New York University Medical Center

National Labor Relations Board - Board Decisions

May 12, 1982

261 N.L.R.B. 822 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
New York University Medical Center and Faustino
Vargas, Leigh Benin, and Laszlo Berkovits.
Cases 2-CA-16796, 2-CA-16824, and 2-CA-
16833
May 12, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On October 31, 1980, Administrative Law Judge
D. Barry Morris issued the attached Decision in
this proceeding.' Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed a brief in support of the Administra-
tive Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order, 2 as
modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
New York University Medical Center, New York,
New York, its officers, agents, successors, and as-
signs, shall take the action set forth in the said rec-
ommended Order, as so modified:
1. Insert the following as paragraph 2(d) and re-
letter the subsequent paragraphs accordingly:
"(d) Preserve and, upon request, make available
to the Board or its agents, for examination and
copying, all payroll records, social security pay-
ment records, timecards, personnel records and re-
ports, and all other records necessary to analyze
the amount of backpay due under the terms of this
Order."
2. Substitute the attached notice for that of the
Administrative Law Judge.
I The Decision was corrected by an erratum issued by the Administra-
tive Law Judge dated November 28, 1980.
2 In accordance with his dissent in Olympic Medical Corporation, 250
NLRB 146 (1980), Member Jenkins would award interest on the backpay
due based on the formula set forth therein.
261 NLRB No. 118
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WIll. NOT discourage employees from
distributing leaflets by unlawfully issuing disci-
plinary warnings to or suspending or discharg-
ing employees for engaging in activities pro-
tected by Section 7 of the National Labor Re-
lations Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them by
Section 7 of the National Labor Relations Act.
WE WIl.l rescind the disciplinary warnings
issued to Faustino Vargas and Leigh Benin on
September 28, 1979, and to Laszlo Berkovits
on October 11, 1979, and WE WILL expunge
any references to these warnings from their
personnel files.
WE WILL reimburse Faustino Vargas and
Leigh Benin for the pay they lost during their
periods of suspension, with interest.
WE Wll. offer Leigh Benin immediate and
full reinstatement to his former position or, if
such position no longer exists, to a substantial-
ly equivalent position, without prejudice to his
seniority or other rights and privileges, and
make him whole for any loss of earnings he
may have suffered by reason of his discharge,
with interest.
NEW YORK UNIVERSITY MEDICAL
CENTER
DECISION
STATEMENT OF 1HEI CASE
D. BARRY MORRIS, Administrative Law Judge: This
case was heard at New York, New York, on July 14 and
15, 1980. Charges were filed in October 1979 and a con-
solidated complaint was issued on April 16, 1980, alleg-
ing that New York University Medical Center (herein
Respondent) violated Section 8(a)(1) of the National
Labor Relations Act, as amended (herein the Act). Re-
spondent filed an answer denying the commission of the
alleged unfair labor practices.
The parties were given full opportunity to participate,
to produce evidence, to examine and cross-examine wit-
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NEW YORK UNIVERSITY MEDICAL CENTER
nesses, to argue orally, and to file briefs. Briefs were
filed by the General Counsel, Respondent, and Leigh
Benin.
Upon the entire record of the case, including my ob-
servation of the witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is an administrative division of New York
University, a private, nonprofit institution of higher edu-
cation located in New York, New York. Respondent is
engaged in providing health care and related services at
its medical facility located in New York City. During
the 12 months preceding the issuance of the complaint,
Respondent's gross revenue was in excess of $1 million
and it purchased and received at its New York City fa-
cility goods and supplies valued in excess of $50,000 di-
rectly from points outside the State of New York. Re-
spondent admits, and I so find, that it is engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act and that it is a health care institution within the
meaning of Section 2(14) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
District 1199, National Union of Hospital and Health
Care Employees, RWDSU, AFL-CIO (herein District
1199), is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
111. THE ALLEGED UNFAIR LABOR PRAC1ICES
A. The Issues
The complaint alleges that Respondent violated Sec-
tion 8(a)(1) of the Act by issuing disciplinary warnings to
Faustino Vargas, Leigh Benin, and Laszlow Berkovits,
by suspending Benin and Vargas and by discharging
Benin. Respondent denied the allegations claiming that
Benin, Vargas, and Berkovits were issued disciplinary
warnings for distributing leaflets which were unprotected
under the Act, that Benin was suspended for additional
unprotected leafleting, and that Benin was discharged
and Vargas was suspended because they picketed the pri-
vate residence of one of Respondent's employees. The
issues thus are: (1) was the distribution of the leaflets
protected activity under the Act; (2) were Benin's dis-
charge and Vargas' suspension motivated by protected
activity; and (3) should the Board defer to the award of
an arbitrator and dismiss the complaint.
