Joint Diseases, North General Hospital

JOINT DISEASES, NORTH GENERAL HOSPITAL 291 Joint Diseases, North General Hospital and United Salaried Physicians and Dentists. Case 2-CA- 21773 March 31, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On September 3, 1987, Administrative Law Judge Steven Davis issued the attached decision. The Respondent filed exceptions and a supporting brief, the Charging Party filed an answering brief, and the General Counsel filed a brief in support of the decision. 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, 1 and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Joint Dis- eases, North General Hospital, New York, New York, its officers, agents, successors and assigns, shall take the action set forth in the Order. 1 The Respondent has excepted to some of the judge's credibility find- ings. 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 Cir. 1951). We have carefully examined the record and find no basis for reversing the findings In adopting the judge's finding that the Respondent violated the Act by laying off Dr. Shah, we emphasize that the Respondent failed to rebut the prima facie case by showing that ii would have laid off Dr. Shah absent his union and concerted activities. Our finding is based solely on the Respondent's failure to meet its burden; we are not substituting our judgment for the Respondent's judgment. We stress that Dr. Shah was employed by the Respondent smce 1973 and, according to Dr. Reichman, was a satisfactory employee with whose work he had no problems. Dr. Shah was not laid off during the budget cuts of 1980 and 1984, yet in 1986 the hospital argued be was the leasi valuable employee even though he possessed the same qualifications throughout. We also note that, al- though all department chiefs received the same mandate to reduce their budgets 15 peicent, Dr. Shah was the only full-time doctor laid off. Fi- nally, we note Dr. Reichman's refusal to consider Dr. Lejano's offer to work part-time to allow Dr. Shah to continue working and his refusal to explain to Dr Shah the reasons for his dismissal. We conclude in agree- ment with the judge that Dr Shah's layoff was unlawful. We also agree with the judge's finding that Dr Shah is not a manageri- al employee. In this regard we note that the record evidence on this issue was general, vague, and conclusory and simply did not substantiate a finding of managerial Status. Thus, the Respondent did not meet its burden of establishing that Dr. Shah was not an employee entitled to the protection of the Act. Leonard Grumbach, Esq., for the General Counsel. Lawrence Rosenbluth, Esq. and Leonard Rodney, Esq. (Ro- senbluth, Rosenbluth and Rodney), of New York, New York, for the Respondent. Rachel Roar, Esq., of New York, New York, for the Charging Party. DECISION STATEMENT OF THE CASE STEVEN DAVIS, Administrative Law Judge. Pursuant to a charge and a first amended charge filed on 9 July and 20 August 1986, respectively, by United Salaried Physicians and Dentists (USPD or the Union), a com- plaint was issued by Region 2 of the National Labor Re- lations Board on 29 September 1986 against Joint Dis- eases, North General Hospital (Respondent). The com- plaint alleges essentially that Respondent laid off Dr. Mahendra Shah because he supported and assisted a campaign by the USPD to organize Respondent's physi- cians, and because of his protected concerted activities as an officer of the Medical Council. Respondent's answer denied the material allegations of the complaint. The case was heard before me on 12 through 17 Janu- ary 1987 in New York City. On the entire record, and after due consideration of the briefs filed by the General Counsel and Respondent, I make the following FINDINGS OF FACT I. JURISDICTION Respondent, a voluntary not-for-profit corporation, with a facility located at 1919 Madison Avenue, New York, New York, has been engaged as a health care in- stitution in the operation of a voluntary hospital provid- ing inpatient and outpatient medical and professional care services. Respondent annually derives gross reve- nues valued in excess of $500,000 and purchases and re- ceives supplies and equipment valued in excess of $10,000 directly from firms located outside New York State. Respondent admits and I find that it is engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and is a health care institution within the meaning of Section 2(14) of the Act. II. THE USPD Respondent denies knowledge or information concern- ing the labor organization status of the USPD. William Ragen, the executive director of the USPD, testified that the Union, an organization in which em- ployees participate, has as its purpose the negotiation of collective-bargaining contracts for salaried physicians and dentists. The USPD has a constitution and bylaws, a house of delegates, a bank account, and files reports with the U.S. Department of Labor. Based on the above, I find and conclude that the USPD is a labor organization within the meaning of Sec- tion 2(5) of the Act. 288 NLRB No: 39 292 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD III. ALLEGED UNFAIR LABOR PRACTICES A. Facts 1. Background a. Respondent's organization Prior to 1979, Respondent was known as the Hospital for Joint Diseases, a large specialty hospital treating mainly orthopedic patients, but also having smaller, an- cillary medical and surgical services for the orthopedic patients. In November 1979, the orthopedic services left the hospital and moved to another location. The number of beds were reduced from about 350 to 200. The hospital thus became a more typical general, primary care institu- tion having departments of medicine, anesthesia, dentist- ry, pediatrics, psychiatry, radiology, surgery, and others. Since then, however, Respondent has experienced re- curring severe fmancial problems that required budget -cuts, implemented by reducing physicians' hours and sal- aries, and their layoffs, in 1980, 1984, and 1986. Respondent is a teaching hospital and has teaching re- sidencies in medicine and surgery through Mt. Sinai Hos- pital and Medical School with which it is affiliated. Respondent employs attending physicians. Some are salaried, full time, such as Dr. Shah who works 35 hours per week; others are salaried, part-time, who work as little as 4 hours per week; and some are unpaid and vol- unteer a certain number of hours to Respondent. An attending physician may (a) teach the interns and residents, (b) admit his patients to the hospital, and (c) engage in private practice using the hospital's facilities. Respondent operates an ambulatory outpatient medical clinic which had four physicians divided into two "firms." The full-time physicians in the medical clinic have their 35 hours divided into 10 sessions of 3-1/2 hours each. The 10 sessions comprise 7 clinic sessions; 2 private practice sessions; and 1 education session. b. The Medical Council The Medical Council was formed in 1980 or 1981 by the attending physicians. Its elected executive committee meets with Respondent's president and chief executive officer, Eugene McCabe, about four to six times per year during which they speak about physicians' fringe bene- fits, patient care, and working conditions. About 90 to 95 percent of Respondent's attending physicians are mem- bers of the Medical Council. Dr. Shah served as its vice president from July 1983 to June 1985, and as its president from July 1985 to June 1986. He was reelected on 9 April 1986 for another 1- year term as president but was laid off on 30 June 1986 and thus could not assume his office. c. The department of medicine The department of medicine operated a clinic for am- bulatory outpatients. Generally, a patient coming to the hospital for the first time is seen in the medical clinic by one of the four physicians assigned there. The clinic is composed of two firms—with two physicians in each firm. The purpose of the firm system is to ensure conti- nuity of care by having the same physician see the pa- tient when a return visit is made. Drs. Shah and Brus were in one firm, and Drs. Alerte and Lejano, in the other. If on making a diagnosis it is determined that the pa- tient should see a specialist, such an appointment is made, the specialist seen, and then the patient returns to the care of the clinic physician. However, if the patient needs the continuous care of the specialist, he becomes the specialist's patient, but would still be seen by the clinic physician for other, general ailments. d. Dr. Shah Dr. Shah, Board certified in internal medicine, was hired in February 1973 and worked in the department of community medicine. That department was founded by Dr. Stanley Reichman, its director, for the purpose of operating an ambulatory medical clinic to better serve the needs of the community. About 1980, after the departure of the orthopedics service, the departments of medicine and community medicine merged, and Dr. Reichman became the director of the consolidated service, now known as the depart- ment of medicine. Dr. Shah continued his work in the department and, in April 1983, Dr. Reichman appointed him physician in charge or chief of the clinic. In requesting and obtaining a bonus for Dr. Shah, Dr. Reichman wrote the following in August 1983:1 One of the things that Dr. Shah has done is to insure that physicians report on time and that there is more available scheduling time for everyone in the medical clinics. He has also arranged for all lab- oratory, x-ray and EKG reports to come to the clinics directly. The system previously was an indi- rect one and there were frequent delays in informa- tion required for clinic visits. In addition, he has been responsible for preparing audits of the medical clinic charts. He has implemented the protocol for transfer of patients from the Walk-In Clinic to the Medical Clinic upon my direction. The latter is part of an overall plan to reduce the number of walk-in patients to the Emergency Room so as to provide more working space for more serious or urgent pa- tients. Finally, Dr. Shah is responsible for the day- to-day problems, including sick calls, late arrivals, schedule preparation, and house staff teaching. On the basis of the above, I think it is important for us to arrange an incentive for Dr. Shah to con- tinue and expand a leadership role. This