Betances Health Unit, Inc.

BETANCES HEALTH UNIT Betances Health Unit, Inc. and Betances Health Unit Staff Association. Case 2-CA-17628 30 March 1987 DECISION AND ORDER By CHAIRMAN DOTsoN AND MEMBERS BABSON AND STEPHENS On 13 January 1983 Administrative Law Judge Raymond P. Green issued the attached decision. The Respondent and the General Counsel filed ex- ceptions and supporting briefs. The National Labor Relations Board has delegat- ed 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, findings,' and conclusions2 as modified, and to adopt the recom- mended Order, as modified. 1. The amended complaint alleges, inter alia, that the Respondent violated Section 8(a)(3) of the Act by issuing employee Betty Gonzalez a written warning on 8 October 1980 because of her union activities. The judge found that the Respondent issued Gonzalez this warning because she had at- tended a meeting held on 7 October 1980 at the National Health Service Corps at which the Feder- al employees assigned to the Respondent were re- minded that they were not entitled to engage in strike activity. The judge also found that Gonzalez obtained permission from the Respondent's medical director to go to the meeting and that she had at- tended in her capacity as a member of the employ ees' Staff Association in order to counsel or assist the Federal employees. The judge, however, con- cluded that these Federal employees were not em- ployees within the meaning of the Act and there- fore that Gonzalez' activity was not protected con- certed activity as she was not acting in concert with individuals defined as "employees" within the 1 The General Counsel and the Respondent have excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance 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 Cit. 1951). We have carefully examined the record and find no basis for reversing the,findings, except as discussed herein. 2 Our decisions in Res-Care, Inc„ 280 NLRB 1670 (1986), and Long Stretch Youth Home, 280 NLRB 678 (1986), clarified the principles under which the Board may, in exercising its discretion,,decline to assert juris- diction over an employer because of its relationship to an entity exempt from our jurisdiction. Here, however, there were no exceptions to the judge's finding that the Board' should assert jurisdiction over the Re- spondent. Thus we need not pass on the discretionary jurisdictional-issue in this case See, e.g., Gateway Motor Lodge, 222 NLRB 851 (1976). Member Stephens finds, on the present record, that statutory jurisdic- tion exists, and in view of the Respondent's failure to raise any issue of discietionary jurisdiction, he finds it unnecessary to review this case. See his opinion, concurring and dissenting, in Res-Care„ Inc., 'supra 283 NLRB No. 59 36,9 meaning of the Act. Accordingly, he dismissed this portion of the amended complaint. We agree with the judge's dismissal of this com- plaint allegation. In doing so, however, we rely on the following. The record shows that Gonzalez sought permission to attend the meeting from the Respondent's medical director, Dr. Salomon,3 who supervised Gonzalez with respect to her medical duties, rather than from Margaret Joyiens, the Re- spondent's executive secretary, who supervised her regarding administrative and personnel matters. Further, the record shows that Dr. Salomon also told Gonzalez to speak to Joyiens regarding, her re- quest to attend the meeting, which Gonzalez did not do. The Respondent issued Gonzalez a written disciplinary warning because, as stated in the warn- ing, she failed to follow procedures for requesting leave. Accordingly, we find that the Respondent did not violate the Act when it issued Gonzalez the warning. We find no evidence that Gonzalez' warning was related to her union activities. Ac- cordingly,' we shall dismiss this allegation of the complaint. 2. The amended complaint also alleges that the Respondent violated Section 8(a)(3) of the Act when it discharged, and thereafter refused to rein- state, employee Burns. The record shows that Burns was discharged following the Respondent's decision to close the Health Connection (a.. clinic affiliated with the Respondent and at- which Burns was ' employed) due to a lack of funding. Noting that the Health Connection had been closed due to legitimate, economic considerations, the judge found that Burn's discharge did not violate the Act. The judge also rejected the General Counsel's contention that the Respondent further violated the Act when it failed and refused to reinstate Burns. In support of this contention, the General Counsel presented testimony from Burns regarding remarks made to her by the Respondent's project director, Ramos. According to Burns on 30 September' 1980, she received a letter informing her that the Health Connection program had been, suspended due to lack of funding, that her position there had been retrenched, and that she was terminated, effective 2 October 1980. At the time she received the letter; Ramos told her that he felt ",betrayed" by the em- ployees' walkout4 and that if she "didn't participate 3 The name of the Respondent's medical director appears as Dr. "Solo- mon" in the judge's decision The correct spelling as based on the record, including her signature, appears to be "Salomon "' ' The record shows that on 27 August 1980 the Respondent's employ- ees held a meeting to discuss their concerns over working conditions and that Burns, then on sick leave, attended the meeting over Ramos' strenu- ous objections The employees thereafter formed the Staff Association and presented their demands regarding working conditions to the,Re- Continued 370 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD with the other .workers in .:. what was going on that when they reopened the Health Connection that [she] could come back." The judge found that although Ramos did not specifically deny making this statement, Burns' testimony was "too highly improbable" to be credited in light of evidence that the decision to close the Health Connection was of a permanent nature. Thus, he found no violation. As demonstrated above, the judge did not base his findings on his observations of the witnesses' demeanor or conduct at the- hearing. Rather, he based his findings on his assessment of the inherent improbability that the statement Burns attributed to Ramos was made, The Board has held that, in con- trast to evaluating demeanor, or the conduct of a witness, the judge is in no better position than the Board to assess inherent probabilities of testimony, and that the, Board is not bound by credibility de- terminations based on such assessments.5 Here, -we find that the fact the Respondent knew the decision to close the Health Connection was permanent does not preclude a finding that Ramos told Burns that if she did not participate in employee union activity, she could be rehired when the Health Connection reopened.- We note that Burns' testimo- ny stands uncontradicted in the record and further that Ramos was involved in both employee Zayerz' unlawful discharge, which occurred prior to this incident involving Burns, and in employee Garcia's unlawful discharge, which occurred approximately 8 days after Ramos' comment to Burns. In light of the above, and contrary to the judge, we credit Burns' testimony on this point and further find that the statement violated Section 8(a)(1).6 As there is no evidence, however, that the Health Connection ever, reopened, there can be no unlawful refusal to reinstate Burns to that facility, or to offer her rein- statement there as alleged in the complaint- and, ac- cordingly, we dismiss this complaint allegation re- garding Burns. 3. Finally, the amended complaint alleges that the Respondent violated Section 8(a)(3) when ' it discharged employee Pacheco for engaging in a strike on .27 October 1980. The judge, however, found that the strike on 27 October was unprotect- ed .because the employee Staff Association, which the judge had found to be a labor organization, had spondent on 3 September. On 9 September employee Zayerz was formal- ly notified that he was being terminated. The employees' walkout, in pro- test of his discharge, took place on 10 September. 5 Kelco Roofing, 268 NLRB 456 (1983). 6 Although this statement was not alleged as an independent 8(a)(1) al- legation, we find it properly before us as it is sufficiently related to the complaint allegation regarding the Respondent's discharge and failure to reinstate or to offer to reinstate Bums. We also find that this matter was fully and fairly litigated at the hearing, particularly where the record shows that the statement was made coincident with Burns' discharge. Photo-Sonics, Inc., 254 NLRB 567 fn. 2 (1981). -failed to ,give the Respondent 10 days' notice of its intent to strike as required by Section -8(g). of the Act. He further found that the proximate cause of the strike, i.e., the transfer of the Federal employ- ees, was not an unfair labor practice; that the earli- er discharge of employees Gonzalez, Feliciano, and Morales was also not an unfair labor practice; d an that the unfair labor "practice which he had found here and which occurred prior to the strike, i.e., the discharge of, employee Garcia, did not consti- tute such a "serious or flagrant" unfair labor prac- tice to excuse the Staff Association's failure to tender the requisite notice. We agree that Pacheco's discharge was lawful but do so for the following reason. We find that the strike was not an unfair labor practice strike and we agree with the judge that the failure to give the 8(g) notice made- it an, unprotected strike. With regard to the nature of the strike, as the judge noted, the evidence shows that the decision to strike on 27 October was initially prompted by the transfer of Federal employees on 24 October and was possibly reinforced by the discharges of employees Gonzalez, Feliciano, and Morales on the same date. In agreement with the judge, however, we have not found these transfers or discharges to be unlawful. Further, there is no evidence-to estab- lish a causal relationship between the unfair labor practices that we have found (i.e., the discharges of Garcia and Zayerz,7 and the 8(a)(1) statements to Burns) and the employees' decision to go on strike on 27 October. On this basis, we find -that the strike was an economic strike for which the employee Staff Association failed to give the proper 8(g) notice and thus the Respondent= did not violate the Act when it 'discharged Pacheco for engaging in the strike. AMENDED CONCLUSIONS OF LAW Insert the following as Conclusion of Law 5 and renumber the remaining conclusions of law accord- ingly. "5. The statement to Burns that if she did not participate in the Staff Association's activities, she could be rehired when the Health Connection re- opened constituted a violation of Section 8(aX'1),-of the Act." ORDER The National Labor Relations Board adopts the recommended, Order of the administrative law 7 The judge inadvertently erred in stating that he had found that only one unfair labor practice (i.e., the discharge of employee Garcia) had oc- curred before the 27 October strike The judge had also found the dis- charge of Zayerz in September to be unlawful. BETANCES HEALTH UNIT judge as modified below and orders that the Re- spondent, Betances Health Unit, Inc., New York, New York, its officers, agents, successors, and as- signs, shall take the action set forth in the Order as modified. 1. Insert the following as paragraph 1(b) and re- letter the remaining pargraph. "(b) Telling employees that if they did not par- ticipate in Staff Association , activities, they could be rehired when the facility at which they had been previously employed reopened." 2. Substitute the following for paragraph 2(c). "(c) Remove from its files any reference to the discharges of William Zayerz on 9 September 1980 and of Martin Garcia on 9 October 1980, and notify them in writing that this has been done, and that evidence thereof shall not be used as a basis for personnel actions against them." 3. Substitute the attached notice for that of the administrative law judge. CHAIRMAN DOTSON, dissenting. I would remand this proceeding for further con- sideration of whether the Board has jurisdiction over the Respondent. See Res-Care, Inc., 280 NLRB 670 (1986), and Long Stretch Youth Home, 280 NLRB 678 ( 1986). 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 representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT discharge employees because of their membership or activities on behalf of Be- tances, Health Unit Staff Association or any other labor organization. WE WILL NOT `tell employees that if they do not participate in Staff Association activities they could be rehired when the facility, at which they were previously employed reopened. 371 WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Martin Garcia full and immediate reinstatement to his former position of employment or, if that position no longer exists, to a substantial- ly equivalent position, without prejudice to his se- niority or other rights and privileges previously en- joyed, and make him and William Zayerz whole for any loss of pay they may have suffered by reason of the discrimination against them, with in- terest. WE WILL remove from our files any references to the discharges of William Zayerz on 9 Septem- ber 1980 and Martin Garcia on 9 October 1980, and notify them, in writing, that this has been done and that evidence thereof shall not be used as a basis for future personnel actions against them. BETANCES HEALTH UNIT, INC. David E Leach III, Esq., for the General Counsel. Martin Schaum, Esq., of Mineola, New York, for the Re- spondent. DECISION STATEMENT OF THE CASE RAYMOND P. GREEN, Administrative Law Judge. This case was heard by me on 9 days during April and May 1982. The charge in this proceeding was filed on Octo- ber 31, 1980, and a complaint thereon was issued by the Regional Director for Region 2 on April 30, 1981. Thereafter, an amended ` complaint was issued on May 20, 1981 , and a further amendment was made during the hearing. The issues are: 1. Whether the Respondent is an employer within the meaning of Section 2(2), (6), and (7) of the Act, or whether jurisdiction should not be asserted because of its relationship with the Federal Government under the U.S. Public Health Service and the National Health Service Corps. Both of the named institutions are divi- sions of the United States Department of Health and Human Services, formerly part of the U.S. Department of Health, Education, and Welfare. 2. Whether the Betances Health Unit Staff Association, which was formed on August 27, 1980, is a labor organi- zation within the meaning of Section 2(5) tof the Act. 3. Whether pursuant to a type of "poll" taken at a meeting on September 3, 1980, the Respondent became aware of the Staff Associations" majority status so as to require it to recognize and bargain with the Association as the exclusive collective-bargaining representative of certain of its employees in separate units of professional and nonprofessional employees. 4. Whether, on September 3, 1980, at the aforesaid meeting, the Respondent gave' the impression that the 372 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD union and protected concerted activities of its employees were being, kept under surveillance. 5. Whether, at the aforesaid meeting of September 3, 1980, the Respondents unlawfully notified its employee William Zayerz that his employment was being terminat- ed because of his activities on behalf of the Staff Asso- ciation. Also at issue is whether Zayerz was an employee of Respondent or an independent contractor, and wheth- er his subsequent discharge on September 9, 1980, violat- ed Section 8(a)(3) of the Act. 6,_ Whether about October 1, 1980, the Respondent un- lawfully laid off Jini Tannenhouse, Anna Burns, and Dr. Alan Berkman because of their union and protected con- certed activities. The General Counsel alternatively al- leges that these layoffs were unlawful because they were made without prior notice to and bargaining with the Staff Association. Additionally, there is an issue about whether Dr."Berkman was an-employee or an independ- ent contractor. 7. Whether on October 8 and 9, 1980, the Respondent issued a disciplinary warning to Betty Gonzalez and dis- charged Martin Garcia because of their union and pro- tected concerted activities. 