Solof, Barry S., M.D., a Professioanl Corporation, d/b/a The Victoria Medical Group and The West Jefferson Medical Group

VICTORIA MEDICAL GROUP Barry S. Solof, M.D., a Professional Corporation, d/b/a The Victoria Medical Group and The West Jefferson Medical Group and Punkin Clay Stephens. Case 31-CA-10623 September 24, 1982 DECISION AND ORDER BY MEMBERS JENKINS, ZIMMERMAN, AND HUNTER On February 18, 1982, Administrative Law Judge George Christensen issued the attached De- cision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,i and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. We agree with the Administrative Law Judge that Respondent violated Section 8(a)(l) of the Act by discharging employees Einhorn, Frazier, LeBlanc, Stephens, and Sykes because they en- gaged in protected activity within the meaning of Section 7. These employees were discharged for refusing to work until management heard their grievances. These grievances concerned among other things, the lack of supervision of the employ- ees' paramedical responsibilities, a matter plainly affecting the terms and conditions of their employ- ment, and their insistence that they be heard was protected activity.2 Cf. Crenlo, Division of GF Busi- ness Equipment, Inc., 215 NLRB 872, 878-879 ' Respondent has excepted to certain credibility findings made by the Administrative l aw Judge It is the Board's established policy not toi overrule an administrative law judge's resolutions with respect to credi- bility unless the clear prepionderance of all of the relevant -vidence con- vinces us that the resolutions are incorrect Standard Drn Wall Producti. Inc.. 91 NLRIl 544 (1950). enfd. 188 F 2d 3f2 (3d Cir. 1q1) We have carefully examined the record and find no basis for reversing his findings F urther, we find no basis for Respondent's contention that the Admin- istratise Law Judge's review and application of the esidence demon- strates prejudice 'with respect to the parties or the merits of the case We hereby coirecl, however, the following inadvertent but nondisposi- tive errirs by the Admtnistrative Lass Judge: (I) Cintrary to the Admin- istrative Law Judge, the record contains nothing to indicate Ihe legal ratio of supervisors to nurse practitioners; (2) the record does not support the Administrative l.aw Judge's assertion that oni October 27, 1980, the receptionists at Respondent's Victoria clinic arrived 10 minutes after phy- sician assistant LeBlanc; and (3) Supervisor Ash did inot open the Octo- her 20 afternoon meeting by berating L eBlanc. 2 We do not rely on the Administrative Law Judge's statement, which Respondent disputes. that Respondent "concedes the five were furthering a group itcrest " However, we find, in agreement with the Admin- istrative Law Judge, that they were 264 NLRB No. 19 (1974), enfd. in pertinent part 529 F.2d 201 (8th Cir. 1975).3 We find it unnecessary to decide whether LeBlanc's conduct of closing the doors of the clinic and placing a sign on the front door of the clinic announcing that it would open at 10 a.m. in- stead of 8:30 a.m. was protected or unprotected. 4 Respondent did not differentiate between that con- duct and LeBlanc's protected activity which he shared with the other discharged employees. More- over, it discharged all of them because they persist- ed in pursuing their grievances and refused to return to work until they were heard. Respondent's conduct in seeking to persuade all five employees, including LeBlanc, to return to work after it knew of his separate conduct, as well as its contention that the employees all "terminated themselves" by refusing to return to work, clearly establishes that the door incident was not the reason for any of the discharges. THE REMDI)\Y We agree with the Administrative Law Judge that the adequacy of Respondent's offers of rein- statement to some of the discharged employees should be disposed of in the compliance stage of this proceeding. See Charles H. McCaulcy' .4sso- ciates, Inc., 248 NLRB 346, fn. 2 (1980).5 In accordance with Sterling Sugars. Inc., 261 NLRB 472 (1982). we shall modify the Administra- tive Law Judge's recommended Order by adding the requirement that Respondent expunge from its records any references to the discharges of the five discharged employees. We shall also modify the Administrative Law Judge's broad cease-and-desist language, as we do not find Respondent's conduct to meet the test set forth in Ilicknmoit Foods. Inc.. 242 NLRB 1357 (1979), for the imposition of such an order. I We agree ilth the Adlminliratise L as Juldge hi t he rniploec, did not constitute a labor organuatlon and thu, saEr c not Icqtlircd Ito glc notice under Sec. 8(g) of an intended vwork stoppage Reprudcllt c\- cepis. hwescer, to certain language used h. the A dniiiilai tiltc I.a s Judge that in its iers could be read al unrpl\Nc thatII Sc SgI iapplic, onel to w\ork stoppa;ges in support (i hbarglininog Icnl, rlld e dEn nol consider his discussion of Sec Sig) could he so conlstruedt. oii f colursc. such a conc lusion ssould he illcrrelt Orunr cl ir l)l!tri' r (C;lrilo (i Painers No.\ 48. Inhirnatrinal IohcrhiinisdS qf Paiin.rh ald tIhied I'ird, .4FI,-CIO (Sraint Joseph lispitrib 243 NilRB e9. 