Long Island College Hospital

National Labor Relations Board - Board Decisions

Mar 22, 1999

327 N.L.R.B. 944 (N.L.R.B. 1999)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 944
Long Island College Hospital and 1199, National
Health and Human Service Employees Union,
AFL–CIO. Case 29–CA–20526
March 22, 1999
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
HURTGEN AND BRAME
On December 11, 1997, Administrative Law Judge
Michael A. Marcionese issued the attached decision.
The Respondent filed exceptions and a supporting brief,
the Charging Party filed a memorandum of law in oppo-
sition to the Respondent’s exceptions, and the General
Counsel filed a brief in support of the judge’s decision
and a letter in answer to the Respondent’s exceptions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions and
to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Long Island College Hospi-
tal, Brooklyn, New York, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.

Tracy Belfiore, Esq., for the General Counsel.
Joel E. Cohen, Esq., for the Respondent.
Pamela Jeffrey, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
MICHAEL A. MARCIONESE, Administrative Law Judge.
This case was tried in Brooklyn, New York, on September 18,
1997. The charge was filed by 1199, National Health and Hu-
man Service Employees Union, AFL–CIO (the Union) on De-
cember 9, 1996, and the complaint was issued June 16, 1997.
The complaint alleges that Respondent Long Island College
Hospital violated Section 8(a)(1) of the Act, in or about July
1996,1 by statements of its alleged Supervisor Carolyn Nash,
and, on November 30, by a letter dated November 27, from its
attorney to employee Edward Gray. Respondent, in its answer,
admitted that Nash is a supervisor, but denied the unfair labor
practice allegations of the complaint. At the hearing, Respon-
dent admitted that Respondent’s attorney was acting as its
agent in sending the letter to Gray.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, the Respondent, and the Charging
Party, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, operates a hospital at its fa-
cility in Brooklyn, New York, where it annually derives gross
revenues in excess of $250,000 and purchases and receives
goods and materials valued in excess of $5000 directly from
points outside the State of New York. The Respondent admits
and I find that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act and a health
care institution within the meaning of Section 2(14) of the Act.