is especial- ly important because the time he has devoted has been taken from his practice. It was stipulated that Dr. Shah saw more patients in the clinics than the other three clinic physicians in 1984, 1985, and through April 1986. In 1984 and 1985, of the 15 physicians in the department, Dr. Shah earned more money from his private practice in the hospital than any I Dr Shah was the only chief clinic physician who received a bonus. JOINT DISEASES, NORTH GENERAL HOSPITAL 293 other, except that Dr. Sarkar earned more than him in 1985. Inasmuch as part of the money earned in such pri- vate practice is retained by the hospital, Dr. Shah's high productivity benefited Respondent. Dr. Shah earned a higher hourly rate of pay than the three other clinic physicians at the time of his layoff. Dr. Reichman stated that Dr. Shah was a satisfactory employee and he had no problems with his work. Dr. Reichman also testified that Dr. Shah was a member of three hospital committees: (a) staff committee, which reviews the credentials of applicants such as in- terns and residents and also hears grievances of the house staff, (b) ambulatory committee, which reviews and recommends changes in the kinds and service of am- bulatory clinics, and (c) executive committee, which con- ducts the medical staff operations of the hospital and is responsible for the fulfillment of the mandate of the hos- pital's bylaws. Dr. Reichman described the three com- mittees as "essential," "very important," and "major," re- spectively. e. Dr. Shah's activities (1) October 1983 Dr. Shah testified that Dr. Reichman called a meeting of the attendings and told them that the department needed funds, and that Dr. Reiichman would like each physician to contribute $1000. He then said that in lieu of that sum, the physician would be receiving a raise in pay in January 1984, and should therefore contribute an amount equal to the raise for 3 months. According to Dr. Shah, Dr. Reichman threatened that if they did not make the contribution, he would reduce the amount of - the raise. All those present agreed to make the contribu- tions. About 1 day later, Drs. Brus and Lejano told Dr. Shah that they objected to Dr. Reichman's threat. Dr. Shah agreed with them and suggested that they meet with Dr. Saad, president of the medical staff. 2 They pre- sented their grievance to Dr. Saad and he said he would check into the matter. Thereafter, according to Dr. Shah, Dr. R eichman's secretary gave him the following letter to sign, dated 19 October 1983, and which he signed. I wish to defer my participation in the contribu- tion to the Department of Medicine. I shall arrange with you for contribution of an amount from my augmentation after January 1, 1984 equal to the in- crement of my present salary over a three-month period. Later, Dr. Saad told Dr. Shah and others that the matter was resolved—that a contribution need not be made, and the raise would not be reduced. In fact, not- withstanding the letter, no such contribution was ever made. Dr. Shah stated that Dr. Reichman became angry, ap- parently because Dr Shah complained to Dr. Sand about 2 Dr Saad, the director of the department of pediatrics, is an admitted supery,isor. the proposed contribution, and Dr. Reichman asked Dr. Shah if he read a newspaper article that noted that for- eign medical school graduates were finding it difficult to obtain work in New York City.3 Dr. Goldman testified that Dr. Reichman asked him to make a contribution to the department, but did not threaten any physicians. Dr. Goldman further stated that he was not aware that Dr. Reichman threatened any physician. Dr. Reichman testified that he frequently told the phy- sicians in his department that the department was poor, and that it needed equipment but did not have enough money to buy it. Dr. Reichman proposed that the physi- cians contribute their 3-month raise to the department.4 He denied threatening that if they did not make the con- tribution their raise would be reduced, saying that he could not tell them that. Respondent argues that Dr. Reichman had no power to grant raises; that such authority exists only in the lay hospital administration. However, Dr. Reichman admit- ted that he recommends raises whenever possible based on (a) merit, (b) need, (c) longevity, and (d) other rea- sons, and that his recommendation plays a role in the grant of the raise by the administration. Dr. Reichman stated that Dr. Shah, actmg as the spokesman for a group of physicians who met with Dr. Reiclunan, informed him that they were not interested in making a contribution to the department. Two other physicians, however, told Dr. Reiclunan that they would do so if everyone agreed. Because there was disagree- ment, no contributions were made. Dr. Reichman testi- fied that no one from the administration spoke to him about his request for contributions. I credit Dr. Shah's version of this incident. Since Dr. Reichman has the power to recommend raises, and the recommendation is considered in the granting of the raise, he also had the power to threaten to reduce the raise. In addition, the fact at first that all the physicians agreed to make the contribution lends support to a find- ing that they were coerced into agreeing, and then as oc- curred, on further thought, opposed it. Also, if they vol- untarily agreed to make the contribution they would not have later protested the action to Dr. Sand as they did. (2) July 1984 Salaried attending physicians who are engaged in pri- vate practice at the hospital can increase their salary by no more than 70 percent through such private practice. Of the total amount earned in such practice, 30 percent is retained by the hospital and 70 percent is paid by Re- spondent to the physician by check called an "augmenta- tion" every 2 months. In July 1984, Dr. Shah noticed that his augmentation check was about $3000 less than it should have been. He spoke with Drs. Brus, Lejano, and Mosende, whose checks were also short. They decided to do something and, accordingly, Dr. Shah met with Dr. Saad. Also 3 Dr. Shah is a graduate of a foreign medical school. 4 Dr. Reichman estimated the amount of the contribution to be about $675. 294 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD present was Respondent's administrator, Frank Gold- stein. Dr. Sand said he would check into the problem. A couple of days later, Dr. Reichman called a meeting at which Drs. Shah, Brus, Lejano, and others were present. According to Dr. Shah, Dr. Reichman was "very angry" and asked him why he went to Dr. Saad and the administrator without first asking for an explana- tion or informing him Dr. Shah replied that when Dr. Reichman deducted money from his paycheck, he did not ask Dr. Shah. Dr. Shah stated that at the end of that meeting, Dr. Reichman told him that they should have one more meeting to find out whether they could work together. Thereafter, the money was returned to Dr. Shah. Dr. Reichman testified that he "arbitrarily" and with- out notice deducted 5 percent from each augmentation check because he needed money for the department. He told the physicians what he had done and they voiced their displeasure with his action, and requested another meeting. At the next meeting, Dr. Shah acted as the spokesman for the group. Dr. Reichman asked them to consider the money deducted as a contribution to the de- partment. They refused. Dr. Reichman said that because the money was already deducted and was being used by Respondent, it could not be repaid immediately, but would be refunded with the next augumentation check, which was done. Dr. Reichman first testified on examination by the General Counsel that Administrator Cornbill told him that it was probably not wise to deduct funds without first discussing it with the physicians. However, he later testified, in Respondent's case, that no one from the ad- ministration spoke to him about making those deductions. 2. Union organization The major grievance of the physicians was with the Respondent's administration of the annuity funds. The physicians participate in two annuity funds. In the first, the Respondent pays 10 percent of the physician's-salary into a fringe benefit fund. The second is a voluntary an- nuity program where money is deducted from the physi- cian's augmentation check and put into an annuity ac- count. Respondent was 4 to 5 years in arrears in making the required 10-percent payments.5 In 1984, at a medical council meeting, physicians voiced their frustration at Respondent's failure to make timely payments to the annuity funds, and Respondent's repeated assertion that it had no money. Union organiza- tion was suggested at the meeting but nothing further was done at that time. However, Drs. Shah and Sammi, the vice president and president of the Medical Council, told Respondent's president McCabe that the physicians wished to form a union. At a Medical Council meeting in March 1985, the phy- sicians again voiced their upset at McCabe's continued insistence that Respondent had no money to bring the annuity payments up to date. It was agreed that union 5 In late 1985 or early 1986, Respondent made an annuity payment that was due in April 1981. Dr Shah estimated that he was oikied $27,000 to $28,000 in unpaid annuity at the time of his layoff. organization should be pursued in order to remedy that problem. Dr. Shah raised the issue of a union at that meeting and was the spokesman in behalf of a union. At a Medical Council meeting in June 1985, Dr. Shah was asked to find out whether the physicians could join a union and if they could retain an attorney. According- ly, Dr. Shah called the USPD and arranged a meeting with a USPD agent and the executive committee of the Medical Council. A USPD agent thereafter visited Re- spondent and explained the procedure for obtaining union representation. The executive committee then de- cided to seek representation by the USPD. Dr. Shah "coordinated" the union campaign. At a meeting in late June, Dr. Shah distributed author- ization cards to one physician from each department. Dr. Smith told them to have the cards signed by the mem- bers of their departments and return them to him as soon as possible. He explained to the physicians that a certain number of cards were necessary before the USPD could begin negotiations with Respondent, and he collected the cards and tabulated the results. Dr. Goldman testified that Dr. Shah, at a Medical Council meeting, was "very much for the union," but that he was not the only person "pushing" the union be- cause a number of people were interested. He also testi- fied that the union effort was not a secret—he saw physi- cians openly walking around with authorization cards. 