01l ,I I 17 tIt 4 Member Hunter does not condone nor s.ould he find proie,..il I11 emplo)ee's conduclt II barring an Cmployer's premli se to Ih, pulbli .a11dI informing the public that the premi es v c er e closed Firhoexer tie ilnr,. in agreement with his oll;figues, that here Responderll tis h.irgci 1 ll th employees. incliding I cllanc. fior elngaging ia .1acXti ts ,eklig io pursue their griesalnCs Ilii s %15,s cle.'r in ii -irtiedil plh etc li llid under the Act A.ccordingl siricC on this reconllI it is i ihblshlcd Itli Ia lh closing of the clinic doors %was not a reason fi.r ians , Ihc ernlpl isc dli charges. emhber Hunter concurs in the finding of ai s1 il it 1 in thi, case a Member Jenkins r ruld Cormpule intler st i Alls hlkpall i.ill. i iac cordance with his dissent in Olhnmpiic Midicral ( orporrinimn. 2(50 NI RBH 14I (190) - - DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied and restated in full below, and hereby orders that the Respondent, Barry S. Solof, M.D., a Pro- fessional Corporation, d/b/a The Victoria Medical Group and The West Jefferson Medical Group, Los Angeles, California, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Threatening to terminate, or terminating, its employees for withholding their services while they attempt to present and secure a remedy to a common, work-related grievance or complaint in a manner which is neither unlawful nor improper under the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action: (a) Offer Elissa Einhorn, Jan Frazier, Whitney LeBlanc, Punkin Clay Stephens, and Fletcher Sykes immediate and full reinstatement to their former positions or, if such positions no longer exist, to substantially equivalent positions, without prejudice to their seniority and other rights and privileges previously enjoyed, and make them whole for any loss of earnings and benefits result- ing from the discrimination practiced against them in the manner set forth in the section entitled "The Remedy." (b) Expunge from its files any reference to their discharges on October 27, 1980, and notify them in writing that this has been done and that evidence of these unlawful discharges will not be used as a basis for future personnel actions against them. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its premises in or near Los Angeles, California, copies of the attached notice marked "Appendix." 6 Copies of said notice, on forms pro- vided by the Regional Director for Region 31, after being duly signed by an authorized repre- F In the event that this Order is enforced by a Judgment of a United States Court of Appeals. the words in the notice reading "Posted by Order of the National l.abor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National L abor Relations Board " sentative of Solof, shall be posted immediately upon receipt thereof, and be maintained by Re- spondent for 60 consecutive days thereafter, in conspicuous places, including all places where no- tices to employees are customarily posted. Reason- able steps shall be taken by it to ensure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 31, in writing, within 20 days from the date of this Order, what steps Solof has taken to comply here- with. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. WE WILL NOT discharge or otherwise disci- pline you for withholding your services while you seek to present and secure a remedy to a common, work-related grievance or complaint in a manner which is neither unlawful nor im- proper under the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of your rights under Section 7 of the Act. WE WILL offer Elissa Einhorn, Jan Frazier, Whitney LeBlanc, Punkin Clay Stephens, and Fletcher Sykes immediate and full reinstate- ment to their former positions. if necessary ter- minating their replacements, or, if such posi- tions no longer exist, to substantially equiva- lent positions, without prejudice to their se- niority or other rights and privileges previous- ly enjoyed, and WE WILL make those employ- ees whole, with interest, for any losses in wages and benefits they suffered by virtue of their termination for withholding their services while they sought to meet with us to secure a favorable remedy to their complaints over their rates of pay, wages, hours, and working conditions. WE WILL expunge from our files any refer- ence to the disciplinary discharges of those employees on October 27, 1980. and WE WILL notify them that this has been done and that evidence of these unlawful discharges will not 100 VICTORIA MEDICAL GROUP be used as a basis for future personnel actions against them. BARRY S. SOLOF, M.D., A PROFES- SIONAL CORPORATION, D/B/A THE VICTORIA MEDICAL GROUP AND THE WEST JEFFERSON MEDICAL GROUP DECISION STATEMENT OF THE CASE GEORGE CHRISTENSEN, Administrative Law Judge: On August 18, 1981, 1 conducted a hearing at Los Ange- les, California, to hear issues raised by a complaint issued on January 18, 1981, based upon a charge filed by Punkin Clay Stephens on November 7, 1980.' The complaint alleged the Respondent Barry S. Solof, M.D., a professional corporation doing business as the Victoria Medical Group (Victoria) and the West Jeffer- son Medical Group (Jefferson), violated Section 8(a)(1) of the National Labor Relations Act, as amended (Act), by terminating the employment of Elissa Einhorn, Jan Frazier, Whitney LeBlanc, Stephens, and Fletcher Sykes for engaging in concerted activities protected under Sec- tion 7 of the Act. The Respondent replied the complaint should be dis- missed because: I. The five employees named in the complaint failed to comply with the notice provisions of Section 8(g) of the Act. 2. The Respondent did not terminate the five employ- ees, they voluntarily quit their employment. 