1 All dates are in 1996 unless otherwise indicated.
The Respondent further admits and I find that the Union is a
labor organization within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The Union represents, inter alia, certified social workers and
social work assistants employed by Respondent. The record
reveals that, sometime in 1996, Respondent implemented a case
management system which consisted of nonunit registered
nurses (RNs), classified as “case managers,” being assigned to
manage the care of individual patients during their hospital
stay. It appears from the record that Respondent employed no
more than seven such case managers during 1996. During the
summer, conflicts arose between unit employees in the social
work department and these case managers over their respective
roles, in particular in connection with discharge planning.
Carolyn Nash, Respondent’s director of social work at the time
and an admitted supervisor, acknowledged that there was ten-
sion in the department over the advent of case management and
its impact on the role of social workers and that she and other
managers in the department shared the concerns of unit em-
ployees over this issue.
Edward Gray is employed by Respondent as a certified so-
cial worker in the renal (dialysis) area. He is a member of the
Union and, on August 1, he was elected a union delegate by
other employees in the social work department. Gray testified
that he organized and facilitated weekly meetings of Respon-
dent’s social workers at a coffeeshop across the street from the
hospital beginning in July. At these meetings, the social work-
ers and social work assistants discussed, among other things,
their experiences with case management, their concerns over
perceived erosion of their work by this new group of employees
and its impact on patient care. Gray’s testimony regarding
these meetings was corroborated by his colleagues and unit
employees Rena Martin and Vivian Meekinson. Moreover,
Nash testified that her supervisors, in particular Francine Crag-
ger, the vice president of nursing, were aware of these meetings
and Gray’s involvement in them.
There is no dispute that, on July 12, Respondent notified two
social work assistants that their positions in discharge planning
were being eliminated and that they would be laid off effective
August 9.2 On July 19, the Union filed a grievance alleging
that these layoffs were the result of Respondent assigning unit
work (discharge planning) to nonunit nurses in violation of the
collective-bargaining agreement. Gray attended a grievance
meeting in connection with this grievance which was held on
August 7.3 The layoff and the employees’ belief that the duties
of the laid-off employees were being performed by nonunit
case managers became the subject of discussion at the meetings
in the coffeeshop.
2 One of the social work assistants exercised her seniority rights to
bump another social work assistant who worked in a different area.
3 Although Gray testified that he believed the meeting was in July,
correspondence which was received in evidence by stipulation estab-
lishes the date of this meeting as August 7.
327 NLRB No. 169
LONG ISLAND COLLEGE HOSPITAL 945
Gray testified that, in July, he and the two other social work-
ers in the renal area requested a meeting with department man-
agement to seek guidance and direction on how to deal with the
threat of case management. After first meeting with their im-
mediate supervisor, Kathryn O’Shaughnessy, Gray, Martin, and
Douglas Riding met with Nash on July 31. The employees
expressed their concerns over erosion of their job functions by
case management RNs and how the case management system
interfered with their ability to serve patients. Nash told the
employees she understood and shared their concerns, but that
she was caught in the middle. According to Gray, Nash offered
no direction, tactics, or strategy to deal with the issue. Instead,
she told the employees that social work had “missed the train”
on case management and that nursing already owned it. The
employees told Nash they were considering going to the Union
for assistance on this issue and asked her views on this ap-
proach. Nash told the employees that they had a right to go to
the Union, but to proceed cautiously because Gray had been
labeled the “flavor of the month” by administration. Nash did
not explain this comment nor was she asked to by any em-
ployee at the meeting. Gray told Nash that the employees
would contact the Union. Martin corroborated Gray regarding
this meeting. Nash testified, contrary to Gray, that she did
provide guidance to the employees regarding strategy. She also
admitted telling the employees to proceed with caution if they
involved the Union because Gray was becoming very well
known in administration and that he was being called the “fla-
vor of the month” because of his position as spokesman for the
department on this issue.
The complaint alleges that Respondent, through Nash’s
statements at this meeting, “warned and threatened its employ-
ees with unspecified reprisals if they sought the assistance of
the Union.” Because there is no dispute that Nash made the
allegedly unlawful statements attributed to her by the General
Counsel’s witnesses, it must be determined whether her cau-
tionary advice to Gray and his fellow employees had the rea-
sonable tendency to interfere with, restrain, or coerce employ-
ees in the exercise of their Section 7 rights. The Board has
previously found “friendly warnings” from supervisors to em-
ployees to “watch your back,” “keep a low profile” and similar
advice to be unlawful. See Jordan Marsh Stores Corp., 317
NLRB 460, 462–463 (1995), and cases cited therein. Nash’s
advice to the employees here, i.e., to proceed with caution,
suggests that their resort to the Union could have adverse con-
sequences for the employees. When this advice is coupled with
the statement that their spokesman, Gray, was getting a reputa-
tion with management, the implication is clear that Respon-
dent’s management did not look favorably upon union activity
by its employees. See Perth Amboy Hospital, 279 NLRB 52 fn.
2 (1986). Nash’s warning to the employees, uttered in the con-
text of her characterization of Gray as “flavor of the month”,
was not a “normal response to a discussion the employees
themselves had initiated.” Cf. Masdon Industries, 212 NLRB
505 (1974). On the contrary, it was a coercive statement in
violation of Section 8(a)(1) of the Act.4
On August 5, a memo from management was distributed at
the hospital “to outline upcoming changes in the Case Man-
agement Department as a result of the Case Management-