3. The 2 July 1985 meeting A meeting was held with Dr. Sand, the president of the medical staff, Dr. Hammer, the vice president, and Drs. Shah and Godfrey, the president and vice president of the Medical Counci1.6 Dr. Shah stated that Dr. Sand told him that McCabe, Respondent's president, was very angry, and that he would not tolerate a union under any circumstances. Dr. Sand then offered "friendly advice" that they should be very careful or they would get hurt. Dr. Godfrey's ver- sion of the meeting is essentially similar. He testified that he and Dr. Shah informed Dr. Saad that they were con- sidering forming a union. Dr. Saad told them that they should be prepared to "face the consequences" of that decision. Dr. Sand added that McCabe and the adminis- tration are aware of the union activities and they are not pleased and did not like the idea of union organization. Neither Dr. Sand, an admitted supervisor, nor Dr. Hammer testified. 4. The 3 July meeting The following day, Dr. Shah and the Medical Council executive committee members were summoned to a meeting with McCabe Dr. Shah testified that McCabe angrily told him that he was aware that the Medical Council was trying to or- ganize a union, but that Respondent was experiencing fi- nancial problems, and he did not want additional prob- lems such as a union. McCabe said that he would not tol- 6 There is disagreement, which I need not resolve, concerning who called this meeting Dr. Shah stated that Dr Saad requested the meeting. Dr. Godfrey testified that the meeting was Dr. Shah's idea. JOINT DISEASES, NORTH GENERAL HOSPITAL 295 erate a union under any circumstances, 7 and added that the whole hospital would suffer and the union organizers would also suffer. McCabe told Dr. Shah that he was stabbing him in the back and reminded Dr. Shah that they had friendly relations m their many meetings during the past 2 years, and that he never expected this from him. McCabe added that he would never forget "this." Dr. Shah replied that he was not stabbing McCabe in the back because the Medical Council members were very upset that no progress was made on contributions to the annuity plan, and they asked that some action be taken. Dr. Shah also told McCabe that the physicians' desire to join a union was "nothing new" because they had spoken about it in the past. Dr. Godfrey testified that the purpose of the meeting was to discuss the annuity arrears but that issue was "sidetracked" when McCabe began the meeting by an- nouncing that Respondent was trying its best to pay its back debts, and that he was working very hard to pre- vent Respondent from closing. He then said that he heard that there was some activity occurring behind his back, and that he would not allow anyone to interfere with his efforts to keep Respondent open and to ensure its survival. Dr. Godfrey recalled Dr. Shah telling McCabe that Respondent's annuity contributions have been in arrears since 1980. Dr. Gershberg testified that McCabe began the meet- ing by stating that he was disappointed and very angry that the staff had "taken this direction," adding that he would be very angry if they proceeded at all. Dr. Lee testified that the meeting mainly concerned the unpaid annuities, but that McCabe said that he would not let anyone stand in the way of Respondent's survival. Although Dr. Lee stated that McCabe did not mention the word "union," and could not recall what McCabe said, it was Dr. Lee's impression and conclusion that McCabe knew that the physicians were going to form a union and he was not happy if they did so. 8 Dr. Lee also stated that at that meeting or later, McCabe said that he was not happy with the union organizing effort. After the meeting Drs. Gershberg, Lee, and Shah met briefly. According to Dr. Shah, two opinions were voiced: to continue the union activity and see how many authorization cards were signed, and to stop the organiz- ing effort. Dr. Lee said that his view was to postpone the drive if two-thirds of the cards were not signed. Dr. Gershberg, however, recalled that it was decided to con- tinue the unionization drive. Thereafter it was learned that the six physicians in the pediatrics department, who had agreed to sign cards, de- cided not to. Although enough cards had been signed to obtain an election, the union campaign was abandoned. Dr. Godfrey attributed the decision to drop the orga- nization drive to McCabe's threat made at the 2 July' meeting and a lack of a majority of signed cards. Dr. Lee gave as the reasons McCabe's dislike for the Union and there being an insufficient number of signed cards. Dr. Lee, who was also present at the meeting, testified that McCabe did not clearly say that "Des. Gershberg and Lee stated that McCabe spoke m an angry, upset manner. McCabe testified that at the 3 July meeting he told those present that he recognized his duty to pay the an- nuities arrears, but it could not be paid at that time be- cause of the Respondent's financial difficulties. He urged them to "stop talking about the annuity in the urgent tones that you're talking about" because he was looking at the hospital as a whole—first he had to ensure that the institution was more secure and then he would address the annuity matter. McCabe denied threatening Dr. Shah in any way and also denied that there was any discussion concerning the Union. I cannot credit McCabe. The testimony of Drs. Gersh- berg, Godfrey, Lee, and Shah were essentially similar. They all testified that McCabe voiced his displeasure with the union organizing attempt, and Drs. Gershberg, Godfrey, and Shah all consistently testified to McCabe's threats that were implicit in his statements to them that (a) the union organizers would suffer and that Dr. Shah was stabbing him in the back and he would 'never forget this (testimony of Dr. Shah), (b) he would not allow anyone to interfere with his efforts to keep Respondent open and ensure its survival (testimony of Godfrey), and (c) he would be very angry if the physicians proceeded with their union organizing effort. Further support for their testimony can be found in the minutes of the 12 September 1985 Medical Council meeting, written by Dr. Shah, which stated that McCabe, at the July meeting threatened the physicians at that meeting. That memo was written months before Dr. Shah's discharge and thus was not prepared to influence this case. McCabe's testimony provides an additional basis to find that the Union was discussed at the meeting and the physicians threatened. Thus, McCabe warned the physi- cians that they must stop talking about the annuity ar- rears "in the urgent tones that you're talking about." The annuity had been an ongoing subject of discussion be- tween the Medical Council officials and McCabe for years—with the Medical Council repeatedly urging that McCabe bring the payments current. Accordingly, the fact that the Officials were again requesting that action be taken on the annuity should not have caused the reaction in McCabe that it did. The "urgent tones" that McCabe mentioned, therefore, clearly referred to the physicians' efforts to organize a union. McCabe's response was un- doubtedly a reaction to the union campaign, which he viewed as a threat to the financial stability -7-indeed the survival of the hospital. Although McCabe had been informed in the past of union campaigns, those attempts apparently faded quick- ly without any action being taken, other than discussion regarding the need for a union. Here, however, just prior to the 3 July meeting, the physicians had decided to or- ganize, a union representative had visited the premises, and authorization cards had been distributed and signed. Thus, there was more cause for concern by McCabe since it appeared that the unionization drive was moving forward quickly and successfully. Moreover, the unrebutted statement attributed to Su- pervisor Dr. Saad made just 1 day before the 3 July meeting that McCabe was aware of the union campaign; 296 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD was very angry and would not tolerate a union, and that Drs. Shah and Godfrey should be prepared to "face the consequences" and should be careful or they would get hurt, all support a fmding that the statements attributed to McCabe at the 3 July meeting were in fact made.9 5. Events of 1986 a. Discussion of unionization On 16 March 1986, the officials of the Medical Coun- cil met with McCabe. McCabe told them that he would try to pay the voluntary contribution to the annuity plan within 3 months of its deduction from the physician's salary. However, he admitted that the hospital's 10-per- cent contribution to the annuity was 5 years in arrears, and said that the annuity was his lowest priority at that time.'9 At a Medical Council meeting on 9 April 1986, at which the election of new officers was held, Dr. Shah distributed a memo to those present which contained McCabe's comments, set forth above at the 16 March meeting. The physicians present urged that some action must be taken—"we just cannot go on"—because of the annuity debt. Dr. Shah replied that if he received enough support they would form a union, but advised that they could not proceed then because the election was not completed. Dr. Godfrey stated that at that meeting Dr. Shah said that the hospital's annuity payments were still in arrears, and that the only way to attract the hospital's attention was to form a union. b. The 1986 layoff Respondent's president, McCabe, testified that about February 1986, he decided that budget cuts were neces- sary, and that they would be implemented by a reduction in staff. About early April, McCabe asked the chiefs of the departments to reduce their budgets by 15 percent, and he asked the administrative staff to reduce its budget by $500,000. McCabe told the chiefs that they had dis- cretion in deciding how their department's budget would be cut but he believed that, fmancially, Respondent would benefit if an employee was completely eliminated from the payroll, rather than the hours of several em- ployees reduced. His reasoning was that by removing an employee totally, the hospital would receive greater sav- ings through the elimination of the fringe benefits pay- able to that person. McCabe told the chiefs that they were exempt from the cuts. On 30 April Dr. Reichman told Dr. Shah that he was being laid off. Dr. Shah protested his selection, arguing that he was Board certified, had been employed at the hospital for 13 years; the clinics, of which he was the chief, had been improving; and his work and productivi- ' 9 McCabe dented that he had a conversation with Dr. Saad concerning the Union in July 1986. That may be so. But Dr. Saad's remarks demon- strate that he was aware of McCabe's knowledge of the Union and his animus toward it Such a conversation between them could have oc- curred in June 1986, only 2 days before Dr. Sand's 2 July meeting, at a time when the union campaign was at its height. 