3. If terminated, the five were terminated for engaging in conduct unprotected by the Act. 4. In the event findings are entered the five were ter- minated for engaging in concerted activities protected under Section 7 of the Act, they are not entitled to rein- statement or backpay because of their misconduct. The issues are: (I) Whether the notice requirement of Section 8(g) of the Act apply to the five employees named in the complaint; (2) whether they quit or were terminated; (3) if terminated, whether they were termi- nated for conduct not protected under the Act; and (4) if they were terminated for engaging in conduct protected by the Act, whether they engaged in misconduct which disqualifies them from reinstatement and backpay. The parties appeared by counsel at the hearing and were afforded full opportunity to adduce evidence, ex- amine and cross-examine witnesses, argue, and file briefs. The General Counsel argued orally immediately prior to the close of the hearing and the Respondent filed a brief. Based on my review of the entire record, observation of the witnesses, perusal of the oral argument, the brief, and research, I enter the following: I Read 1980 after all further date references omitting the year FINDINGS OF FACT I. JURISDICTION The complaint alleges, the answer failed to deny, 2 and I find that at all pertinent times the Respondent was a California corporation with an office and principal place of business in Los Angeles, California, where it was en- gaged in providing primary outpatient medical care; that it annually derived gross revenues in excess of $250,000; and that it annually derived revenues in excess of $10,000 from Medi-Care, a federally funded program. Based on the foregoing, I find and conclude that at times pertinent the Respondent was an employer en- gaged in commerce in a business affecting commerce within the meaning of Section 2 of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts At times pertinent Solof owned and operated two clin- ics in Los Angeles, California. The clinics provided pri- mary outpatient diagnosis and treatment' to ambulatory patients. Patients with serious or acute problems were re- ferred to specialists or hospitals. In mid-October, the Re- spondent employed five full-time physician assistants (PAs), two part-time PAs, and one full-time nurse practi- tioner (NP) at the two clinics. 4 Solof maintained an office at Jefferson and spent more time there than at Victoria. 5 PA Stephens worked full time at Jefferson; PA Frazier worked part time at Jeffer- son, with the expectation she would be placed on full time when and if the practice there increased sufficiently to warrant her full-time employ; PAs Arnie Judkins, 6 LeBlanc, and Sykes and NP Einhorn worked full time and PA Washington worked part time at Victoria. Sup- porting nurse and clerical staff were also employed at the two clinics. No supervisory licensed MD officed at Victoria, although an elderly, supervisory licensed, semi- retired cardiologist 7 theoretically supervised some of the PAs there. At some time prior to mid-October, the Re- spondent contracted with Sierra Management Company, jointly owned by Paul Ash and Richard C. Harding, to supply personnel management, including the hiring, dis- charge, and setting of wage rates, holidays, vacations. benefits, and terms and conditions of all employees, in- cluding the PAs and NP, billing and collection of ac- counts receivable, purchasing, payment of accounts pay- able, taxes, etc. Solof and Judkins screened prospective hires for medical aptitude and qualifications and Ash and 2 Under Sec. 102.20 of the Rules and Regulations of the National Labor Relations Board, Series 8, as amended, a failure to deny a com- plaint allegation is treated as an admission thereof a For colds, coughs, backaches. etc 4 PA' and NPs, after completing certain academic requirements, are licensed by the State of California to diagnose and treat patients for phys- ical complaints, provided they are not autonomous, i.e.. that they work under the supervision of an MD licensed as a PA and NP super' isor, on a ratio of one to two s He did not spend full time at the clinics, he also engaged in outside practice. 6 Judkins was classified as chief PA ' Dr Louis Freibrun I01 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Harding set their wages and other terms of employ- ment.8 Solof spent the latter part of September and first half of October in Europe, vacationing and attending a medi- cal conference: during the same period, Freibrun was hospitalized with a heart condition. While Solof contact- ed a physician who agreed to take over his work during his absence abroad (Dr. Gornell), the necessary certifica- tion Gornell needed to qualify as a supervisory physician was not obtained prior to or during the time Solof was abroad. A pediatrician who worked at Jefferson prior to its sale to Solof, while qualified and licensed to supervise PAs, left the clinic in June and ceased providing supervi- sion thereafter. Subsequent to the cessation of employ- ment of the PAs and NP herein involved, the services of a physician qualified to supervise PAs, Dr. Calaveras, were provided at Victoria. Thus while the PAs and NP had a list of specialists and hospitals where they could refer patients during a period beginning with Solof's de- parture for Europe (approximately