Beth Israel Medical Center

BETH ISRAEL MEDICAL CENTER Beth Israel Medical Center and District 1199, Hos- pital and Health Care Employees' Union, Retail, Wholesale and Department Store Work- ers' Union, AFL-CIO Cases 2-CA-20622-1 and 2-CA-20622-4 January 18, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On April 16, 1987, Administrative Law Judge Joel P Biblowitz issued the attached decision The General Counsel and the Respondent filed excep tions and supporting briefs The General Counsel filed a response in opposition to the Respondent's exceptions, and the Respondent filed 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 exceptions and briefs and has de- cided to affirm the judge's rulings, findings, and conclusions only to the extent consistent with this Decision and Order, to modify the remedy,' and to adopt the recommended Order 1 We agree with the judge that the Respondent did not violate the Act by discharging Laura Petra- cek However, in so doing we find that the Gener- al Counsel established a prima facie case that the Respondent's decision to terminate Petracek was motivated, in part, by her protected union activity, and that the Respondent met its burden under Wright Line2 of proving that the same action would have been taken in the absence of any pro tected union activity by Petracek The essential facts, as more fully set out in the judge's decision, are as follows Laura Petracek was hired as a full-time perma- nent chemical dependency counselor on July 12, 1984,3 with a starting date of July 23 On July 13 District Local 1199, representing some 3100 em ployees of the Respondent, went on strike On July 23 Petracek crossed the Union s picket line to report for her first day of work at the Respond- ent's facility The following day Petracek tele phoned Supervisor Parrish to tell him she would ' In accordance with our decision in New Horizons for the Retarded 283 NLRB 1173 (1987) interest on and after January 1 1987 shall be computed at the short term Federal rate for the underpayment of taxes as set out in the 1986 amendment to 26 US C § 6621 Interest on amounts accrued prior to January 1 1987 (the effective date of the 1986 amendment to 26 U S C § 6621) shall be computed in accordance with Florida Steel Corp 231 NLRB 651 (1977) 2 251 NLRB 1083 (1980) enfd 662 F 2d 899 (1st Cir 1981) cert denied 455 U S 989 (1982) 9 Unless otherwise indicated all dates are 1984 497 not report for work because of the harassment she experienced when crossing the picket line and that she intended to honor the strike Parrish instructed Petracek to notify him on a daily basis whether she intended to work When Petracek called Parrish on July 30 to say she would not be working, Parrish encouraged her to cross the picket line and return to work On July 31 Petracek crossed the picket line and worked The following day, however, she telephoned Parrish to inform him that she would honor the Union's picket line and not work for the remainder of the strike During their conversation, Parrish assured Petracek, as he had earlier, that she would not be fired for honoring the picket line However, he also told her that her "erratic attend ance" was unprofessional and that he would place a memo in her file to that effect In the ` memo to file," Parrish stated, "I informed Ms Petracek that she could not return [to work] until after the strike in any case because her erratic attendance was too disruptive to the work that needed to be done on the patients' behalf " During the afternoon of August 1, Petracek tele phoned the Respondent to inquire about the loca- tion of her paycheck After having her call trans- ferred several times by individuals who could not tell her how to get the paycheck, Petracek spoke to Lou Liebhaber, the Medical Center's assistant director of operations, and asked him where she could pick up her paycheck When Liebhaber asked her name, department of work, whether she was presently working, and whether she was a union member, Petracek became agitated, argumen tative, loud, and abusive, despite Liebhaber's assur ances that he needed the information in order to locate her paycheck Because Liebhaber was aware of the special character of the new program for which Petracek was hired,' he notified the Re- spondent's vice president for planning, Peter Kelly, of Petracek's conduct on the telephone, indicating to Kelly that it was questionable whether Petracek belonged in a program that required that its coun- selors be calm, compassionate, and reasonable Kelly had previously discussed Petracek with Barbara Gordon, the Program's director, when Gordon considered hiring Petracek At that time, Gordon had informed Kelly that Petracek's paper credentials were acceptable but she was concerned about the manner in which Petracek conducted herself during the interview and whether Petracek could manage the program's patient population 4 The Stuyvesant Square Program was designed to assist privately paying clients in maintaining their regular employment schedules while participating in a rehabilitative program All counselors employed in the Program were expected to be calm reasonable compassionate rational and professional when communicating with the public 292 NLRB No 51 498 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD After hearing of the August 1 incident, Kelly saw to it that Gordon and others involved with admin istering the program were informed of the incident After discussions among those informed, the deci- sion was made to terminate Petracek Parrish attached an addendum to his August 1 memo dealing with Petracek's erratic attendance in which he wrote that "Petracek bypassed her super- visor by making direct demands on the administra tion, an act, which combined with her erratic at- tendance during the strike raised serious doubts about her ability to function within the structure of the institution and reflected an unacceptable lack of professionalism " Parrish concluded the memo by noting, "I terminated Ms Petracek's employment by phone 8/3/84 " Petracek subsequently filed for unemployment In its initial responses to the New York State De partment of Labor, Unemployment Insurance Divi sion (Unemployment), the Respondent stated that Petracek did not report for work because she did not wish to cross the picket line and that she was discharged for excessive unauthorized and unex cused absences It asserted that the only excuse for her absence was that she did not want to cross the picket line No mention was made of the August 1 telephone conversation with Liebhaber Similarly, in a statement of position to the Board regarding the charges in this case, no reference was made to the August 1 telephone call Instead, the Respond- ent stated that Petracek was terminated because she failed to satisfactorily complete her probationary period It was not until a November 9 letter to Un- employment that the Respondent gave as a reason for termination, the call and content of Petracek's conversation with Liebhaber The judge concluded that the General Counsel failed to make a prima facie case of unlawful mots vation for Petracek's termination In so doing, he found that the sole evidence supporting the Gener al Counsel's position is that some of the Respond ent's early correspondence to Unemployment and to the Board do not mention the August 1 tele phone conversation with Liebhaber The judge, however, found that the failure to mention the call was "likely due to the unsettling effect of the strike which was corrected once Respondent got its house back in order " We disagree with the judge's analysis of this matter The documentary and credited evidence es- tablish that one reason for Petracek's termination was her erratic attendance Thus, for example, Par- rish's addendum to the August 1 memo stated that her erratic attendance, inter alia, demonstrated an unacceptable lack of professionalism warranting her termination The Respondent's communications to Unemployment also indicate that erratic attend ance was a reason for termination There is no question that Petracek's erratic attendance was di rectly linked to her support for the strike and her unwillingness to cross the picket line Indeed, her attendance was erratic only because Supervisor Parrish persuaded her to come to work again after she had told him she did not want to cross the picket line and would be supporting the strike This was not a case, therefore, of an employee's vascilla tion with respect to support for a strike and man agement's need simply to know whether an em ployee would be working Petracek made her deci sion about the strike after her first day of work and changed that decision only after Parrish pressured her to come back to work Petracek's erratic at tendance, therefore, was a direct effect of Parrish's inability to convince her to change her decision about crossing the picket line In these circum- stances, we find that the