Medical Arts Center Hospital

MEDICAL ARTS CENTER HOSPITAL Medical Arts Center Hospitall and Local 144, Hotel, Hospital, Nursing Home and Allied Services Union, S.E.LU., AFL-CIO. Case 2-CA-21417 9 September 1987 DECISION ANID ORDER BY MEMBERS BABSON, STEPHENS, AND CRACRAFT On 24 November 1986 Administrative Law Judge Arthur A. Herman issued the attached deci- sion. The General Counsel filed exceptions and a supporting brief, and the Respondent filed a brief in support of the judge's decision and an answering brief to the General Counsel's exceptions. 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, I and conclusions and to adopt the recommended Order. ORDER The complaint is dismissed. ' The General Counsel has excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administra- tive 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 Cir 1951) We have carefully examined the record and find no basis for re- versing the findings David A . Pollack, Esq., for the General Counsel. Michael F. McGahan, Esq. (Solomon & Rosenbaum, Drechsler & Leff), for the Respondent. DECISION STATEMENT OF THE CASE ARTHUR A. HERMAN, Administrative Law Judge. Based on a charge filed on 30 December 19851 by Local 144, Hotel, Hospital, Nursing Home and Allied Services Union, SEIU, AFL-CIO (Local 144) a complaint and notice of hearing issued on 20 February 1986, alleging that Medical Arts Center Hospital (Respondent) violated Section 8(a)(1) and (3) of the Act by granting and then withdrawing benefits from employees James Hickey and Veronica McCaffrey, and then discharging the employ- ees, all because of their support and interest in Local 144. Respondent's duly filed answer denied the commis- sion of any unfair labor practices. This case was tried before me on 4-5 June 1986 in New York, New York. On the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and Respondent, I make the following ' Unless otherwise indicated, all events occurred in 1985 FINDINGS OF FACT 1. JURISDICTION 681 The complaint alleges, and Respondent does not deny, that Respondent is a New York corporation engaged in the operation of a health care institution providing in-pa- tient and out-patient medical and professional care serv- ices, and that annually Respondent derives gross reve- nues in excess of $100,000 from the operation. In addi- tion, Respondent purchases and receives, at its facility, products valued in excess of $50,000 directly from points located outside New York State. Based on these facts, I find that Respondent has been, at all times material, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and a health care institution within the meaning of Section 2(14) of the Act. II. LABOR ORGANIZATION The complaint alleges, the Respondent does not deny, and I find that Local 144 is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent operates a small health care facility in midtown New York City. It employs approximately 150- 160 employees. For at least the past 12 years Local 144 has represented the Respondent's service and mainte- nance employees in collective bargaining. More recently, pursuant to a card check in 1981, Respondent has recog- nized Local 144 as the bargaining representative for its registered nurses, licensed practical nurses, pharmacists, technicians, clericals, and dietitians. Among the services provided by Respondent is a 16- bed alcohol detoxification unit (ADU), the purpose of which is the safe detoxification of alcoholics under medi- cal supervision. At all times material, the unit was staffed by its program director, Gilbert Calcano, two full-time counselors, Hickey and McCaffrey, and several per diem counselors. The responsibilities of the counselors include the admission and treatment of alcoholics. At no time has the Respondent recognized Local 144 as the bargaining representative for the counselors in the ADU, nor has it bargained with Local 144 on their behalf. McCaffrey began working for Respondent in October 1983, and Hickey started in October 1984. Both are re- formed alcoholics who are now working to help individ- uals afflicted with alcoholism. According to McCaffrey, she signed a card for Local 144 in the spring of 1984, and on several occasions she spoke to Sonny Carr, an LPN and the shop delegate, about joining Local 144. She testified that she and Hickey approached Calcano, an admitted supervisor, in November 1984, and told him of their interest in joining Local 144 because of better medical benefits, tuition reimbursement, and weekends 285 NLRB No. 93 682 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD off.2 Calcano is alleged by McCaffrey to have responded that Norman Sokolow, Respondent's director, would not tolerate it and would fire them before he would allow them to join the Union. Hickey confirms McCaffrey's testimony on this incident, but Calcano, in his only refer- ence to this meeting on direct examination, denies ever telling either of them that they would be fired if they joined the Union.3 On cross-examination, Calcano states that he knew prior to February that McCaffrey and Hickey had expressed interest in union benefits, i.e., health coverage and tuition reimbursement.4 McCaffrey further states that both she and Hickey signed cards for Local 144 in December 1984, and