New York University Medical Center

National Labor Relations Board - Board Decisions

Oct 31, 1997

324 N.L.R.B. 887 (N.L.R.B. 1997)

887
324 NLRB No. 139
NEW YORK UNIVERSITY MEDICAL CENTER
1 We deny the General Counsel’s motion to reject the Respond-
ent’s memorandum of law in support of its exceptions. Contrary to
the General Counsel’s contention, the memorandum was hand-deliv-
ered to the Board before close of business on June 18, 1997, the due
date, as provided in Sec. 102.111(b) of the Board’s Rules and Regu-
lations. The Regional Director was served by overnight mail, before
the close of the next business day, June 19, 1997, pursuant to Sec.
102.114(a) of the Board’s Rules.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
In adopting the judge’s finding that the Respondent violated Sec.
8(a)(1) by threatening implicitly to punish employees with layoffs,
cutbacks, and other consequences, we rely on credited testimony
showing that Dr. Trujillo: (1) told Dr. Portnow that Dr. Mahon’s be-
havior was ‘‘disgraceful, disloyal, undesirable and that it would lead
to ‘trouble’ for the attendings, [i.e., attending physicians]’’ following
a meeting early in October 1994 regarding the so-called 9 to 3 issue,
during which Dr. Mahon spoke out against the Respondent’s pro-
posed changes; (2) told Dr. Portnow that the Association would be
‘‘punished’’ for its position on the 9 to 3 issue, that it [9 to 3] was
a political issue, and that the doctors should have taken the Respond-
ent’s offer to renegotiate their worktime to eight-tenths; and, (3) ad-
mitted that he told Dr. Weiss and others that having the 9 to 3 issue
made the Association and its members ‘‘very visible for the chop-
ping block.’’ We agree with the judge that these statements, espe-
cially when viewed in the context of Trujillo’s many other state-
ments of animus toward the Association and its officers, reasonably
would have been interpreted by the doctors as threats. We do not
rely, however, on the judge’s finding that Dr. Trujillo’s contention
that he was merely trying to warn the doctors of the budget con-
sequences that might result from failure to resolve the 9 to 3 issue
was ‘‘irrelevant.’’ In this connection, we note that the judge discred-
ited Trujillo’s testimony.
3 For institutional reasons, Member Higgins agrees to apply the
precedent of Management Training Corp., 317 NLRB 1355 (1995).
In this regard, he notes that a Board majority has adopted and con-
sistently applied the principles of that case.
New York University Medical Center, New York
University Medical Center, a Division of New
York University and Association of Staff Psy-
chiatrists, Bellevue Psychiatric Hospital. Case
2–CA–28305
October 31, 1997
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HIGGINS
On April 21, 1997, Administrative Law Judge Jesse
Kleiman issued the attached decision. The Respondent
filed exceptions and a supporting brief. The General
Counsel filed an answering brief in response to the Re-
spondent’s exceptions, and the Respondent filed a
reply memorandum.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs1 and has decided to affirm the judge’s rul-
ings, findings,2 and conclusions3 and to adopt there
recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, New York University
Medical Center, a Division of New York University,
New York, New York, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.
Gregory B. Davis, Esq., for the General Counsel.
Richard Semeraro, Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
JESSE KLEIMAN, Administrative Law Judge. Upon the
basis of a charge and amended charge filed on March 29 and
September 1, 1995, respectively, by the Association of Staff
Psychiatrists, Bellevue Psychiatric Hospital (the Association),
against New York University Medical Center, A Division of
New York University (the Respondent), a complaint and no-
tice of hearing was issued on October 19, 1995, alleging that
the Respondent violated Section 8(a)(1) and (3) of the Na-
tional Labor Relations Act (the Act). By answer timely filed,
the Respondent denied the material allegations in the com-
plaint and raised certain affirmative defenses.
A hearing was held before me from March 18 through
April 1, 1996, in New York, New York. Subsequent to the
closing of the hearing, the General Counsel and the Respond-
ent filed briefs.