8. Whether about October 22, 1980, the Respondent unlawfully caused the. Federal Government to transfer certain Federal employees from the facility of Betances because of their union and protected concerted activities. The employees in question are Dr,. Patricia Solomon, Patricia Gleaton, and Ana Paez. Concerning this allega- tion, it is noted that the three individuals involved were Federal Government employees who were assigned to work at the Respondent. It also is noted that there is no doubt that regarding Patricia Gleaton and Ana Paez the Respondent sought their transfers because they partici- pated in, strikes and walkouts on September 10 and Octo- ber 1, 1,980. With respect to Dr. Solomon, the evidence indicates that the Respondent sought her transfer because it believed that she supported the strike of October 1, 1980. Dr. Solomon, during that period of time, was part of the management of Betances. 9. Whether the discharges of Betty Gonzalez, Nancy Feliciano, and Elva Morales, about October 24 and 25, 1980, violated Section 8(a)(1) and, (3) of the Act. 10..Whether the Respondent violated Section 8(a)(1) and (3) of the Act when it discharged Deborah Pacheco about November. 1, 1980. In this respect, it is not disput- ed that Pacheco was discharged, at least in part, because she participated in a strike that commenced on October 27, 1980. However, as it is conceded that no 8(g) notices were given, there is, an issue about whether her discharge was therefore privileged. 11. Whether the Respondent violated Section 8(a)(1) and (5) of the Act when it temporarily closed its facility from mid-November 1980 to January 26, 1981, without first having given notice to and affording the Staff Asso- ciation an opportunity to bargain about that decision. Based, on the entire record in this proceeding, includ- ing my observation of the demeanor of the witnesses, and after considering the briefs filed by counsel, I make the following FINDINGS OF FACT I. JURISDICTION The-Betances Health Unit, Inc, is a not-for-profit New York corporation which operates a health clinic on Man- hattan's lower east side. The services involved include diagnosis, consultation, and the prescriptions of treatment including medication. Care is administered by various types of health' care professionals including physicians, physician's assistants, and nurse practitioners. Basically, the facility 'is a subsidized group medical office and would qualify as a health-related facility within the meaning of Section 2(14) of the Act. Annually, .the Respondent derives " gross revenues in excess of $250,000 and purchases -goods and materials valued in excess of $5000 directly, from points located ouside the State of New York. The Respondent's operations originated in 1968 as a health project sponsored by the Judson Memorial Church to handle the health problems of -a transient youth population located in Greenwich Village. At that time, the project was completely funded by private grants. By 1970, however, the project's administrators took it over from the church and established a health screening facility. (E.g., it offered tests for the detection of tuberculosis and other diseases). By 1973, a corpora- tion was formed and, thereafter, the Employer changed from a screening facility to a primary care provider that could perform medical treatment as well as diagnosis. In late 1977, Betances applied for a Federal grant under Section 330 of the Public Service Health Act and such a grant was given in 1978. From that point on, about 60 percent of the money revenues received by Betances have come from the Federal Government. The remain- ing money came either from private grants, direct patient payment, medicare and medicaid reimbursements, or from insurance held by its patients. Additionally, a sub- stantial portion of Betances' medical staff have ^ been em- ployees of the Federal Government who have been as- signed, cost free, to Betances. In 1980 the value of such services was in excess of $100,000.1 As a recipient of Federal money, a variety of condi- tions and controls were placed on Betances by the Public Health Service. First, the project director of Betances (in this case Paul Ramos), must be approved by the Govern- ment. Second, pursuant to statute, the board of directors must be composed of persons who are representative of the community served. Third, the ,entire budget for Be- tances is subject to approval by the Government, which can and has set conditions on the amount of staff to be hired and the types of people to be empl9yed.2 Regard- 1 Under the relevant statute, the National Health Service Corps., which employs these individuals, is supposed to be reimbursed for its services However, it is possible for a facility like Betances to receive a waiver of such payments: In short, Betances has been alloted three to four health care professionals and has not had to pay for their services. 2 For example, in the grant for the period from July 1, 1981, to May 31, 1982, the following conditions were placed on Betances: (1) The two outreach workers shall be deleted from,the budget (2) All vacant positions including the internist position may not be filled without prior Regional office approval. Continued BETANCES HEALTH UNIT ing the budget, Passer, the director of the division of health services delivery (a part of the U.S. Public Health Services), testified that the Government "looks very critically at staff levels when we review an application. If, for example, we see too many people in one category, or if salaries are too high, or "[they] left out an important discipline which we feel is necessary,, we discuss with [the] project. We ask for explanations as to why they need for example, four medical assistants, and why they need four doctors if productivity is at such a level." He also testified that "if we grant money . . . our job is to moniter through [a] project officer, to see that they are carrying out the program .... They provide us with semi-annual reports as to whether they are productive, cost effective . . . we have the right, if we suspect prob- lenns, or on request of the granter, to go in and monitor the project on site and try to correct a situation." In addition to the above, the Federal Government re- quires, as a condition of a grant, that health projects, after 2 or 3 years of operation, meet certain Federally mandated productivity levels. -Basically these are that the facility's physicians are required to average 4200 medical encounters per year and that nonphysician providers (i.e., physician assistants and nurse practitioners), are to average 2100 medical encounters per year. As will be shown below, if the grantee does not come up to these minimum productivity levels, the Government will first reduce the amount of the 'next year's grant request and may thereafter refuse to grant any money at all. Obvi- ously, in the case of a health unit that is dependent on Federal money for most of its income, the failure to re- ceive a yearly grant would almost certainly be fatal to its existence. Further, as a result of the somewhat unique situation at Betances, its medical director, Dr. Patricia Solomon, happened to be an employee of the National Health Service Corps. That is, although she had been employed directly by Betances prior to 1978, when Betances became eligible for assignees from that agency, Dr. Solo- mon became an employee of the National Health Service Corps, As medical director, Dr. Solomon was responsi- ble for all of the medical services provided 'and super- vised the staff that provided such services, whether they were employees of Betances or employees of the Federal Government. Also as medical director, Dr. Solomon was part of Betances' management team that consisted of her- self, Paul Ramos, and Wanda Evans.'As part of the man- agement group, she assisted in the formulation of the budget, was involved in policy making, and attended regular meetings of management. Although it appears that it is not usual for a medical director at these types -of facilities to be a Government employee, this was the case - at Betances. Accordingly, Dr. Solomon, as medical director, was responsible not only to Betances but was also responsible to her superi- ors in the Federal Government. (3) No, personnel identified in this budget may be used to provide services in any satellite or mobile facility .. . (4) The progress of the project will be evaluated for continuation purposes on January 1, 1982 and June 30, 1981 . If Betances fails to be in full compliance by December 21, 1981 the project will not be continued. 373 Notwithstanding the above, there are facts that would mitigate against a conclusion that Betances was totally under the control of the Federal Government. Although the Government reviewed Betances' proposed budgets, it did not as a practical matter tell Betances what salaries or fringe benefits it should pay to its employees, provid- ed that such salaries and benefits fell within broadly ac- ceptable parameters. Second, although the Government appointed a project officer to monitor Betances' activi- ties, the day-to-day operations were left to Respondent's own management. Third; although the Federal Govern- ment was vitally concerned with Betances' productivity levels, it nevertheless did not require Betances to take any specific action to deal with this problem and left its solution to Betances' management. (Unfortunately, Be- tances never did solve the ,problem and ultimately lost the Federal grants.) Fourth, although Betances' medical director, Dr. Solomon, was also a Federal employee, the evidence indicates that this was a matter of happen- stance, and that insofar as she functioned as part of man- agement, that role was, in reality, neither monitored nor supervised by her superiors in the Federal Government. Thus, as a person having two hats, it nevertheless seems that Dr. Solomon did not play her management role while wearing her Federal Government hat. Fifth, al- though the board of directors were required to be repre- sentative of the community, there is no evidence that they acted' under the control or influence of, the Federal Government. Finally, apart from those employees who were employed by the Federal Government (the, NHSC assignees), there is no evidence to suggest that the Feder- al Government was involved in Betances' labor or per- sonnel relations vis-a-vis its own staff.3 - Section 2(2) of the Act exempts from Board jurisdic- tion "the United States or any wholly owned Govern- ment corporation, or, any Federal Reserve Bank, or any State or political subdivision thereof." As a private cor- poration, the Board would normally assert jurisdiction over a health facility such as Betances assuming that it met the appropriate monetary standards established by the'Board. The problem here,,however, is whether juris- diction should be precluded because of Betances' connec- tion with the Federal Government, which by any defini- tion cannot be described as insignificant.4 In National Transportation Service, 240 NLRB 565 (1979), a Board majority spelled out its test for determin- ing whether jurisdiction should be asserted or denied in cases when the entity in question has ties to an institution that would be exempt under Section 2(2) of the Act. The Board stated: We see no need to examine the relationship between an employer and an exempt entity for which it per- forms services for some abstract "intimate connec- 1, Although not dispositive, the evidence shows that a number of other health facilities that are Sec. 330 grantees maintain collective-bargaining relationships with labor organizations that represent certain of their em- ployees. 4 As Betances' connection is with the Federal Government rather than a state government, it cannot be argued that Betances should Ibe consid- ered as a State political subdivision. Radio Free Europe, 262 NLRB 549 (1982). 374 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tion" which has no bearing on the employer's abili- ty to bargain effectively with a labor organization as representative of its employees and which re- quires a meticulous and, in our view, superfluous analysis of the facts in order to ascertain whether in the Board's opinion the employer's service are es- sential to the' purposes of the exempt entity, univer- sally recognized as a government function, statutori- ly mandated or non-commercial in nature. Accordingly, we conclude that the "right of con- trol" test provides a more objective, precise, and definitive standard for determining discretionary ju- risdictional issues than the "intimate connection", test. As to the application of the "right of control" test, the Board made it plain that what it was concerned with -was "whether the nonexempt employer retains sufficient con- trol over its employees' terms and conditions of employ- ment so as to be capable of effective bargaining with the employees' representative." A recent case, Youth Guidance' Center, 263 NLRB 549 (1982), will serve to illustrate the application of the Board's right-of-control test in circumstances very simi- lar to those in the present case. In Youth Guidance Center, the employer was a private nonprofit corporation that operated ' a center that provided outpatient mental health services, including diagnosis, treatment, consulta- tion, and educational services. Among the persons who provided these services were psychologists, psychiatrists, social workers, nurses, and teachers. Approximately one- third of its budget came from the Department of Mental Health of Massachusetts, the remainder coming from pa- tient payments, third-party insurance, medicaid, and small private donations. In operating the clinic the center employed its own employees, but additionally the Com- monwealth of Massachusetts assigned various state em- ployees to work,'at the Center, including certain supervi- sory and managerial personnel. As the Board concluded that the employer nevertheless "controlled" the labor re- lations vis-a-vis its own employees, it held that the pres- ence of state employees at the Center in' supervisory and managerial roles, was not sufficient to warrant withhold- ing jurisdiction. In this regard the Board stated, inter alias In these circumstances, we conclude that the As- sociation has not ceded control of its employees merely because some supervisors are employees of the Commonwealth inasmuch as these supervisors apply only Association-determined policy to Asso- ciation employees, and thus are acting in this regard as Supervisors for the Association. Nor is the Asso- ciation's control of its employees lessened because DMH [Department of Mental Health] makes site visits to the Center, and the Association files peri- odic reports or quality assurance evaluations to which DMH is entitled as a contracting agency. Consequently, such contracts do not constitute ef- fective participation or day-to-day supervision of the Association's employees. In view of National Transportation Service, supra, and Youth Guidance Center, supra, it is my opinion that Be- tances would meet the Board's right-of-control test for asserting jurisdiction. As there is no dispute about the fact that Betances meets the monetary standards for as- serting jurisdiction over similar entities,5 it therefore is concluded that Betances is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. It also is concluded that Betances is a health- related facility within the meaning of Section 2(14) of the Act.6 IL THE LABOR ORGANIZATION INVOLVED The second issue presented is whether the Betances Health Unit Staff Association (Staff Association) is- a labor organization within the meaning of Section 2(5) of the Act. This question is of course a foundation issue re- garding the 8(a)(5) allegation. It also is relevant to the issue of the discharge of Deborah Pacheco who was dis- charged about October 27, 1981, because of her partici- pation in a strike that concededly was not preceded by the notices required by labor organizations pursuant to Section 8(g) of the Act.7 To the extent that it may be said that an organization came into existence, this occurred on August 27, 1980. As noted below, on this date certain employees of Be- tances met at the home of employee William Zayerz. At this meeting, there were nine employees in, attendance, plus Federal employees Ana - Paez and Patricia Gleaton and former employee Milagros Sanchez. It was estab- lished that the employees present decided to call them- selves, collectively, the Staff Association and that they elected a grievance -committee. Also, a set of demands were discussed for presentation to Betances on Septem- ber 3. The evidence shows that the Staff Association present- ed initial demands to management on September 3 and 5 See Youth Guidance Center, supra. 