again in March; and that she and Hickey spoke to Calcano on several occa- sions from March through May in the same vein, but that Calcano's response was always the same-"Sokolow will not tolerate your joining the union. You'll lose your job. You'll be fired." Calcano testified that the first time McCaffrey and Hickey came to him to express their interest in joining the Union -in order to get raises, medical benefits, and tuition reimbursement was in February or March. He stated that they made him aware of the fact that Local 144 was possibly going to unionize the counselors; that he surmised that, in that event, any increment in wages would have to be negotiated through the Union, but that he would inquire about it from top management. He then advised McCaffrey and Hickey that he was told that the Union was negotiating on their behalf and that they would have to wait. According to Calcano, McCaffrey and Hickey insisted that he, Calcano, negotiate with them; and that Hickey told Calcano that he really was not interested in the Union because he had had a bad ex- perience with them. Calcano further stated that in April McCaffrey and Hickey persisted in their request and said that they had no further interest in waiting for the Union. Calcano again spoke to Jordan London, the as- sistant administrator at the time, who requested that Cal- cano make a survey of what the competition was paying. Calcano complied and produced a survey dated 22 May 1985, and recommended raises for McCaffrey and Hickey. Whereon London told Calcano that he had no problem with the suggested raises but that he wanted to await the results of a site visit by the Division of Alco- holism and Alcohol Abuse and certification of the coun- selors following an exam that they took. Calcano states that he was dissatisfied with London's response and so he went to consult with Sokolow. Sokolow said he had no problem with the suggested raises but was afraid that the timing was bad; that the counselors may be union- 2 At the time, McCaffrey worked Sunday through Thursday from 9 a.m. to 5 p in., and Hickey worked Tuesday through Saturday, I1 a in to 7 p.m, except on Friday when he worked 9 a in to 5 p in, and Saturday from7am to3pm 2 This incident is supposed to have occurred prior to the 10(b) period, and is not alleged in the complaint Therefore, I view it only as back- ground material in assessing Respondent's knowledge of the counselors' union activity and the witnesses ' credibility 4 Hickey testified that he met Calcano on several occasions at the Claremont Stables during the winter months of 1984-1985, where they both rode horses, and that Calcano repeated several times that any at- tempt by McCaffrey and Hickey to join the Union would not be tolerat- ed ized; and that Local 144 would ask for another raise in forthcoming negotiations. Calcano responded that the two counselors did not want the Union to negotiate for them, but Sokolow wanted it checked out one more time. Calcano then went back to McCaffrey and Hickey and apprised them of Sokolow's dilemma. They assured him again that they did not want the Union, that they wanted Calcano to negotiate their raises. This back and forth process of conversations with McCaffrey and Hickey and then with London, then back to McCaffrey and Hickey, then back to London, then with Sokolow, and back to McCaffrey and Hickey, took up several weeks in June. In the meantime, Thomas Puzo replaced London, and Calcano met with him to discuss the counselors' raises. He too had reservations but even- tually gave his approval and finally in July, the counsel- ors' salaries were increased to $20,000, the level recom- mended for alcoholism counselors by the National Asso- ciation'of Social Workers. According to McCaffrey, Calcano told the counselors that they were getting the raise to $20,000;' that Re- spondent would pay tuition for them, and that their schedules would be changed to give them weekends off, provided they did not join the Union. A few days later, when Carr told the counselors that Local 144 was proc- essing their union cards, they became concerned that it might affect their raise, and they sought out Puzo, be- cause Calcano was on vacation. Puzo advised them that it was illegal for Calcano to base benefits on whether they joined the Union and that they had a right to join the Union. Puzo's testimony generally mirrors the testimony of Calcano and McCaffrey insofar as it relates to the con- versations he had with them. In addition, he related the fact that the counselors were upset and concerned when they came to him because they were aware that the cards they had signed in March had been tampered with and a June date had been substituted, and that they could never get any information from the Union, nor did anyone from the Union contact them since they signed the cards in March. Neither McCaffrey nor Hickey testi- fied regarding the tampered cards, but McCaffrey did state that it was not until 3 weeks after Labor Day that the Union contacted the counselors again and asked them to sign cards once more in order for Local 144 to represent them. In the meantime, in August, according to Calcano, the two counselors had asked again for weekends off and tried to show that there would be an improvement