September 19) and ending with his return (on about October 20), during that period the PAs and NP worked with little or no MD su- pervision. The PAs and NP discussed this situation among them- selves during the aforesaid period and, on Monday, Oc- tober 20, five of them met at LeBlanc's home. Einhorn, Frazier, LeBlanc, Stephens, and Sykes were in attend- ance. They discussed their concern and dissatisfaction over the extent of their medical supervision, the possible effect on their licenses, and potential legal liability, and went on to discuss their unhappiness over not having written employment contracts, adequate malpractice in- surance coverage, their assignment to 6-day workweeks without receipt of premium pay, their required attend- ance at meetings outside of working hours without pay, the Respondent's failure to make payments under a promised profit-sharing plan, etc. They decided to meet again on Wednesday, October 22, and to continue an ex- ploration of their grievances or complaints and what to do about them. Einhorn, Frazier, LeBlanc, and Stephens attended the October 22 meeting. They went over the same subjects, decided to prepare a document setting out their com- plaints or grievances for presentation to the Respondent for resolution, and decided to have Einhorn contact Ash and seek information concerning the operation of the profit-sharing plan. Einhorn contacted Ash the next day; Ash scheduled a meeting after working hours on Wednesday, October 29, to explain the operation of the profit-sharing plan. During the afternoon of Friday, October 24, while Solof was enroute to Palm Springs to visit his mother (who was hospitalized there), an acutely ill patient came to Jefferson. Stephens became upset over her inability to reach Solof and secure his assistance in handling the pa- tient. She relayed her concern to the others she met with earlier and they agreed to meet on Sunday, October 26, and determine a course of action. I I find at times pertinent Solof. Ash. Harding, and Judkins Were su- pervisors and agents of the Respondent acting on its behalf within the meaning of Sec 2 of the Act The five who attended the first (October 20) meeting attended the October 26 meeting. They decided to seek a meeting with Solof prior to the commencement of any work the following morning and at that meeting discuss the inadequacy of their medical supervision, try to secure agreement on a specific supervisor schedule during working hours, and to secure his agreement to a second meeting for discussing and resolving the balance of their complaints or grievances. Stephens telephoned Solof's home, spoke with his roommate (David Salyer), and told Salyer to tell Solof they wanted a meeting with Solof at Victoria at 8:30 the following morning (Monday, October 27) before they commenced work to discuss a problem which deeply concerned them. This was the only notice the five gave the Respondent prior to October 27. Salyer relayed the message to Solof. Solof conferred with Ash; Ash sug- gested Solof go to work at his regular time at Jefferson and then proceed to Victoria and find out what was going on. Solof assented. Ash then contacted Harding and suggested Harding proceed to Victoria the following morning. Harding assented. Victoria normally opened for business at 8 a.m. LeBlanc was the first PA to arrive the morning of Monday, October 27 (through the back door), about 8 a.m. When the receptionist arrived (about 0 minutes later, and again through the back door), LeBlanc told her there was going to be a meeting with Solof that morning and not to open the front doors to patients until it was over. Noting through the glass partition several patients were outside the front doors waiting, LeBlanc exited through the rear door, went to the front, told the waiting patients the clinic would not be open until later, and wrote out and posted a sign on the front doors stat- ing the clinic would not open that day until 10 a.m. LeB- lanc returned to the clinic through the rear door. Ash ar- rived through the rear door about 8:30 a.m. and asked why the front doors were closed. The receptionist in- formed him LeBlanc told her not to open the doors be- cause there was going to be a meeting. Ash went to LeBlanc and asked him what this was about a meeting. LeBlanc responded the PAs and NP had requested that Solof meet with them at Victoria to discuss the problem the PAs and NP were having with medical supervision. Ash responded there were patients to be seen and, if a meeting were desired, it would have to be scheduled and held at another time. LeBlanc stated some matters had come up which required immediate resolution by Solof which were medical matters, not adminiistrative. Ash re- peated there was work to be done, there was not going to be any meeting at that time. and directed the recep- tionist to open the front doors (which she did). At or about that time Frazier arrived for the meeting, contact- ed LeBlanc, the two made photocopies of a document Frazier prepared setting out the grievances or complaints of the PAs and the NP. 9 Seeing Frazier, Ash asked her 9 The document set out griwc nces \oercr (1I) medical supcrvision; (2) required unpaid attiendalce at mnectings; (3) nialpraictl e Iuvurance: (4) written empltoyment lonliractsi (5i pirfil shjring (b) sv.rc timc paN, (7) hospital and surgical insurance; (K) pand acationls: (ua paid sick lease: Coflintued 102 VICTORIA MEDICAL GROUP