Upon the entire record and the briefs of the parties, and
upon my observations of the witnesses, I make the following
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, at all times material, is and has been a
not-for-profit corporation, with offices and places of business
in New York, New York, including a place of business at
Bellevue Psychiatric Hospital (Bellevue), and engaged in the
provision of medical and patient care services for hospitals
in New York, New York, including Bellevue, through affili-
ation agreements with the New York City Health and Hos-
pitals Corporation (HHC). The Respondent annually in the
conduct of its business operations, derives gross revenues in
excess of $500,000, and purchases and receives at its New
York, New York places of business goods and supplies val-
ued in excess of $50,000 directly from points outside the
State of New York. I therefore find that the Respondent is
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act, and a health care insti-
tution within the meaning of Section 2(14) of the Act.
II. THE ALLEGED LABOR ORGANIZATION INVOLVED
Section 2(5) of the Act defines a labor organization as:
any organization of any kind, or any agency or
employeerepresentation committee or plan, in which
employeesparticipate and which exists for the purpose,
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888 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 I am aware that in New York University Medical Center, 217
NLRB 522 (1975), the Board dismissed the Association’s representa-
tion petition seeking to represent a unit of staff psychiatrists at
Bellevue Psychiatric Hospital on the basis of the inappropriateness
of the bargaining unit sought which is an entirely different issue than
that presented here, whether or not the Association is a labor organi-
zation within the meaning of the Act. Subsequent to the Board’s de-
cision in this case, the Association continued to function, holding
meetings, collecting membership, dues and dealing with the Re-
spondent on employee issues. Of interest on the general issue of
labor organization within the meaning of the Act, see Aero Detroit,
Inc., 321 NLRB 1101 (1996).
2 Excluding the intake and emergency unit, a count of the persons
listed on the in-patient wards of the psychiatric service schedule
through March 1995 reveals 47 names. However, the undisputed evi-
dence reveals that Goldfarb, McDowell, Sockfish, and Taylor are
postgraduate follows-in-training and that Hazzi is a medical internist,
not a psychiatrist.
in whole or in part, of dealing with employers concern-
ing grievances, labor disputes, wages, rates of pay,
hours of employment, or conditions of work.
In NLRB v. Cabot Carbon Co., 360 U.S. 203 (1959), the
Supreme Court held that an employee committee that dis-
cussed with management various subjects pertaining to work-
ing conditions, wages, or grievances was a labor organization
within the meaning of Section 2(5) of the Act even though
the committee had no membership requirements, collected no
dues, had no funds, and had never attempted to negotiate a
collective-bagaining agreement. Following the liberal scope
granted in Cabot Carbon, the Board and courts have broadly
construed the definition of labor organization under Section
2(5) of the Act. Prime Time Shuttle International, 314 NLRB
833 (1994); E. I. du Pont & Co., 311 NLRB 893 (1993); St.
Anthony’s Hospital, 292 NLRB 1304 (1989).
Moreover, in Electromation, Inc., 309 NLRB 990 (1992),
the Board indicated that the elements required of a Section
2(5) organization are: (1) employee participation, (2) a pur-
pose to deal with employers, (3) concerning itself with con-
ditions of employment or other statutory subjects, and (4) if
an ‘‘employee representation committee or plan’’ is involved,
evidence that the committee is in some way representing the
employees.
In the instant case, the evidence shows that the Associa-
tion has an already defined unit, that of staff psychiatrists at
Bellevue Psychiatric Hospital, was formed in 1973 for the
purpose of dealing with the Respondent regarding such mat-
ters as salaries, working hours and conditions, and grievances
of its members, has elected officials (executive board) by
elections held every 2 years, has dues paying membership,
holds membership meetings, and has actually dealt with the
Respondent, mainly through the director of psychiatry, Dr.