B. The Facts
Benin, Vargas, and Berkovits worked as technicians at
Respondent's facility. Benin and Vargas were District
1199 delegates and all three were members of the Com-
mittee Against Racism (CAR), a national organization.
During September 1979 elections were held for dele-
gates to the biannual national convention of the National
Union of Hospital and Health Care Employees
(NUHHCE). The purpose of the convention was to set
policy and to elect the officers of the national union.
District 1199 was entitled to send approximately 40 dele-
gates to the convention.
Members of District 1199 who also belonged to CAR
or the Progressive Labor Party decided to designate a
slate of candidates to run as delegates to this convention.
Benin, Vargas, and 10 others qualified as candidates and
were designated as "Slate 2" by District 1199's election
board. This group ran against "Slate 1," which included
the incumbent officers of District 1199. The balloting for
convention delegates took place on September 18 and
25.' The returns from the balloting of September 18
showed that Slate 2 had received 60 percent of the vote.
On September 21, 24, and 25 Benin distributed two
leaflets (G.C. Exhs. 4 and 5). He was joined in the distri-
bution by Vargas on September 24. General Counsel's
Exhibit 4 states, in pertinent part:
Vote Slate 2, the Anti-Racist Slate. We urge 1199
Hospital Div. Workers to VOTE SLATE 2 on
Tuesday, September 25th.... Join the Committee
Against Racism.
General Counsel's Exhibit 5 states, in pertinent part:
Join the Committee Against Racism. Vote Slate 2,
The Anti-Racist Slate. .... [T]he NYU bosses have
turned their security guards into a fascist gestapo il-
legally searching workers and firing them.
On September 28, Respondent advised Benin and
Vargas in writing that their activities in distributing Gen-
eral Counsel's Exhibit 5 "constitutes grounds for disci-
plinary action." The memorandum further stated that
"any repetition of this or similar misconduct will result
in appropriate disciplinary action, including suspension
or discharge."
During the period October 5 through October 9,
Benin, Vargas, and Berkovits were involved in the prep-
aration and distribution of another leaflet, General Coun-
sel's Exhibit 8. This leaflet discussed the outcome of the
September 18 election and also stated that Benin and
Vargas received written warnings for distributing Gener-
al Counsel's Exhibit 5. In addition, among other accusa-
tions, the leaflet stated, "we reaffirm our charge that the
N.Y.U. management is using the security guards for fas-
cist gestapo tactics to intimidate black and Spanish work-
ers." On October 5, because of his participation in the
distribution of General Counsel's Exhibit 8, Benin was
suspended from work without pay.
On October 8, Benin, Vargas, and several others pick-
eted in front of the personal residence of Keith Safian, an
assistant administrator of Respondent. Benin carried a
sign which stated that Safian was guilty of unfair labor
practices and Vargas carried General Counsel's Exhibit
13, which announced a CAR rally to be held at Harper's
Ferry on October 27. Benin and Vargas both testified
that at no time were they on Safian's property. 2
i Unless otherwise specified dates refer to 1979.
2 Their testimony was not contradicted. Accordingly, I credit their tes-
timony and find that during the picketing Benin and Vargas were not on
Safian's property
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On October 11 Respondent discharged Benin and sus-
pended Vargas. On the same day Respondent sent a
written warning to Berkovits for distributing General
Counsel's Exhibit 8.
1. Distribution of Leaflets
Respondent contends that, because of the language
contained in the leaflets, their distribution is not activity
protected by the Act. For the reasons stated below, I be-
lieve that the language is not such as to lose protection
under the Act. Accordingly, any disciplinary action
taken by Respondent because of the distribution of these
leaflets violates Section 8(a) (1) of the Act.
Employee literature, otherwise protected, loses this
status only in limited circumstances, such as if the litera-
ture contains attacks on an employer's products or serv-
ices (N.L.R.B. v. Local Union No. 1229, International
Brotherhood of Electrical Workers [Jefferson Standard
Broadcasting Company], 346 U.S. 464 (1953)); material so
disruptive as to threaten plant discipline (Southwestern
Bell Telephone Company, 200 NLRB 667 (1972)); and ma-
licious falsehoods (Great Lakes Steel, Division of National
Steel Corporation, 236 NLRB 1033 (1978)).
The leaflets do not attack or disparage the services
that Respondent delivers, viz, health care services. In ad-
dition, the leaflets do not urge or incite, through obsceni-
ties or otherwise, employees to take any action which
would be disruptive of Respondent's right to enjoy an
orderly workplace.