6 Subsequent to the close of the hearing, I was advised by the General Counsel that on July 7, 1982, Betances was notified by the Public Health Service that no further grants would be made or given after October 31, 1982. I do not know what has since transpired. 7 If the Staff Association is not a labor organization, it would be a simple matter to conclude that the discharge of Pacheco was violative pof Sec. 8(axl) of the Act. However, Sec. 8(g) provides that A labor organization before engaging in any ' strike, picketing, or other concerted refusal to work at any health care institution shall, not less than ten days prior to such action, notify the institution in writing and the Federal Mediation and Conciliation Service of that intention, except in the case of bargaining for an initial agreement following certification or recognition the notice required by this sub- section shall not be given until the expiration of the period specified in clause (B) of the last sentence of Section 8(d) of this Act The notice , shall state the date and time that such action will commence. The notice, once given, may be extended by the written agreement of both parties. Sec. 8(d) of the Act provides in pertinent part: Any employee who engages in a strike within any notice period specified in this subsection, or who engages in any stake within the appropriate period specified in subsection (g) of this section, shall lose his status as an employee of the employer engaged in the par- ticular labor, dispute, for the purposes of sections 8, 9, and 10 of the Act [Sections 158,159, and 160 of this title], but such loss of status 'for such employee shall terminate if and when he is reemployed by such employer. BETANCES HEALTH UNIT presented revised demands on September 11. Among the demands was one calling for recognition of the grievance committee described above. Subsequent to September 3, the group held a further election to replace certain people who originally were elected to the grievance committee. Also the grievance committee met with the Respondent on September 10 re- garding the discharge of William Zayerz. It also engaged in strikes in furtherance of various of its demands, Apart from the above, the evidence establishes that the Staff Association never had a constitution or bylaws, never kept minute's 'of its meetings, and never filed any reports with either the Federal or State Departments of Labor. It had no formal membership as such, as no person ' ever executed any type of document evincing their membership in the organization or their desire to have it represent them for collective-bargaining pur- poses. Also no dues or initiation fees were paid by any individual, and apart from those people who were elect- ed to the grievance committee, no persons were elected to or occupied any officer positions in the organization. Indeed, no formal structure of any type existed. Section 2(5) of the Act defines a "labor organization" as follows: The term "labor organization" means any organi- zation of any kind, or any agency or employee rep- resentation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers con- cerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work. Although not having any formal structure , it seems to me that the Staff Association was nevertheless an organi- zation of a kind ., In this regard, the Board has held that "formal structure or organization is not an essential req- uisite for fording a labor organization." Columbia Transit Corp., 237 NLRB 1196 (1978); Butler Mfg Co., 167 NLRB 308 (1967). It also is evident that employees have participated in this organization . Regarding its purpose, it is clear from the two sets of demands issued to the Employer and its actions since August 27, that the Staff Association has existed for a purpose of representing em- ployees concerning grievances„ labor , disputes, or condi- tions of work. That such purposes have not come to frui- tion would not,bar a conclusion that it was a labor orga- nization. Litton Business Systems, 199 NLRB 354 (1972). 'Nor barring such a conclusion is the fact that it never filed documents with the Department of Labor, such fil- ings being relevant only when and if the Staff Associa- tion ' becomes the collective-bargaining representative of Respondent's employees. Comet Rice Mills, 195 NLRB 671, 674 (1972). In view of the above, it is concluded that the Staff As- sociation was a labor organization within the meaning of Section 2(5) of the Act. III. THE OPERATIVE FACES 375 A. Background As noted above, a majority of the Employer's income is derived from the Federal Government. In the spring of 1980, Betances was notified by the Public Health Service that the full amount of its grant application would not be given. The amount granted was $325,000 as compared to $318,500 granted the previous year, However, the amount requested for the period from June 1, 1980, to May 31, 1981, was in excess of $450,000 and it appears that the principal reason for not granting the full amount requested was that the.Public Health Service was not satisfied with the productivity of Betances. As noted above, Betances, pursuant to the Federal guide- lines, was required to have a minimum of 4200 medical encounters per year per physician and 2100 medical en- counters per year per midlevel practitioner. According to Benard Passer, it was his opinion that Betances had serious problems relating to productivity and cost per pa- tient encounter. He testified that the physicians at Be- tances were less than minimally productive and - that to solve the problem, Betances either had to reduce the number of physicians or to increase the number of pa- tients coming to the Center. Arthur Fernandez, the Fed- eral Government's project officer for Betances, testified that during the summer of 1980 there was serious consid- eration by his superiors for terminating all future grants to Betances because of the productivity situation. As a result of the bad news, Paul Ramos held a meet- ing with the staff in May 1980 to discuss the budget situ- ation and the productivity problems. At this meeting the employees were notified of the budget and productivity situation, but were told that it was not anticipated that anyone would be laid off. Also, the employees were urged to canvass the community to get community lob- bying for additional money from the Government. In a memorandum to employees dated May 27, 1980, Ramos stated, inter alias Most of you are also aware that Betances submit- ted an application for funding of our third year pro gram on March 1, 1980. We requested $452,000 from the UHI for the FMP and $251,000 for the medical component. The total operating budget is $703,000. The remainder of the funds are generated by earned income (patient fees, Medicare and Med- icaid, etc.) and private grants. I am happy to report that both applications have been approved and funded. The NHSC will continue funding of our four practitioners at the level _ requested by Be- tances. What I am not, happy to report is that while the UHI application was approved (and recom- mended by an HEW Objective Review Committee for funding at the level requested) the final grant award will be $325,000 which is $127,000 less than what we need to operate Betances. In fact, the funds cannot even pay for the cur ent staffing pat- tern and other costs such as rent, supplies,' equip- ment, telephone, etc. 376 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD This memorandum is not intended to alarm anyone, staff or patients. It is the conviction of us all to fulfill our committment to serve the people with the best medical/social care we can. I am told that the actual level of 'funding is determined by several considerations including the amount of monies available and the number of programs re- quested. One other consideration is the productivity of the Unit (number of patients we serve) and its ac- curate reporting. The funding problem, though presently serious, is not one that we cannot overcome. However, if a major reorganization of those problem areas does not correct the deficiency, the results are potentially devastating to staff and patients alike . Betances, unlike most other health programs, does not have a deficit (and never has in its 10 year history), has never had a payless pay day and has never laid off staff because of lack of funds. I'm determined not to let this -happen now either. I'm sure you share this determination and the notion that tolerance, coop- eration and the participation of us all is essential. It is possible that midway through the program year we can receive a supplemental grant which can relieve the pressure but this is determined by several factors . They include an increase in patient volume, patient fee and Medicaid/Medicare collec- tions, as well as an efficient management informa- tion system and its accurate reporting. This is the area that is the most deficient, thus the first order of business is to deal with,this problem. The entire .program and its procedures , including medical, clerical and administrative functions must be closely re-examined. This process will take place in several phases and will begin immediately. This will be explained and discussed in detail in a subse- quent memo. As far as funding from the private sector is concerned, there is additional good news. Since September, 1979, four private foundations (the Public Welfare Foundation, Booth Ferris Foundation, PBP Foundation and Surdua Founda- tion) have awarded grants to Betances as the result of proposals submitted to them. Betances has re- ceived a total' of $63,500 to date. The money will be used toward administrative costs, patient care and especially for the Health Connection, which has his- torically suffered greater funding hardships than the 'Practice. If it's any consolation to us all, it will be interest- ing to note that our funding problem is minor com- pared to that of most health programs, like commu- nity health centers and other UHI's that are also funded by the Feds. One center in the Bronx had to lay off over 30 staff workers because of declining patient enrollment and management problems. Still others have such huge deficits that they have had to default on their debts in order to maintain oper- ations; thus losing their credibility in the purchasing community (which is always disastrous to the sol- vency of an agency). Betances, however, does not have to worry about a present deficit and it enjoys AAA credit rating in the financial community. It therefore is apparent that notwithstanding Ramo's expression of guarded optimism to his employees in May 1980, it was increasingly evident, in light of Arthur Fer- nandez' testimony, that Betances stood at the brink of ex- tinction. In the early part of the summer of 1980, an employee named Milagros Sanchez was discharged at a separate fa- cility of the Employer called the Health Connection.,, Although the reason for her discharge is not relevant to this case, it does -appear to have generated a degree of unease among some of the employees . Also, her dis- charge resulted in a series of anonymous letters, which, among other things, accused the administration of nepo- tism and "corrupt" practices. These letters also com- plained about "arbitrary firings" and the lack of a griev- ance committee or procedure at Betances . One of the let- ters was particularly accusatory of Roni Ramos , the wife of Paul Ramos, who worked at the Health Connection as a registered nurse. Ramos chose not to reply to these let- ters that were issued by "Les Comitte To End Worker Abuse." Also during the summer of 1980, the- management committee consisting of Paul Ramos, Wanda Evans, and Dr. Solomon, held a number of meetings to deal with the budget and productivity problems. According to Wanda Evans, it was the opinion of management , at that time, that the current staffing level could be maintained under the existing grant9 if no salary increases were given and assuming that other sources of money (i.e., medicare, medicaid, third-party payments, and direct patient pay- ments), met the projected levels set forth in the proposed budget. Thus, according to Evans, it was the consensus to defer making any hard decisions and to hope that Be- tances' request for a supplemental grant of $127,000 would be approved. According to Dr. Solomon (one of the General Counsel's principal witnesses), there also was discussion during the summer among the manage- ment group to the effect that if push came to shove, the Health Connection should be closed, that' Zayerz' job was expendable,10 and that of any practitioners had to be let go, then the ones selected for layoff would be those not paid by the Federal Government (i.e., Dr. Berkman and Jini Tanneshouse). Notwithstanding the fact that major decisions were deferred , the evidence does show that certain procedures were tightened up during the summer', especially in an attempt to control excessive absenteeism and tardiness. 8 The Health Connection was a satellite facility located in a settlement house and was set up to provide certain health and welfare education services for adolescents. 9 Evans testified that the request for $450,000 was in part to hire addi- tional staff and purchase new equipment 10 Zayerz concedes that during the summer of 1980, Ramos suggested that as Zayerz had obtained a Masters of Social Work, he should apply to the National Health Service Corps so that he could be paid by the Government rather than by Betances Zayerz also conceded that in August 1980, Ramos told him that there soon might not be funds avail- able for his position BETANCES HEALTH UNIT B. Formation of the Staff Association and its Demands On August 27, 1980, the staff decided to hold a meet- ing to discuss the situation at the Health Connection in- cluding the discharge of Milagros Sanchez. It appears that this meeting was also called, in part, to discuss some of the allegations contained in the anonymous letters. Anna Burns was invited to attend because she was em- ployed at the location. (Burns was, however, absent for much of July and August because, as she put it, she had broken a finger on her left hand and she suffered pain after it had been set.) When Burns came to the meeting, Paul Ramos came into the room and strenuously object- ed to her presence. When the meeting broke up soon thereafter, a number of the employees went to Zayerz' home, where they decided to form a Staff Association and a grievance committee. According to Betty Gonza- lez, the individuals who participated in this second meet- ing were herself, William Zayerz, Nancy Feliciano, Anna Burns, Lisa Garcia, Ann Rosado, Elba Gonzalez, Dr. Alan Berkman, Jini Tannenhouse, and former em- ployee Milagros Sanchez. Ms. Gonzalez testified that in addition to forming the Staff Association, a grievance committee was elected and a set of, demands were draft- ed for presentation to Betances on September 3, 1980. In connection with the above, it is noted that no em- ployees signed any kind of document evincing their membership in the Staff Association or evincing their intent to have the Staff Association represent them for collective-bargaining purposes. C. The Meeting of September 3, 1980 Normally, general meetings are held in the first week of every month. Except for a few people who were absent on this day (Martin Garcia, Dr. Berkman, and Anna Burns), the entire staff and administration of Be- tances was present. Also present were Board Members Daniel Gonzalez and Bertrum Beck.. During the meeting, either or both Beck or Ramos said that they heard that a set of demands was going to be presented. At, this point, Deborah Pacheco read the demands that were as fol- lows: We the staff demand that Paul Ramos and all other administrators at Betances begin to treat each and everyone of us with respect, dignity and con- sideration. The outrageous manner in which Paul Ramos acted towards our co-worker Ann Burns on the afternoon of August 27 was not an isolated inci- dent. On numerous occasions Paul Ramos and/or other administrators have subjected staff to similar verbal abuse and/or intimidation. This and other forms of harrassment must cease now. We the staff demand that our co-workers: Ann Burns, Milagros Sanchez and Andres Rosadoll be immediately reinstated, and a public apology be made to each individual and Milagros Sanchez re- ceive back pay retroactive to the day of her unjust 11 It appears that Anna Burns, as of September 3, 1980, was on suspen- sion It also appears that Andres Rosado had resigned in August. 