General Counsel estab- lished that Petracek's strike activity was a motivat- ing factor in her discharge We further find, however, that the Respondent established that it would have terminated Petracek notwithstanding her support for the strike Thus, the Respondent adduced evidence that the new program for which Petracek was hired required calm and reasonable counselors, that Petracek's manner of conducting herself had been a matter of concern at the time she was hired, and that her August 1 conduct validated these initial concerns and resulted in the decision to terminate her For these reasons we agree with the judge's conclusion that the Respondent did not violate Section 8(a)(3) of the Act by terminating Petracek 2 We agree with the judge, for the reasons set forth below, that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging Pena Bonita because she failed to return from vacation to work at the commencement of the strike The relevant facts, as more fully set forth in the judge's decision, are as follows Pena Bonita was hired in October 1983 as a half way house supervisor I in the Respondent's alcohol treatment program's halfway house Her job was classified as a nonunion, nonsupervisory, temporary position dependent on sufficient governmental ap- propriation of funds 5 On March 7 the Respondent circulated an inter- office memorandum to all administrators, heads of departments, and directors of service regarding the "1984 Vacation Schedule" advising them to inform 5 As more fully explained by the judge s decision there was a griev ance pending regarding the inclusion of the supervisor I position within the bargaining unit No contention is made in this proceeding that Bonita is a unit employee BETH ISRAEL MEDICAL CENTER nonunit employees that the master collective bar gaining agreement with District 1199 would expire on June 30, and "in the event of a labor dispute all vacations will be subject to cancellation in order to maintain continuity of care " In a second interof Tice memorandum, dated June 11, it was stated In the event of a strike by District 1199, the Emergency Staffing plan will be put into effect immediately which will necessitate the cancellation of holidays and vacations All em ployees should be reminded of this contingen- cy and plan accordingly On June 21 Bonita attended a meeting with other halfway house personnel conducted by George Payne, director of the halfway house program, to discuss, inter alia, vacation schedules, the possibili- ty of the District 1199 strike, the necessary staffing requirements, and the expectations of the adminis tration if the strike became a reality Payne in formed the staff that he had been instructed to treat persons in the supervisor I job classification as management and that they would be expected to work during the entire course of a strike Bonita, apparently referring to the grievance concerning the supervisor I classification, asserted that she and the other supervisor I employees were in the unit and would also be on strike Payne reiterated that they would be treated as management The day after the meeting Bonita submitted her vacation request for the period from July 2 to 26 Payne told Bonita that in the event there were a strike she would be expected to "report back" to work Bonita protested that she was `Union" and said that if there was a strike she would also be on strike Payne said she would still have to report back He stated that by July 8 he should know if there would be a strike Bonita's vacation request was approved with the statement "Provisional ap- proval-(strike, union contract )" Bonita was told that if the strike commenced, they would notify her by telegram to return Bonita gave an address at the Mescalero Indian Reservation in New Mexico where she could be reached Regarding the Respondent's policy, Payne testi- fied, "I thought of it as war time conditions, that if you don't come to work, you're subject to be ter minated because this was something between per- sonnel and the union So I told my staff that they were expected to work during the strike, the ones who were non union " An interoffice memorandum dated July 6 to all physicians and administrative staff, department of medicine, stated In the event of a strike, all non union employ- ees are required to report to work at 6 00 a in on the above date No exceptions will be per- 499 mitted If you are on vacation at that time, please make alternate plans to be in the city the night before Bonita arrived at the Mescalero Indian Reserva tion on July 3 She stayed there until July 11, when she left for 2 weeks of travel in Mexico On July 12 a telegram was sent by the Respondent to Bonita at the reservation address stating "Strike expected Friday June [sic] 13 at 6AM Call 420- 4256 for strike status If strike is on you must report to work at HWH Friday at 8PM " Bonita did not receive this telegram or any other notifica tion from the Respondent regarding the strike prior to leaving the reservation on July 11 Bonita notified the Respondent on July 26 that because of transportation delays her return to New York had been delayed She was informed that District 1199 had in fact commenced its strike on July 13, and because her job classification was con sidered management and she was a nonunion em ployee there would be some problems with her re turning to work When Bonita arrived in New York on July 28, she spoke with Payne by tele phone and told him that her vacation was over and she wanted to return to work He referred her to Kathleen Dowling, director of personnel Bonita called Dowling and explained why her return was delayed and stated that she was ready to return to work She told Dowling she did not return at the commencement of the strike because she did not receive the telegram and she assumed there was no strike Bonita also told Dowling that she had telephoned her family in New York on July 15, but no one told her there was a strike Dowling suspended Bonita On August 20 Bonita was terminated We agree with the judge's conclusion that Boni to s discharge was unlawful It is well settled that nonbargaining unit employees have a protected right to join the common cause of fellow striking employees by refusing to cross their picket line The Respondent's communications to nonunion employees and statements concerning its policy on the strike suggest that it did not recognize such a right The "no exceptions" policy stated in its July 6 memorandum, quoted above, particularly when viewed in the light of Halfway House Program Di- rector Payne's testimony, makes it clear that non- unit employees were expected to remain on the management side of the barricades during the strike, regardless of their sympathies 6 8In its brief to us the Respondent suggests that we cannot take ac count of its various prestrike announcements unless they are alleged as independent violations of Sec 8(a)(i) We agree that we should not find a violation that was neither alleged nor litigated but we are entirely free to Continued 500 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Notwithstanding the credited testimony concern- ing Bonita's post-vacation statements about her readiness to return to work during the strike, there is clearly a prima facie case that an unlawful motive was a factor in the Respondent's decision to discharge her. As set out above, on at least two oc- casions prior to the strike, Bonita had indicated to the Respondent that she intended to join the unit employees in their strike; and her failure to ac- knowledge the Respondent's telegram and return early from her vacation-whether deliberate or merely the result of the negligent failure to keep herself apprised of conditions that might require her return-violated the Respondent's policy of re- quiring all nonunit employees to work during the strike, regardless of whether they wished to sup- port the Union. A change of heart after her vaca- tion was over would not necessarily exculpate Bonita. The Respondent's policy, as outlined in its notices to employees and in Payne's testimony, had no apparent exceptions for nonunit employees who agreed to work during part, but not all, of the strike. Of course, even during a strike, an employer re- tains its right to discharge employees for nondis- criminatory reasons. Thus, even granting the Gen- eral Counsel's establishment of a prima facie case of unlawful motivation in the discharge of Bonita, the Respondent could relieve itself of liability by showing, pursuant to the Wright Line test, that it would have discharged Bonita even without regard to her violation of the "no exceptions" policy re- quiring nonunit employees to work during the strike. The Respondent, however, failed to carry its burden in this regard.' Accordingly, we agree with the judge's finding that the Respondent discharged Bonita in violation of Section 8(a)(3) and (1) of the Act. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Beth Israel Medical Center, New York, New York, its officers, agents, successors, and assigns shall take the action set forth in the Order. examine such evidence in order to determine the motive for the dis- charges that were alleged as unlawful . See U.S. Rubber Co., 93 NLRB 1232, 1233 (1951). ° The Respondent's evidence concerning its termination of other non- unit employees during the strike does not satisfy this burden . This evi- dence consisted principally of a list entitled "Non-Bargaining Unit Em- ployees Terminated for Failure to Report to Work for the Entire Period of the Strike," which suggests that the defining element for the termina- tion was refusing to remain on the Respondent 's side of the strike lines rather than disregarding some established policy regarding vacations. Gwynne A. Wilcox, Esq., for the General Counsel. Eric Rosenfeld, Esq. and Kevin Leblang, Esq. (Seyfarth, Shaw, Fairweather & Geraldson), for the Respondent. DECISION STATEMENT OF THE CASE JOEL P. BIBLOWITZ, Administrative Law Judge. This case was heard by me on 12, 13 and 20 January 1987 in New York, New York. The order consolidating cases, consolidated complaint and notice of hearing, which issued on 28 November 1984,1 was based on unfair labor practice charges filed on 28 September 1984 by District 1199, Hospital and Health Care Employees' Union, Retail, Wholesale and Department Store Workers' Union, AFL-CIO called (the Union). By Order dated 12 February 1985, the Regional Director for Region 2, with- drew the consolidated complaint, deferring to pending arbitration proceedings in the matter. By order dated 7 August 1986, the Regional Director reinstated the con- solidated complaint.2 The consolidated complaint alleges that commencing on or about 13 July the Union com- menced a strike against Beth Israel Medical Center, (Re- spondent), and that Respondent discharged Laura Petra- cek on 3 August and Pena Bonita on 20 August because they supported the Union in this strike by refraining from working during this strike, in violation of Section 8(a)(1)(3) of the Act. On the entire record, including my observation of the demeanor of the witnesses, and after consideration of the briefs filed, I make the following FINDINGS OF FACT 1. JURISDICTION AND LABOR ORGANIZATION STATUS There being no dispute, I find that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. It. BACKGROUND In mid-1984 Respondent employed approximately 4800 employees; of this number, approximately 3100 were em- ployed in two units represented by the Union. The larger of these units was a wall-to-wall type unit composed of 2300 employees. The other unit was composed of 800 registered nurses. Respondent's contract through the League of Voluntary Hospitals and Homes of New York (the League) with the wall-to-wall unit expired 30 June; its contract with the registered nurses' unit expired 31 October; both units struck on 13 July. The League and the Union entered into a tentative agreement dated 25 August; shortly thereafter, all the employees returned to work. The instant matter involves the termination of two employees-Petracek and Bonita. 1 Unless indicated otherwise, all dates in 1984. 2 The Union took both matters to arbitration and each was determined to be nonarbitrable; Petracek because she was a probationary employee at the time of her termination and Bonita because her job classification was not a unit position at the time of her termination. BETH ISRAEL MEDICAL CENTER A Petracek s Termination Petracek was interviewed for employment with Re spondent on 10 and 11 July for the position of chemical dependency counselor (or alcoholism counselor) for Re spondent s Stuyvesant Square Family Treatment Pro gram Her interview on 11 July was with Barbara Cooper Gordon , the director of the program On the fol lowing day she had a physical examination and was told that her starting date for employment would be 23 July Petracek reported for work on that day crossing the picket line to get to work (some remarks were made) Her supervisor , Seth Parrish (who died in September) assistant director of the program , told her that she would not be performing her regular duties because of the strike He also asked her whether she was aware that she did not have to be at work because of the strike Petra cek told Parrish that she was not sure of her rights or status She worked that day On the following morning she called Parrish and told him that she would not be re porting for work that day because of the harassment she received the prior afternoon by the pickets- it was too uncomfortable, I d be honoring the strike Parrish told her to call him daily to inform him of whether she would be reporting for work The next morning, while on the picket line she saw Parrish She approached him and asked him whether she could be fired for not report ing for work he said that she could not She called Par rish again on 27 July telling him that she was on the picket line and would not be at work that day On Monday 30 July she called Parrish again telling him that my status remained the same I would not be coming to work Parrish asked her to reconsider as they were anxious to operate the program She asked what work would be involved and Parrish told her that she would entail preparing lectures and other material She asked if she would have to cross the picket line and he said that it would she said that she would think about it Later that day she called Parrish and told him that she would report for work the following day She reported for work on 31 July She testified that she was harassed a lot while crossing the picket line going to and from work that day On the morning of 1 August she called Parrish and told him that she would be honoring the picket line for the remainder of the strike and therefore would not be at work She asked Parrish if she could be fired for honoring the picket line and he said that she could not He also said that her er ratic attendance was very unprofessional and he would put a memo in her file to the effect She asked if it was a form of discipline he said it was not, that it was to inform personnel of her erratic attendance Petracek tes tified, as well, that in this conversation Parrish told her that I couldn t come to work even if I changed my mind, that I wouldn t be able to come back to work the rest of the strike In a memo to file dated 1 August Parrish wrote I informed Ms Petracek that she could not return until after the strike in any case because the erratic attendance was too disruptive to the work which needed to be done on the patients behalf I also in formed her-that this behavior was unacceptable (for 501 the above reasons) and that a written memo to this effect would be placed in her file On 1 August, about 1 p in Petracek called Respond ent to inquire where she could get her paycheck , at least, for her 23 July workday She testified that she first spoke to somebody employed in Respondents payroll depart ment Petracek said that she would like to get her pay check The person to whom she was speaking said that she did not really work there and could not help her The call was then transferred to Respondents social work department and Petracek asked to speak to Parrish She asked him how she could get her check he said that she should call the payroll department and she said they just transferred me from there Parrish said that he was not sure, but he would see if he could assist her and he transferred the call to Respondent 's strike com mand center 3 She began by saying that she would like to get her paycheck and wanted to know where to find it The person to whom she was speaking , Louis Lieb haber, Respondents assistant director of operations (al though she didn t know to whom she was speaking) asked if she was working and whether she was in the Union She said that she really didn t think that was im portant in regards to finding out where my paycheck was She said What difference does it make? All I in asking for is where to get my check Liebhaber said that he needed that information in order to locate where her check was, since checks were then in different loca tions depending on whether an employee was working or not and whether an employee was a union member She said My understanding was all the checks are from the same place Liebhaber then asked her name and whom she worked for She said that she would not give him that information because she felt it would be used against her He again asked her for her name and for whom she worked after the third time she told him her name and her supervisor and he told her where she could get her paycheck She testified that she did not use any obscene or abusive language in this telephone call al though she did raise her voice a little as she was getting frustrated because she felt that she was getting the run around Liebhaber testified that during the period of the strike he