4 Most of the cases cited by Respondent in its brief are inapposite
because they address the issue whether interrogation is coercive under
the Board’s decision in Rossmore House, 269 NLRB 1176 (1984).
Discharge Planning merger.” According to the memo, the
changes were to be implemented August 12, which was the
Monday following the effective date of the layoff of the social
work assistants in discharge planning. One of the changes out-
lined was that case managers would assume full responsibility
for discharge planning for all patients on their unit, with the
exception of renal, AIDS, pediatric, and neonatal intensive care
patients being followed by social work. Meekinson, a social
worker in the medical/surgical unit assigned at the time to the
seventh floor, testified without contradiction that the laid-off
employees worked on her floor and that she observed the case
manager on the unit, Ellen Mitchell, doing their work after the
layoff. According to Gray and Meekinson, the memo and
Meekinson’s observations were discussed among the employ-
ees during their weekly meetings in the coffeeshop.
On September 18, the Union held a meeting of social work-
ers at its headquarters in Manhattan. A flyer announcing the
meeting identified case management as a an “alarming trend”
which was “destroying the social work profession.” Respon-
dent’s facility was cited as an example of the trend at facilities
represented by the Union, referring to the layoff of the two
social work assistants. Gray attended and spoke at this meet-
ing. He was the only employee of Respondent to speak and,
apparently, the only employee from any hospital to speak.
Gray testified that he did not know a reporter from the Union
was at the meeting and did not know that his speech would be
quoted in any publication. He did acknowledge being asked his
name by someone identified as a reporter after the meeting.
Gray’s statements at the meeting were reported in an article
which appeared in the November edition of 1199 News, a union
publication mailed to members homes and distributed at repre-
sented institutions. Gray testified that he had no input into, nor
prior approval, of the article before it was printed. Gray admit-
ted that the article accurately quoted his statements at the meet-
ing.
The article, entitled “Social Workers Threatened,” refers to
the September 18 meeting and quotes the Union’s president,
Dennis Rivera, its classifications coordinator, David Kranz, and
Gerald Beallor, identified as a social work consultant, in addi-
tion to Gray. Kranz is quoted as saying: “The case manager’s
mission in life is to reduce hospital length of stay. This con-
trasts with social workers, who are independent advocates for
the patient.” The next three paragraphs quote Gray as follows:

“These battles between case managers and us go on
daily,” said Long Island College Hospital CSW Ed Gray.
“We’re already experiencing layoffs.”
Management has replaced some vacated social worker
positions with Case Management RNs, while leaving other
positions unfilled, said Gray. LICH social workers have
formed alliances with doctors and others to reverse this
trend.
“We’re advocating for patients,” said Gray. “And case
managers are hounding doctors to get patients out. We
have to educate our colleagues. This is not an abstract
thing. Jobs are being lost.”
LICH social workers hold weekly departmental plan-
ning meetings and have formed alliances with doctors and
others to reverse this trend.

Respondent’s then-human resources director, Erin
O’Connor, testified that, after she saw this article, she ques-
tioned Nash about Gray’s statements in the article and, believ-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 946
ing they were false, contacted Respondent’s counsel and di-
rected him to send the November 27 letter to Gray. Nash con-
firmed that O’Connor asked her about the article, testifying that
she told O’Connor that she was aware that there were differ-
ences of professional opinion between case managers and so-
cial workers, many of which she shared. Nash testified further
that she would not “necessarily” categorize these differences as
daily battles. Both O’Connor and Nash testified that the only
lay-offs they were aware of were that of the two social work
assistants, effective in August, that no case management em-
ployee replaced a social worker, and that they were unaware of
any concerns or “alliances” between doctors and social work-
ers.
The letter from Respondent’s attorney, on the law firm’s let-
terhead, was received by Gray on November 30. The letter
refers to Gray’s quotes in the union newspaper and asserts that
they are false and that, as a social worker, Gray was aware that
they are false. According to the attorney, “the net effect of
your knowingly false statements is to cast aspersions on the
quality of LICH’s social work department in a publication that
is circulated throughout the city of New York and its suburbs”.
The letter concludes with the following:

Unless you agree to retract your false statements in the form
of a letter to LICH and 1199 by Wednesday, December 4,
1996, LICH will have no choice but to pursue its legal reme-
dies against you.