Respondent contends that the leaflets contain state-
ments which constitute "malicious falsehoods," such as
"the NYU bosses have turned their security guards into
a fascist gestapo illegally searching workers and firing
them" (G.C. Exh. 5) and "we reaffirm our charge that
the N.Y.U. management is using the security guards for
fascist gestapo tactics to intimidate black and Spanish
workers" (G.C. Exh. 8). The question to be answered is
whether the leaflets contain statements which Benin,
Vargas, and Berkovits knew were false or were pub-
lished with reckless disregard for the truth. See New
York Times Co. v. Sullivan, 376 U.S. 254, 280 (1964);
Linn v. United Plant Guard Workers of America, Local
114, 383 U.S. 53 (1966).3
Benin and Vargas testified that they received reports
that Respondent's guards were searching black and His-
panic employees. These reports served as the basis for
the statements in the leaflets concerning the practices of
Respondent's security guards. Indeed, Benin and Vargas
gave the names of employees who made these reports.
I am not required to determine whether, in fact, illegal
searches were carried out. Instead, I must determine
whether the distributors of the leaflets knew that the
statements were false or published them with reckless
disregard for whether they were false or not. As outlined
above, based on the record, I find that Benin, Vargas,
and Berkovits did not know that the statements were
false nor were they published with reckless disregard for
whether the statements were false or not. While I do not
s In Linn the Supreme Court explicitly adopted the New York Times
standards in NLRB proceedings. Old Dominion Branch No. 496, National
Association of Letter Carriers v. Austin, 418 U S. 264 (1974).
condone the use of terms such as "fascist gestapo" in the
present circumstances, the Supreme Court has stated
"the most repulsive speech enjoys immunity provided it
falls short of a deliberate or reckless untruth." Linn v.
United Plant Guard Workers of America, Local 114, supra,
383 U.S. at 63. 4
Accordingly, I find that the distribution of the leaflets
was an activity protected by the Act and therefore the
disciplinary warnings to Vargas, Benin, and Berkovits
and the suspension of Benin were violations of Section
8(a)(l) of the Act
2. Discharge of Benin and suspension of Vargas
Respondent contends that Benin was discharged and
Vargas was suspended because they picketed the person-
al residence of Keith Safian, an assistant administrator of
Respondent. Respondent further argues that such picket-
ing is unprotected. It is unnecessary for me to reach the
question of whether such picketing is protecteds for I
find that the distribution of the leaflets was a motivating
factor in Benin's discharge and Vargas' suspension.
The Board has recently restated the test to be applied
in so-called mixed motive cases. Wright Line. a Division
of Wright Line, Inc., 251 NLRB 1083 (1980). The Board
requires that the General Counsel make a prima facie
showing sufficient to support the inference that protected
conduct was a motivating factor in the employer's deci-
sion. Once this is established, the burden shifts to the em-
ployer to demonstrate that the "the same action would
have taken place even in the absence of the protected
conduct."
I find that the General Counsel has made a prima facie
showing that the leafleting was a motivating factor in
Benin's discharge and Vargas' suspension. Thus, the tele-
gram discharging Benin states, in pertinent part, "your
recent activity in distributing leaflets containing inflam-
matory and baseless charges which incited employees
against the Medical Center and fellow employees and
disparaged the good name and reputation of the Medical
Center, was also considered in reaching the decision to
discharge you." Similarly, the memorandum to Vargas
dated October 11, 1979, suspending him, stated in perti-
nent part, "your recent activity in distributing leaflets
containing inflammatory and baseless charges which in-
cited employees and disparaged the good name and repu-
tation of the Medical Center was also considered in
reaching the decision to suspend you."
The conclusion that the distribution of the leaflets was
a motivating factor in the subsequent discharge of Benin
and the suspension of Vargas is corroborated by testimo-
ny at a state unemployment compensation hearing in
which Safian stated:
Mr. Benin, on the other hand, received a warn-
ing, was observed again handing out objectionable
4 Indeed, some of the very language used in the leaflets has been held
to be protected. Thus, the use of the term "fascist" was protected in
Cafeteria Employees Union. Local 302 v. Angelos, 320 US. 293, 295 (1943),
and the use of the term "racist" was permitted in Owners Maintenance
Corp., 232 NLRB 100, 102 (1977), enfd. 581 F.2d 44 (2d Cir. 1978).
5 I have previously found that Benin and Vargas were not on Safian's
property during the picketing
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NEW YORK UNIVERSITY MEDICAL CENTER
material, then got a five day suspension, and then,
because of picketing subsequent to that, after having
the progressive disciplinary steps of warning and
suspension, we felt that he should be terminated.
Respondent has not demonstrated that Benin would
have been discharged and Vargas suspended were only
the picketing involved. On the contrary, Safian's above-
quoted testimony indicates that Respondent believed that
the three steps of warning, suspension, and termination
had to follow in proper sequence to justify disciplinary
action. Indeed, Vargas was not discharged for the picket-
ing but was merely suspended, presumably because prior
to the picketing he had been subject to only the first step
of the disciplinary process.