in the completion of charts and' other paper work in the ADU if the new schedule was implemented. After a discussion with Puzo, Calcano informed McCaffrey and Hickey that there would be a change of the schedule on a trial basis in which they would have weekends off and per diem counselors would cover the weekends. The new plan went into effect right after Labor Day. According to Carr, the two counselors were given cards to sign in July, and in September, during negotia- tions for new contracts between the Respondent and Local 144, the Union asked that McCaffrey and Hickey be included in the unit. Carr states that the Respondent's MEDICAL ARTS CENTER HOSPITAL sole reaction' to its request was that it was not a matter of exclusion from the unit but that perhaps the counsel- ors would need a separate contract. Carr also stated that at no time from November 1984 through September did either of the two counselors ever tell her that Calcano was threatening their jobs if they joined the Union. McCaffrey testified that shortly after the meeting be- tween Respondent and Local 144 in September Calcano confronted the two counselors and in an angry tone said, "You betrayed me. You said you wouldn't join the union. You stabbed me in the back. You said you wouldn't sign the cards and you joined the union." When Hickey said that they joined in order to get bene- fits, Calcano retorted, "I'll never trust either one of you again." A few days later, their work schedule reverted to what it previously was. Calcano states that the new schedule did not prove to be beneficial to the hospital. In addition, McCaffrey stated that she had applied to Hunter School of Social Work for a 1-year residency program and had received glowing recommendations from Puzo, Calcano, and two of Respondent's medical directors, all signed in early September.5 This program required that she spend 1 day a week at school to be paid for,by Respondent. In fact, according to Calcano, he was to attend the seminar also. However, shortly after Calcano accused the two counselors of betraying him, as alleged by McCaffrey, he rescinded his permission for McCaffrey to attend school at Respondent's expense and told her she could only attend on her own time. Accord- ing to Calcano, the permission to attend the seminar was rescinded because of the heavy workload in the ADU at the time. B. McCaffrey's Discharge Hickey testified that on the Saturday before he was laid off,6 he received a telephone call from Nazick; Nazick sounded highly intoxicated ' and threatened to come to Respondent's premises with a knife if he was not admitted, Hickey wrote a note to McCaffrey, inform- ing her about Nazick and-advising her of the danger, and placed the note on McCaffrey's desk.7 McCaffrey testi- fied that she read the note when she came to work and, about a day later, Nazick called her on the phone and asked to be admitted. When McCaffrey began asking him some routine questions, he became infuriated, cursed her, and threatened to cut her face up if she would not admit him. McCaffrey told Nazick that she had no bed for him and suggested that he seek help at St. Vincent's Hospital. On 8 December, Nazick appeared at Respondent's prem- ises and the switchboard operator on duty, Maureen Lawson, testified that he was seeking admittance. Ac- cording to Lawson, Nazick said that he had come the night before and was told to return the following morn- ing. Whereon, Lawson called upstairs and connected Nazick with the ADU. McCaffrey stated that she spoke with Nazick on the phone and, without going down to the lobby to meet with him, again advised him to go to 5 See G C Exhs 4-7 6 Hickey's layoff occurred on 6 December and will be discussed at length, infra. 7 G C Exh 10. 683 St. Vincent's Hospital. She was concerned that he would be violent if and when he were admitted to the unit. Lawson states that she only heard Nazick's voice; that he did not threaten nor did he use obscene language; that he appeared disappointed and upset, but not angry, when he was turned away by McCaffrey. By way of background, Respondent introduced into evidence two of its policy and procedure manuals effec- tive as of May 1985,8 and referred to a third policy and procedure manual, effective August 1984, that had been introduced into evidence by the General Counsel.' These manuals provide that every effort should be made to admit all patients seeking and in need of alcohol de- toxification and treatment; that all patients seeking admis- sion are to be prescreened by an alcoholism counselor, head nurse, and house physician; and that the counselor should escort the potential patient from the admitting office in the lobby to an area designated for prescreening of potential patients. In furtherance of its contention that each potential patient must actually be seen by a counsel- or, Respondent, through Puzo, related an incident that is alleged to have taken place in September involving McCaffrey in which she had refused to go to the lobby to see a potential patient. The switchboard operator noti- fied Puzo but by the time he went downstairs the poten- tial patient was gone. This prompted Puzo to speak to McCaffrey about the incident and to stress to her the im- portance of counselors to go down to