was at the strike command center 6 or 7 days a week On 1 August, while there he picked up the telephone and answered as he always did Good afternoon, com mand center, Lou Liebhaber, may I help you? Petracek (although he did not know it at the time) said that she wanted information regarding her paycheck He asked her whether she was working or not working union or nonunion She answered in a very agitated way What difference does it make? Liebhaber told her that it makes a difference because the payroll distribution at that time depended on whether an employee was union s Many of Respondents agents and supervisors worked in shifts man ning the phones at the strike command center in an attempt to operate the facility as best they could during the stoke When the strike com menced these individuals were working shifts up to 12 hours As time went by employees began returning to work and as procedures began to fall into place these shifts lessened The command center was located in Respondents board room 502 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD or nonunion, working or not working Petracek said Look, I worked and I want my God damn paycheck He said that he would like to help her get her check, but he had to know whether she was union or nonunion, working or not working She said that she had worked a couple of days and she was not sure if she was union, he told her where the union employees received their checks However, since he felt additional clarification was needed, he asked her what department she worked in, she said Stuyvesant Square As he knew that Stuyve sant Square had just opened, he asked when she began working, she said within the last couple of weeks He felt that there might still be some difficulty in locating her check so he asked her name, she said ' what differ ence does it make? I worked, I want my paycheck She was very loud and talking over his talking He told her that the payroll department was particularly hard hit by the strike and it might be difficult to locate her check She interrupted him, saying I worked I don t give a shit about the payroll department I worked I in entitled to my paycheck He then told her where she could probably locate her paycheck and during what hours That was the extent of the conversation and was his only contact with Petracek At the conclusion of this conversation Liebhaber told Peter Kelly, Respondents vice president for Planning (who was active in creating the Stuyvesant Square Pro gram) of his conversation with Petracek He described the call as upsetting' and said that Petracek was very inappropriate and abusive on the telephone and I think you ought to know about it " Liebhaber testified that while at the command center during the strike he an swered calls and requests from a large number of people other than Petracek the others were generally courteous and accepted his responses The nature of the Stuyvesant Square Program caused him to notify Kelly of the map propriate' nature of Petracek s responses the Stuyvesant Square Program was unique in the area and Respondent had spent hundreds of thousands of dollars marketing it Because the clients in the program were privately paying patients who maintained their regular employment while in the program, the counselors had to be calm, compas sionate, and reasonable, and all were the kinds of things that were not exhibited by Ms Petracek That really struck me as an important issue for Mr Kelly to ad dress Kelly testified that on the day in question he was seated next to Liebhaber in the command center At the conclusion of a telephone conversation Liebhaber hung up the phone and asked Kelly if he knew Petracek and Kelly said that he knew the name and that she was em ployed in the Stuyvesant Square Program Liebhaber in formed Kelly of the conversation which he found upset ting and inappropriate Kelly testified further that al though he was not directly involved in hiring employees for the program prior to Petracek being hired, he had spoken to Gordon, who stated that although Petracek s paper credentials were acceptable she had some concerns about the manner that Petracek conducted herself at her interview Kelly informed Gordon that it was her deci sion to make and Petracek was hired That was Kelly s last discussion about Petracek prior to his 1 August dis cussion with Liebhaber At the conclusions of this con versation, Kelly informed Jerrold Kirstein, Respondent s director of social work, of his conversation with Lieb haber, and instructed him to discuss the matter with Par rish and Gordon, "and that it was up to them to make a decision as to what they wanted to do regarding her em ployment In this conversation, Kelly also informed Kirstein that Gordon had previously made him aware of some problems in Ms Petracek s behavior related to her first two days of work Kirstein testified that Parrish and Gordon had inter viewed Petracek and found her potentially an accepta ble candidate,' but had some questions regarding her ability to manage this kind of patient population Kir stein testified further that on 1 August, while in the com mand center, Kelly informed him that Liebhaber had a conversation with Petracek in which she acted in a most unprofessional manner Kirstein stated Considering the delicate nature of this new program that we were attempting to establish, individuals who could not conduct themselves in a professional way there was real question in terms of their suit ability for this program Kelly told Kirstein that Petracek s conversation with Liebhaber exhibited the lack of ability to control expres sions of her own feelings and an unacceptable level of acting out Kirstein further testified Mr Kelly conveyed to me that in his judgment he could not truly understand why we could maintain an employee like this but ultimately I would have to look at this individual and after consultation with other members of our clinical staff, decide what her suitability for the program would be Kirstein then discussed the situation with Parrish who then spoke to Gordon on the basis of all these discus sions they made a decision to ask her not to come back In a Memo to File an addendum to the 1 August memo supra, Parrish wrote that Petracek bypassed her supervisor by making direct demands on the administra tion The memo continued This lack of sensitivity to and observance of neces sary protocol is a serious issue Combined with the issues already described in the 8/1/84 memo, it raises serious questions re Ms Petracek s ability to function within the structure of this institution Moreover these issues reflect a lack of professional ism unacceptable to both the Department of Social Work and the Stuyvesant Square Program Conse quently I terminated Ms Petracek s employment by phone 8/3/84 Kirstein testified that the content of Petracek s conversa tion with Liebhaber together with their initial questions about her qualifications for the position convinced him that she was not a proper employee for the position, con sidering the care and expense Respondent had expended in establishing the program BETH ISRAEL MEDICAL CENTER Kathleen Dowling, Respondent's director of person nel, testified that her only involvement in the Petracek termination occurred on either 1, 2, or 3 August, when Kirstein informed her that a probationary employee (Pe tracek) had been obnoxious and rude in a telephone con versation with Liebhaber, he asked if there was any reason why she could not be terminated She testified "I said there is no reason why you cannot let her go for that behavior Just you know make sure that that's what you want to do Make your mind up Let her go Dowling testified that she knows Liebhaber ' He s not a provocative person He also would tend not to report something unless it was really extreme Received into evidence were documents relating to Petracek's claim before New York State Department of Labor, Unemployment Insurance Division (Unemploy ment) Respondent, apparently had an organization enti tled Unemployment Cost Control Inc (UCC), represent ing it in this matter By letter dated 25 September, UCC s benefit services director, Natalie Fritz, wrote to Unemployment that Petracek was hired after the strike began and was aware of the strike That she worked 1 day one week, and 1 day the following week, that she did not report for work because she did not wish to cross the picket line The letter does not mention the 1 August telephone call Another letter written by Fritz to Unemployment 2 weeks earlier also does not mention this telephone call, it states She was discharged for her excessive unauthorized and unexcused absences ' In a letter to the Board, dated 19 October, regarding these charges, counsel for Respondent stated that Petra cek was terminated because she failed to satisfactorily complete her probationary period The 1 August tele phone call to Liebhaber was not mentioned in this letter In a