what she was doing at Victoria. Frazier replied she was there to attend the meeting. Ash directed her to get over to Jefferson and go to work or she would not be paid. Einhorn and Sykes arrived at or about that time, as did Harding. Both LeBlanc and Einhorn told Ash they needed to meet with Solof, there were a number of prob- lems they wished to discuss with him and resolve. Ash stated there was not going to be any meeting, Solof was at his office at Jefferson, there were patients there at Victoria to be seen, and directed the four to go to work. The four reiterated their position that they wanted to see Solof, and see him now, before going to work, an- nounced they were going over to Jefferson to see him, went to their autos, and proceeded to Jefferson. Ash telephoned Solof, advised him the four were coming, and he and Harding went to their autos and proceeded to Jefferson. When the four arrived at Jefferson, they went into Solors office. Einhorn informed Solof the group had several problems they wanted to discuss with him and resolve, particularly their medical supervision. Solof re- plied he was not aware there was any problem. At or about that time Ash and Harding walked in and Ash stated he could not have this, there were patients who needed to be seen, the PAs and NP should get to work, and if they wanted a meeting, they would have to schedule it outside of working hours. The four respond- ed their main problem was medical, not administrative, and required Solof for resolution. Ash stated there was not going to be any meeting and suggested Solof leave the office and start seeing patients, which he did. Frazier stated they needed to meet now. Ash replied she was a probationary employee,10 she was fired, to get off the premises, and he would consider the other three termi- nated if they did not get back to work. Frazier replied she was not leaving until they had a meeting. Ash said he would call the police and have her removed if she did not leave. LeBlanc stated this was getting ridiculous, they were not going to wait for the police, and the four left. LeBlanc and Sykes returned to Victoria to pick up their personal belongings and instruments. As they were leaving the clinic, Solof arrived.'I Solof stated he was sorry the whole thing happened, that they should not have defied Ash, but he thought it could be straightened out. LeBlanc replied they all had been fired and he and Sykes proceeded to LeBlanc's home. Einhorn and Fra- zier also went there. (10) paid holidays; (11) 30-day termination notice; (12) grievance proce- dures: (13) reimbursement for professional license fees and dues, and (14) cost-of-living increases to Frazier was within her first 3 months of employment. the Respond- ent's probationary period. I After the four left Jefferson, Ash suggested closing Jefferson for the day and Solof going to Victoria to handle the patients there (Victoria normally handled a much higher number of patients daily than Jefferson did). Solof complied with the suggestion. Since Judkins did not report for work on October 27 and Washington was not scheduled to work that day, none of the PAs or NP worked that day. At or about 9:30 a.m. Stephens and her roommate, Shawnee Isaac-Smith,t2 arrived at Jefferson.L3 Ash and Harding were still there (Solof had departed for Victo- ria). Stephens asked where Solof was and what happened at the meeting. Ash replied there was not any meeting, Solof's location was not any concern of hers, and direct- ed her to get to work or she was terminated. She said she wanted to make a telephone call, telephoned LeBlanc, and learned he, Sykes, Frazier, and Einhorn had been terminated for insisting on meeting with Solof and discussing their complaints or grievances before going to work. Stephens informed Ash she was part of and supported the group and was not going to work until Solof met with the group and got the medical su- pervision issue resolved. Ash replied, if she were not going to work, to leave the premises or he would summon the police and remove her. Stephens collected her belongings and went to LeBlanc's home. After Stephens arrived at LeBlanc's home, the five conferred and decided to contact Solof to see if they could schedule a meeting with him to resolve their grievances or problems, which now included their termi- nations. Stephens was authorized by the others to con- tact Solof and see what she could arrange. Stephens reached Solof by telephone about 11 a.m., stated the five wanted to return to work and asked Solof to reinstate them and schedule a meeting to discuss their grievances or problems. Solof replied he was not sure anyone had been terminated, he did not want them terminated, and he would have Ash telephone them. Stephens stated all five were at LeBlanc's home and could and would return to work in 5 minutes if told to report. Solof stated he would contact Ash and probably have them all back to work by noon. Ash subsequently telephoned LeBlanc's home and spoke to LeBlanc. He told LeBlanc personnel had been recruited to replace the five the following day and sug- gested the five attend the meeting previously scheduled for 5:30 p.m., Wednesday, October 29. LeBlanc replied the five wanted to meet as soon as possible and Ash agreed to meet with them at 5:30 p.m. that day. The 5:30 p.m. meeting was attended by Solof, Ash, Harding, Isaac-Smith, Stephens, LeBlanc, Sykes, Ein- horn, and Frazier. Ash opened the meeting by berating LeBlanc for telling the Victoria receptionist not to open the doors at or about 8:10 a.m. and posting the sign stat- ing the clinic would not open until 10 a.m. Stephens re- sponded they were not there to discuss that, but the problem the PAs and NP were having with inadequate medical supervision. Solof stated he was unaware of any problem with their supervision, he did not want that kind of a problem, and he certainly wanted to work on and resolve it. Either Ash or Harding stated they thought the employees' real concern was their not having received any profit-sharing payments. One of the employees responded that was not so, they wanted to focus on the problem they were having with their medi- 12 Isaac-Smith was employed by the Respondent at Jefferson as its office manager. 