the lobby and speak with the potential patient. According to Puzo, McCaffrey did not respond to him. In addition, at the monthly ADU staff meeting in September, Puzo stated that he wanted all potential patients to be assessed by counselors and that no patient should be turned away prior to being seen by a counselor. Puzo then stated that failure to comply would lead to termination of the one responsible. McCaffrey does not dispute the fact that an incident occurred in September but contends that it involved a knife-wielding potential patient. She admits that the switchboard operator called up frightened because the patient was wielding the knife, and so McCaffrey told her she was calling the police, which she did. The switchboard operator called back hysterically and said she would call the administrator if McCaffrey did not go down to the lobby. Instead, Hickey went down and the police arrived, and they handled the situation. One further point on which McCaffrey and Calcano differed involved the question of "walk ins." McCaffrey stated that up until February Respondent had a 24-hour walk-in policy in which anyone coming off the street would be screened by a counselor and admitted. Howev- er, due to violence that was caused by the walk-in policy, it was decided that the admission to the ADU would be by agency referral only. And, in furtherance thereof, a sign to that effect was posted outside. On cross-examination, however, McCaffrey admitted that in certain instances walk-ins were admitted into the unit. Calcano testified that although Respondent does not^en- 6 R. Exhs 2-3 9 G.C Exh. 8. 684 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD courage walk-ins, it would be against regulations estab- lished by the New York State Division of Alcoholism and Alcohol Abuse to turn them away, and so counsel- ors are told to prescreen walk-ins. Calcano admitted that a sign existed stating, "By referrals only," but that was only meant to deter walk-ins, not to bar them from ad- mission. Calcano testified that on 9 December there were only three patients in ADU when Nazick came to the Re- spondent's facility requesting admission. Calcano brought Nazick upstairs for screening, and Nazick told him that he had been there the day before and was denied admis- sion. Calcano spoke to Lawson who told him that Nazick had been there, that he was in a helpless state, and that Lawson told Nazick to go to Roosevelt Hospi- tal when he told her that he had been turned away. Cal- cano stated that McCaffrey had never told him that she had a note from Hickey warning her about Nazick, nor had he received any report from any counselor warning him about Nazick. Calcano then spoke to Puzo and So- kolow about the incident, and because this was the second time that McCaffrey had turned away a potential patient, Calcano recommended that they terminate McCaffrey. They agreed. On 18 December1O Calcano confronted McCaffrey about Nazick. McCaffrey main- tained that Nazick was a walk-in, that he was verbally abusive and threatening, and that she then told him that there was no bed available for him. i i Calcano disagreed with McCaffrey, and terminated her for failing to follow Respondent's admission policies and procedures. C. Hickey's Layoff Calcano testified that in late November he was told by Sokolow and Puzo that he would have to lay off one full-time counselor because of the low census in ADU. In fact, in early December, there was a day when there was only one patient in the unit.12 And so, because Hickey had the least seniority, Calcano notified him of the layoff to take effect on 6 December, and offered him per diem work, which he refused. On 18 December, however, when McCaffrey was dis- charged, Calcano telephoned Hickey and offered him a full-time position . According to Hickey , he stated that he would return only on one condition, that he be permitted to be a ' union member, but he said that Calcano would not take him back on that basis . Hickey further said that he had additional contact via letters from Respondent and telephone calls from Calcano, all offering employ- ment but not on Hickey 's terms. According to Calcano, Hickey said he was interested in the job when Calcano contacted him on 18 December but that he was having some dental work done and that he would get back to Calcano. Calcano memorialized that conversation by cer- tified letter to Hickey, dated 18 December , but the letter was returned to Respondent, "unclaimed." ' 3 Calcano telephoned Hickey again on 2 January 1986 and again of- fered him the job. Hickey said he was interested but that he would have to talk to the Union's lawyer to find out what his status was. Calcano told Hickey that his status would be the same as when he left. According to Cal- cano, Hickey did not say that he would only come back as a union employee; he merely repeated what he had said previously, and that he would get back to Calcano within 72 hours. This conversation was memorialized in a memo from Calcano 'to Puzo dated 2 January 1986. 14 Calcano had no further contact with Hickey regarding his reinstatement. On 8 January 1986, Puzo wrote to Hickey and again offered him the job, giving Hickey a deadline of up to 14 January 1986 to respond by calling Doris DeBenedetto, Respondent's personnel director. 