10 McCabe offered to meet with any physician who expenenced hard- ship due to the nonpayment of the annuity. ty were good. Dr. Reichman refused to discuss the rea- sons for his selection with Dr. Shah.' In a letter from the medical staff's president, Dr. Sand, to McCabe in June, it was recommended that "in light of Dr. Shah's continuous and loyal service to the Hospital for . . . 13 years, the department of medicine advise him of the reasons and circumstances leading to the termina- tion of his employment at the Hospital." 2 A meeting was held between Drs. Shah and Reichman at which Dr. Reichman told him that his selection was the best action he could take for the department. Dr. Shah told him that Dr. Lejano offered to work 17-1/2 fewers hours (half- time), and give Dr. Shah those hours. Dr. Reichman said that Dr. Lejano could work fewer hours if she wished, but that had nothing to do with his layoff. Dr. Shah later appealed to McCabe who said that Dr. Reichman has the authority to implement the cuts in the manner in which he deems best. Later, Dr. Reichman asked Dr. Lejano if she wanted to work half-time. Dr. Lejano denied offer- ing and did not want to work half-time. In or about April, Dr. Reichman informed McCabe that he had laid off Dr. Shah. Dr. Reichman asked McCabe if he should rescind the layoff because Dr. Shah was president of the Medical Council. McCabe asked Dr. Reichman if his position on the Medical Council was a factor in the decision to lay him off. Dr. Reichman re- plied that it was not. McCabe then said that Dr. Shah's status as an officer should not be a factor in any decision to revoke the layoff. Regarding his knowledge of the Union, Dr. Reichman testified that it was "general knowledge" in the hospital that the attending physicians were discussing the possibil- ity of obtaining union representation, and that he first heard of that from Dr. Sand at a department chiefs meet- ing in late 1985 and 1986. Dr. Reichman did not recall Dr. Shah being named specifically in connection with the union campaign and he did not assume that Dr. Shah would be involved in the union effort by virtue of his being president of the Medical Council. Dr. Reichman stated that prior to Dr. Shah's layoff neither McCabe nor any member of the administration spoke to him concerning Dr. Shah and his role regarding the effort to obtain a union, and no one told him to lay off Dr. Shah or eliminate his position. After Dr. Shah's layoff, Dr. Alerte resigned, about October 1986. Dr. Reichman stated that he has not been replaced, although additional Physicians are needed. In September 1986, a new physician, Dr. Castolanous, was hired in the department of medicine to work in the drug detoxification program, to replace another physi- cian who quit. Dr. Shah was not asked if he wanted the drug detoxification position. 11 Dr. Reichman testified that his management training taught him that the best way to fire someone is to announce the decision and offer to help. He stated that a discussion of the reasons for discharge are counter- productive because the chschargee becomes defensive and offers to change his behavior. "A good department head doesn't give reasons, he tells people what as happening when it is this kind of unpleasant situa- tion." 12 McCabe also told Dr. Sand to make sure that Drs. Reichman and Shah speak about the reasons for the layoff. JOINT DISEASES, NORTH GENERAL HOSPITAL 297 Dr. Reichman testified that he did not remember, but he may have told Dr. Shah that he might be recalled if other physicians left, or if the department's needs or budget increased. Dr. Reichman also stated that the deci- sion to recall would depend on the position available, and its requirements and the skills of the applicant. B. Respondent's Defenses 1. Dr. Shah's managerial status Respondent argues that all of its salaried attending physicians are managerial employees, excluded from the coverage and protection of the Act. It is Respondent's position that the salaried attending physicians are managerial because (a) the "Medical Staff" controls all "medical policies, patient care issues, medical staffing (subject to budgetary constraints), medi- cal education of interns and residents," and (b) they Are members of the Medical Council, which negotiates with the administration. Respondent further asserts that Dr. Shah, in particular, is a managerial employee because as chief of the clinics he exercised managerial responsibil- ities; and was a member of certain committees that were involved in making policy and providing oversight for the hospital; and participates in the augmentation plan. In NLRB it Yeshiva University, 444 U.S. 672, 678-683 (1980), the Supreme Court defined managerial employees as those who "formulate and effectuate management policies by expressing and making operative the decisions of their employer" through "taking or recommending discretionary actions that effectively control or imple- ment employer policy." The Board has applied his concept in determining whether physicians are managerial and thus should be excluded from the Act's coverage. In Montefiore Hospital, 261 NLRB 569, 570 (1982), the Board stated: As professional employees, the doctors may also be managerial, but their managerial status may not be based on decisionmaking which is part of The rou- tine discharge of professional duties. Only if the ac- tivities of professional employees fall outside the scope of the duties routinely performed by similarly situated professionals will they be found aligned with management. And in the health care context the Board must evaluate the facts of each case to determine whether decisions alleged to be manage- rial or supervisory are incidental to the profession- al's treatment of patients. a. Facts In applying these principles, the organization of the hospital must be examined, as well as the duties of the physicians, in the various activities that Respondent claims demonstrate their managerial status. (1) Organization Respondent's chief executive officer is Eugene McCabe. He is responsible for providing a financial base for the hospital to operate within and makes decisions af- fecting all aspects of the hospital's operation. McCabe decided that hospital revenues were such that a budget cut was necessary in 1986. He directed the amount that each department was required to eliminate from its budget. Ray Cornbill is Respondent's executive vice president. He reports to McCabe and is responsible for the oper- ation of the hospital. Lewis Archer is the head of the personnel department. McCabe, Cornbill, and Archer are not physicians, but are Respondent's lay administrative management. Dr. Godfrey testified on examination by Respondent that there is an administration of the hospital consisting of laypeople, and a medical administration that consists of doctors who run the various departments. The directors of the various departments are physi- cians, who are supervisors and who have authority in their departments to spend money allocated to their de- partment, hire and fire physicians, recommend pay raises, and assign and reassign physicians and staff to various duties, all of which powers were exercised by Dr. Reich- man in the department of medicine. Dr. Reichman stated that as director he is responsible for the activities of the department, including the staff, the patients who come under his responsibility,, and the requirements of the ad- ministration and external review agencies. He has an as- sociate director and an assistant director, who are also physicians. (2) Committees With respect to the committees, there is a "Medical Staff," whose president is Dr. Sand, an admitted supervi- sor. Subcommittees of the medical staff include the staff relations and welfare committee, chaired by supervisor, Department Chief Dr, /vIoqtaderi, and the executive committee. The medical staff appears to be concerned with griev- ances of physicians. Dr. Shah complained to Dr. Sand, its president, regarding Dr. Reichman's requests for con- tributions and unilateral deductions of money from pay- checks. Both grievances were apparently resolved by Dr. Saad. Dr. Shah also grieved his layoff to the medical staff, and in a letter to McCabe, Dr. Saad stated that the exec- utive committee: (a) Has no jurisdiction as to the layoff because it is a matter "directly between the , physician and the Hospi- tal." (b) Cannot review the judgment of Dr. Reichman in implementing the budget cut as he did. (c) Recommends that "in the absence of reasons to the contrary, Dr. Shah's practice privileges" remain the same, which has been agreed to by Dr. Reichman. (d) Recommends that Dr. Shah retain possession of the medical records of his private patients. (e) Recommends that, as long as he remains a member of the department of medicine, he continue to receive equal access to patients seeking care at the hospital. (f) Recommends , that the department of medicine advise Dr. Shah of the reasons for his layoff. Pursuant to the last recommendation, Dr. Shah met with Dr. Reichman. 