Manual Trujillo, concerning issues such as wages (equalizing
or improving the salary structure of the psychiatrists at Belle-
vue), the hours and working conditions of the psychiatrists,
and grievances (Drs. Belsky, Kirshbaum, and Kermani). An
employee organization with such goals and purposes—with-
out—more—is a statutory organization. Prime Time Shuttle
International, supra; St. Anthony’s Hospital, supra. I therefore
find and conclude that the Association is a labor organization
within the meaning of Section 2(5) of the Act.1
Moreover, at the time of the terminations, the following
psychiatrists were members of the Association’s executive
board: Drs. John Graham, president; Ebrahim Kermani, vice
president; Martin Geller, faculty representative; Jerome
Steiner, treasurer; Stanley Portnow and Maeve Mahon, mem-
bers at large; Kenneth Kirschbaum and William Weiss. There
were approximately 45 psychiatrists in the Association, 28 of
whom were assigned to in-patient wards.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges in substance, that the Respondent
violated Section 8(a)(1) of the Act by threatening employees
with cutbacks, layoffs, and other consequences if they con-
tinued to protest a change in employee work hours, and vio-
lated Section 8(a)(1) and (3) of the Act by discharging Drs.
John Graham, Ebrahim Kermani, Martin Geller, Jerome
Steiner, Stanley Portnow, and Meave Mahon because they
engaged in protected concerted activities. The Respondent
denies these allegations and additionally asserts, as affirma-
tive defenses, that the alleged discriminatees are supervisors
within the meaning of Section 2(11) of the Act and/or mana-
gerial employees because of their status as faculty members
of New York University and therefore not subject to the cov-
erage of the Act; and that since the Respondent’s actions
complained of here were dictated, directed or controlled by
HHC, ‘‘a governmental agency’’ not subject to the coverage
of the Act, the Respondent also was not subject to the cov-
erage of the Act.
A. Background
Under an affiliated contract with HHC, the Respondent
provides psychiatrists and other health care professionals to
Bellevue Hospital Center for the purpose of delivering medi-
cal and psychiatrist patient care and services. All psychia-
trists employed at Bellevue Hospital by the Respondent are
also nontenured track faculty members of the Respondent’s
School of Medicine. HHC is a quasi public corporation re-
sponsible for operating the municipal hospital system of New
York City, including Bellevue Hospital. Overall management
of Bellevue Hospital is the responsibility of the executive di-
rector, Pamela S. Brier, and the medical director, Dr. David
Cohen, who are employed by HHC.
Generally, patients admitted to Bellevue for psychiatric
care are treated either through out-patient clinics or acute in-
patient wards. Each in-patient ward is staffed by psychia-
trists, including a unit chief, nurses, nurses aides or assist-
ants, social workers, activity therapists, and clerical as well
as maintenance personnel. Psychologists and other special-
ists, such as musical therapists are also available for in-pa-
tient care or consultation.
Bellevue’s psychiatric services are managed and super-
vised on a daily basis by a team of administrators of the Re-
spondent headed by Dr. Manual Trujillo, the director of psy-
chiatry. Other administrators of the Respondent at Bellevue
are Dr. Joel Wallack, deputy director of psychiatry, Dr. Ri-
cardo Castaneda, director of in-patient psychiatric services,
Dr. Hector Varas, associate medical director, and Dr. Robert
Levy, senior clinical coordinator. Dr. David Scotch, is the as-
sociate dean at the Respondent’s School of Medicine. Ivan
Selzer is employed by the Respondent as the administrator
for the hospital affiliation contracts.
Prior to the termination’s of 10 psychiatrists by the Re-
spondent on March 24, 1995, 42–50 psychiatrists were as-
signed to the 13–14 acute in-patient wards at Bellevue,
which contains a total of approximately 369 in-patient beds.2
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3 On investigating the matter, Dr. Trujillo stated that he had been
told by his predecessors that the reduced work hours were originally
offered to induce doctors to accept employment at Bellevue in return
for lower salaries. Dr. Trujillo estimated that approximately 23 to 30
doctors worked from 9 a.m. to 3 p.m. Moreover, Dr. Trujillo testi-
fied that he sought to encourage his staff to present a plan to remove
the ‘‘9 to 3’’ issue as a source of contention between HHC and the
Respondent.