1 s Respondent introduced into evidence a letter dated 17 January 1986, from Hickey to Calcano, in which Hickey states that he is accepting Respondent's offer of reem- ployment but that, because he was under a doctor's care, he would advise Respondent the following week just when he could return to work.16 On 21 January 1986 Puzo wrote a letter to Hickey in response to Hickey's letter of 17 January, telling him that he was being placed on medical leave of absence; that his position was being filled by a temporary employee; that Respondent wanted some documentation from a 1physican verifying Hickey's incapacitation, to be received by 27 January 1986; that, in the alternative, Hickey should call either Puzo or De- Benedetto by 28 January 1986; and that Respondent will assume that Hickey is not interested in the position if no response is forthcoming by 28 January 1986.17 It appears that Hickey called Puzo on 21 January 1986, after Puzo had written his letter, reiterating his acceptance of the offer and stating his medical problem. This prompted Puzo to again memorialize the conversation by letter dated 22 January 1986 to Hickey, practically repeating what was contained in his letter of the day before.1 s On 27 January 1986 Hickey called and spoke to DeBendetto, and told her that the doctor was sending Respondent a note. She asked him when he would be able to come back to work, and he said it would be in the note. No note ever came, and there was no further communication between Hickey and Respondent. On 4 February 1986 Puzo wrote to Hickey telling him that in light- of-his-fail-ure to explain the leave of absence his position was being offered to someone else.19 Analysis and Conclusions This case requires no profound understanding of the legal principles inherent in the Act. Simply stated, the discharge of employees because of their membership in, or activities on behalf of, a labor organization violates Section 8(a)(3) of the Act. However, the keystone of proving a violation requires the finding of an unlawful motive. And, usually, the essential elements needed to 1° It d ll d k ht th N k h t M C ff h ft a ca e in sic er e azic seems t a c rey a rig a incident and had not been to work until 18 December. 14 R Exh 15 I I Actually, Naziek had been a patient previously in 1983 (R. Exh 10), 1s R Exh 4 and his prior record does not reveal any bizarre behavior 16R Exh 5 12 See R Exh 13-A day-by-day patient census comparison between 17 R Exh 5 1984 and 1985 IsR Exh 7. 13 R Exh 14 19 R Exh 8 MEDICAL ARTS CENTER HOSPITAL make such a finding are knowledge on the part of the employer that the employees are engaged in union activi- ty and that the discharges occurred because of that activ- ity. In the instant case, the General Counsel seems to find a clear path from February 1985, when admittedly Re- spondent had knowledge of McCaffrey and Hickey's in- terest in joining Local 144, to December 1985 and the layoff of Hickey and discharge of McCaffrey , which he attributes to their union activity. The twists and-turns in that path, however, during that timespan, are the con- cern of this decision in determining whether the Re- spondent had an unlawful motive when it caused the layoff and discharge. As stated in Wright Line,20 when employees are discharged for both legitimate and illegit- imate reasons, the General Counsel must make a prima facie showing that the employees ' protected activity was a "motivating factor" in the employer's decision. The burden then shifts to the employer to show that the same action would have taken place even in the absence of the protected activity. In advancing his theory of animus on the part of Re- spondent toward the discriminatee's union activity, the General Counsel sets forth a series of meetings that took place between March and May , between McCaffrey and Hickey on one side, and Calcano on the other, at which Calcano is alleged to have threatened McCaffrey and Hickey with discharge if they pursued their union predi- lections, and then made a deal to give them raises if they did not join the Union. In defense, Calcano denied that he threatened the discriminatees with discharge if they joined Local 144. He stated that his reference to the Union was made regarding whether the timing was right to give them a raise, when it might very well be that the Union would be asking for a raise for them in the near future. It is not beyond the realm of possibility that in that context Calcano may have told them that he could not give them a raise if they were members of the Union. In addition, the evidence establishes that the discrimina- tees had signed cards for Local 144 in the spring of 1984, again in December 1984, and again in March 1985. Cer- tainly when Calcano states that he detected an impa- tience on the part of the discriminatees towards the union, and their insistence that he, Calcano, negotiate with them, he is to be believed. And so, regardless of what ,took place at those meet- ings, it is an undisputed fact that in July, neither McCaf- frey nor Hickey was discharged , but rather both were given salary increases that they had asked for previously and now received without the aid of Local 144. Nothing of consequence seems to have occurred