377 firing. We the staff believe that these firings were unjust and without recourse, and were motivated in an effort by Paul Ramos to protect Roni Sherman Ramos, the catalyst which led to this chain of events. We further believe that Rani Sherman Ramos' presence at Betances is a conflict o F interest. We the staff demand that Roni Sherman Ramos no longer be employed at Betances. We the staff be- lieve that Roni Sherman Ramos has been responsi- ble for much of the turmoil and injustice at Be- tances and that these injustices are a direct result of her presence at Betances. We the staff demand the recognition of our Grievance Committee. The unjust firings and nega- tive situations that have been created and allowed to flourish by the administration necessitated the staff to act in its own behalf. As such we have elected ,a committee composed of workers who will act in our behalf as liaison between administration and staff. Betances is a federally funded program and as such all funding information is a matter of public record, yet staff workers never know what the real situation is with the budget. The inconsist- encies of the administration regarding hiring prac- tices, raises, starting salaries, evaluations, payroll, personnel and other policies which have caused workers concern must be investigated by the Griev- ance Committee with the power to rectify all dis- crepancies. After the demands were read by Pacheco, Bertrum Beck asked if the staff supported the demands. One of the employees, Grace Butler, said that she did not sup- port them, whereupon Beck said that everyone Who sup- ported the demands should stand up. At this point Wil- liam Zayerz objected and asked if immunity would be granted to those employees who supported the demands. Beck said yes. Zayerz then suggested that instead of indi- cating support for the demands by standing, those per- sons who opposed' the demands should stand, Beck agreed and the "vote" was taken, in which those em- ployees who' were not in favor of the groups of demands stood up. According to Betty Gonzalez, of the people present, 13 stood up and 8 remained seated.1 a No tally was made and the vote was not broken down so as to separate which ofthe demands the people supported and which they did not. Also, the entire group, as a group, was asked to indicate their support or opposition to the demands and no distinctions were made between profes- sional and nonprofessional employees or between super- visors and employees. Additionally, the Federal Govern- ment employees participated in the "vote." 12 According to Gonzalez, the standees were Paul Ramos, Roni Ramos, Wanda Evans, Norita Zayas, Dr. Solomon, Paul Rivers, Marga- ret Joyiens, Carmen Altus, Grace Butler, Judy Studer, Lisa Garcia, Alloto Reyes, and Dr. Peter Alpert. She testified that those who re- mained seated were herself, Nancy Feliciano, Ana Paez (a Federal em- ployee), Jmi Tannenhouse, Patricia Gleaton (a Federal employee), Andrea Rosado, William Zayerz, Deborah Pacheco, and Elba Morales. As noted above, it appears that Dr. Berkman, Anna. Burns, and Martin Garcia were not present 378 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Also at the meeting on September 3, 1980, Ramos, at some point after Zayerz spoke, told Zayerz that there was no more money for his position and that he there- fore would no longer be employed. D. Events Between September 4 and 11: the Discharge of William Zayyerz,, the Strike of September 10, and the StaffAssociation 's Revised Demands 'Employee Martin Garcia testified that on September 4, Paul Ramos visited his home . He states that Ramos told him that he should watch his step, that Ramos had helped him in the past, and that Garcia should not go against him. Garcia states that he told Ramos that al- though he liked Ramos, he also liked the employees, and could not see Ramos doing bad things because that would . not be right. According to Garcia, Ramos re- sponded by saying, "If that's what you want." (Ramos did not controvert Garcia's testimony.) On September 5 a group of the employees again met in the building where Zayerz lived and discussed their next step. At this meeting, Garcia was elected to be on the grievance committee. It was also decided that a strike would take place unless Zayerz' termination was retracted. On September 9 Zayerz was formally notified that he was being let go. According to Zayerz, Ramos told him that there were no funds for his position and that he could not have Zayerz working because he was not loyal to Ramos. Zayerz states that Ramos told him that if Be- tances received more funds , he was not going to give them to someone who was disloyal. (It is possible, how- ever, that Ramos' statement of disloyalty centered on the demand that Ramos' wife be terminated.) This conversa- tion was not denied by Ramos . At this point, Zayerz was handed a letter by Ramos that read: This is to inform you that, effective Wednesday, September 10, 1980, your employment at Betances is terminated. The reason for this unfortunate deci- sion is simply that Betances is no longer in a' posi- tion to meet your fee as consultant. This past June we discussed the fact that your field placement from the School of Social Work at Stonybrook was over-in May. I then informed you that Betances had been underfunded by the Federal government and, therefore, would not be able to employ you full time. Thus, your tenure could not be guaranteed beyond September 1, 1980 . We ver- bally agreed that you'would remain at Betances as a consultant in community relations until the begin- ning of September. In the interim, you would be completing application to the National Health Serv- ice Corps for an assignment here . Had you been ac- cepted into the Corps and placed at Betances, they would have picked up the costs of your full time pay, as in the case of our practitioners. While we had hoped this would happen, unfortunately things did not work out. I have been in contract with the NHSC and they informed me that they do not have your application on file. Since you stated you in fact have submitted an application, I strongly suggest you follow up on this. The fact remains, however, that Betances is unable to continue the present arrangement for the reasons given herein. While your status here has been that of consult- ant, as such you are not entitled to separation pay. However, in recognition of your past service and committment to the organization, -Betances will pay you through September 18, 1980. While I cannot make any specific committment at this time, if you look into the National Health Serv- ice Corps situation, we will give it every consider- ation when the time comes. With respect to the contents of the above letter, I have indicated above at footnote 10, that Zayerz has conceded that during the summer, Ramos had told him that there might not be enough money for his position and that Ramos suggested that ' Zayerz make an application for employment with the National Health Services Corps. He denies, however, that he had been specifically told by Ramos that his employment would end in September. On'the morning of September 10, a group of employ- ees met with Paul Ramos. The employees involved were Dr. Berkman, Ana Paez, Betty Gonzalez, Martin Garcia, and Nancy Feliciano. Dr. Berkman acted as their spokes- man. According to Dr. Berkman, when the group asked for the reinstatement of Zayerz, Ramos said that he had been "retrenched" for economic reasons, and that this had been pending for some time. Dr. Berkman states that he reminded Ramos of the latter's assurances in May to the effect that there were not going to be any cutbacks despite the funding level. According to Dr. Berkman, the discussion became heated, whereupon Ramos said that Zayerz had betrayed him, that Ramos had taken Zayerz in when Zayerz needed a job, that Zayerz has- been to his home, and that Zayerz was stabbing him in the back. When asked if Zayerz could at least be reinstated until the board of directors met, Ramos said no. At this point, according to Dr. Berkman, he told Ramos that the em- ployees were going to strike and Ramos said that they could not do that. At the conclusion of the meeting, some of the employees went on strike. Included in the strikers were Federal employees Ana Paez and Patricia Gleaton.13 During the September 10 walkout, Danny Gonzalez, a member of the board, met with the strikers in an' attempt to mediate the problem and get the people back to work. As a result of these meetings, it was agreed that Zayerz would be reinstated pending a meeting of the board of directors to be held on September 15. In consideration thereof, the strikers agreed to return to work. On Sep- tember 11 all the strikers returned to work, including Zayerz. However, on September 10, Betances had con- 13 The other persons who participated in the September 10 walkout were Betty Gonzalez, Nancy Feliciano, Elba Morales, Elba Gonzalez, Deborah Pacheco, Jini Tannenhouse, Jose Luces, and Dr. Berkman. Needless to say, employees of the Federal Government are prohibited from engaging in strikes Postal Workers Y. Postal Service, 110 LRRM 2704 (9th Cir. 1982). 5 U.S.C. § 7311. BETANCES HEALTH UNIT tacted the National Health Services Corps to register a complaint about the participation in the strike by Federal employees Paez and Gleaton. According to Zayerz, when he returned to work on September 11, he had another conversation with Ramos. He testified that Ramos said, "You can't do this to me and get away with it." Zayerz also states that during this conversation Ramos 'accused him of being responsible for the anonymous letters previously described . Zayerz denied that this was so. On September 11 the Staff Association revised its de- mands preparatory to the board of director's meeting to be held on September 15. The revised demands read as follows: We are taking worker-community control and demand the following: 1. Recognition of our Grievance Committee 2. The immediate termination of Roni Ramos from Betances and the Health Connection. 3. The reinstatement of the workers Milagros Sanchez and Andres Rosado.14 4. The immediate removal of Paul Rivers and that job be opened up and posted in the community. 5. The breaking up of the Administrative family click. 6. Opening up the Board to truly reflect our Community. Grievance Committee Members: Martin Garcia Alan Berkman Betty Gonzalez Ana Paez Nancy Feliciano Alternates: Billy Zayerz Debbie Pacheco E. Events on September 15: Meeting Between Board of Directors and Employee Group; Letter Denying Request for a Supplemental Grant On September 15 the board of directors of Betances, along with Paul Ramos, met with a committee of em- ployees, whose spokesman was Dr. Berkman. At this meeting, Dr. Berkman asked for the reinstatement of Mi- lagros Sanchez and William Zayerz . He also set forth the position of the Staff Association that Roni Ramos should be fired because of her alleged "destructive and divisive" role at the center. 15 At one point during the meeting, Ramos became angry and called Dr. Berkman an ob- scene name. Ramos was calmed down by Beck. In re- sponse to the Staff Association's demands set forth 14 As noted above, Milagros Sanchez had been discharged early in the summer of 1980. Andres Rosado, who worked at the Health Connection hall, resigned before the Staff Association was formed It is of some interest, although perhaps not relevant, that the revised demands track the demands made in the anonymous letters distributed in July and August 1980. ' 15 It is not clear froth this record whether Roni Ramos was a supervi- sor as defined in Sec. 2(11) of the Act 379 above, Board Member Gonzalez read a written docu- ment that stated, inter alia: The Board is, of course, cognizant of the recent difficulties at Betances and wants to do everything in its power to resolve those problems which gave rise to the current situation. Failing to radically im- prove the situation immediately may well result in the loss of Betances to the community . The Board knows it does not have to remind the staff how fragile a structure is one that depends in these times entirely on federal funds with an occasional grant from a foundation... . In respect to your demand that the grievance committee be recognized, we are basically sympa- thetic and will recognize a grievance committee. In order to move in this direction, we, of course, need to know, how the grievance committee is to be se- lected and whom it represents . We're sure you can appreciate the difference between the function of a grievance committee that might be representative of a portion of the staff and the function of a commit- tee which represents the whole staff. We know you can appreciate the difference between a grievance committee that may be composed of persons who select themselves and a grievance committee select- ed by the entire staff. In summary, we will recog- nize a grievance committee that represents all staff excluding Executive 'Director, Medical Director and Fiscal Officer. The rights and responsibilities of such a committee can only be determined after there is greater clarity concerning the mode of elec- tion or selection and discussions between the Com- mittee and the Board. In respect to the staff demand that the Board be truly reflective of the community, we are also re- sponsive. An examination of the roster of the cur- rent Board will demonstrate that practically all of the members are representative of the community. There are only three persons who do not fall within that category and they are all former residents of the community. Our major source of funds sets up specific requirements concerning the composition of the Board and we are in full compliance with those requirements. At the proper time our Nominating Committee will 'be glad -to entertain any suggestions of individuals who might be interested in serving on the Board. The Board regrets that the staff demands single out Ms. Roni S. Ramos as a particular target. The Board is deeply appreciative of the enormous con- tribution which Ms. Ramos has made to the evolu- tion of Betances through the years, long before it was even possible to employ many of the people who are now working at Betances. The Board would view the loss to Betances of Ms. Ramos' services as a major loss. Therefore , the Board will not accede to the staffs demand that Ms. Ramos be terminated as an employee at Betances. 