298 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Dr. Reichman testified as to the other committees of which Dr. Shah was a member: The Executive Committee is the major committee that is responsible for the activities that go on in the institution in relationship to the bylaws of the insti- tution. It is the major committee that conducts the medical staff business of the hospital. This appears to be the executive committee of the medical staff, mentioned above, of which Dr. Sand is president. Dr. Shah's membership on this committee, =- cording to Dr. Reichman, was by virtue of his presiden- cy of the Medical Council. Dr. Sarkar, the chief of the chest service, and thus a supervisor, also was on this committee. The Ambulatory Committee is a subcommittee of the Executive Committee and it reviews the activi- ties of and the planning for changes or recommen- dations for changes in the patient care and the am- bulatory services which included all the clinics. Its function is to review the clinic activities, their statistics and the formation of different kinds of clinics and make recommendations to the Executive Committee for changes. More than an overview, there may be problems that would be brought up that they could address and find solutions for. The House Staff Committee is the administrative committee overlooking the—overviewing the cre- dentials of people who are requested by chiefs of services to become—to be appointed as members of the House Staff, it is a disciplinary body, it is a group that hears problems from House Staff; wheth- er they are grievances or whether they are activities that need to be brought into the scope of hospital business. It acts to some degree as a rubber stamp on the credentials of each house staff applicant to a particular residency but it does review the contents of the record to make certain that all of the re- quired documents are present and they've been properly investigated. In addition, it looks at prob- lems that the house staff have to deal with. Some- times it may be that the—you're talking about something in the house staff quarters, they may have problems with cleanliness or refrigeration or housekeeping or on the other hand sometimes it has to do with equipment, sometimes it has to do with assignments and certainly it has to do with times there are grievances that a group of house staff offi- cers may raise. (3) Dr. Shah's role in the clinic Dr. Shah was appointed chief of the clinic with the re- sponsibility to make the clinics run more efficiently. It was his responsibility to ensure that physicians reported to work on time; ensure that there was more scheduling time available; prepared quality assurance and audits of clinic charts; arranged for lab reports to be sent to the clinic directly; and is responsible for day-to-day problems including absences of staff, schedule preparation, and house staff teaching. (4) Medical Council Dr. Shah, as president of the Medical Council, met with McCabe in order to redress certain grievances of the physicians. They discussed matters relating to the physicians themselves, such as the failure of the adminis- tration to make its annuity payments current and fringe benefits including disability and life insurance, and also problems relating to patient care, such as lack of sanitary conditions, no linens, and nonworking elevators. (5) Augmentation program Physicians who see private patients at the hospital are entitled to augment their earnings by such practice up to a certain amount. Thirty percent of the amount earned through such practice was retained by the hospital and 70 percent was paid to the physician. b. Analysis and Discussion First, the major administrative decision and policy making responsibility rests with McCabe and the admin- istrative side of the hospital. Thus, he makes decisions as to the budget, and his staff is responsible for the oper- ation of the hospital and its labor relations policies. On the medical side, each department director governs and administers his department, with the assistance of the as- sociate and assistant director, at least in the department of medicine. As Dr. Reichman testified, he is responsible for all activities in his department. It does not appear that the staff physicians have much input in the oper- ation of the department. For example, Dr. Reichman first decided to lay off Dr. Shah and then told his associate and assistant directors of the decision. Thus, the depart- ment directors make the managerial decisions. Monte- fibre, supra at 571. The committees of which Dr. Shah is a member appear to be composed of supervisors. Dr. Saad, the president of the medical staff, is a supervisor. Dr. Shah's membership in the executive committee of the medical staff was only by virtue of his presidency of the Medical Council. Thus it does not appear to be a committee com- posed of nonsupervisory staff physicians, even if it does exercise managerial responsibility. However, the execu- tive committee of the medical staff was unable to exer- cise a managerial decision—to review the layoff of Dr. Shah or Dr. Reichman's action to implement the budget cut as he saw fit. It regarded the layoff as a "matter di- rectly between the physician and the Hospital." The ex- ecutive committee made some recommendations as to Dr. Shah's status, but they seem to be routine and were matters (continuation of privileges) about which Dr. Reichman had already agreed. The ambulatory committee, in making recommenda- tions for changes in patient care and clinics, appears to be chiefly concerned with matters within the scope of the duties routinely performed by similarly situated pro- fessionals. Thus, such decisions that are made by the am- bulatory committee are incidental to the physicians' treatment of patients. The house staff committee reviews the credentials of prospective interns and residents and hears their griev- JOINT DISEASES, NORTH GENERAL HOSPITAL 299 ances regarding cleanliness, refrigeration, housekeeping, equipment, and assignments. These functions are not nec- essarily managerial, and they "do not necessarily fall out- side the professional duties primarily incident to patient care." Montefiore, supra at 572. Similarly, all of Dr. Shah's duties in operating the clinic are clearly directly related to patient care. Respondent argues that the Medical Council is a mana- gerial body because it negotiates with the administration. It may negotiate but, especially regarding the annuity matter, it does not appear that il, receives much. The in- terests of the Medical Council appear to be distinct from the hospital administration. The Medical Council has for years urged that annuity payments be made current but Respondent called the annuities a low priority. In addi- tion, the Medical Council served as the forum for the unionization effort which was opposed by the hospital. The Medical Council was viewed as the staff physicians' voice used to protest administration policies and was thus clearly not managerial. . Participation in the augmentation program does not represent a joint venture or partnership between Re- spondent and the physician, as argued by Respondent. Rather, it is more in the nature of a commission sales- man's plan, in which the more items the salesman sells, the more income he receives. Here, the more private pa- tients the physician sees, the more (up to a certain limit) he earns. The fact that he shares some of his earnings with the hospital appears to be payment to the institution for the use of its facilities for such private practice. This case, especially the committee membership aspect, is distinguishable from FHP, Inc., 274 NLRB 1141 (1985), in which the Board dismissed a petition for physicians because committees in which they were mem- bers performed managerial functions. Those committees are much different from those involved here. In FHP, the committees' decisions, including: • . . managing the organization's protocol system, overseeing its medical records system, setting its medicinal prescription policy, reviewing and modi- fying the benefits and working conditions of its staff, establishing procedures and staff training for medical emergencies, and minimizing the institu- tion's risk of medical malpractice liability, lie at the core of the health maintenance organization's oper- ations. There is no evidence of such detailed, nonpatient-relat- ed decisionmaking by the committees here. Nor was there evidence of how many staff physicians served on these committees. I accordingly find and conclude that the staff physi- cians in general, and Dr. Shah in particular, are not man- agerial employees, and are entitled to the protection of the Act. 2. Reasons for Dr. Shah's selection for layoff Dr. Reichman decided to implement the budget cuts in the department of medicine as follows: (a) Lay off Dr. Shah , (b) Freeze and eliminate a vacant position. (c) Reduce the hours of Dr. Tam, a full time psy- chiatrist, by 7 hours per week. Aside from Dr. Reichman, the director of the depart- ment, and Drs. Shah and Tam, four other physicians in the department of medicine worked full time: Drs. Gold- man, Kidd, Lejano, and Sarkar. Their hours were not re- duced, Dr. Shah was the only full-time physician laid off in the department, and indeed in the hospital itself. Of the 12 physicians in the department of medicine, in- cluding Dr. Reichman, only Drs. Reichman, Shah, Alerte, Goldman, and Sarkar were Board certified, and Dr. Shah was senior in terms of length of service to all but Drs. Reichman and Brus. Dr. Reichman decided to lay off Dr. Shah because he was the least valuable physician in the Department. Dr. Reichman conceded that he could have used Dr. Shah's services, and regrettably lost his supervisory clinic and patient care responsibilities resulting in less physician coverage and a reduction in the quality of care deliv- ered." But Dr. Reichman, nevertheless, chose for layoff Dr. Shah, who he regarded as being the least valuable to the department. Although admitting that Dr. Shah's loss would have an adverse impact on the work of the department, it was Dr. Reichman's belief that his layoff would have the least effect on the department's responsibilities. In this re- spect, Respondent argues that Dr. Shah, essentially a generalist because of his broad training and experience as an internist, was not as essential to the department as other, more specialized physicians, whose expertise was not duplicated by any of their colleagues. Evidence was given regarding the training, experience, and duties of all the physicians in the department of medicine. Respondent sought to establish that those phy- sicians not selected for layoff or reduction in hours had talents and skills in specialized, critical areas, whereas Dr. Shah's generalized abilities and knowledge could be easily duplicated by others on staff, and his duties readily covered by this colleagues. A discussion of this evidence is therefore necessary in order to determine the validity of Respondent's main de- fense. 