1i Stephens, who lived in Malibu, was prevented by a freeway acci- dent from reaching Victoria for the presumed meeting with Solof 103 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cal supervision and resolve the balance of their problems later. Copies of the document listing the employees' grievances or problems was distributed to Solof, Ash, and Harding. The management representatives caucused. When they returned, Solof stated he did not want any supervision problems. Ash stated Solof had been considering the ac- ceptance of an offered appointment as the medical direc- tor of a hospital and it appeared he could not accept the proffered appointment but would have to devote full time to the clinics. Ash went on to say if Solof spent all his time at the clinics, the Respondent would have to reduce the number of PAs and NPs it employed or finan- cial problems would arise. Ash then announced manage- ment was going to review its needs, decide who and how many PAs and NPs it wished to employ, and that he would, beginning on Wednesday, call those individ- uals the Respondent decided to recall to individual inter- views, at which time management would discuss any grievances or complaints each one had. The five employees caucused, decided to stick togeth- er, informed management they came to the meeting in the belief that, in his earlier telephone conversation with Stephens, Solof agreed to reinstate them and to meet with them to discuss and attempt to resolve their griev- ances, that their grievances were group grievances, and that they wished to discuss and resolve their grievances as a group, not individually. Ash replied they terminated themselves when they re- fused to go to work, they were not reinstated, any rehire would be selective, and any discussions would be indi- vidual. LeBlanc responded the group came there to discuss their grievances as a group and that was the only way they were going to discuss them. Ash stated he would contact those individuals the Re- spondent wished to reinstate individually, and the meet- ing broke up.14 B. Analysis and Conclusions 1. The notice issue Section 8(g) of the Act requires any labor organization representing the employees of a health care institution, and seeking through collective bargaining to secure the agreement of that institution to changes in those employ- ees' rates of pay, wages, hours and working conditions, to give written notices to mediation and the institution prior to calling the employees it represents out on strike in support of its demands. The Respondent argues it is a health care institution; that the five employees named in the complaint were a labor organization within the meaning of Section 8(g) of the Act; that when the five failed or refused to work until and unless Solof met with them to discuss and re- 14 The above findings are based primarily on the testimony of LeBlanc, Stephens. and Frazier. who impressed me as honest, forthright witnesses, plus the substantial corroboration furnished by Solof and Ash and the parties' stipulation that Sykes and Einhorn would testify the same as L.e Blanc, Stephens, and Frazier with respect to the employee meet- ings on October 20, 22, and 26 and the employee-management encounters and meetings of October 27, were they called to testify. solve their complaints or grievances, they engaged in a strike; that they failed to serve the requisite 8(g) notice on the Respondent and mediation agencies prior to en- gaging in that strike; and that by such failure they for- feited any rights they might otherwise have had under Sections 7 and 8(a) of the Act."' The Board and the courts repeatedly have held that employees who withhold their services while attempting to resolve a common grievance do not constitute a labor organization within the meaning of Section 8(g) of the Act and therefore are not required to comply with the notice provisions of that section nor are they subject to the penalties of Section 8(d). 