from July to September, but right after Labor Day the two counselors were granted weekends off, another item that they had requested previously. As of this point, September 1985, it does not appear to me that Respondent had acted, in any way, in derogation of the discriminatees' rights under the Act. In fact, I credit Calcano's version of his meetings with McCaffrey and Hickey during the period from March through May, 20 251 NLRB 1083 (1980), enfd 662 F 2d 899 (1st Cir. 1981), cert denied 455 U.S 989 (1982) 685 and I find that he did not threaten them in violation of the Act.2 t From these facts I draw the conclusion that the grant- ing of raises to McCaffrey and Hickey in July was not done to discourage their union activity, but was an act urged on Respondent by the discriminatees themselves. Respondent's careful analysis of what alcoholism coun- selors were being paid in the trade and its desire to satis- fy the discriminatees' justifiable demands were the keys to the granting of the raises in July, and not the union activity of McCaffrey and Hickey. At that point in time, July, McCaffrey and Hickey had disavowed their inter- est in Local 144, and Respondent was not faced with any demand from Local 144 for recognition as their repre- sentative. I find that the increase in wages was given solely to compensate deserving employees and for no other reason. I shall, therefore, dismiss the allegation that the wage increase was given to discourage the discrimin- atees' union activity. In September, two incidents of importance occurred: Respondent met with Local 144 to negotiate agreements for all Respondent's employees, including McCaffrey and Hickey, and a prospective patient was turned away with- out being seen by a counselor. As for the negotiations, Carr stated that Respondent's only reaction to Local 144's request that Respondent rec- ognize and bargain about McCaffrey and Hickey was to suggest that perhaps a separate agreement would be in order regarding those two. Yet, McCaffrey accused Cal- cano of engaging in a tirade shortly after the meeting. He took away their weekend benefit and denied them permission to attend a seminar. On the other hand,, Cal- cano stated that the weekend benefit was rescinded be- cause the purpose for which it was created, i.e., more ef- ficient paper work and completion of patients ' charts, was not accomplished, and the seminar was canceled be- cause of the heavy workload in the ADU. An examina- tion of the patient census for September 1985, shows a total of 324 patients, which compared to other months in 1985 appears to be high, with the exception of March. In light of Respondent's mild reaction at the negotiations as testified to by the General Counsel's witness, Carr, I cannot credit McCaffrey regarding Calcano's outburst following that meeting . In fact, I cannot visualize such complete surprise because Calcano had known of their interest in the Union for quite a while. The General Counsel would have me believe that Re- spondent's animus toward the Union was so great as to have Respondent give the discriminatees anything just to have them reject the Union. This is difficult to imagine in light of the fact that all the rest of Respondent's em- ployees were already represented by Local 144. On the contrary, I credit Calcano's, explanation of Respondent's withdrawal of the weekend benefit and attendance at the seminar. I find that the granting of weekend benefit and permission to attend a seminar, both later rescinded, were also not done to either discourage the discrimina- 21 In addition to my reasons given above , it should be noted that Carr, the General Counsel's witness, testified that at no time from November 1984 to September 1985, did either McCaffrey or Hickey ever tell her that they had been threatened by Calcano 686 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tees' union activity nor to punish them for such activity. I shall dismiss those allegations. The second incident in September, i.e., the failure of a counselor to see a prospective patient before turning him away, brings us squarely to McCaffrey's discharge in December. According to Respondent, McCaffrey was remiss in September when she did not follow Respond- ent's policy and procedure manuals that provided for the prescreening of all potential patients, regardless of whether they were referred by an agency or "walk-ins." McCaffrey did not deny the occurrence in September, nor the part she played in the incident, nor the fact that Respondent thought it important enough to emphasize the point at a staff meeting later that month. Thus, McCaffrey was put on notice that a repeat of such conduct would face dire consequences. Yet, despite the warning, McCaffrey refused to go to the lobby in December during the Nazick incident, and turned away a potential patient without a visual assessment. McCaf- frey defended her actions by asserting that Nazick was both verbally abusive and threatening. However, Re- spondent produced Lawson, a retired switchboard opera- tor, who testified to the contrary. Because I view Lawson as an impartial witness, one who appeared to be making an honest effort to recount the facts as she viewed them, I credit Lawson who gave an on-the-scene description of