letter to Unemployment dated 9 November, Mark Hausmann of UCC stated inter alia The claimant was not terminated for her refusal to cross a picket line This was not, and is not the Medical Center s policy and, in fact, the Medical Center has never terminated anyone for failure to cross a picket line The claimant work 7/23/84 and returned 7/31/84 working the entire day During that day (7/31/84), the claimant became insubordi nate and abusive with the Assistant Director of the Medical Center Mr Liebhaber As a result she was terminated by telephone on 8/3/84 by her supervi sor The claimants reluctance to cross the picket line was not at issue The claimant had in fact been told by the employer that if she did not wish to cross the picket line to report to work, that this would not be held against her In another statement of position dated 13 December, regarding Petracek's termination, Fritz stated During the strike, the Assistant Director of Oper ations received a telephone call from the claimant inquiring about her paycheck When the Director started to ask her a few questions to ascertain her status, the claimant became annoyed and displayed a very poor attitude The director reported the con versation to claimants supervisor who decided that 503 if the claimant showed such a poor attitude at the beginning of her employment, it would be best to terminate her immediately On 3 August Parrish called Petracek and informed her that she was being terminated for her unprofessional be havior, not being at work and her erratic attendance Petracek protested that it was unfair, that he promised her that she would not be fired for refusing to cross the picket line Dowling testified that when the strike commenced, about 98 percent of the employees in the two union units refused to work By the 5th or 6th week about 20 per cent of the employees in the RN unit and about 50 per cent of the non RN unit employees had returned to work Dowling testified that the Respondent's position regarding unit employees was as follows We wanted employees to make a decision If they wanted to come to work welcome to do so Happy to have them We could use them If they didn t want to come to work fine too But we found it dif ficult if not impossible to deal with in again and out again type of situations We wanted people to make up their minds It was of no use to us to have someone say they were going to come in and then not come in We would work planned for them [sic] and it wouldn't get done If they came in unannounced there might not be work for them to do So we didn t want this kind of-what s been called erratic behavior Absent the Petracek situation, there is no evidence that Respondent discharged any unit employee who refused to work during the strike In fact Respondent supplied a listing of a large number of unit employees who were absent during the strike and were not terminated In Wright Line, 251 NLRB 1083, 1089 (1980), the Board set forth the rule it will henceforth apply in dis cnmination cases such as the instant matter First, we shall require that the General Counsel make a prima facie showing sufficient to support the inference that protected conduct was a motivating factor in the employers decision Once this is es tablished, the burden will shift to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct As I found Respondents witnesses credible, I would credit Liebhaber s testimony over that of Petracek re garding their 1 August conversation In addition to the fact that I found Liebhaber to be an extremely credible witness, the fact that immediately on the conclusion of the conversation he informed Kelly of the conversation supports his testimony of the nature and seriousness of the conversation I find that General Counsel has not sustained her burden regarding Petracek s termination No persuasive evidence was introduced to establish why Respondent would discharge Petracek and not the other 3000 unit 504 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD employees who refused to report for work in mid-July. In fact shortly before her 1 August conversation with Liebhaber, Parrish told her that she could not be fired for refusing to cross the Union's picket line during the strike. Rather, I find that Petracek was terminated be- cause of the contents of her 1 August telephone conver- sation with Liebhaber. Although she may have felt that she was being given the "run around" in her attempt to obtain her paycheck, she should have considered that Respondent was operating its facility with 3000 fewer employees than it normally does; these were obviously trying times for Respondent. While Respondent may have excused Petracek's language and attitude from a maintenance employee or a truckdriver, it felt that this was unacceptable for a counselor in its Stuyvesant Square Program, because of the unique nature of this program and the large sum of money Respondent had spent in preparation for its opening. I find this position reasonable. The sole evidence supporting the General Counsel's position is that some of Respondent's early correspondence opposing Petra.cek's claims before Un- employment and the Board do not mention the 1 August conversation with Liebhaber as the reason she was dis- charged. However, I find that this was likely due to the unsettling effect of the strike, which was corrected once Respondent got its house back in order. I therefore rec- ommend that this 8(a)(1)(3) allegation be dismissed. B. Bonita Termination Bonita was hired by Respondent in October 1983 as a halfway house Supervisor 14 at an Alcoholic Treatment Center operated by Respondent. She testified that when she was hired she was told that the position was a tem- porary position because J t depended on governmental funding, which was reviewed regularly, and that her job was a Union (really unit) position. At the time she was hired her position was a nonunit position, and "Non Union" was checked on her approved preemployment application. At the time, however, a grievance was pend- ing over whether these positions were properly unit posi- tions. By letter to the Union dated 11 May, Respondent wrote, inter alia: If this letter accurately outlines the terms of our agreement, please so indicate by signing below for District 1199 and return a signed copy to me. We will include the three involved employees in the bargaining unit and apply to them the provisions of the current League/Division 1199 contract, except as otherwise provided herein, effective the date I receive the signed copy and notice from the AAA that the pending arbitration has been withdrawn. The Union did not return this agreement, signed, to Re- spondent until 25 September. Even then, Respondent wrote to the Union (by letter dated 30 October) that 4 Although her job classification contains the word "supervisor," this refers to her supervision of the patients in the program and there is no evidence that she is a supervisor within the meaning of Sec. 2(11) of the Act. In addition, Respondent produced no evidence at the hearing that Bonita was a supervisor within the meaning of the Act, nor did counsel for Respondent allege so in his brief. they still had not received formal notification that the subject arbitration had been withdrawn; this notice was given to Respondent by letter dated 16 October. On 24 October Dowling wrote to the Union that she was in re- ceipt of this notice and that the effected employees would be included in the bargaining unit effective 19 Oc- tober. Bonita testified that in May, George Payne, the direc- tor of the Halfway House Program (and Bonita's super- visor) called a meeting of the employees of the program, and said "Congratulations, you guys, you're in the union now. Beth Israel has signed the papers." Payne never specifically testified regarding this statement; however, he testified that he attempted to keep the employees in the program up to date on the issue as he learned the facts from Dowling. On 1 June, Bonita filled out a dues- checkoff card as well as an enrollment card for the Union. The first formal notification Respondent received from the Union of this was by letter dated 28 August, stating: "Enclosed please find list and authorization cards for the deduction of dues. The deduction of dues and ini- tiation should be made at the proper time." Bonita's name was one of the names on the list. As she had al- ready been terminated, no deductions were made. As stated above, supra, at the time the strike com- menced Respondent employed approximately 5000 em- ployees, of whom approximately 3000 struck Respondent beginning 13 July. During the 6-week strike period Re- spondent continued to operate. Dowling testified regard- ing Respondent's procedure for attempting to continue its operation during the strike: A policy decision was made up front and prior to the commencement of the strike that in the event a nonbargaining unit employee did not work during