380 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD In respect to Mr. Paul Rivers, the Board is un- willing to accede to the staff demand. Mr. Rivers is employed as a consultant in order that he may use his special skills and talents in the interest of Be- tances . . . . Management is held responsible not only by the Board but by the sources of funds for a certain level of performance. This accountability must be accompanied by certain prerogatives. Amongst these prerogatives is the right to hire for positions without tenure and for limited periods of time individuals who will work as consultants. Any permanent position will be posted for staff and com- munity to apply. In regard to Milagros Sanchez, the Board under- stands that management terminated Ms. Sanchez's employment because of questions of work perform- ance. The staff believes that Ms. Sanchez was arbi- trarily and unfairly dismissed . . . . Since one of the major tasks required of Ms. Sanchez was cleri- cal skills as defined by the program needs, the Board proposes that if Sanchez wishes there be an objective, evaluation of Ms. Sanchez's clerical skills. There are clerical tests readily available and clerical skills can be objectively, measured. If Ms. Sanchez's skills are at a level appropriate .for the position she held, then the Board would propose a settlement which would be based on the premises, that there is not sufficient evidence to support management's contention. If, on the other hand, Ms. Sanchez's skills are found to be below the level required, it would be necessary to conclude that Ms. Sanchez is not able to perform within the job require- ments... . With respect to Mr. William Zayerz and the clin- icalstaff walkout of September 10, 1980 the Board recognizes that the job action was a direct result of Mr. Zayerz's termination at Betances as a field placement. We have reviewed managements ration- ale (as stated in the letter of termination) for such termination as well as the operating budget for the current fiscal year. The Board agrees with manage- ment, that there are insufficient funds to maintain Mr. Zayerz on the payroll beyond September 18, 1980. Thus, Mr. Zayerz's notice of termination still stands. Staff is expected to be at their jobs on -time per- forming their assigned duties. Any, action on the part of any staff which stops or hinders the safe functioning of Betances will be considered by the Board of Directors and management as an automat- ic resignation on the part, of that staff person. Fur- thermore, it-should be understood that any National Health Service Corps designee who participates in any action that stops, prevents. or hinders the safe operation of Betances will be,immediately reported to the Regional 'Office for disciplinary action. Also,, on September 15, the Federal Government offi- cially denied Betances' requests for supplemental funds. In a letter to Betances, Arthur Fernandez wrote: I wish to express my thanks to you and your staff for your kind attention during my visit 'to Betances, 'September 4th. - I thought it would be appropriate for me-to out- line my concerns-related to your project so that you may use , them as a guide for the next Budget Period. As you know, your total budget request, was for $452,206 and you were awarded only $325,000. As we discussed at Kerhonkson, we had hoped to re- store the additional funds, but quite frankly we have trouble justifying additional funds. Consequently, we don't believe that we will be able to restore very much of the $127,000 difference. Betances' Application, was reviewed by regional office staff and was found to be heavy on personnel. The BCRR for the last reporting period revealed that your productivity was actually low. Physician encounters, for example, were annualized to 2213 and the minimum normal rate is 4200. This resulted in a high cost per encounter of $44.21. [T]he maximum norm for that is $24.00. In addition, your administrative cost are running 21% while the norm is 16%. As you know, these program indicators are the basis for our central office to allocate funds to the regions. The region has established policy to moni- tor these closely in order to save as much of our funding levels as we can. 16 F. The Termination of Dr. Berkman, Anna Burns; and Jini Tannenhouse According to Wanda Evans, the September 15 letter from Fernandez promoted a series of managerial meet- ings to deal with the funding and productivity problems. She credibly testified that in light of the Government's rejection of the supplemental grant, decisions no longer could be deferred . According to Evans, although it had been hoped, during the spring and summer -of 1980, that no cutbacks in personnel would be needed, it now became evident that the projected income from medi- care, third-party payment, and other sources was not meeting expectations. 117 Evans testified that, in view of the above, several decisions were made in mid -Septem- ber as follows: (1) To close the Health Connection, where Anna Burns worked; (2) to terminate Judy Stat- ler;18 ' (3) to not renew a consulting contract` with Paul Rivers; 19 and (4) to terminate the services 'of Dr. Berk- 16 As noted above, Fernandez testified that during the summer of 1980, there was talk within his agency to cut off all funds to Betances. He testified that he personally opposed such a drastic action. According- ly, the letter to Betances of September 15 was, in reality,' a sort of victo- ry on his behalf to keep Betances funded. Unfortunately, as it turned out, his victory was shorthved. 11 Evans' testimony regarding the income received by Betances during this period of time was based on records that were present in the hearing room and that were available to the General Counsel. ' - 19 Judy Statler had been retained to'work on private grants. It was hoped that she would generate revenues in excess of her earnings. 19 Paul Rivers had been retained during the summer of `1980 on a con- sulting line to do some work in relation to the Health Connection BETANCES HEALTH UNIT man and Jini Tannenhouse . Regarding the decision to terminate Dr. Berkman and Tannenhouse, Evans testified that this was intended to resolve two problems at the same: time. First, to save money and, second , to increase productivity. As testified to by Passer, the Federal Gov- ernment was very concerned by the failure of Betances to meet the Government's minimal productivity require- ments. To resolve that problem, Passer stated that it could be accomplished in two ways : one by increasing the number of patients seen by the existing patient pro- viders or, alternatively, by reducing the number of such providers and spreading the existing patient load among the remainder. Concerning the choice of Dr. Berkman and Tannenhouse, the record shows that at this time there were six patient providers , four of 9 whom were em- ployed by the Federal Government and therefore were cost free as far as Betances was concerned. Inasmuch as Betances paid Dr. Berkman and Tannenhouse from its ,own funds, their selection for termination is hardly sur- prising. Indeed any other choice would have been in- comprehensible. Regarding Anna Burns, the General Counsel seemingly conceded that her layoff was due to economic factors because she worked at the Health Con- nection where operations were terminated. He, however, claims a violation in that Ramos allegedly conditioned her reemployment on her abandonment of union activi- ties. In this connection, Burns testified that on October 1, Ramos told her that he felt betrayed by the walkout and that if she had not participated in the walkout , she would come back to work when the Health Connection re- opened. The Health Connection, however, was never re- opened. On September 26 Judy Statler's services were termi- nated.20 Also, by letters dated September 30, Dr. Berk- man, Jini Tannenhouse, and Anna Burns were terminat- ed.2 1 At the same time, the ' Health Connection was elosed,22 and Roni Ramos ceased working for the Re- ispondent. In mid-October, River's contract expired and it was not renewed. G. The "Sickout" of October 2, Discharge of Martin Garcia, Warning to Betty Gonzalez, and Transfer of Federal Employees In face of the layoffs of Dr. Berkman, Jini Tannen- house, and Anna Burns, ,members of the Staff Associa- tion decided to have a "sickout" on October 2. This sick- out, which lasted 1 day, was participated in by Patricia Gleaton and Ana Paez. Dr. Solomon did not appear at work on that date, although it appears that the main reason was because she did not feel well. (She was preg- 20 Judy Statler was not involved in any way with the other employees in terms of the Staff Association or its demands. The General Counsel ,does not allege that her termination was violative of the Act. 21 Regarding Dr. Berkman, he agreed with Ramos that he would stay on for an additional 2 weeks to help Dr. Peter Albert take over his pa- tients. Dr. Alpert, who was also a NHSC assignee , came to Betances during August. Later, Dr. Berkman terminated his arrangement because he objected to certain things said by Ramos in a community bulletin 22 The General Counsel does not allege that the decision to close the Health Connection was discriminatorily motivated. Therefore, I can only conclude that he concedes that its closing was caused by economic con- siderations. 381 nant at the time.) As in the prior walkout, the Staff As- sociation did not give Respondent any advance notice. As a result of the sickout and the participation in it by National Health Service Corps assignees, Betances noti- fied the Government of the event and a meeting was ar- ranged on October 7 at 26 Federal Plaza. Betty Gonza- lez appeared at the meeting and her presence was object- ed to by Paul Ramos. She was, however, allowed to remain. (Gonzalez had received permission to take time off to go to this meeting from Dr. Solomon.) The princi- pal purpose of the meeting was to remind the Federal employees that it was against the law for them to engage in strikes or work stoppages. On the following day, Gon- zalez was given a warning because of her absence from work on October 7. On October 9 Martin Garcia was fired. The reason given to him was because of his latenesses and absences. There is, in fact, no doubt that by any normal standard, Garcia's absence and latenesses were excessive.23 On the other hand, Evans conceded that excessive absences and latenesses were not uncommon at Betances and the record shows that other employees (such as Carmen Altus), had bad records and did not lose their jobs. At some point in mid-October, Paul Ramos published a community bulletin `so as to explain, from his point of view, the recent events at Betances. In part, this read as follows: Betances is now facing a very difficult time. There are people who are out to destroy Betances and all it stands for. Most of these people are not from this community. Most of them are in fact priv- ileged individuals who can easily find high paying jobs anywhere they wish. These people say they do not want to hurt Betances. -Do not believe them. They already closed down the clinic for one day and threatened to do worse. Betances is not the first place .this has happened. It has happened in other poor communities where organizations like Betances were, or almost were, totally destroyed. The path of destruction is always the 'same. This is the way they ' do it. This is the way they are trying to do it at Betances. 23 In a decision by an administrative law judge of the New York State Department-of Labor, Martin Garcia's claim for unemployment benefits was denied. After an evidentiary hearing the judge stated: Claimant was less than an exemplary , employee having been on pro- bation two times in 1979 and received two unfavorable evaluations. By July 1980, claimant improved his performance and had recently received a favorable performance rating. Nonetheless, from July 1980, until his termination, claimants punctuality became intolerable. Although warned repeatedly, claimant was late in excess of 20 times during his last three months of employment, including the last two days prior to his termination. Claimant M. G [Martin Garcia], had an abominable attendance record. He was warned on numerous occasions . During the Last three months of his employment, he was late on more than 20 sepa- rate occasions. Claimant's contention that he was late because of a work related injury or other excuses, are not persuasive. An employ- ee is expected to work the schedule of hours set by the employer and not set his own hours of work. The evidence is overwhelming that this claimant did not have compelling reasons for failure to comply with the employer's attendance rules. His termination there- fore, resulted from misconduct for which unemployment insurance benefits may not be paid. 382 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD A few disgruntled staff members use the rest of the staff to create problems between the staff and the administration . They try to create an atmos- phere that will lead to a takeover of the administra- tion by the supporters of this very small clique of workers. Their ultimate goal is to get their hands on the money that the organization has, so they can use it for their own purposes. Betances had been trying to deal with this prob- lem for months. Betances is responsible to the feder- al government because that's where it gets the money to operate and Betances is accountable to YOU-the community -because YOU are who we serve. Because of the problems these people have created, the federal government is not going to give Betances the money Betances needs. Now Betances had to let some workers go be- cause there isn't enough money to pay them and the adolescent program, the Health Connection, has been suspended idefmitely because of lack of funds. On the Lower East Side we need more money and more services-not less. Betances has dutifully served this community and its people for over ten years. The destruction of our programs, all of our programs, can only happen if we let it. Don't let this evil outside influence destroy what took a group of dedicated people ten years to build! Show your support-tell your friends! H. The Discharges of Gonzalez, Morales, Feliciano, and Pacheco According to Deborah Pacheco, about October 17 or 18, she had a conversation with Maintenance Supervisor Eladio, Reyes, wherein she stated that she had heard that Betty Gonzalez was going to be fired, and asked if that was true. She testified that he said yes, and asked how she had found out. Reyes was not called as a witness by the Respondent, as it appears that he was not in the country at the time of the trial. On October 23 another meeting was held at the offices of the National Health Service Corps. At this meeting, Dr. Patricia Solomon, Ana Paez, and Patricia Gleaton were told by the NHSC that they should accept transfers out of Betances or face formal charges against them for participating in the foregoing strikes. The three individ- uals accepted the ultimatum and thereupon ceased work- ing at Betances. Also on October 23 or 24, after becoming aware of the transfers, certain of the employees at Betances decided to call a strike on Monday, October 27. However, no 8(g) notices were given. On October 24 a series of events occurred at the facili- ty that led to the discharges of Betty Gonzalez, Elva Morales, and Nancy Feliciano. First of all, as Dr. Solo- mon had been transferred, Dr. Peter Alpert was desig- nated as the medical director. Also, on October 24, he was the only practitioner at the facility who was treating patients, and was therefore faced with a large influx of patients who had appointments with the transferred prac- titioners.24 In connection with the events of that day, Dr. Alpert testified that in early afternoon, he needed to reach Pacheco so that she could come to the laboratory to draw blood from a patient. He states that he 'asked the receptionist, Elva Morales, to page Pacheco, whereupon Morales said, "If you want her, get her yourself." Dr. Alpert states that he also asked the other receptionist, Nancy Feliciano, to page Pacheco, and that she too re- fused. Morales concedes that although it was part of her job to page people when necessary, she refused Dr. Al- pert's request. Dr. Alpert wrote a memorandum to Paul Ramos that day regarding Morales. This was as follows: This morning I was looking for Debbie and couldn't find her. I asked Elva 'to please page Debbie and she refused. At first she just sat there, then she said "if you want her, page her yourself, it's not my job." I feel that this type of behavior warrants your attention. Dr. Alpert testified that later in the afternoon, he asked Betty Gonzalez to prepare a patient he was about to examine and that she refused .25 He states that she told him that he should prepare'the patient himself. Gonzalez concedes that prepping patients was part of her job (in fact her principal function), and that she refused Dr. Al- pert's order. Her excuse was that she was too busy at the time, deciding which patients- should be seen and which should be sent home. According to Dr. Alpert, later that afternoon, he heard Betty Gonzalez telling patients that he was respon- sible for the transfers of Gleaton, 'Paez, and Solomon and that Alpert was a lousy doctor. He states that when he went back to his office he found an unrolled condom on his desk and that when he showed this to Danny Gonza- lez, the three employees, Gonzalez, Morales, and Feli- ciano, laughed at him . He also states that during that day, former employee Zayerz dame into the center and announced that a car outside was on fire . Dr. 