6 The five employees named in the complaint failed or refused to go to work on October 27 while they sought a meeting with Solof for the purpose of discussing and at- tempting to resolve their common fear their licenses might be jeopardized and they might be subjected to legal liability due to his failure to provide adequate medi- cal supervision over their work and to secure his agree- ment to a second meeting at a later time to discuss and attempt to resolve other concerns they had over their wages, hours, and working conditions. They neither formed an organization nor sought a single collective agreement with the Respondent, as a labor organization would.'7 I find, on the basis of those facts and the lan- guage of Section 8(g) of the Act, as interpreted and ap- plied by the Board and the courts in the cases cited above, the five did not constitute a "labor organization" within the meaning of Section 8(g) of the Act. I further find on the same grounds that, since the five were not subject to the notice requirement of Section 8(g) of the Act, they also were not subject to the penalties set out in Section 8(d) of the Act. 2. The termination or quit issue Respondent contends the five employees terminated themselves by failing to go to work despite repeated re- quests to do so. I reject that contention. From the time (October 26) the five employees notified Solof of their desire to meet with him before commencing work the following morn- ing through their October 27 terminations and reaffirma- tion thereof, the employees consistently took the position they were not going to work only for such time as it took to meet with Solof to discuss and attempt to resolve their primary grievance, and to set a second meeting, with the obvious corollary they would go to work as soon as that meeting was concluded. Their employment ceased because Ash refused to permit the meeting to pro- i' Sec. 8(d) of the Act provides for such loss in Ihe event the requisite 8(g) notice is not filed. 16 Oakwood Manor. Inc.. d/b/a Danville Nursizng Home,. 254 .VLRB 907 (1981): Villa Care, Inc.. d/b/a Edmonds Villa Care Center, 249 NLRB 705 (1980); St. Luke's Memorial Hlospilal Inc .. L.R.B.., 623 F.2d 1173 (7th Cir. 1980); Montefiore Hospital and Medical Center v. N.L.R B., 621 F.2d 510 (2d Cir. 1980); N.L.R.B. tLong Beach Youth Center, 591 F.2d 1276 (9th Cir. 1979); N.L.R.B. v. Rock Hill Convalesenl Center, 585 F.2d 701 (4th Cir. 1978); Walker Methodi.st Residence and Iealth Care Center. Inc.. 227 NLRB 1630 (1977); The Masonic & Eastern Star tlome of the District of Columbia, 206 NLRB 789 (1973). " To the contrary, one of the issues they wished to explore at a second meeting was the execution of individual employment contracts. 104 VICTORIA MEDICAL GROUP ceed, discharged Frazier for insisting it should, and dis- charged the other four for failing or refusing to go to work, until and unless the desired meeting was held. That the employees at no time voluntarily severed their employment is filrther demonstrated by Stephens' October 27 telephoned offer to Solof, on behalf of the five following their termination, to return to work within 5 minutes if Solof would permit them to do so (which was countered by Ash's telephone statement they had been replaced and his subsequent reaffirmation that eve- ning they had been terminated, their offer to return to work was rejected and they would be contacted individ- ually at a later date if and when the Respondent decided to offer rehire to any of them). On the basis of the foregoing and the preceding find- ings on which it is based, I find and conclude the five employees were involuntarily terminated by the Re- spondent on October 27; they did not voluntarily quit their employment. 3. The unprotected conduct issue The Respondent contends the question of whether the five terminated PAs and NP were receiving adequate su- pervision by an MD licensed to provide that supervision, in the required ratios, is one for exclusive submission to, and determination by, California's Board of Quality As- surance. The Respondent also asserts LeBlanc's action of telling several patients waiting outside of Victoria about 8:15 a.m. that the clinic was not going to open until a later time and posting of a paper at the front doors re- peating that message was unlawful or improper conduct, attributable to all five of the terminated employees. The Respondent argues since the five failed or refused to report for work on October 27 in an attempt to force Solof to secure medical supervision by specified, quali- fied MDs in the required ratios over their work, they were not seeking to resolve a work-related complaint or grievance and therefore their conduct was not protected under the Act; with respect to the latter, the Respondent argues LeBlanc's conduct disqualifies the five from the protection of the Act, citing Shelly & Anderson Furniture Co. v. N.L.R.B., 497 F.2d 1200 (9th Cir. 1974). Shelly & Anderson cites four conditions which must be met before an employee termination for engaging in a work stoppage to protest an employer practice is entitled to the remedial protections afforded by the Act; namely, (I) the employees were seeking to redress a work-related complaint or grievance, (2) they were furthering a group interest, (3) they were seeking a specific remedy or result, and (4) their conduct was not unlawful or other- wise improper. The Respondent concedes the five were furthering a group interest when they withheld their services while seeking to meet with Solof and secure his agreement to a specific medical supervision schedule and a further meet- ing to discuss the balance of their complaints or griev- ances (the second criteria) and sought a specific remedy, supervision by MDs licensed for such supervision, in proper ratios, during their working hours (the third crite- ria). With respect to the first criteria, I find their grievance was work-related; in fact, it was vitally related to their work, since the PAs and NP were licciiscd to perform their job functions only if they worked under the direc- tion and guidance of a licensed MD readily