the strike that we would terminate their employ- ment for good reason we made that decision. Beth Israel Medical Center as an institution needed everybody, every able bodied person to try to take care of our patients in the event that the ma- jority of our staff went on strike, R.N.'s and non R.N.'s. We felt very strongly that if it was a rule it was a rule and applied to everybody and would be enforced across the board. Vacations were accordingly-vacations that were planned were done so with the knowledge that they would have to be cancelled and interrupted or fail- ure to do so would be at the risk of losing your job. Subsequently, Dowling was asked whether Respondent's policy was that nonbargaining unit employees who did not work during the strike were to be terminated. After hedging a bit, she testified: No, not in every case. People got. sick and didn't come in to work. People were hospitalized as pa- tients. Each case was looked at, individually. It was a long strike. If-if a bargaining-a non-bargaining unit employee missed one day of work, it did not mean they would be fired. But if bargaining-non- bargaining unit employees took vacation instead of strike duty, they were let go. BETH ISRAEL MEDICAL CENTER Beginning in March Respondent sent memos to the staff regarding the possible strike An interoffice memo randum to administrators department heads and direc tors of service dated 7 March and entitled 1984 Vaca tion Schedules, stated that the present agreement ex pires 30 June and you should plan the vacation sched ules for your department according The memo contin ued that they were hopeful of a settlement, but that only tentative approval would be given for vacation schedules for nonunion employees between 1 June and 30 August The memo concluded Obviously, in the event of a labor dispute all vacations will be subject to cancellation in order to maintain continuity of care An interoffice memo to the same parties dated 11 June on a different subject, contained an underlined segment entitled Note at the bottom In the event of a strike by District 1199, the Emer gency Staffing Plan will be put into effect immedi ately which will necessitate the cancellation of holt days and vacations All employees should be re minded of this contingency and plan accordingly An interoffice memorandum to all physicians and ad ministrative staff, department of medicine, dated 6 July, stated that the Union had served a formal notice of strike commencing 13 July, the memo continued In the event of a strike, all non union employees are required to report to work at 6 00 a in on the above date No exceptions will be permitted If you are on vacation at that time, please make alternate plans to be in the City the night before By interoffice memo to All non union employees, dated 12 July Respondent set forth the procedure to be followed during the anticipated strike This memo stated All days off must be cancelled Payne was asked whether he was aware of Respond ent s policy regarding the rights of Respondent s nonbar gaining unit employees during the strike He testified I think those of us who were directors of programs you also wanted to inform your staff of what the policy might be in case people chose to do some thing other than work if they weren t in the bar gaining unit So I was told that it-it was you know, my-I have to use my own words now be cause I can t remember the medical center s words but I thought of it as war time conditions, that if you don t come to work, you re subject to be terms nated because this was something between person nel and the union So I told my staff that they were expected to work during the strike, the ones who were non union On 21 June there was a meeting of the Halfway House personnel Bonita testified that at this meeting Payne said that there was the possiblility of a strike and if it did occur they would be expected to work Bonita asked Were union so it doesn t apply to us, right? Payne said that he had been instructed to treat them as manage ment 505 Received into evidence was the minutes of the meeting of 21 June, the first item on the agenda is review vaca tions The minutes stated Mr Payne opened the meeting by asking for vaca tion schedules and reminding every one that non Union employees would be expected to return to work from vacations should there be a 1199 strike Ms McCoy said that she wouldn't be taking any vacation time until after July 18 Ms Bonita5 said she plans to be on vacation from July 2 to July 25 Mr Monahan will be on vacation from August 1 until after Labor Day Bonita testified that on 22 June she made her vacation request to Nurit Schwartzbaum the program administra tor the vacation period she selected was from 2 to 26 July Schwartzbaum told her that it was all right with her, but that she should get Payne s approval She imme diately went to see Payne and told him of her request He told her that if there were a strike she would have to report back He also said that there probably would be no strike Bonita objected, saying that since I in union, if there were a strike she would also be on strike Payne said Well you still have to report back, even if you go on strike He also told Bonita that he was considering her as management since Respondent had instructed him to do so She asked Payne when he would know wheth er the strike would occur Payne said that he would know by 5 July 8 July at the latest Payne asked her where she would be on her vacation She told him that she could be contacted at the Mescalero Indian Reserva tion, c/o Coffee Family, Mescalera New Mexico 87401 There was a telephone at that address, but Payne did not request it and Bonita did not provide it (Schwartzbaum testified that she asked Bonita for a phone number at where she could be reached but Bonita said that there was no phone) She testified that she had previously in formed Payne that she would be traveling there to attend religious ceremonies at this Indian reservation Both Schwartzbaum and Payne approved her vacation request stating Provisional approval [strike union con tact ] Schwartzbaum told her that if there were a strike they would send her a telegram to return In this regard Bonita s testimony differentiates between returning to the facility and returning to work Q Did you have any doubt that in the event of an 1199 strike you would be required not just ex pected, required to return to work? A I knew that I would be expected to return Q Return and do what? A To report Q For work? A No to report Q To whom? A It was my understanding Q To whom? A To the hospital 5 Bonita testified that she made this vacation request the following day infra 506 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Q Thank you For what purpose9 A And to the union Q For what purpose were you to report to the hospital'? A For the hospital-let me put it this way The hospital had their plan The union had their plan Q For what purpose were you to return to the hospital9 A The hospital expected me to work Bonita testified that she felt this way because on 10 May Respondent had signed the letter agreeing that her job classification would be a union position So there was an agreement reached that we were part of that union Therefore, Beth Israel would have honored the fact that I was to come back here and report that I was on strike Bonita further testified that before leaving for her va cation she left an itinerary of her trip on a desk at the Halfway House It stated that she would be in Mexico, but did not give the dates she would be there nor her address while there She did not give this itinerary to either Payne or Schwartzbaum because the reason being that they didn t ask for it I didn t know it was im portant to them It was my itinerary left there for no purpose at all other than just it was there Payne testified that he had a number of discussions with Bonita regarding her vacation She told him where she was going and he told her that he could not believe that she was spending so much money for a vacation when Respondent require her to return if there were a strike He told Bonita, as he told others that if there were a strike and they did not return there was a possi bility that she would be fired Schwartzbaum also testi fled regarding conversations she had with Bonita about her vacation The subject came up on several different occa sions I believe she first raised her request to go on vacation during one of the team meetings and that was when we had discussed the possibility of the strike and informed the staff that they would be re quired to work the non union staff would be re quired to work She also gave me her written vaca tion request which I signed with a note that it was provisional and at the time, I told her that she would be required to report back to work in the event of the strike And again inform-informally this came up at other times Anytime I had the op portunity, anytime she