3. The other full-time physicians who were not affected by the budget cut a. Dr. Goldman Dr. Goldman, Board certified in cardiology and inter- nal medicine, is the assistant director of the department of medicine, and chief of the cardiology service. Respondent argues that none of Dr. Goldman's 35 hours could have been given to Dr. Shah because, as head of cardiology, Dr. Goldman's services are unique and not transferrable to Dr. Shah. Dr. Shah had 1 year of cardiology training in 1970- 1971, and worked in the cardiology clinic at Respondent 13 Dr. Shah's duties were covered by (a) having the house staff (in- terns and residents) see more clinic patients, (b) shifting the attending physicians to the clinic, and (c) elimmatmg one clinic session. 300 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD for at least 6 years, until his layoff. Dr. Reichman con- ceded that, in Dr. Goldman's absence, he and Dr. Shah provide some cardiological services, but they usually in- volved only reading electrocardiograms. Dr. Reichman stated that he did not consider giving Dr. Shah any of Dr. Goldman's hours because Dr. Reichman did not be- lieve that Dr. Shah was sufficiently well trained in cardi- ology. Dr. Shah stated, in contrast, that in Dr. Goldman's ab- sence he takes care of the cardiology clinic, and is asked to do informal cardiological consultations. He also testi- fied that he is able to do most of the work that Dr. Goldman does. b. Dr. Kidd Dr. Kidd, not Board certified, is the supervisor of the inpatient drug and alcohol detoxification program. He has specialized in this field for 6 years. Dr. Reichman stated that an internist could learn this service, but cut- ting Dr. Kidd's hours and giving them to Dr. Shah would be disruptive to the program and patients. Dr. Shah testified that as a supervisor he made rounds with the house staff during which they discussed the treatment and care of detoxification patients who are in the hospital population, and it is his responsibility to treat them Dr. Shah stated that if Dr. Kidd's hours were re- duced and given to him, he would be able to perform Dr. Kidd's duties. c. Dr. Lejano Dr. Lejano, Board certified in pathology but not inter- nal medicine, worked in the medical clinic as did Dr. Shah. She had no formal residency in internal medicine but had 5 years of training in nephrology. Dr. Reichman stated that her chief value to the hospital was that she was the only salaried nephrologist on the staff." She also runs the peritoneal dialysis program, and such pro- cedures are done about 12 times per year.15 Dr. Shah stated that internists are capable of handling 95 percent of kidney problems, and he has had training in kidney diseases. He also has done peritoneal dialysis in the past, and estimated that he could relearn that proce- dure in 2 to 3 weeks." Dr. Shah conceded that if a ne- phrology consultation was needed, Dr. Lejano would be consulted. 4. Part-time physicians who were unaffected by the budget cut Dr. Reichman believed that if he reduced the hours of a part-time physician, that person would quit and seek a position in another hospital offering more hours. Because he did not want to lose his part-timers, he hesitated to reduce their hours. 14 Another physician, Dr. Bradmuller, who is knowledgeable in tie- phrology, is a physician from Mt Sinai Hospital, and works in that hospi- tal, but is on the staff at Respondent on a regular basis. 15 Dr Shah estimated that they are much less frequent—only about five to six times per year. 16 Dr. Reichman disputed this, saying that one cannot learn anything in depth in nephrology m 2 to 3 weeks a.Dr. Alerte Dr. Alerte became Board certified in internal medicine after the layoff of Dr. Shah. He worked 10-1/2 hours per week in the medical clinic as did Dr. Shah. He had no special training in infectious diseases, but became knowl- edgeable in that area, and became Respondent's epidemi- ologist. Dr. Reichman stated that it would not have been ad- visable for him to drop Dr. Alerte and give his time to Dr. Shah because the department's needs would not have l?pen met if he undertook that. Dr. Shah stated that an internist can treat infectious disease patients, but conceded that if another physician needed a consultation in that specialty, he would consult Dr. Alerte and not him. b.Dr. Borker Dr. Borker, a junior attending physician who is not Board certified, had 5 postgraduate years of training— the last 2 years at Mt. Sinai Hospital. She is a member of a fellowship arrangement in which she works at Re- spondent for 6 months per year. She manages one or two clinics, including the chest clinic, and backs up Dr. Sarlcar, the chief of the chest service. She performs pul- monary procedures that Dr. Smith cannot do. Dr. Reich- man also values her teaching ability. Being a Mt. Sinai fellow, she taught residents at Respondent in internal medicine, pulmonary medicine, and chest diseases. Dr. Shah testified that he was more experienced than Dr. Borker, who was his resident. He stated that he is better trained to supervise interns and residents, and has more experience, except with pulmonary patients. He conceded that if a chest consultation was needed, Dr. Borker, and not him would be asked to do the consulta- tion. c. Dr. Brus Dr. Brus, not Board certified, works four sessions in the medical clinics, where Dr. Shah also worked. Dr. Reichman testified that Dr. Brus' hours could not be reduced and given to Dr. Shah without damage to the department because: (a) Dr. Brus is experienced in hematology. She does hematological procedures and does hematological con- sultations when Dr. Rosenthal, the chief of hematology, is unavailable. (b) Dr. Brus has an interest in immunology, and oper- ated the immunology laboratory years ago. Dr. Reich- man believes that that lab may reopen because of the large number of AIDS patients, in which case Dr. Brus would have an important role. (c) Dr. Bras was the only member of the clinical staff with the rank of assistant clinical professor at the affili- ated medical school. Dr. Goldman testified that he told Dr. Reichman that Dr. Brus is very involved with the teaching program and that it would be "impossible" to lay her off. Dr. Gold- man also offered the opinion that Dr. Brus is an out- standing hematologist and immunologist, and is sorely JOINT DISEASES, NORTH GENERAL HOSPITAL 301 needed as there are only two hematologists and no one else trained in hematology. Dr. Shah stated that he asks Dr. Brus to consult when he has a complex hematological problem. He conceded that if another physician needed a hematology or immu- nology consultation, he would go to Dr. Brus, not him d. Dr. Mosende Dr. Mosende, not Board certified, is a pediatrician with advanced training in oncology who works 21 hours' per week. Dr. Reichman stated that Dr. Mosende is Re-. spondent's cancer consultant, leads the tumor board, and provides chemotherapy services to the hospital's patients. Dr. Reichman testified that Dr. Shah could not hay& filled any of Dr. Mosende's hours because she has very specialized training that Dr. Shah is not qualified to per- form. Dr. Shah, however, stated that an adult patient with cancer is better treated by an internist than a pediatric oncologist. However, he conceded asking Dr. Mosende to consult on general oncological cases. He further ad- mitted that he was never consulted on such cases. Three other full-time physicians in the department of medicine were laid off as a result of budget cuts in 1980 and 1984. (1) 1980—Drs. Lichtenstein, Minnerop, and Singer '5 Drs. Lichtenstein and Minnerop were Board certified,' Dr. Lichtenstein was an endocrinologist, not a busy serv- ice according to Dr. Reichman. He was employed for 4- 1/3 years before his layoff. Dr. Minnerop had a dual appointment in the depart- ments of medicine and community medicine. Her termi- nation, according to Dr. Reichman, was related to the elimination of the department of community medicine through the imposition of budget cuts which caused that department to be dropped. She served in the department of medicine as the chief of clinics, the same position held by Dr. Shah. Dr. Reichman noted that she was selected for layoff because she was the least valuable physician, in that New York State required that the hospital reduce the number of visits to clinics and her interest, in infec- tious diseases, was not essential to the department. Sig- nificantly, Dr. Reichman identified as a factor in his de- cision to lay off Dr. Minnerop, the fact that there were some "personality clashes that existed at that time." Dr. Singer was the assistant to the director of the de- partment of community medicine and also served half- time as a clinic physician in the department of medicine. He and Dr. Minnerop left on the same day, when the de- partment of community medicine was dissovled. He was not retained because the budget could not support his half-time position in the department of medicine. (2) 1984—Dr. Kennedy Dr. Kennedy, a full-time Board certified internist, was laid off by Dr. Reichman after nearly 3 years of service. When he was laid off, other part-time, nonboard certified physicians were retained. Dr Kennedy had special train- ing in cardiology and, according to Dr. Reichman, was laid off because he was the least valuable to the depart- ment. His expertise in cardiology was duplicated by Dr. Goldman, the chief of cardiology, who was retained. Dr. Reichman testified that at the time that he asked the physicians for a contribution to the department in October 1983, Drs. Shah and Kennedy were the only physicians in the group of four or five who vocally pro- tested. Dr. Reichman denied that his protest played a part in his decision to lay him off 6 months later. Respondent denies that Dr. Shah was discharged for his union or protected activities. In support of its position that it terminated Dr. Shah