post-
poned to 2000. Instead, Dr. Gunduz was offered a position as
an attending physician in the vascular surgery department of
Maimonides with general privileges as a surgeon but very lim-
ited privileges as a vascular surgeon. (This meant that although
Dr. Gunduz could perform some extremely limited vascular
surgery procedures on his own, the bulk of that practice had to
be done under the direct supervision of a doctor with privi-
leges.) In addition, Dr. Asher told Dr. Gunduz that the first
year research work would not be required as part of the 2-year
program.
Dr. Gunduz began working at Maimonides in July 1998 after
being granted full privileges in general surgery and limited
privileges in vascular surgery. In accordance with the agree-
ment that he would be hired as an attending surgeon, he was
paid at the rate of $90,000 per year.7 At the end of 1999, Dr.
Gunduz received an $8000 bonus thereby bringing his earnings
for that year to $98,000.
The following year, his situation changed again because he
officially started his fellowship on July 1, 2000. As of that
date, Dr. Gunduz therefore became a “resident” and thereby
had all of his privileges revoked inasmuch as residents are
considered to be students. At that point, his earnings and bene-
fits were reduced but this is of no consequence to this case,
inasmuch as the backpay period ended on June 30, 2000.
The Respondent argues that notwithstanding his discharge
on June 15, 1998, Dr. Gunduz had planned even before that
date to leave the Respondent. In this regard, the evidence
clearly shows that Dr. Gunduz thought seriously about leaving
the Respondent and going back to being a resident in order to
obtain certification in vascular surgery. And this was not
merely a matter of thinking about it; it was something, which
he took active steps to accomplish.
But that being said, I don’t think that the Respondent has
proven that Dr. Gunduz would have quit had he received the
offer before his discharge. He might have, but Dr. Gunduz
testified that he was not interested in doing a 2-year fellowship
and that he was not interested in lowering his earnings to
$47,000 per year. He testified that he would have turned down
a 2-year fellowship offer and only changed his mind after and
because he lost his job.
Moreover, after discussions in late June 1998 with Dr.
Asher, Dr. Gunduz was not offered and did not accept a posi-
tion as a “resident.” Instead he was offered and accepted a
position as an attending general surgeon who would work in
the vascular department and learn by doing under the direction
of the other attending surgeons. Instead of being paid a resi-
dent’s salary, he and Dr. Asher agreed upon a salary of $90,000
per year, which was raised in 1999 to $98,000.
The Respondent also argues that Dr. Gunduz did not miti-
gate his loss by virtue of the fact that he accepted a job that
paid substantially below what he was paid at the Respondent.
This is the same argument made with respect to Drs. Kazigo
and Priopolos and amounts to an assertion that Dr. Gunduz
should have waited for a better offer to come along. But I re-
jected that argument with respect to the other two discrimina-
tees and I see no reason to accept it with respect to Dr. Gunduz.
His situation is not that dissimilar. He testified that he made
inquiries regarding other employment and determined that his
likelihood of immediate success was not too high. Perhaps
feeling that a bird in the hand was worth two in the bush, Dr.
Gunduz accepted an employment offer from Maimonides
which paid a sizeable amount of money in comparison to the
average American’s earnings and which offered the additional
inducement of giving him a new skill set in vascular surgery.
Having accepted the General Counsel’s theory of the case
and rejecting the Respondent’s contentions regarding Dr. Gun-

7 According to Dr. Gunduz, he initially was offered $80,000 but af-
ter asking for $100,000, he and Dr. Asher settled on the $90,000 figure.
Dr. Gunduz commented that he agreed to the figure because, as he put
it; “Beggars can’t be choosy.”
ST. BARNABAS HOSPITAL 737
duz, and there being no dispute regarding the calculations made
by the General Counsel, I conclude that the Respondent owes
Dr. Gunduz backpay in the amount of $268,304 plus interest.
[Recommended Order omitted from publication.]