'Alpert states that he went outside to look at his car, saw noth- ing, and that when he returned, the employees again laughed at him. In this connection, Zayerz testified that this did not happen on October 24, but that a similar in- cident did occur in September. Dr. Alpert testified that faced with the above incidents it became clear to him that the three employees were acting in concert to sabotage' his authority. He thereupon wrote another memorandum to Paul Ramos and Wanda Evans, and orally advised them that either they be dis- charged, or that he would leave. The memorandum reads as follows: The current turmoil at Betances have made all of us quite anxious and tense. It has been difficult to examine patients properly - or render proper care. This afternoon, Elva refused to page Debbie (as I have stated in a previous memo). Later in the day 24 On October 24 Dr. Solomon was at the facility, but was not seeing patients. 25 Preparing a patient involves obtaining the patient's chart and taking his or her height, weight, blood pressure, etc. BETANCES HEALTH UNIT 383 while we were all discussing the current state df of fairs at Betances, the argument became heated and Elva started calling me a "prick" and a "scum bag." Both Betty and Nancy supported Elva's actions. A few minutes later, I went back to my office and found an envelope on my desk with my name on it. Inside was an unrolled condom . I-do not know for certain who put it there, but the handwriting ap- peared to be Elva's and when confronted with it they all laughed. This type of behavior is childish and inexcusable. Appropriate disciplinary measure[s] must be taken immediately. According to Wanda Evans, Dr. Alpert told her and Paul Ramos about the aforesaid incidents . She states that Dr. Alpert said that he was being harassed by Gonzalez, Feliciano, and Morales, that he was "fed up" and could not continue to work that way. She testified that as a consequence of Dr. Alpert's report, she attended a meet- ing with Paul Ramos And Danny Gonzalez where they discussed what to do about these employees. Evans states that although there was some concern about the repercussions among the remaining staff which might result from discharging the three employees, the unani- mous opinion was that they should be fired . In this re- spect she testified: We made PeterAlpert the Medical Director and he needed our support .... We could not continue to let people not respect him and not listen to him be- cause we'd have no practice, there is no point in having the clinic if we didn't have some order. He was there for that order and if the people who were under him weren't going to listen to him they had to be fired, there was nothing else to do, so we felt there was no other alternative. By mailgram dated October 24, Gonzalez was notified of her discharge. The reasons given were (1) excessive absenteeism, (2) gross misconduct, and (3) insubordina- tion. By letter dated October 24, Feliciano was told of her discharge. The reasons given were (1) excessive late- ness and absenteeism and (2) gross misconduct. By tele- gram dated October 24, Morales was notified of her dis- charge. The reasons given were (1) gross misconduct and (2) insubordination. As in the case of Martin Garcia,, Betty Gonzalez, Nancy Feliciano, and Elva Morales filed unemployment claims and a hearing was held- before an administrative law judge of the New York Department of Labor. In those cases, the judge, in denying their claims stated: Claimant, N.F. [Nancy Feliciano], worked as a telephone receptionist from ' September, 1979 through October 24, 1980, earning approximately $8,500 per annum. During the period from June 1980 until her , termination on October 24, 1980, claimant had an abominable attendance record. She was absent on seven occasions,' four of which were on Mondays or Fridays, and was late on 47 occa- sions. Although warned, ' claimant continued to report to work late, including the last two days' of her employment. On her last day of employment, claimant sat with her co-employees, B.G. & E.M., and undermined - the authority of the medical direc- tor by mocking at him and participating in various pranks against him with the aid of a former employ- ee who was socializing with them on the premises without the employer's authorization. Claimant, B.G. [Betty Gonzalez], worked as a medical assistant -from May, 1979 to October 24, 1980, earning approximately $200 per week. Claim- ant was notified of her termination because of poor attendance, acts of misconduct and insubordination. Claimant had a poor attendance record and had been warned, including having deductions made from her salary. Between August and October claimant remained ' away from work on seven sepa- rate occasions, five of which were before or after weekends. She was also ' late on five occasions during that period of time. Claimant was also in- volved in punching another person's timecard and having others punch her timecard when she was out. Claimant's job primarily required that she render medical assistance to the physicians. On the last day of her employment, there were only two physicians employed at the facility because of the reductions ordered by the Federal Government. One of those doctors, who was also the medical di- rector at the time, requested the claimant assist him in "prepping patients." Claimant did not assist the physician in prepping patients on that day because she was disgusted with the facility's management and was upset with the reductions in staff. Claimant, E.M. [Elva Morales], was employed as a medical receptionist from January, 1978 through October 24, 1980, earning approximately $9,500 per annum. Claimant was terminated because of acts oc- curring on the final day of her employment . On that day the facility was crowded with patients because only two physicians were on duty. The medical di- rector asked claimant to page the lab technician who was then needed by the doctor. Claimant, who was sitting at her desk, refused the doctor's request stating, "If you want her, do it yourself." Although claimant knew that the lab technician was indis- posed in the bathroom at the time , she did not bother to so inform ' the doctor. Claimant also used various profanities at the doctor- Claimants, N.F., B.G., and E.M., were all termi- nated as a result of incidents occurring on their last day of employment, October 24, 1980. Whether or not such terminations arose as a result of miscon- duct in connection with their employment depends on the facts as to each individual . Claimant' N.F., had an atrocious attendance record which could have warranted dismissal by the employer prior to this date. The fact that the employer did choose this date does not excuse her prior behavior or create a waiver on the part of the employer. Certainly 47 latenesses over a five-month period warrants action by the employer. Claimant, B.G.'s, employment also 384 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD terminated under conditions which would- constitute misconduct under the Unemployment Insurance Law. Her poor attendance, her misuse of timecard regulations and her insubordinate conduct in refus- ing to do her regular work for which she was being paid, justified the employer's action in terminating her services. Further, claimant, E.M.'s, conduct on that last day, also warranted her dismissal for insub- ordination to the physician medical director of the institution. Regardless of whether these claimants had any legitimate grievances for being distressed by the reduction in staff and budgetary curtailment by the Federal government, it certainly did not warrant such behavior on their final day of employ- ment. By refusing to "prep patients," by refusing to page other medical personnel, by acting in concert with a former male employee, who was present in the facility without authorization and incited them to undermine the medical director's [authority] was certainly anathema with rendering patient care at a medical facility. I have considered claimants' con- tention that such activity should be protected be- cause of the industrial controversy occurring at that time and that their termination was actually pretex- tual in order to subvert their union activity. I am not persuaded by such argument. The employer did not contrive claimants' poor attendance nor the events and behavior occurring on their last day of employment. Regardless of one's allegiance to a union, an employee who refuses to perform reasona- ble functions as directed by the employer, cannot hide behind the veil of union protection. To hold otherwise, would give more favorable protection because of union activity than to employees who did not engage in union activities. On October 27, the Staff Association, without giving an 8(g) notice, commenced a strike against Betances. Deborah Pacheco participated in this strike and there is no dispute that she was discharged on October 27 be- cause of her participation in the strike. Thus, by letter dated October 30, Pacheco was told: We are sorry to inform you that your position as a Laboratory Technician at Betances Health Unit has been terminated effective Monday, October 27, 1980. Please be advised that this action is due to your absence from work in order to participate in the il- legal pickets currently demonstrating in front of the building. Your activities have deterred patients from entering the premises. As a result, the Board of Di- rectors and management of Betances feel your ac- tions constitute your immediate dismissal as an em- ployee of Betances. As you know, on September 15, 1980, the Board of Directors of Betances responded to the demands of staff, the last paragraph of the response states the following: "Staff is expected to be at their jobs on time per- forming their assigned duties. Any action on the part of any staff which stops or hinders the safe functioning of Betances will be considered by the Board of Directors and management as an auto- matic resignation on the part of that staff person." Needless to mention we regret that you have taken, this position with regards to the pickets but your actions leave us no alternative. We are truly sorry that your relationship with Betances had to end this way. I. The Closing of Betances from November 17, 1980, until January 1981 The record in this case also reveals that the strike that ensued on October- 27 was attended by various acts of vandalism. For example, certain patient records were found to be missing, the telephone lines were cut, and paint was put on the building. As a result of the turmoil at the Center, Dr. Alpert left Betances in November.26 Also, Betances closed down on November 17, 1980, and did not reopen until sometime in January 1981. In connection with the vandalism, it is noted that the Respondent did not adduce evidence regarding which employees, if any,' were responsible. IV. ANALYSIS A. The 8(a)(5) Allegations The General Counsel argues that there were at Be- tances two separate appropriate bargaining units, one consisting of physicians, physician assistants, nurse prac- titioners, and registered nurses27 and the other consisting of all service and maintenance employees.28 With respect to -the 8(a)(5) allegations, the General Counsel relies on the- rationale of Sullivan Electric Co., 199 NLRB 809 (1972), and related cases.29 In Sullivan Electric Co., a union made a demand for recognition in a single unit in which it had obtained executed cards desig- nating the union, as the bargaining agent from 13 of the unit's 16 employees. When the employer expressed doubts concerning the union's claimed majority, status, 28 He testified that he left after being threatened by Anna Burns' hus- band. 27 Consisting of Dr. Alan Berkman and Jun Tannenhouse. The Gener- al Counsel states that as Patricia Gleaton, Ana Paez, and Dr. Alpert are Federal Government employees, they would not be included in the unit. He also states that Dr. Solomon would not be included in such a unit because she was a supervisory employee who also was employed by the Federal Government. Concerning Roni Ramos, the , General Counsel , con- tends that as she is the wife of Paul Ramos, the administrator, she would not have a community of interest with the unit employees even though she was employed as a registered nurse. 28 The General Counsel asserts that the nonprofessional unit would in- clude all service and maintenance employees (Martin Garcia), medical as- sistants (Betty and Alba Gonzalez), medical receptionists (Elva Morales and Nancy Felciano), medical records clerks (Jose Luces), laboratory technicians (Deborah Pacheco), and community health workers (Lisa Garcia, William Zayerz, Andres Rosado, and Anna Burns) The General Counsel would exclude from the nonprofessional unit the bookkeeper (Grace Butler), an administrative assistant (Judy Statler), the upstairs re- ceptionists (Nereids Zayas), and a researcher (Paul Rivers) Also, she takes the position that Margaret Joyiens, and Eladio Reyes were supervi- sors within the meaning of Sec. 2(11) of the Act. 29 See also Adams Book Co., 203 NLRB 761 (1973), Duralee Fabrics, 246 NLRB 677 (1979). BETANCES HEALTH UNIT 385 the authorization cards were offered to the employer. Later, the employer, while distributing paychecks, asked the employees if they had signed union cards and a ma- jority answered in the affirmative. The following day, 13 employees went on strike in support of the union's demand for recognition. In concluding that the employer was obligated to recognize and bargain with the union, the Board (with Member Kennedy dissenting) stated: Concededly an employer is not required by the Act to recognize and bargain with a Union wholly upon the strength of its assertion that it represents a ma- jority of the employees involved, notwithstanding that the Union predicates its assertion upon an ade- quate showing of signed authorization cards... . However, where as in this case, the Respondent rejects the foregoing alternative and unilaterally un- dertakes to determine the Union's majority or mi- nority status by means of a poll, under conditions of its own choosing, the ,Respondent ondent cannot thereafter disclaim the results simply because it finds them dis- tasteful. In my opinion the facts of this case are distinguishable from those in Sullivan Electric Co. and the other cases cited by the General Counsel. First, unlike the cited cases, the evidence establishes that no employees ever executed any forms, cards, or other documents whereby they evinced their interests in becoming members of or being represented by the Staff Association. Second, de- spite the General Counsel's assertion that the Staff Asso- ciation should be accorded bargaining rights in two sepa- rate bargaining units, the Staff Association never made such a demand, but rather sought recognition on behalf of virtually all persons working at Betances, in one group, including both professional and nonprofessional employ- ees, plus Federal Government employees . Thus the bar- gaining units that the General Counsel now seeks to create, after the fact, were never sought by the Staff As- sociation and are therefore substantially inconsistent with its demands. Third, while the General Counsel asserts that a bar- gaining obligation should arise out of the poll taken on September 3, in response to the Staff Association's de- mands, the evidence shows that the Respondent asked the people present at the meeting to indicate their sup- port or nonsupport for all of the demands and the poll was not limited to the recognitional demand , As the Staff Association at the same time was making demands that certain employees be reinstated and that others be fired, it is virtually impossible to ascertain whether those per- sons who indicated their support, by remaining 'seated, were supporting all the demands, or were supporting some but not all the demands.30 Fourth, the fact remains that when the people present at the meeting of September 3 were asked ifthey sup- ported the demands, a majority of those present indicat- ed their opposition 'by standing up. As the Staff Associa- 30 It is entirely possible, for example, that an employee remained seated because he or she supported the demand for reinstatement but not the demand for recognition tion did not indicate that it was seeking recognition in two separate bargaining units (or any particular unit for that matter), the Respondent was entitled to assume, based on the poll as taken, that a majority of the people did