There is no dispute that the letter was not distributed by Re-
spondent to any other employees, nor was a copy sent to the
Union. It is also undisputed that no such letter was sent to the
Union, or anyone else quoted in the article.
Gray informed the Union of the letter on Monday, December
2. That same day, the Union’s attorney faxed a letter to Re-
spondent’s attorney accusing Respondent of unlawfully threat-
ening and coercing employees in the exercise of their Section 7
rights and stating the Union’s intention to file an unfair labor
practice charge based on the attorney’s November 27 letter.
The Union’s attorney asserted that Gray’s statements quoted in
the newspaper were true and requested a written retraction of
the November 27 letter and an apology. Respondent’s attorney
responded with another letter, dated December 3, which was
sent to the Union and Gray. In this letter, Respondent’s attor-
ney requested information from the Union to ascertain whether
Gray’s statements were true or not. He further advised the
Union that Respondent was not trying to intimidate Gray or any
other employee and that “litigation was the last thing LICH is
interested in pursuing.” The letter concluded by expressing
Respondent’s annoyance with the Union’s “consistent pattern
of publicly disparaging the quality of LICH’s services to the
general public without regard to the truth or falsity of the dis-
paraging remarks.” The parties stipulated that the Union did
not respond to this letter.
Before the publication of the article in the union newspaper,
Gray had also been involved in the filing of another grievance,
on October 3, alleging more generally than the prior grievance,
that Respondent was in violation of the collective-bargaining
agreement by allowing nonbargaining unit workers to perform
duties and roles of social workers currently employed and so-
cial work assistants laid off and social worker vacancies in all
units of the department. That grievance was scheduled for a
third-step meeting on December 5. Gray attended this meeting
with the Union’s vice president, Carlton Yearwood and four
other department employees. O’Connor questioned Gray re-
garding the basis for his statements quoted in the newspaper
article. Yearwood instructed Gray not to respond to these ques-
tions, telling O’Connor that the Union was there to discuss the
issues raised by the grievance.
At the hearing, Gray testified regarding the basis for his
statements at the September 18 union conference which were
quoted in the Union’s newspaper. Gray and fellow social
workers Martin and Meekinson testified regarding ongoing
disputes with case management RNs over discharge planning
issues, providing examples of situations where each believed an
RN had usurped the social worker’s authority. According to
Martin, because of this issue, she was “always forced to be on
guard and to run into every case I had to make sure my hand
was in the case first so that case management couldn’t infiltrate
and take on my job functions.” She characterized the situation
as one of “daily vigilance.” Similarly, Meekinson testified that
she had to be “very vigilant on a daily basis” about getting
referrals or the case management RN would not give them to
her. Gray, Martin, and Meekinson acknowledged in their tes-
timony that they were unaware of any layoffs involving social
workers. With regard to the statements about “alliances” with
doctors, Gray and Martin testified to conversations each had
with two or three doctors regarding the role of case manage-
ment and its impact on patient care. According to Gray and
Martin, these doctors sympathized with the social workers con-
cerns and expressed agreement with their views. Gray and
Martin acknowledged that no overt actions were taken by the
employees in conjunction with these doctors prior to Gray’s
statements at the September 18 meeting.5
The complaint alleges that Respondent, through its attor-
ney’s November 27 letter, unlawfully threatened Gray with
legal action and other unspecified reprisals for engaging in
protected concerted activities. Respondent argues that Gray’s
statements quoted in the 1199 News were unprotected because
the statements were deliberate and reckless falsehoods and
disparaged Respondent’s product or services. Respondent fur-
ther argues that the threat of litigation contained in the letter to
Gray was based on a colorable claim for libel and defamation
and should not be found unlawful under the rationale of Bill
Johnson’s Restaurants v. NLRB, 461 U.S. 731 (1983). Finally,
Respondent argues that the letter was not unlawful because
Respondent was not attempting to retaliate against or chill the
exercise of Section 7 rights, but was merely seeking a retraction
of statements made by Gray which Respondent reasonably
believed were false.
The Supreme Court, in NLRB v. Electrical Workers IBEW
Local 1229 (Jefferson Standard Broadcasting Co.),6 held that