available to review the symptoms disclosed by the medical history and examinations they performed and to assure proper diagnosis and treatment of the ailments disclosed. While I readily agree the matter should be presented to the ap- propriate state licensing agency for review and imposi- tion of such sanctions as may be warranted, this does not mean the employees were not entitled to attempt to re- solve their complaints and grievances over that subject through Solof and be denied the protections of the Act because they did. As to the latter, I find LeBlanc's action cannot be at- tributed to the other four; and I find his action of insuffi- cient gravity to deprive LeBlanc of the protections of the Act. LeBlanc acted in good faith, in the belief Solof was going to meet with the five to resolve their primary complaint and set a time, date, and place for a second meeting, after which he and the other PAs and the NP scheduled to work at Victoria that morning could start to work and the other two PAs scheduled to work at Jefferson could go there and get to work (Stephens and Frazier). He told the few waiting outside the doors to come back later; the doors were opened by Ash at 8:30 a.m., and thus that action by LeBlanc did not deprive either the Respondent or any patients of service, and at the most only inconvenienced a few patients for a short period. The subsequent shutdown of Jefferson and limit- ed operation of Victoria came about because of Ash's ob- durate refusal to permit the PAs and NP to meet with Solof and their discharge by him for persisting in their efforts to secure that meeting. I therefore find and conclude the five were discharged by Ash for engaging in conduct protected by the Act, i.e., for withholding their services while attempting to present and secure a specific remedy to a common, work-related grievance or complaint in a manner which was neither unlawful nor improper under the Act and, having so concluded, I further find and conclude the Re- spondent by those discharges violated Section 8(a)(l) of the Act. I" 4. The reinstatement and backpay issue The Respondent lastly contends the five employees should be barred from reinstatement and backpay be- cause of the actions of LeBlanc described in the preced- ing section of this Decision. I reiterate the conclusion stated earlier, that LeBlanc's actions cannot be attributed to the other four,' 9 and my second conclusion that LeBlanc's action was not unlawful or otherwise improp- er to the degree it would warrant depriving him of pro- tection under the Act. '" See the cases cited in fn. 16 19 There was no evidence the four were s.lalc of., authorited. or rati- fied LeBlanc's advice to the patients outside \icioria Ihe morning of Oc- tober 27 and his notice-posting. LeBlanc lestified lie acted spontaneously. seeing waiting patients outside and in the reasonahble helief it was not going to be possible to see them for some time, and I credit ihat lestimo- ny. 105 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. At all pertinent times the Respondent was an em- ployer engaged in commerce in a business affecting com- merce within the meaning of Section 2 of the Act. 2. At all pertinent times Solof, Ash, Harding, and Jud- kins were supervisors and agents of the Respondent acting on its behalf within the meaning of Section 2 of the Act. 3. At times pertinent the Respondent's employees Ein- horn, Frazier, LeBlanc, Stephens, and Sykes were not a "labor organization" within the meaning of Section 8(g) of the Act and therefore were not required to satisfy the notice requirements of that section nor be deprived of the protections of the Act under Section 8(d) by virtue of their failure to satisfy those requirements. 4. The Respondent, by Ash's October 27 discharge of the five employees just named for withholding their services while attempting to present and secure a specific remedy from Solof to a common, work-related grievance or complaint in a manner neither unlawful nor improper under the Act, violated Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practice affected and af- fects commerce as defined in the Act. THE REMEDY Having found the Respondent engaged in an unfair labor practice in violation of Section 8(a)(1) of the Act, I recommend the Respondent be directed to cease and desist therefrom and to take affirmative action designed to effectuate the purposes of the Act. Having found the Respondent discharged Einhorn, Frazier, LeBlanc, Ste- phens, and Sykes for engaging in concerted activities protected by the Act, I recommend the Respondent be directed to offer the five reinstatement to their former positions, if necessary terminating any employees hired to replace them, and to make them whole for any losses in wages or benefits they suffered by virtue of the dis- crimination against them, with the amounts due calculat- ed in the manner set out in F. W. Woolworth Company, 90 NLRB 289 (1950), and interest thereon computed in ac- cordance with the formula set out in Florida Steel Corpo- ration, 231 NLRB 651 (1977), and Isis Plumbing & Heat- ing Co., 138 NLRB 716 (1962).20 [Recommended Order omitted from publication.] 20 During the proceeding the Respondent contended. and attempted to establish, that it made valid reinstatement offers to some of the five dis- charged employees subsequent to their discharges. I shall leave the issues raised thereby to the compliance stage of these proceedings. 106