not support either the demand for recognition or the other demands. In this respect the "vote" was taken on the entirety of the demands, and no effort was made to segregate the voters by separating the professional from the nonprofessional employees, the regular employees from the Federal Government employees, or the supervi- sory and managerial employees from the rank -and-file employees. In fact, they all "voted" together and no tally was made. In conclusion, it seems to me that the facts of this case are so removed from the facts of Sullivan Electric and re- lated cases, so as to make the rationale of those cases en- tirely inapplicable . It therefore is found that the poll taken on September 3 did not impose any obligation on the Respondent to recognize and bargain with the Staff Association. As such I shall recommend the dismissal of all of _the 8(a)(5) allegations of the comiplaint.3 t With' re- spect to the same transaction, I shall also recommend dismissal insofar as the General Counsels allegation that the Respondent gave the impression of surveillance when it stated at the September 3 meeting that it was aware that certain demands were going to be made . As it clear- ly was the intention of the Staff Association to make these demands at this very meeting, ][ cannot see how this single statement of anticipation would violate the Act. B. The Discharge of William Zayerz It initially is noted that I reject Respondent's conten- tion that Zayerz was in September 1980 an independent contractor. In deciding whether an individual is an em- ployee or an independent contractor, the Board uses a "right to control" test. See, e.g., NLRB v. United Insur- ance Co. 390 U.S. 254, 256 (1968). In Caribe Hilton Hotel v. NLRB, 690 F.2d 318, 320 (2d Cir. 1982), the court stated: Under the common law test an employer-employee relationship exists if the purported employer con- trols or has the right, to control both the result to be accomplished and the "manner and means" by which the purported employee brings about the result.... Factors which may be considered in de- termining employee status include: whether the pur- ported employee is engaged in a distinct occupation or business; whether the work involved is usually done under the employer's direction or by an unsu- pervised specialist; the skill involved; who supplies the instrumentalities' and place of performance; the length of employment; the method of payment (by Si Included in the allegations dismissed are the contentions that the Respondent violated Sec. 8(a)(5) by failing to bargain with the Staff As- sociation before closing the Health Connection and laying off employees Dr. Berkman, Tannenhouse, and Anna Burns. Also dismissed is the alle- gation that the Respondent failed to bargain when it did not notify or give the Staff Association an opportunity to bargain before temporarily closing the facility in November 1980 386 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the time or by the job); whether the work is part of the employer's regular business and/or necessary to it; and the intent of the parties creating the relation- ship. Restatement (Second) of Agency § 220(2). No single factor is determinative ... . In the present case Zayerz originally began working at Betances as a student placement while going to college. In the spring of 1980 he obtained his Masters of Social Work and no longer was a student placement. Neverthe- less, he continued to work at Betances doing certain projects under the direction and supervision of Paul Ramos. Although no withholdings for social security or income taxes were made from Zayerz' earnings, and he apparently was paid from a "consulting" line on the budget, this by itself does not establish that Zayerz was an independent contractor. As it is my conclusion, based on the record as a whole, that Betances through Paul Ramos, controlled the results to be accomplished and the manner and means by which Zayerz was to bring about those results, it is found that he was an employee. As noted above, the Staff Association was created on August 27 at the home of Zayerz. Also, at the meeting on September 3, when Respondent asked those present if they supported the Staff Association's demands, Zayerz raised an objection and asked- if immunity would be given to those who supported the demands. At some point after the demands were ready by Deborah Pa- checo, Paul Ramos'told Zayerz, in front of the assem- blage, that funds for his position had just run out. Thus, it was in this context that Zayerz was told that he was being let go. Additionally, on September 9, when Zayerz spoke to Paul Ramos, the latter told him that there were no funds for his position and that he would not have Zayerz working because he was not loyal to Ramos. When members of the Staff Association met with Ramos on September 10 to ask for Zayerz' reinstatement, ,Ramos, while asserting that Zayerz had been "re- trenched" for economic reasons, also said that Zayerz had betrayed him and was "stabbing him in the back." In juxtaposition to the above, Zayerz conceded that in the summer of 1980, and therefore before the Staff Asso- ciation was formed, he had been told by Ramos that money for his position might not be available and that Zayerz ought to consider applying for a position with the National Health ,Service Corps as that would elimi- nate Respondent's cost for his position. The evidence also establishes that when the Federal Government did not grant all the money requested, by Betances, there was, in the summer of 1980, an incipient crisis as far as the. Respondent was concerned. In this respect, Dr. Solo- mon conceded that at management meetings, held during the summer, it was the consensus opinion that Zayerz' job was expendable in a fiscal crunch.32 Although Paul Ramos testified that the management group had made its decision in the summer to terminate Zayerz, the testimony of Wanda Evans indicates to the 32 In Dr. Solomon's report to the National Health Service Corps, she also stated that Zayerz had "long been out of favor with the project di- rector," and that this dated back a year or so in connection with Zayerz' complaint that Roni Ramos was undermining his efforts at the Health Connection. contrary. In this regard, Evans stated that when the Fed- eral Government in May denied Betances full request for funds, it was the opinion of the management committee during the spring and summer that if projected revenues from other sources met projected levels, it was "hoped" that no cutbacks in personnel would have to be made. She testified, therefore, that decisions regarding person- nel were deferred. Evans also testified that during this time it was "hoped" that Betances' request for a supple- mental grant might be approved by the Federal Govern- ment. According to Evans, the "crunch" came, on Sep- tember 15 when Arthur Fernandez officially notified Be- tances that the supplemental grant request was not ap- proved. It was at this point, according to Evans, that a hard decision had to be made because other revenues were not coming in as projected. Thus, according to Evans, the decisions to cut back on personnel came after September 15. In light of the above, it is my opinion that, the an- nouncement of Zayerz' discharge on September 3 was not motivated by Respondent's financial situation, but rather was motivated because Ramos was angered at Zayerz' participation in and support of the Staff Associa- tion and its demands-. As Zayerz' activity in this respect is construed as protected concerted activity within the meaning of Section 7 of the Act, it is my belief that his discharge violated Section 8(a)(1) and (3) of the Act. However, it also is clear to me that Zayerz would never- theless have been let go for economic reasons either at the same time as Judy Statler, on September 26, 1980, or at the latest, on September 30, when Dr. Berkman, Jini Tannenhouse, and Anna Burns were let go for economic reasons. As the record indicated that Zayerz was paid through September 18, the Company's backpay-liability should be, at most, for 12 days. Also, as I conclude that the facts show that Zayerz would have been let go within a short time for legitimate economic reasons, I shall recommend that Respondent not be required to offer him reinstatement. C. The Layoffs of Tannenhouse, Dr. Berkman, and Burns The record in this case indicates that when the Federal Government, in the spring of 1980, did not grant the entire amount requested by Betances, it was the hope of Betances' management that its operations could continue at current staffing levels without the additional money. Nevertheless, the record also indicates that this was, indeed, only a "hope," based on the expectation that in- creases in salaries and fringe benefits would be deferred and that projected revenues from sources such as medi- care, medicaid, patient, and third-party payment would meet certain expectations,' It also was established that during the spring and summer of 1980 the Federal Government was seriously considering cutting - off all future grants to, Betances be- cause medical productivity, was not meeting the mini- mum level required as a condition of the grants. This was made clear by the testimony of Arthur Fernandez who stated that he had to convince his superiors to con- tinue the grants. Also, in this respect, Passer testified that BETANCES HEALTH UNIT 387 the productivity problem was the great concern to the Federal Government and that there were essentially two ways that Betances could solve this problem: (1) by re- ducing the number of physicians, or (2) by increasing the patient load per physician. In addition, the evidence establishes that during the same period of time, Betances applied for a supplemental grant and urged the community to lobby the Federal Government for additional funds. In the face of the above, the management committee of Betances (Paul Ramos, Wanda Evans, and Dr. Patri- cia Solomon) held a series of meetings during the summer of 1980. As testified to by Evans and Dr. Solo- mon, it was the consensus to defer any personnel deci- sions in the hope that additional money would be forth- coming from either the Federal Government or from other sources.33 Dr. Solomon testified, however, that the management group did decide that if a financial crunch did develop, then the Health Connection should be closed (where Anna Burns and Roni Ramos worked), that Zayerz' job was expendable, and that the patient providers not being paid by the Federal Government (Dr. Berkman and Jini Tannenhouse) would be let go. On September 15, 1980, Fernandez, on behalf of the Federal Government, notified Betances that its request for supplemental funds was being rejected because of the continued low level of productivity. It was at this point, according to the credible testimony of Evans, that hard decisions had to be made as expected revenues from other sources were not meeting projected levels. She tes- tified that the decisions made at that time included: (1) terminating the Health Connection, (2) terminating the services of Judy Statler, (3) terminating the services of Paul Rivers, and (4) terminating the services of Dr. Berkman and Jini Tannenhouse. Regarding the closure of the Health Connection, which resulted in the termina- tions of Anna Burns and Roni Ramos, the General Coun- sel does not allege that this decision was motivated by discriminatory considerations. He therefore concedes that this decision was motivated by economic consider- ations. With respect to Dr. Berkman34 and Jini Tannen- house, Evans credibly testified that their selection for layoff was motivated by two factors. First, she testified that the decision was made so as to save money. Second, she testified that in view of the productivity problem, it made sense to eliminate two of the patient providers and to relegate the existing patient load to the other provid- ers, thereby increasing productivity. As all the other pa- tient providers (Dr. Solomon, Dr. Alpert, and Ana Paez) were employees of the Federal Government, whose sala- ries were not being paid by Betances, the choice of Dr. Berkman and Jini Tannenhouse was therefore obvious, even though Dr. Berkman was, himself, very productive. Although there is no question but that Dr. Berkman was at the forefront of the Staff Association and had en- gendered Paul Ramos' anger because of his activities in that regard, there is little doubt in my mind that the de- 99 For example, Judy Statler's services were retained to write up grant proposals. She was retained on the condition that her pay would be'ex- ceeded by whatever grants she could generate. 14 For the same reasons applicable to Zayerz, I find that Dr. Berkman was an employee of Betances, rather than an independent contractor. cision to terminate the employment of Dr. Berkman and Jini Tannenhouse was the result of the financial and pro- ductivity problems that necessitated this result. I there- fore conclude that their terminations were not motivated because of their protected concerted activities or activi- ties on behalf of the Staff Association. Accordingly it is concluded that their discharges were not violative of Section 8(a)(1) and (3) of the Act. Also, as I have al- ready concluded that Betances was not under any obliga- tion to recognize or bargain with the Staff Association, it is concluded that the Respondent did not violate Section 8(a)(5) when it chose to close the Health Connection and terminate the employment of Dr. Berkman, Jini Tannen- house, and Anna Burns, without first having given the Staff Association an opportunity to bargain about those decisions. With respect to Anna Burns, there is no doubt that as she worked at the Health Connection, which was closed due to legitimate economic considerations, that her dis- charge cannot be violative of Section 8(a)(1) and (3) of the Act. The General Counsel postulates, however, that the Respondent violated Section 8(a)(3) when Paul Ramos told her that because of her involvement in the Staff Association's activities, he would not rehire her when the Health Connection reopened. Although this was not specifically denied by Ramos, the evidence indi- cates that the decision to close the Health Connection was of a permanent nature, and this alleged statement therefore seems too highly improbable to be credited. In fact, the Health Connection was never reopened. D. Discharge of Garcia As noted by the judge in his unemployment case, Garcia had a record of excessive absenteeism and late- ness. Moreover, he had previously been placed on proba- tion. There is, in fact, little dispute about that findings of fact, which is amply supported by this record. There are, however, other facts that came to my atten- tion which may not have been known to the judge or the State Department of Labor when he denied Garcia for unemployment insurance benefits.35 Notwithstanding Garcia's longstanding and chronic problem with absences and lateness, the evidence shows that Ramos' overlooked this problem and placed a certain degree of trust in Garcia before September 3, 1980. Thus, Garcia was asked by Ramos; during the summer of 1980, to take care of his house while Ramos was on va•• cation. Also, Garcia was given the key to open Betances when he arrived in the morning.36 After the September 3 meeting in which the Staff As- sociation made its demands, Ramos visited Garcia at his home and warned Garcia to "watch his step." In this regard, he told Garcia that he had helped Garcia in the past and that Garcia should not go against him. Garcia 85 The Board has consistently held that decisions by judges in unem ployment cases are admussable in unfair labor practices proceedings and are of some probative value. They are not, however, controlling as to their findings of fact or conclusions of law. Western Publishing Ca, 263 NLRB 110 (1982). 