5 At the hearing, I rejected Respondent’s proffer of the testimony of
Dr. Lich to the effect that he did not form an alliance with employees,
but acknowledging that he had a conversation with Gray on the subject
of case management. Dr. Lich was not available on the day of the
hearing and an adjournment would have been required to receive this
testimony. Dr. Lich’s opinion whether an “alliance” had been formed
as a result of his conversation with Gray is not relevant to determina-
tion of the issues here. The question presented by the complaint is
whether Gray’s characterization of his and other employees’ conversa-
tions with doctors regarding the issue of case management was know-
ingly false or made with malicious intent to disparage Respondent’s
product or services. In any event, I have assumed for purposes of de-
ciding this case that Dr. Lich would have testified in the manner prof-
fered by Respondent’s counsel.
6 346 U.S. 464 (1953).
LONG ISLAND COLLEGE HOSPITAL 947
employee communications with third parties lose the protection
of the Act when they do not relate to the employer’s labor prac-
tices and, instead, disparage the employer’s product or services.
Thirteen years later, the Court held in Linn v. United Plant
Guard Workers of America, Local 114 7 that, where either party
to a labor dispute circulates false and defamatory statements,
the courts have jurisdiction to apply state remedies if the com-
plaining party pleads and proves that the statements were made
with malice and injured him. While recognizing that enactment
of Section 8(c) of the Act manifested congressional intent to
encourage free debate on issues dividing labor and manage-
ment, the Court did not interpret the Act as “giving either party
license to injure the other party intentionally by circulating
defamatory or insulting material known to be false.” Id. at 61.
The Court adopted the New York Times v. Sullivan8 standard,
requiring proof of actual malice and injury, to minimize the
possibility that threats of lawsuits and actual lawsuits would be
used to interfere with Section 7 rights. Supra, 383 U.S. at 64–
65. In Letter Carriers v. Austin,9 the Court reiterated its posi-
tion that the vigorous exercise of Section 7 rights must not be
stifled by threat of liability for overenthusiastic use of rhetoric
or the innocent mistake of fact. The Court reaffirmed that
statements of fact or opinion relevant to a union organizing
campaign are protected even if defamatory or proven to be
erroneous, unless made with knowledge of their falsity. Id. at
277–278.
In the instant case, I find that Gray was engaged in concerted
activity related to a labor dispute between the Union and his
employer when he spoke at the Union’s conference on Septem-
ber 18. His appearance and speech at the conference were a
continuation of his activities which commenced in July aimed
at preserving the duties and functions of unit employees in the
social work department from a perceived threat of erosion by
the advent of case management. There is no dispute that this
issue had been discussed by Gray and others at employee meet-
ings and in meetings with department management and was the
subject of at least one grievance as of the date of the confer-
ence. The conference itself was for the purpose of developing
union strategy to deal with the encroachment of case manage-
ment on unit work and Gray’s statements included steps em-
ployees at Respondent’s facility had taken to deal with the is-
sue. Moreover, the erosion of unit work clearly relates to the
wages, hours and terms and conditions of employment of unit
employees.
I further find that Gray’s statements at the conference, as
quoted in the 1199 News did not lose the protection of the Act
because they were substantially true and not made with a mali-
cious intent to harm Respondent’s reputation. Gray’s charac-
terization of disputes between unit employees in the social
work department and case managers as “daily battles” is, at its
worst, “overenthusiastic rhetoric” in light of the credible testi-
mony of Gray, Martin, and Meekinson, as well as Nash’s ac-
knowledgment that there was tension in the department over
this issue. His statement, “we’re already experiencing lay-
offs,” was also true since there is no dispute that two social
work assistants were laid off as a result of the elimination of
their positions in discharge planning and the August 5 internal
hospital memo shows that discharge planning functions were