In part, sec. 5.2(f) of the affiliation agreement provides that physi-
cians shall be entitled to participate in off-premises academic and/or
clinical activities provided that no more that 10 percent of such time
(40 hours inclusive of umnpaid meal hours) is devoted thereto. Dr.
Graham testified that the agreement alowed 10-percent off-premises
time for research, teaching preparation, as well as on-call activities
where 4 hours of on-call time was credited as an hour of on-prem-
ises time.
4 Ivan Selzer, the Respondent’s administrator for affiliation con-
tracts, testified that the purpose of the meeting was to see what em-
ployee response would be to the announced change in hours. Selzer
stated that the staff ‘‘absolutely’’ refused to go along with the pro-
posed changes, that this reaction was unanimous.
Eight in-patient wards were devoted to general psychiatric
treatment of adult patients while six in-patient wards were
specialized units: 12 South was a medical-psychiatric unit;
19 West was a forensic unit; 20 North and 20 East were drug
and alcohol units; 21 South was a child psychiatric unit; and
21 West was an adolescent unit.
The salaries of the psychiatrists employed by the Respond-
ent at Bellevue range from $50,000 to $200,000. Generally,
unit chiefs received an additional $1500 in salary. Dr.
Portnow testified that he was promised $2500 additional but
never received it.
B. The Evidence
For a number of years, HHC had expressed dissatisfaction
with a practice under which certain psychiatrists employed
by the Respondent at Bellevue Hospital worked from 9 a.m.
to 3 p.m., HHC maintained that section 5.4,(b)(I) of the af-
filiation contract required physicians to provide at least 40
hours of service per week, inclusive of unpaid meal hours.3
By memorandum dated September 30, 1994, HHC Executive
Director Pam Brier advised Dr. Trujillo that because of an
extremely serious fiscal situation, ‘‘Effective November 1,
1994, all full-time staff must fullfill the obligation explicitly
delineated in the affiliate contract to work at least 35 hours
per week. As we’ve discussed, there really can be no excep-
tion to this policy regardless of any informal agreements.’’
The Meeting of September 30, 1994
On September 30, 1994, the Respondent conducted the
first of several staff meetings to discuss the ‘‘9 to 3’’ issue.4
About 30–40 psychiatrists attended, including association ex-
ecutive board members Drs. Graham, Kermani, Mahon, Gel-
ler, and Portnow, among others. Dr. Trujillo announced that
because of budget problems there would no longer be any ‘‘9
to 3’’ hours, that everybody had to increase productivity and
work 9 a.m. to 4:30 p.m. or take a decrease in salary, as the
only solution. Dr. Maeve Mahon testified that she suggested
that clinical work be assigned to Drs. Wallack, Casteneda,
Levy, and Varas, who were all administrators. Dr. Mahon re-
lated that it was chiefly the members of the executive board,
particularly Drs. Graham and Kermani, who spoke out
against the Respondent’s announced changes in working
hours and that one of them stated that he thought that these
hours were protected by the affiliation contract.
Dr. Mahon testified that Dr. Kermani suggested that every-
body take a 10-percent cut in salary, including Dean Scotch
and Dr. Trujillo and that the psychiatrists as ‘‘laborers should
not be the ones who would be completely . . . victimized.’’
Dr. Mahon related that Dean Scotch became very angry stat-
ing that, ‘‘Dr. Kermani was the whole problem, that if
Kermani wasn’t leading the opposition , or leading the riot,
that there wouldn’t be any problem.’’ Dean Scotch testified
that Kermani’s remarks were very disturbing to him and that
he took great exception to the term ‘‘laborers’’ as applied to
doctors and resented the use of that term.
At the conclusion of the staff meeting on September 30,
1994, the Respondent distributed a memorandum from Dr.