Accordingly, I find that the distribution of the leaflets
was a motivating factor in Benin's discharge and Vargas'
suspension. Such discharge and suspension violated Sec-
tion 8(a)(1) of the Act.
3. Arbitration award
Respondent has moved that I defer to the award of ar-
bitrator Herbert L. Marx, Jr., dated May 20, 1980. For
the reasons outlined below, I deny the motion to defer.
The arbitrator determined that the warning letter, sus-
pension, and discharge of Benin were all for just cause.
There was no award with respect to Vargas and Berko-
vits.
In discussing the leaflets the arbitrator refers specifical-
ly to the statement "the NYU bosses have turned their
security guards into a fascist gestapo illegally searching
workers and firing them." The arbitrator determined that
Respondent was in its rights to discipline Benin because
of such statement, declaring "there is no need for the
Medical Center to stand by defenseless in the face of
such scurrilous accusations." Similarly, with respect to
Benin's suspension, the arbitrator found that Respondent
was justified in suspending Benin because of language in
the leaflets such as "fascist gestapo." Concerning Benin's
discharge, it appears that the arbitrator recognized that
the leafleting and picketing were interrelated. Thus, the
arbitrator stated that "the Medical Center had sufficient
cause to warn, suspend and discharge Leigh Benin for
his share of responsibility in the events described."
As stated earlier, I have found the very language re-
ferred to by the arbitrator to be protected under the Act.
Inasmuch as the arbitrator found such language to be un-
protected, his decision is clearly repugnant to the pur-
poses and policies of the Act. See Spielberg Manufactur-
ing Company, 112 NLRB 1080, 1082 (1955); Owners
Maintenance Corp., supra. In addition, neither Vargas nor
Berkovits agreed to be bound by the results of the arbi-
tration. Accordingly, deferral with respect to them is in-
appropriate. See Spielberg Manufacturing Co., supra.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
and is a health care institution within the meaning of
Section 2(14) of the Act.
2. District 1199, National Union of Hospital and
Health Care Employees, RWDSU, AFL CIO, is a labor
organization within the meaning of Section 2(5) of the
Act.
3. By issuing warning letters and suspending and dis-
charging employees for activities protected by the Act,
Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices constitute unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to order Re-
spondent to cease and desist therefrom and to take af-
firmative action designed to effectuate the policies of the
Act.
Respondent having discriminatorily suspended Faus-
tino Vargas and Leigh Benin, I find it necessary to order
that Respondent make them whole for the periods of
their suspension.
Respondent having discharged Leigh Benin in viola-
tion of the Act, I find it necessary to order Respondent
to offer him full reinstatement to his former position or,
if such position no longer exists, to a substantially equiv-
alent position, without prejudice to his seniority or other
rights and privileges, and make him whole for any losses
of earnings that he may have suffered from the time of
his termination to the date of Respondent's offer of rein-
statement.
Backpay shall be computed in accordance with the
formula approved in F. W. Woolworth Company, 90
NLRB 289 (1950), with interest computed in the manner
prescribed in Florida Steel Corporation, 231 NLRB 651
(1977).6
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER7
The Respondent, New York University Medical
Center, New York, New York, its officers, agents, suc-
cessors, and assigns, shall:
I. Cease and desist from:
(a) Discouraging employees from distributing leaflets
by unlawfully issuing disciplinary warnings and by sus-
pending or discharging employees for activities protected
by Section 7 of the Act.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
6 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716, 717-721
(1962)
' In the event no exceptions are filed as provided in Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order. and all objections thereto
shall be deemed waived for all purposes
825
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Offer Leigh Benin immediate and full reinstatement
to his former position or, if such position no longer
exists, to a substantially equivalent position, without prej-
udice to his seniority or other rights and privileges, and
make him whole for any losses of earnings in the manner
set forth in the section above entitled "The Remedy."
(b) Reimburse Faustino Vargas and Leigh Benin for
the pay they lost during their periods of suspension, and
make them whole for any loss of earnings in the manner
set forth herein in "The Remedy."
(c) Rescind the disciplinary warnings issued to Faus-
tino Vargas, Leigh Benin, and Laszlo Berkovits referred
to in this Decision, and expunge any reference to these
warnings from their personnel files.
(d) Post at its facility in New York, New York, copies
of the attached notice marked "Appendix."8 Copies of
said notice, on forms provided by the Regional Director
for Region 2, after being duly signed by Respondent's
authorized representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by Respondent to ensure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 2, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
M In the event that 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 National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National L abor Relations Board"
826