7 383 U.S. 53 (1966).
8 376 U.S. 254 (1964).
9 418 U.S. 264 (1974).
being assumed by case management RNs on the med/surg
units. Although Gray’s statement that “management has re-
placed some vacated social worker positions with case man-
agement RNs while leaving other positions unfilled” may not
be entirely accurate, Respondent has not demonstrated that this
misstatement of fact was made maliciously. I note that the
parties stipulated that seven social workers left Respondent’s
employ between January and the date of the conference, for
various reasons, that the position of only one of these, in a
methadone clinic, was discontinued, and that Respondent hired
only four new social workers during the same period, three of
whom were hired to fill newly created positions. Thus, there
may very well be some truth to the statement that Respondent
was leaving vacant social work positions unfilled. Moreover,
the August 5 memo outlining changes in assignments resulting
from the merger of discharge planning and case management
could reasonably have led employees to believe that the work
of the social workers who had left Respondent’s social service
department was being assumed by case management RNs.
Thus, I am not prepared to find on this record that Gray made
his statement with knowledge that it was false or with reckless
disregard for the truth. Finally, the credible testimony of Gray
and Martin, as well as Respondent’s offer of proof regarding
Dr. Lich’s proffered testimony establishes that employees did
discuss the issue with doctors who were sympathetic to their
complaints regarding case management. Again, Gray’s charac-
terization of these discussions as “forming alliances” is no more
than “overenthusiastic use of rhetoric” which the Supreme
Court has recognized as protected in the context of a labor dis-
pute. Letter Carriers v. Austin, supra. See also Emarco, Inc.,
284 NLRB 832, 834 (1987); Richboro Community Mental
Health Council, 242 NLRB 1267, 1268 (1979).
Respondent relies upon the Second Circuit’s decision in
Montefiore Hospital v. NLRB,10 denying enforcement to the
Board’s order which required the reinstatement of two doctors
whom the Board found were discharged in violation of the Act.
The court disagreed with the board and found that the conduct
of the two doctors on the picket line, i.e., approaching patients,
identifying themselves as doctors, telling the patients that they
would be better served by going to another health care facility,
was unprotected. According to the court, the doctors appealed
to the patients to turn away from their employers’ facility not
out of sympathy with the strikers, but on the basis that the pa-
tient could not obtain competent treatment at that facility, with-
out regard to the nature of the treatment sought or the ability of
the employer to provide that treatment. Setting aside the ques-
tion whether I am bound by the Board or the court’s decision in
Montefiore Hospital, supra, the facts are clearly distinguish-
able. Gray’s statements were directed to an audience of union
members and were aimed at organizing those menders to op-
pose the perceived erosion of their work by nonunit employees.
Gray made no statements regarding the quality of care available
at Respondent’s facilities, and did not suggest that potential
patients should go elsewhere for treatment. Gray’s conduct
was more akin to that of the nurses involved in Roanoke Valley
Hospital v. NLRB,11 whose statements to a TV reporter regard-
ing RN coverage was found to be protected by the Board and
the court because they were true and related to protected con-
certed activity in progress.
10 621 F.2d 510 (2d Cir. 1980).
11 538 F.2d 607 (4th Cir. 1976).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 948
Having found that Gray’s statements were protected, I find
that November 27 letter from Respondent’s attorney to Gray
contained a threat to sue Gray for engaging in protected con-
certed activity. Clyde Taylor Co., 127 NLRB 103 (1960). Re-
spondent’s argument that the Board should treat threats to sue
the same as the actual filing of a lawsuit, under Bill Johnson’s
Restaurants v. NLRB,12 has already been rejected by the Board.
See Carborundum Materials Corp., 286 NLRB 1321, 1323 fn.
8 (1987); Consolidated Edison Co., 286 NLRB 1031, 1033 fn.
8 (1987). As the Board has pointed out, the concern for a
party’s constitutional right of access to the courts is not present
when only a threat to sue is in issue. In any event, based on my
finding above that Gray’s statements quoted in the union news-
paper were not made with malice, Respondent has no colorable
claim for libel.13
Finally, Respondent argues that the November 27 letter does
not violate the Act because the threat of legal action contained
in the letter was not intended to chill or retaliate against the
exercise of Section 7 rights. As noted above, the Board’s test
for determining whether an employer’s statements or commu-
nications with employees violate Section 8(a)(1) is an objective
one, i.e., whether the statement reasonably tends to interfere
with, restrain or coerce an employee in the exercise of statutory
rights. The Employer’s motive in making the statement is ir-
relevant. Florida Steel Corp., 224 NLRB 45 (1976). Moreover,
Respondent sent this letter to Gray several months after its
supervisor admittedly told him he had an unfavorable reputa-
tion in management because of his activities as a spokesman for
employees in the social work department. The letter was also
sent shortly before a grievance meeting at which the very issue
which had been the subject of Gray’s statements challenged in
the letter were to be discussed. Finally, the letter was sent to
Gray, an employee, rather than to the Union which published
the newspaper containing the allegedly defamatory statements.
Under these circumstances, I find that the November 27 letter
had the reasonable tendency, and was in fact calculated to,
restrain Gray in the exercise of his right to speak out in opposi-
tion to Respondent’s implementation of case management as it
impacted on unit employees in the social work department.
Accordingly, Respondent violated Section 8(a)(1) of the Act as
alleged.14
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) and a health care insti-
tution within the meaning of Section 2(14) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. By warning employees to proceed with caution if they
seek the assistance of the Union and informing employees that
their spokesman had acquired the reputation of “flavor of the
month” with Respondent’s management, Respondent threat-
ened employees with unspecified reprisals in violation of Sec-
tion 8(a)(1) of the Act.