36 On September 11, 1980, the key was taken away from Garcia be- cause he failed to arrive on time and other employees were locked out, 388 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD responded that, although he liked Ramos, he also liked the other employees. Ramos, in turn, told Garcia, "If that's what you want." About September 5, Garcia was, elected to be on the Staff Association's grievance committee and he was present when that committee met with Ramos on Sep- tember 10 to ask for the reinstatement of Zayerz. At the conclusion- of the meeting, ' when Ramos - refused to change his mind about Zayerz, a 1-day strike com- menced and there is little doubt about Ramos' adverse reaction to' this and the other strikes that thereafter ensued. (See for example his comments in the community bulletin referred to above.) Although the reasons given for Garcia's discharge would be.plausible in most other circumstances, the evi- dence shows that lateness and absenteeism at Betances was common, indeed chronic, among Respondent's em- ployees. It also was shown that this was generally dealt with by docking an individual's pay. There clearly were other employees who were often late or absent and Carmen Altus, who was absent and late a substantially similar number of times as Garcia, did not lose her job. Accordingly, it is concluded that Garcia was not fired because of his admitted excessive absence and latenesses, but rather because of his association with the participa- tion in the activities of the Staff Association. In this re- spect, I therefore find that his discharge violated Section 8(a)(1) and (3) of the Act. E. Transfer of the Federal Employees Dr. Solomon, Paez, and Gleaton, Warning to Gonzalez on October 8, 1980 The simple and conclusive answer to whether the Re- spondent violated,the Act when it successfully requested the Federal Government (i.e., the National Health Serv- ice, Corps) to transfer the Federal assignees out of Be- tances is that these persons were neither employees of Respondent nor employees within the meaning of the Act. 'At the hearing, the General. Counsel proposed the analogy that in certain circumstances the Board has held that the discharge of supervisors is violative of the Act, even though such supervisors are not employees as de- 'fined in the Act. After the hearing closed, the Board, in Parker-Robb Chevrolet, 262 NLRB 402 (1982), overruled the line of cases with which the General Counsel was seeking to make his analogy. Therefore, it is recommend- ed that the complaint, insofar as it alleges the illegality of the transfers of Dr. Solomon, Gleaton, and Paez should be dismissed. With respect to the warning issued to Betty Gonzalez on October 8,'1980, it is apparent that this warning was issued to her because she attended a meeting on October 7 at the National Health Service Corps in which the Federal assignees were reminded that they were not enti- tled to engage in strikes. It appears, therefore, that she attended this meeting (with the permission of Dr. Solo- mon) in her role as a member of the Staff Association in order to assist or counsel those persons. Nevertheless, as the Federal employees were not and cannot be construed as employees enjoying the protection of the National Labor Relations Act, Gonzalez' appearance at this meet- ing cannot be said to have constituted protected concert- ed activity within the meaning of Section 7 of the Act. This is so because she was not _ acting' in concert with "employees" as defined in the Act. As such, it is con- cluded that this allegation of the complaint should also be dismissed. F. The Discharges'of Gonzalez, Feliciano, and Morales Although an employer may not discharge employees because of their union or protected concerted activities, the fact that employees engage in such actions does not give them an impregnable shield from otherwise justifi- able discipline. Such, I think, is the case herein. Although there may be some differences about detail, the principal events of October 24, 1980, are not in seri- ous dispute. On that morning Dr. Alpert, who had just been 'designated as medical director, was the only medi- cal practitioner at the center, and was attempting to cope with patients who were scheduled to see not only him- self, but also-Dr. Solomon, Patricia Gleaton, and Ana Paez. At some point, he needed to see Debrorah Pa- checo, the laboratory technician, and asked the recep- tionist, Elva Morales, to page Pacheco. Instead of carry- ing out Dr. Alpert's order, Morales at first ignored him, and then told him to -page Pacheco himself. As this was a part of Morales' job, Dr. Alpert was understandably annoyed and wrote a memorandum about this incident to Paul Ramos. Later in the day, Dr. Alpert asked Betty Gonzalez to prepare a patient (her normal job) and she told him to do it himself. Still later, Dr. Alpert found a condom on his desk and when he came out with it, the three employees, Nancy Feliciano, Betty Gonzalez, and Elva Morales, laughed at him. At still another point during the day, Dr. Alpert heard Ms. Gonzalez telling patients that he was a lousy physician who had caused the transfer of the others. In face of these events, Dr. Alpert wrote another memorandum to Paul Ramos and Wanda Evans complaining of the behavior of the three employees and demanding that disciplinary action be taken immediately. He also orally told management that either they should be fired or that he would leave.37 There is no question in my mind that the three em- ployees, from Dr. Alpert's and- from any objective point of view, were involved, in a series of transactions de- signed to ridicule and undermine Dr. Alpert's authority as medical director. In short, their conduct on October 24 can only be described as highly insubordinate. Although there is evidence in this record to the effect that the Respondent, before October' 24, was thinking of firing Betty Gonzalez because of her role in the Staff As- sociation,38 the facts 'show that Gonzalez, by her con- 37 In this context, an alleged statement to Pacheco by Dr Alpert, on October 24, that Betances was going to get rid of the troublemakers does not imply that the Company was motivated by the-employees' union ac- tivities. 88 See the testimony of Pacheco concerning her conversation with- Su- pervisor Eladio Reyues wherein he allegedly told her, around October 18, that Betty Gonzalez was going to be fired. BETANCES HEALTH UNIT 389 duct on October 24, gave the Respondent ample and good cause to discharge her. Indeed, the credible testi- mony of Wanda Evans was that to the extent that the employees' support for the Staff Association was dis- cussed, it was mentioned not as a reason for discharge, but rather as a reason for not taking such action. Thus, according to Evans, management was concerned that if they did discharge the three employees, this might lead to an adverse reaction by the remaining staff and precipi- tate another strike. She testified that given the lack of re- spect shown to Dr. Alpert as medical director there was no alternative but to discharge the three employees. I agree, and shall recommend that these allegations of the complaint be dismissed.' G. Discharge of Deborah Pacheco When the three National Health Service Corps assign- ees were transferred out of Betances, the employees comprising the Staff Association decided to commence a strike on Monday, October 27, 1980. Such a strike did ensue on that date and Deborah Pacheco participated in that strike. There is ' no dispute about the fact that she was discharged because of her participation in the strike. The Staff Association did not, however, give the written 10-day notices required by Section 8(g) of the Act. In support of his case, the General Counsel states: Although the undersigned strenuously agrees that the Association herein is a labor organization within the meaning of Section 2(5) it, is far from a sophisti- cated labor organization and it possesses no affili- ation with such a labor organization. It is a loosely organized band of employees which sought mutual aid and protection. Certainly it is not the type of entity envisioned by Section 8(g). Further, and per- haps more compelling, is the fact that on October 27, everyone in the Association, with the exception of Lisa Garcia, who abandoned her support for it, had been discharged. Pacheco was an employee working alone. Finally, there can be' no question that the pervasive and insidious , pattern of unfair labor practices committed by Respondent caused the walk out by Pacheco and therefore no notice was required. I agree with the General Counsel to the extent that if there had never existed a Staff Association, the ensuing strike by the employees would not have required the 8(g) notices.39 However, it seems to me that the General Counsel is, in effect, seeking to have his cake while eating it. On the one hand he asserts that the Staff Asso- ciation is a labor- organization within the meaning of Sec- tion 2(5)'of the Act, with which the Respondent has an obligation to bargain, while asserting, on the other hand, that it is not a labor 'organization within the meaning of Section 8(g) of the Act. I can see no statutory support for this proposition, and the case cited by the General Counsel is inapposite. In A & D Davenport, Inc., 256 39 In Walker Methodist Residence, 227 NLRB 1630 (1977), the Board held that Sec. 8(g) only applies to labor organizations and does not apply to work stoppages engaged to by unorganized employees. NLRB 463 (1981), the Board held that 8(g) notices were not required from an employee group that was unaffili- ated with -any existing labor organization, was unstruc- tured, and was only presenting grievances. However, the Board also concluded that the group in question was not a "statutorily defined labor organization." Regarding the contention that the strike of October 27 was caused by the "pervasive and insidious pattern of unfair labor practices" the facts show that the proximate cause of the strike was the transfer' of the Federal em- ployees out of Betances that was not an unfair labor practice. Also, to the'extent that the decision to strike may have been reinforced by the Company's decision to discharge Betty Gonzalez, Nancy Feliciano, and Elva Morales, I have previously concluded that such dis- charges were not violative of the Act. The, only unlawful action by the Respondent proceeding this strike was the discharge of Martin Garcia on October 9. However, to the extent that the strike may have been called to include a protest over his discharge, this is not considered'by me as such a "serious" or "flagrant" unfair labor practice so as to excuse the failure to tender the proper 8(g) no.. tices.40 The General Counsel asserts that on October 27 every.. one in the Association with the exception of Lisa Garcia had been discharged. I am not sure what is intended by this statement other than to reassert, as previously assert- ed, that the Employer's conduct was flagrant. Yet, ][ have concluded above that most of the discharges, with exception of William Zayerz -on September 9 and Martin Garcia on October 9, were for good cause shown. In view of my agreement with the General Counsel that the Staff Association was indeed a labor organiza- tion within the meaning- of Section 2(5) of the Act, l[ must also ' conclude that it was required to give the proper 8(g) notice prior to the` strike of October 27. As it did not do so, and as I do not view the Employer's con- duct as being of such a serious or flagrant-nature so as to -nullify the notice requirements, I conclude that the dis- charge of Pacheco was privileged under Section 8(d) of the Act. H. Closing of Betances on November 17, 1980 It is the General Counsel's theory that the Employer violated Section 8(a)(5) of the Act when it temporarily closed its facility from November 17, 1980, to mid-Janu- ary 1981 without first having given notice to and offer- ing to bargain about, the decision with the Staff Associa-_ tion. As I have concluded above that ithe Staff Associa- tion was not entitled to bargaining rights, and was not therefore the exclusive collective-bargaining, representa- tive of Betances' employees, I shall recommend that this allegation be dismissed. 40 In Cedercrest Inc., 246 NLRB 870, 876 (1978), the judge, in an opin- ion adopted by the Board, concluded that "serious" or "flagrant" unfair labor practices which provoke a strike, may abrogate the 8(g) notice re- quirements See also Mastro Plastics Corp. v. NLRB, 350 U.S. 270 (1956). 390 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAw ORDER 1. Betances Health Unit, Inc. is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and a health-related facility within the meaning of ,Section 2(14) of the Act. 2. The Betances Health Unit Staff Association is a labor organization within the meaning of Section 2(5) of the Act. 3. The discharge of William Zayerz constituted a vio- lation of Section 8(a)(1) and (3) of the Act. 4. The discharge of Martin Garcia constituted a viola- tion of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices affected com- merce within the meaning of Section 2(6) and (7) of the Act. 6., Except to the extent herein found, the Respondent has not violated the Act in any other manner. THE REMEDY Having found that the Respondent had engaged in cer- tain violations of Section 8(a)(1) and (3) of the Act, I shall recommend that it be ordered to cease and desist therefrom, and that it take certain affirmative action to effectuate the policies of the Act. With respect to Martin Garcia, I shall recommend that he be made whole and that the Employer offer him full and immediate reinstatement to his former position of employment or, if it no longer exists, to a substantially equivalent position of employment, without prejudice to his seniority or other rights and privileges. In the case of William Zayerz it is my conclusion that this case essentially involves one of an accelerated dis- charge. Thus, although I have concluded that his dis- charge on September 9 was motivated by discriminatory reasons, I have also concluded that because of the Com- pany's financial situation after September 15, he would have been let go either on September 26 or no later than September 30. As Mr. Zayerz was paid through Septem- ber 18, his loss would only be for 12 days at most. Also, because I have concluded that Zayerz would have lost his job no later than September 30 for legitimate reasons, I shall not order that the Company be required to offer him reinstatement. In both cases of lost pay, the amounts of backpay shall be computed in the manner set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest computed in the manner set forth in Florida Steel Corp., 231 NLRB 651 (1977). See, generally, Isis Plumbing Co., 138 NLRB 716 (1962). Additionally, it is recommended that the Re- spondent remove from its files any reference to the dis- charge of Martin Garcia and to notify him, in writing, that this had been done, and that evidence thereof shall not be used as a basis for future personnel actions against him. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed41 41 If no exceptions are filed as provided by Sec. 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended The Respondent, Betances Health Unit, Inc., New York, New York, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Discharging employees because of their member- ship in or participation in the activities of the Betances Health Unit Staff Association, or any other labor organi- zation, or because of their protected concerted activities protected by Section 7 of the Act. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Martin Garcia immediate and full reinstate- ment to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights, or privileges- previously enjoyed, and make him whole for any loss of earnings and other benefits suffered as a result of the discrimina- tion against him in the manner set forth in the remedy section of the decision. (b) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (c) Remove from its files any reference to the dis- charge of Martin Garcia on October 9, and notify him, in writing that this has been done, and that evidence thereof shall not be used as a basis for future personnel actions against him. (d) Post at its place of business copies of the attached notice .marked "Appendix."42 Copies of the notice, on forms provided by the Regional Director for Region 2, after being signed by the Respondent's authorized repre- sentative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure' that the notices are not altered, defaced, or covered by any other materi- al. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER RECOMMENDED that the complaint be dismissed insofar as it alleges violation not specifically found. 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 pur- poses. 42 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."