Trujillo to the ‘‘9 to 3’’ psychiatrists. In part, the memoran-
dum stated:
I am enclosing a memorandum from Ms. Brier which
requires all full-time staff throughout our hospital to
work at least 35 hours a week. I hope to facilitate the
orderly implementation of this directive while accom-
modating physicians preferences and commitments. In
order to accomplish that goal, I would like each physi-
cian involved to notify me, by October 5, 1994 of
his/her preference among the following options.
(1) I prefer to continue my current 9-3 work schedule
with a prorated salary reduction.
(2) I prefer to receive another work assignment within
the Department for the additional 7 1/2 hours a week
(if available).
After consulting with the Association’s attorney, who ad-
vised them of language they could use to submit the memo-
randum to the Respondent protesting such action the Asso-
ciation’s executive board recommended to its members that
they submit the memorandum under protest. According to the
evidence here, this was actually done with psychiatrists sub-
mitting the memorandum under protest.
The Meeting in the Rose Room
A few days later the Respondent held another staff meet-
ing in the Rose Room, Dr. Graham testified that Brier said
that the longstanding ‘‘9 to 3’’ arrangement was no longer
going to be tolerated and would have to be stopped imme-
diately, that all psychiatrists would have to give their full 35
hours a week on premises and would no longer be allowed
the on-call schedule of 10 percent of preparation time which
she referred to as ‘‘informal arrangements’’ under the affili-
ation contract. Dr. Graham related that he responded to Brier
stating that the ‘‘9 to 3’’ doctors were being discriminated
against and that the Association was going to look into the
matter to see what could be done about it.
Dr. Mahon testified that at this meeting she stated that she
had been hired to work from 9 a.m. to 3 p.m. at a lesser sal-
ary, and asked how could the Respondent penalize this group
for an hour they have already been penalized for? Dr.
Portnow testified that Brier said that the ‘‘9 to 3’’ issue was
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890 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 However, Dr. Trujillo testified instead that he advised the
‘‘guru’s’’ that if they didn’t deal with the ‘‘9–3’’ issue construc-
tively, budgeting problems ‘‘will only get worse and affect every-
body.’’
6 Dr. Trujillo acknowledged that it was possible that he used the
phrase ‘‘son-of-a-bitch’’ while advising Dr. Kermani not to listen to
‘‘these people.’’ He also testified that he told Dr. Kermani that, ‘‘to
link your name with John Graham, who has a lot of disciplinary
problems, was not a good idea. Stick to your job, reflect on these
issues . . . that’s how unit chiefs here make it, by being—respond-
ing to the needs and the increasing requirements of leadership in the
unit.’’
no longer negotiable, that it constituted ‘‘stealing’’ time and
that they would have to agree to work until 4 p.m.—40 hours
a week in the hospital. According to Dr. Mahon, after Brier
mentioned something about ‘‘theft of services,’’ Dr. Mahon
raised her hand to catch Brier’s attention but Brier refused
to acknowledge her. After she continued to keep her hand
up, Dr. Mahon recounted that Brier remarked, ‘‘You’re try-
ing to cause me trouble, aren’t you?’’ Dr. Graham recalled
that Dr. Mahon suggested that if the Respondent was looking
to improve productivity it should cut into the bureaucratic
team and put a couple of them to work seeing patients. Dr.
Graham characterized the responses to Dr. Mahon’s remarks
as ‘‘quite strong’’ and ‘‘very nasty.’’
Dr. Mahon also testified that she attended another meeting
in which Dr. Trujillo mentioned that the ‘‘9–3’’ psychiatrists
were going to have to work more hours, and she asked why
Drs. Wallack, Castaneda, Varas, and Levy couldn’t ‘‘come
downstairs from their offices and do some clinical care? That
is a solution that has worked at Metropolitan Hospital and
they haven’t had to do any budget cuts as a result. What
about having that one here?’’ According to Dr. Mahon, when
Dr. Wallack started to react to this by saying something Dr.