12 461 U.S. 731 (1983).
13 I also note that Respondent has not attempted to prove that Gray’s
statements caused any actual injury to Respondent, as required under
Linn, supra.
14 The Board’s decisions in Thomas Steel Co., 281 NLRB 389
(1986), and Access Control Systems, 270 NLRB 823 (1984), cited by
Respondent, are distinguishable because the employee conduct in-
volved in those cases was found to be unprotected.
4. By sending employee Gray a letter threatening him with
legal action for statements made at a union conference, Re-
spondent interfered with, restrained, and coerced its employees
in the exercise of their Section 7 rights in violation of Section
8(a)(1) of the Act.
5. The Respondent’s unfair labor practices affect commerce
within the meaning of Section 2 (6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended15
ORDER
The Respondent, Long Island College Hospital, Brooklyn,
New York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with legal action and other un-
specified reprisals if they join, support, or assist the Union.
(b) In any like or related manner interfering with, restraining,
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 effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this order, retract the
November 27, 1996 letter from Respondent attorney to em-
ployee Edward Gray.
(b) Within 14 days after service by the Region, post at its fa-
cility in Brooklyn, New York, copies of the attached notice
marked “Appendix.”16 Copies of the notice, on forms provided
by the Regional Director for Region 29, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since July 31,
1996.
(c) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps the
Respondent has taken to comply.

15 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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 purposes.
16 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
LONG ISLAND COLLEGE HOSPITAL 949
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated the
National Labor Relations Act and has ordered us to post and abide
by this notice.

Section 7 of the Act gives employees these rights.

To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.

WE WILL NOT threaten you with legal action and other un-
specified reprisals if you join, support, or assist 1199, National
Health and Human Service Employees Union, AFL–CIO or any
other union.
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, within 14 days from the date of the Board’s Or-
der, retract the November 27, 1996 letter sent by our attorney to
employee Edward Gray.

LONG ISLAND COLLEGE HOSPITAL