solely for budgetary reasons: (1) Dr. Reichman testified that he never made layoff decisions based on seniority or Board certification. In past layoffs he did not consider seniority or Board certi- fication. (2) There was evidence that other physicians were laid off in other departments at the time that Dr. Shah was laid off. However, only part-time physicians, who worked a maximum of 8.75 hours per week, were laid off. Dr. Shah was the only full-time physician laid off as a result of the 1986 budget cut. IV. ANALYSIS AND DISCUSSION A. The General Counsel's Prima Facie Case I believe that the General Counsel has made a prima facie showing that the decision to lay off Dr. Shah was motivated by his union and concerted activities. Dr. Shah played a promment role in the union cam- paign that began in 1984, ended abruptly, and was re- newed in 1985 and lasted from March to July 1985. He was a vocal spokesman for the Union; he contacted the USPD and arranged a meeting with the USPD agent and the Medical Council and coordinated and directed the drive by distributing authorization cards, giving in- structions to the persons soliciting signatures and collect- ing the cards and tabulating the results. Again in April 1986, shortly before his layoff, the Medical Council physicians once more called for action to be taken to correct the annuity inequity. Dr. Shah told them that if enough support was forthcoming a union would be formed. Thus, he again aligned himself with the union effort. Dr. Shah's activities on behalf of the Union were well known to the hospital administration. Dr. Shah identified himself to the administration as one allied with the union effort, from the first discussion of unionization, in 1984 when he and Dr. Sammi told Respondent's president McCabe at that time that the physicians wanted to form a union. The Medical Council's decision to seek a union in the period of March through June 1985 was also well known. The organizing campaign was done openly and Dr. Reichman stated that it was "general knowledge" that the physicians were discussing the possibility of ob- taining a union. The events of 2 and 3 July 1985 illustrate Respondent's knowledge of the union and concerted activities of Dr. Shah and establish its animus toward him because of those activities. 302 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD While the union campaign was at its peak, after the Medical Council decided that USPD should represent the physicians and authorization cards were distributed and returned, Drs. Shah and Godfrey were threatened by Dr. Sand on 2 July 1985 who said that McCabe was very angry and would not tolerate a union under any circumstances. Dr. Saad warned them to be very careful or they would get hurt and they should be prepared to "face to consequences" of the decision to unionize. The following day McCabe told Dr. Shah that he would not tolerate a union, accused him of stabbing him in the back, and said that he never expected this of him, and that he would never forget it. McCabe also told those present that he was aware of activity "behind his back" but that he would not allow anyone to interfere with his efforts to keep Respondent open. I am convinced that McCabe made these threats be- cause he believed that a union would interfere with his efforts to keep the hospital open and would take a more aggressive approach to ensure that the annuity was paid up. Because the hospital was operating in severe financial difficulty, McCabe perceived the Union as a threat to its stability, possibly precipitating a crisis if the hospital was forced to pay the annuity arrears. This he could not tol- erate. Respondent argues that McCabe had no union animus because other hospital workers are represented by sever- al unions." Here, however, McCabe feared the physi- cians' union that he apparently believed would precipi- tate a disaster by forcing the annuity issue. The unpaid annuity had been a store matter for years, with the Medi- cal Council growing increasingly frustrated with McCabe's repeated refusals to make payments current. Thus, McCabe warned the physicians on 3 July that they must stop talking about the annuity arrears "in the urgent tones that you're talking about"—a clear refer- ence to the union campaign that was at its zenith at that time. Dr. Shah, as president of the Medical Council, was ap- parently targeted as the one who was to blame for the union campaign and, in McCabe's mind, the one whose union efforts could interfere with the hospital's survival. This attitude toward Dr. Shah by McCabe would have, of course, continued to 1986, when the physicians again received no redress concerning the annuity matter. At the April 1986 meeting, Dr. Shah again called for the physicians to form a union to resolve the unpaid annuity question. It may be assumed that this latest immediate, prelayoff discussion of the Union was common knowledge in the hospital among the administrators because the other union attempts were known to Respondent's administra- tors. 18 However, there is no direct evidence linking Dr. Shah's layoff by Dr. Reichman to McCabe. The decision to implement the budget cuts were left up to the discre- tion of the department heads, and there was no evidence that McCabe told Dr. Reichman that Dr. Shah should be i7 fact, McCabe testified that although he preferred to deal individ- ually with employees, he would negotiate with a union selected by the hospital's employees 18 Dr. Reichman stated that he was aware in late 1985 and 1986 that the physicians wanted union representation. laid off. Nevertheless, Dr. Reichman knew of the physi- cians' interest in being represented by a union. It was generally known that the physicians in the Medical Council were behind the union campaign, and of course Dr. Reichman knew that Dr. Shah was president of the council. Dr. Reichman testified that he was told of the union effort by Dr. Saad. Dr. Sand had warned Dr. Shah that the administration would not tolerate a union and that he should be careful or he would get hurt and that he should be prepared to accept the consequences. Accordingly, I believe that there is sufficient evidence that Respondent's administrators, including its high-rank- ing medical officials, were aware of Dr. Shah's union ac- tivity. Because Dr. Reichman was a part of management and learned of the physicians' interest in the Union through the official who had threatened Dr. Shah be- cause of his union activity, the knowledge of McCabe and Dr. Sand about Dr. Shah's union activity may be im- puted to Dr. Reichman. United Supermarkets, 261 NLRB 1291, 1301 (1982); Stephens Mfg. Co., 196 NLRB 47, 48 (1972). Dr. Reichman's animus toward Dr. Shah is plainly evi- dent from the October 1983 and July 1984 confrontations at which Dr. Shah acted as spokesman for certain de- partment physicians who objected to Dr. Reichman's re- qitest for contributions, and the deduction of money from their checks without notice. Dr. Reichman expressed his being upset with Dr. Shah on both occasions, first asking him if he read a newspa- per article that foreign medical graduates were having difficulty finding jobs and, in the second incident, telling Dr. Shah that they should have one more meeting to see if they could work together. The question that immediately arises is whether those two incidents, the last occurring 2 years before the layoff, were so remote in time to the layoff as to be un- related to it. I believe that the answer to that question is simply that the combined effect of Dr. Shah's aggressive activities in promoting the union effort, and acting as spokesman for department physicians protesting Dr. Reichman's actions, had a cumulative consequence in his becoming persona non grata to Dr. Reichman, Dr. Reichman admitted that he laid off Dr. Minnerop in 1984, in part because of "personality clashes." There is no question that Drs. Shah and Reichman engaged in two major confrontations over Dr. Reichman's financial conduct of his department. Such confrontations would clearly be "personality clashes," but also they represent protected concerted activity in that Dr. Shah acted as spokesman for fellow physicians on both occasions pro- testing Dr. Reichman's request for contributions and de- duction of money from paychecks without authorization. Dr. Reichman's use of "personality clashes" in the past as a factor in his decision to lay off indicates that he may have used that as a consideration in laying off Dr. Shah. The effect of Dr. Shah's layoff on the other physicians is evident. Just prior to the layoff the Medical Council physicians were once again calling for action to have the administration pay the annuity arrears and Dr. Shah, its president, suggested unionization to speed this process. JOINT DISEASES, NORTH GENERAL HOSPITAL 303 After the layoff, according to Dr. Goldman, no one was interested in becoming president of the Medical Council and no one was elected until September 1986. At the time of the hearing, no one in the Medical Coun- cil was talking about unionization. Dr. Davidowitz, 277 NLRB 1046 (1985). The direct knowledge of Dr. Shah's union activities by McCabe and Dr. Saad imputed to Dr. Reichman, and Dr. Reichman's direct knowledge of Dr. Shah's concert- ed activities protesting Dr. Reichman's actions in the de- partment, combined with Dr. Shah's call for union orga- nization in April 1986, when considered in the light of (a) the animus toward unionization expressed by McCabe and Dr. Sand and (b) the animus toward Dr. Shah by Dr. Reichman for being the spokesman for physicians objecting to his actions, convince me that Dr. Shah's union and concerted activities were a motivating factor in the layoff of Dr. Shah. Wright Line, 251 NLRB 1083 (1980). B. Respondent's Defense Inasmuch as I have found that a prima facie showing has been made that the decision to lay off Dr. Shah was motivated by his union and protected activities, the burden shifts to Respondent to prove that it would have laid him off in the absence of his union activities. Wright Line, supra. Dr. Shah was allegedly chosen for layoff becauae he was the least valuable physician in the department of medicine. Specifically, his skills were more general, and the department sought to retain physicians with special- ties. With respect to cardiology, the General