Nazick, rather than McCaffrey's explana- tion that she perceived over the telephone. Moreover, even if I were to credit Hickey's note to McCaffrey, about which I have my doubts, it does not absolve - McCaffrey of her responsibility to conform to Respond- ent's procedures and see the prospective patient, regard- less of her personal fears. It is common knowledge that alcoholics can be obstreperous and boisterous, but that is why the ADU exists. It is to help alcoholics, and with- out even a visual assessment the ADU cannot accom- plish its purpose. Under the circumstances, I find Re- spondent was justified in discharging McCaffrey, and I find that Respondent would have acted in the same,fash- ion even in the absence of McCaffrey's union activity.22 Therefore, I shall dismiss that allegation in the com- plaint. Finally, we come to Hickey's layoff. The General Counsel contends that Hickey's layoff was prompted by his union activity and that Respondent's offer of rein- statement was unacceptable because it was predicated on Hickey renouncing his, union membership. I cannot accept the General Counsel's contention. The uncontroverted evidence established that, on the day Hickey was told of his layoff, he was offered a part- time position as counselor, pending returning to full time as soon as the census in ADU warranted it. Hickey re- fused the offer of part-time work. When McCaffrey was discharged on 18 December, Hickey was offered full- time work. Hickey states that he told Calcano that he would only return if he could maintain his union mem- bership, but that Calcano refused to take him back on that basis. Calcano states that Hickey said he was inter- ested in coming back but that he was having some dental work done, and that he would get back to Calcano. Not 22 See Wright Line discussion, supra having heard from Hickey, Calcano called Hickey again on 2 January 1986, and offered him full-time employ- ment. According to Calcano, Hickey said he was inter- ested but that he had to consult with the Union's lawyer first to find out his status, and that he would get back to Calcano in 72 hours. Calcano responded by saying that his status would be the same as when he left. When Hickey did not get in touch with Calcano, Puzo wrote to Hickey on 8 January 1986, and again offered full-time employment to him. Hickey responded by letter dated 17 January 1986, stating he accepted but that he was under a doctor's care and would get back to Respondent the following week. On 21 January 1986, Hickey called Puzo and repeated what he said in his letter of 17 Janu- ary._ On 27 January 1986, Hickey, still not having re- turned to work, called DeBendetto and told her his doctor was sending Respondent a note on his condition. No note ever came. On 4 February 1986, Respondent notified Hickey that his position was being filled by someone else. The record is clear that on four different occasions Respondent offered full-time employment to Hickey, but that on each occasion, Hickey offered an excuse for not returning to work immediately. Although Hickey states that Respondent conditioned his return on giving up his union membership, not one word regarding union mem- bership appears in any of the letters sent by Respondent to Hickey. And, the one letter sent by Hickey to Re- spondent dated 17 January 1986 is devoid of any mention of union membership. Thus, I find that Respondent did not condition Hickey's return on his relinquishing his union membership. In fact, Hickey's letter is an accept- ance of employment pending his doctor's approval. And, at no time did Hickey keep his word, either by a doc- tor's note or a return to work. If Respondent wanted to prevent Hickey from coming back to work and at the same time to make its offer look legitimate, one letter from Respondent to Hickey would have been sufficient. Yet, Respondent attempted on several occasions to seek Hickey's return. On the other hand, Hickey's written and oral expression of acceptance of employment were all couched in delays that showed a reluctance to return to work. Under the circumstances, I find that Respondent's layoff of Hickey was caused by justifiable economic con- ditions, i.e., shortage of patients, and not because of Hickey's union activity, and I also find that Respondent's offer of reinstatement was unconditional and not subject to Hickey refraining from being a union member. I conclude, therefore, that Respondent did not violate the Act as alleged in the complaint and, accordingly, I shall dismiss the complaint in its entirety. CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) and (14) of the Act, and is engaged in com- merce as defined in Section 2(6) and (7) of the Act. 2. Respondent has not engaged in any violation of Sec- tion 8(a)(1) and (3) of the Act as alleged in the com- plaint. MEDICAL ARTS CENTER HOSPITAL On these findings of fact and conclusions of law and on the entire record , I issue the following recommend- ed23 ORDER The complaint is dismissed. 687 23 If no exceptions are filed as provided by Sec 102 .46 of the Board's RWes and Regulations, the findings, conclusions, and recommended Board and all objections to them shall be deemed waived for all pur- Order shall, as provided in Sec 102 48 of the R ules, be adopted by the poses