mentioned her vacation, I re minded her that she would have to work if there was a strike Bonita left New York early in the morning of 2 July and arrived at the reservation on 3 July She left the res ervation on the evening of 11 July traveling by bus, train and boat and crossed into Mexico on 12 July, where she travelled for the next 2 weeks A telegram dated 12 July at 12 54 p in was sent by Respondent to Bonita at the Mescalero address she left, although the telegram spells it Mescalario ' The telegram states `Strike expected Friday June [sic] 13 at 6 a in Call 420- 4256 for strike status If strike is on you must report to work at HWH Friday at 8 p in Bonita testified that she did not receive this telegram, or any notification from Respondent about the strike, prior to leaving on 11 July Payne had told her that Respondent would know by 5 or 8 July if there would be a strike and, as those dates passed without any notification she felt free to leave I had not heard, so I didn t worry anymore Bonita missed her flight to New York and, instead took a flight to Los Angeles on 26 July When she ar rived in Los Angeles on that day, she called Schwartz baum who answered the telephone herself, Bonita asked her why she was answering her own phone Schwartz baum said that there was a strike and that she would have to contact Payne `because there is a problem, ' al though she did not know what Payne s plans were for Bonita Bonita testified that she said Well, if there s a strike, then I'm on strike, right9 Schwartzbaum an swered yes, but that she would still have to call Payne to learn his plans Bonita said that she would not cross the picket line Schwartzbaum testified that when Bonita called her about being late returning to the facility she told her about the telegram Respondent sent her and Bonita said that she must have left the reservation before it arrived, because she never received it Because she was not sure at the time how Respondent would treat Bonita when she returned, she told her to call Payne Schwartzbaum testified that in this conversation Bonita never told her that when she returned she would join or support the strike Bonita returned to New York on 28 July at which time she called Payne at the Halfway House 6 She testi fled that she explained about being late and Payne told her that as she was considered management she was ex pected to work, but before she could do so she would have to speak to Dowling and he would attempt to ar range for them to talk, as soon as possible She told Payne that if there was a strike ' I in on strike and I m honoring that strike Payne told her that they would try to fire her Payne also told her not to go near the picket line he said there was violence and it wouldn t be good for you to seen there either Payne testified that when Bonita did not return when the strike commenced he informed Dowling of this because I wanted to know what the medical center s view was Bonita called him when she returned asking to come back to work You know, her vacation s over she s ready to work He in formed her that because she was not included in the bar gaining unit it was not that simple and that she would have to speak to Dowling before returning to work He testified that Bonita did not tell him that she was not going to return to work because she was going to par ticipate in the strike nor did she object to being treated as management for purposes of the strike Payne then called Bonita and told her that Dowling wanted Bonita to call her which she did She testified that she explained to Dowling why she was late return ing from vacation Dowling asked why she should make an exception for her and Bonita said that she did not 6 Of the other two employees with Bonita s job classification at the Halfway House one worked during the strike and the othei was on med ical leave at the time BETH ISRAEL MEDICAL CENTER expect to be made an exception She said that if there were a strike, she was honoring it because I am union Dowling asked where she got the idea that she was union and Bonita said that Payne had told her and she knew that the agreement was signed on 10 May Dowl ing said that she would be put on suspension and she would get back to her at a later date Dowling testified that she initially heard from Schwartzbaum that Bonita had not returned in response to the telegram Dowling told Schwartzbaum that when Bonita returned she should not be allowed to return to work until she had spoken to her A few weeks later Schwartzbaum told her that she had received a call from Bonita that she was de layed, but she would return shortly Dowling again said that Bonita would have to speak to her before returning to work A few days later Payne called her and told her that Bonita had returned and he wanted to arrange a meeting with them Dowling said that a meeting was not necessary a phone call was adequate I want to talk to her before a final decision is made on her case Bonita called Dowling and Dowling asked her why she did not return at the commencement of the strike, she said that she never got the telegram She said that when she left the reservation she assumed that since she had not heard anything that there would be no strike I asked her if she had talked to anyone in New York since July 10th and she said yes that she had called people she knew and then she specified her family on July 15th They had not told her that there was a strike She did not ask I asked her why she hadn t called the Halfway House to see about the strike and she said it didn t fit into her budget She wanted to go back to work She was calling me at Mr Payne s instructions as he had told her she couldn t work till she spoke to me I told her that she was no different from anyone else who wanted to go on vacation and that the rules of the Medical Center would apply to her but I hadn t fully looked at her case yet and that I would suspend her pend ing final determination of her case and she was not to report to work Dowling testified that, in this conversation Bonita said that she had returned from vacation and was ready to return to work, she did not say that she was going to join or honor the strike A few weeks later Dowling told Liebhaber to have Payne call Bonita and terminate her she testified that she took this period of time to consider the matter because of the still open issue as to whether the supervisors were in the Union-she wanted to be sure that the Union had not yet signed the agreement in cluding her job classification in the unit On about 20 August Payne called Bonita and told her that she was being terminated she asked if she could return once the strike was over and he said that she could not Dowling testified She was terminated be cause she failed to return to work as all others were re quired to do when the strike began Yes she took a va cation instead " Respondent presented evidence of 10 other nonbar gaining unit employees who were terminated during the 507 strike supported by a list of these individuals captioned Non Bargaining Unit Employees Terminated for Fail ure to Report to Work for the Entire Period of the Strike The job classification of these employees ranged from physicians to secretaries Eight of the ten employ ees on the list were terminated because they either left to go on vacation after the strike commenced or refused to return from vacation when the strike commenced, against Respondents orders Of the other two one did not perform his strike assignment duties because he did not like them and he was terminated The remaining em ployee left without permission during the strike to defend her thesis and was terminated The Board law regarding a nonbargaining unit em ployee s right to refuse to cross a picket line at his em ployer s premises was clearly set out recently in ABS Co, 269 NLRB 774 774-775 (1984) It is well established that nonstriking employees who refuse to cross a picket line maintained by their fellow employees have made common cause with the strikers are engaged in protected concert ed activities as defined in Section 7 of the Act, and may not be lawfully discharged for these activities According to Board policy, it is not material that the employee who refuses to cross the picket line is not a member of the picketing union is not repre sented as part of the collective bargaining unit, or is motivated solely by personal fear In this regard see also Congoleum Industries 197 NLRB 534 (1972), Limpert Bros, 276 NLRB 364 (1985), NLRB v Peter Cailler Kohler Chocolates Co, 130 F 2d 503 (2d Cir 1942) and NLRB v Southern Greyhound Lines, 426 F 2d (5th Cir 1970) The issue therefore is whether Bonita was terminated because she would not cross the Unions picket line to work The determination is not that simple Although Respondents witnesses testified that Respondents policy was to terminate nonbargaining unit employees who refused to work during the strike, and Respondents