Counsel does not suggest that Dr. Goldman should have been laid off and Dr. Shah retained. Dr. Goldman, Board certified in cardiology, is the chief of cardiology who is an expert with certain procedures that cannot be done by Dr. Shah. However, the General Counsel argues that some of Dr. Goldman's hours could have been given to Dr. Shah. Facially, this argument has appeal, but on closer examination, I must accept Respondent's argument that Dr. Goldman's full-time availability is essential to the de- partment. But the point to be made, however, is that Dr. Shah, who trained for 1 year in cardiology and worked in the cardiology clinic for at least 6 years until his layoff had valuable cardiological experience in the spe- cialty that was perhaps the most in demand at the hospi- tal. In addition, Dr. Shah took care of the cardiology clinic in Dr. Goldman's absence and could perform cer- tain, cardiological procedures. Dr. Reichman stated that Dr. Shah's cardiological duties consisted generally of reading electrocardiograms, but given the amount of years Dr. Shah spent in the cardiology clinic he must have been performing more advanced work. Indeed, Dr. Shah stated that he is on occasion asked to do informal cardiological consultations and could perform most of the work done by Dr. Goldman, Dr. Reichman, a cardi- ologist, stated that in Dr. Goldman's absence he was available to assist in cardiological problems or emergen- cies, and implied that therefore Dr. Shah was not needed for cardiology. However, it seems to me that because cardiology is such an important, major service in the de- partment, and because Dr. Shah had extensive experience in the cardiology clinic, Dr. Shah's cardiological exper- tise must be deemed to be "valuable" to the department, and that every effort should have been made to retain him for that purpose so that he would be available in the absence of Drs. Goldman and Reichman. It appears that Dr. Shah could have performed some of the work done by Dr. Kidd, the supervisor of inpa- tient drug and alcohol detoxification. Dr. Shah treated patients with such ailments. In addition, Dr. Alerte performed the same work as Dr. Shah in the clinic. Dr. Shah could also treat patients with infectious diseases, as did Dr. Alerte. Dr. Alerte had no special training in that field, and certain of Dr. Alerte's hours could have been given to Dr. Shah. Al- though Dr. Reichman expressed concern that part-timers such as Dr. Alerte might leave if their hours were fur- ther reduced, he had no actual knowledge that they might leave and was thus just speculating. Although Dr. Alerte was Respondent's epidemiologist and would be consulted by other physicians with cases in that special- ty, his availability already limited by virtue of his part- time status, would not suffer much more by being further reduced. Other physicians, such as Drs. Borker and Brus, who were valued because of their specialized training, appear to have overlapping expertise with other physicians. For example, Dr. Borker shared skills with Dr. Sarkar, chief of pulmonary medicine, and Dr. Brus shared expertise with Dr. Rosenthal, chief of hematology. Thus, Drs. Borker and Brus' talents were not exclusive in the de- partment, and their value derived from being "back-ups" to the chiefs and not because they were essential but be- cause they were the only physicians trained in their spe- cialty. Accordingly, some of their hours could have been reduced and given to Dr. Shah. Respondent attempted to show that the layoff of Dr. Shah was consistent with past layoffs. Although full-time physicians were laid off in the past, those layoffs were not precisely similar to Dr. Shah's. The layoffs of Drs. Minnerop and Singer in 1980 were both related to the elimination of the department of community medicine, the departure of the orthopedic service, and the reduc- tion of the number of the beds in the hospital. The layoff of Dr. Lichtenstein that year was related to the fact that his specialty, endocrinology, was not a busy service. Dr. Kennedy's layoff in 1984 was somewhat similar to Dr. Shah's. Dr. Kennedy, a full-time Board certified in- ternist, was laid off after 3 years of service. Dr. Kennedy had special training in cardiology, whose expertise was duplicated by Dr. Goldman. However, Dr. Kennedy was not chief of the clinic as was Dr. Shah, and there was no evidence that he worked in the cardiology clinic, an es- sential service, as did Dr. Shah. In addition, although Dr. Reichman denied that Dr. Kennedy's protest in Oc- tober 1983 of the contribution played a part in his deci- sion to lay him off, Dr. Reichman's concession that "per- sonality clashes" were a factor in his decision to layoff Dr. Minnerop casts some doubt on his denial. In the 1986 budget cut, Dr. Shah, being the only full- time physician laid off, was unique DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Respondent's defense that Dr. Shah was validly, non- discriminatorily chosen for layoff by Dr. Reichman is tainted by the fact that Dr. Reichrnan conceded that in the past he used "personality clashes" as a factor in de- ciding who would be laid off. Thus, Dr. Reichman ad- mitted that that was an element in laying off Dr. Min- nerop in 1980. Clearly, Dr. Shah had at least on two major occasions in October 1983 and July 1984, had a personality clash with Dr. Reichman. The nature of the clashes with Dr. Shah were because of his concerted op- position to action taken by Dr. Reichman and his acting as spokesman for others in protest of those actions. Thus, I believe that Dr. Reichman's admitted willingness to consider a personality clash as a component in his deci- sion to lay off Dr. Shah. Thus, it appears that certain hours of other physicians could have been reduced and given to Dr. Shah. Ac- cording to Dr. Shah, Dr. Lejano was willing to work half-time and give her other half-time to Dr. Shah. When Dr. Reichman was advised of this by Dr. Shah, he sum- marily refused to consider it, telling him her willingness to work half-time had nothing to do with his layoff. Only later did Dr. Reichman call Dr. Lejano in and ask if she wanted to work half-time. But Dr. Reichman's im- mediate rejection of the proposal indicates that he simply did not wish to retain Dr. Shah at all. This is unusual in light of the facts that Dr. Shah (a) was chief of the clin- ics—an important responsibility, (b) was trained in and worked in the cardiology clinic, (c) was a satisfactory physician with high productivity, and (d) served on three important committees. I accordingly find and conclude that Respondent has not met its burden of proving that it would have laid off Dr. Shah in the absence of his union and concerted ac- tivities. Wright Line, supra. CONCLUSIONS OF LAW 1. Respondent Joint Diseases, North General Hospital is and at all times material has been an employer engaged in commerce within the meaning of the Act. 2. United Salaried Physicians and Dentists is a labor organization within the meaning of the Act. 3. By laying off Dr. Mahendra Shah because he sup- ported and assisted a campaign by the Union to organize Respondent's physicians and because of his protected concerted activities, Respondent violated Section 8(a)(3) and (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I fmd it necessary to order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent unlawfully laid off Dr. Mahendra Shah, I recommend that Respondent be or- dered to recall him and make him whole for any loss of earnings he may have suffered as a result of the discrimi- nation against him The amount of backpay shall be corn- pitted in the manner set forth in New Horizons for the Re- tarded, 283 NLRB 1173 (1987). On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- airs ORDER The Respondent, Joint Diseases, North General Hospi- tal, New York, New York, its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Laying off or otherwise discriminating against any physician for supporting United Salaried Physicians and Dentists, or any other union. (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 Dr. Mahendra Shah immediate and full rein- statement to his former position or, if that position so longer exists, to a substantially equivalent position with- out prejudice to his seniority or any other rights or privi- leges previously enjoyed, and make him whole for any loss of earnings and other benefits suffered as a result of the discrimination against him in the manner set forth in the remedy section of this decision. (b) Remove from his files any reference to the unlaw- ful actions taken against Dr. Shah and notify him in writ- ing that this has been done and that the actions will not be used against him in any way. (c) 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. (d) Post at the New York facility of Respondent, copies of the attached notice marked "Appendix."2° Copies of the notice, on forms provided by the Regional Director for Region 2, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent 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 Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (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. 19 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended 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. 20 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 Enforcmg an Order of the National Labor Relations Board" JOINT DISEASES, NORTH GENERAL HOSPITAL 305 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT lay off or otherwise discriminate against any employee for supporting United Salaried Physicians and Dentists, or any other union. . WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of that Act. WE WILL offer Dr. Mahendra Shah immediate and full reinstatement to his former position or, if that position no longer exists, to a substantially equivalent position with- out prejudice to his seniority or any other rights or privi- leges previously enjoyed, and make him whole for any loss of earnings and other benefits suffered as a result of the discrimination against him with interest. WE WILL remove from our files any reference to the unlawful actions taken against Dr. Shah and notify him in writing that this has been done and that the actions will not be used against him in any way. JOINT DISEASES, NORTH GENERAL HOSPI- TAL