brief restates this policy 7 Respondent alleges that Bonita was terminated (as were others) be cause she refused to return from vacation when the strike commenced Is there a difference between terminating a nonunit employee for refusing to cross a picket line at his em ployer s premises (which is clearly unlawful under the Act) and terminating that employee for refusing to return from vacation to report for work at the com mencement of a strike? I think not Either way Re spondent s intention is to force nonbargaining unit em ployees to cross the Union s picket line and work under threat of discharge Although one cannot fault a hospital for attempting to maintain its operation during a strike, it is unlawful when that objective is accomplished by firing, or threatening to fire, an employee for refusing to 7 Respondent s brief states The Medical Center had decided prior to the strike to require all non bargaining unit employees including any on vacation when the strike began to work during the strike on pain of termination if they didn t 508 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cross a unions picket line during the strike Evidence submitted by Respondent establishes that if Bonita had returned to Respondents facility on 14 July, as directed and had refused to cross the picket line to report to work she would have been discharged by Respondent at that time I find no substantive difference between that and the actual facts-the discharge for her failure to return from vacation at the commencement of the strike I find irrelevant Bonita s intentions at the time she re turned She testified that she informed Payne and Dow] ing that although she returned to report, she would honor the picket line and not return to work Payne and Dowling refute this They testified that when Bonita re turned she said that she had returned and was prepared to work Although I find this conflict immaterial to my ultimate finding as it is relevant to the remedy, a credi bility finding must be made I found Payne the most credible and persuasive of the three He clearly was in an uncomfortable position He had been a personal friend of Bonita and had gotten her the job with Respondent at the Halfway House On the other hand, he had been em ployed by Respondent for 17 years until July 1986, usu ally in positions of authority A close reading of his testa mony reveals an attempt to tell the truth while not being too harsh on Bonita Although found Bonita to be generally credible a few aspects of her testimony did not ring true She is an intelligent woman who, at the time, was concerned with when she would become covered by the union contract 8 I find unpersuasive her testimony that she left the reservation on 11 July because she had been told by Payne that he would know by 5 or 8 July whether there would be a strike, and since she had not yet received a telegram by that time she felt assured that the matter had been settled Dowling testified credibly that after Bonita returned she asked Bonita if she had spoken to anyone in New York since 10 July and she said that she had but they had not told her of the strike I find it more likely that she did learn of the strike in this call My observation of Bonita together with a careful reading of her testimony (especially how much she valued the job and her strong interest in becoming a member of the Union together with the fact that upon leaving she did not give Respondent the telephone number where she could be located at the reservation- they didn t ask for it -and that she left her itinerary on a desk at the Halfway House rather than giving it to Payne) convinces me that Bonita acted as best to protect herself She wanted to satisfy Respondent by returning but she did not want to have to cross the Union s picket line in order to work How best to accomplish this? By leaving the reservation before receiving notification of the strike and pretending to be unaware of it That would explain the somewhat suspicious circumstance of leaving the reservation approximately 1 day prior to the commencement of the strike On the basis of all the above, I credit Payne and Dowling that when Bonita re turned to New York on 28 July she indicated a willing ness to return to work She had done her best by staying 8 As ABC Co sura states that it is not a member of the union I need not decide that issue out for 2 weeks , but was not willing to jeopardize her job any further by staying out any longer On the basis of all the above I find that Respondent violated Section 8(a)(1)(3) of the Act by discharging Bonita on 20 August for refusing to return from vacation to work during the Union s strike CONCLUSIONS OF LAW 1 Respondent is an employer within the meaning of Section 2(2) (6) and (7) of the Act 2 The Union is a labor organization within the mean ing of Section 2(5) of the Act 3 Respondent by discharging Bonita on 20 August, violated Section 8(a)(1) and (3) of the Act 4 Respondent did not violate the Act in any other manner as alleged in the consolidated complaint THE REMEDY Having found that Respondent has engaged in and is engaging in certain unfair labor practices, It will be rec ommend that it cease and desist therefrom and take cer tam affirmative action designed to effectuate the policies of the Act, to wit that Respondent offer Bonita immedi ate reinstatement to her former position or, if that pose tion no longer exists to a substantially equivalent posi tion without prejudice to her seniority or other rights and privileges I also recommend that Respondent make Bonita whole for any loss of earnings she sustained by reason of her discharge Backpay liability begins on 28 July, the day she returned and indicated a willingness to work Backpay shall be computed in accordance with F W Woolworth Co 90 NLRB 289 (1950), and Florida Steel Corp 231 NLRB 651 (1977) See generally Isis Plumbing Co 138 NLRB 716 (1962) I find the visitator ial clause requested by General Counsel unnecessary O L Willis Inc 278 NLRB 203 (1986) On these findings of fact and conclusions of law and on the entire record I issue the following recommend ed9 ORDER The Respondent Beth Israel Medical Center, New York New York its officers agents, successors, and as signs shall 1 Cease and desist from (a) Discharging terminating or otherwise discriminat ing against its employees in retaliation for their refusal to cross a lawful picket line established at its premises (b) In any like or related manner restraining or coerc ing 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 Pena Bonita immediate and full reinstatement to her former job or if that job no longer exists, to a 9 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 BETH ISRAEL MEDICAL CENTER substantially equivalent position, previously enjoyed, and make her whole for any loss of earnings and other bene fits suffered as a result of the discrimination against her, in the manner set forth in the remedy section of the deci sion (b) Remove from its files any reference to the unlawful discharges and notify the employees in writing that this has been done and that the discharges will not be used against them 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 its New York, New York location copies of the attached notice marked Appendix 10 Copies of the notice, on forms provided by the Regional Director for Region 2, after being signed by the Respondents author ized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecu tive days in conspicuous places including all places where notices to employees are customarily posted Rea sonable steps shall be taken by the Respondent 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 10 If this Order is enforced by a judgment of a United States court of appeals the words in the notice reading Posted by Order of the Nation al Labor Relations Board shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board 509 IT IS ORDERED that the consolidated complaint be dis missed insofar as it alleges violations of the Act not spe cifically found APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or dered us to post and abide by this notice WE WILL NOT interfere with the rights of employees to engage in protected concerted activities by discharg ing them for refusing to cross a lawful picket line estab lished at our premises WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act WE WILL offer Pena Bonita, immediate and full rein statement to her former job or if that job no longer exists to a substantially equivalent position, without prej udice to her seniority or any other rights or privileges previously enjoyed and WE WILL make her whole for any loss of earnings and other benefits resulting from her discharge less any net interim earnings, plus interest WE WILL notify her that we have removed from our files any reference to her discharge and that the dis charge will not be used against her in any way BETH ISRAEL MEDICAL CENTER