Trujillo silenced him stating, ‘‘[D]on’t even respond to her,
don’t even answer her.’’ Moreover, Dr. Mahon testified that
she perceived animosity from Dr. Trujillo at every meeting
she attended as an elected member of the Association. Dr.
Trujillo appeared angry, difficult, and stated that the Associa-
tion wasn’t a union or labor group and represented no one.
Dr. Portnow’s testimony which substantially supported that
of Dr. Mahon as to what occurred at these meetings testified
that after the Rose Room meeting had ended, and while he
was waiting for an elevator, Dr. Trujillo told him that ‘‘Dr.
Mahon’s behavior was disgraceful, disloyal, undesirable and
that it would lead to trouble for the attendings.’’ Portnow
also recalled that within the same day or the next Dr. Trujillo
said to him that ‘‘the Association would be punished for its
position on the ‘‘9 to 3’’ issue; that it was a political issue
and that ‘‘we should have taken the offer of renegotiating
our time to eight-tenths time.’’5
Dr. Trujillo testified that he attempted to work out an ac-
ceptable solution by obtaining the permission of Brier and
Dr. Scotch to accept the physicians hours, privileges, bene-
fits, and salaries if they reclassified themselves as 80 percent
physicians, full-time equivalent, with full pay and benefits.
However, Trujillo stated that the ‘‘gurus’’ were not very re-
sponsive, and by the time—months later, they were ready to
even consider it, the offer had been withdrawn.
The ‘‘Guru’’ group was a committee of senior psychia-
trists who met with Dr. Trujillo to discuss hospital issues,
more about which will be set forth hereinafter. Dr. Graham
testified that after Dr. Trujillo had suggested at one of the
‘‘guru’’ meetings that regarding the ‘‘9–3’’ issue it would be
wise if they drew up a proposal to show that the psychiatrists
worked eight-tenths time at the hospital and give it to Brier
and Dr. Scotch, the executive board consulted with their
counsel and drafted a proposal which Dr. Graham personally
delivered to Dr. Trujillo and which the Association felt
would meet that need. Dr. Graham related that Dr. Trujillo
looked at it and returned it to him as being unsatisfactory.
The Kermani Incident
On Saturday morning, May 15, 1993, a patient of Dr.
Kermani committed suicide. Dr. David Cohen, the medical
director at Bellevue Hospital called Dr. Kermani at home and
without identifying himself, directed Dr. Kermani to notify
the patient’s family. Dr. Kermani told him that one of the
administrators should do this and hung up. Later after learn-
ing that he had spoken to Dr. Cohen rather than a doctor-
in-training he apologized to Dr. Cohen. When she was noti-
fied of the incident, Pam Brier, executive director of Belle-
vue Hospital, wanted Dr. Kermani fired and called Dr. Tru-
jillo who was on vacation in Spain to do so. According to
Dr. Trujillo, he persuaded Dr. Brier to allow him to counsel
Dr. Kermani instead, and to give him another chance, in ef-
fect saving his job.
On his return from Spain Dr. Trujillo held several ‘‘coun-
seling’’ sessions with Dr. Kermani at which, according to Dr.
Kermani’s testimony, ‘‘Dr. Trujillo would speak most of the
time bad-mouthing the Association and its president, Dr.
Graham.’’ Dr. Kermani recalled that Dr. Trujillo called one
of the members of the Association a ‘‘son-of-a-bitch,’’ ac-
cused Dr. Graham of writing idiotic letters, and stated that
Dr. Graham and the Association ‘‘were nothing but a head-
ache’’ for Dr. Trujillo, because they were making too many
demands. Dr. Kermani also stated that Dr. Trujillo told him
to ‘‘disassociate’’ himself from Dr. Graham and Dr.
Kirschbaum who were the president and secretary of the As-
sociation, respectively.6
Subsequently, Dr. Kermani told Dr. Graham about Dr.
Trujillo’s remarks and an emergency meeting of the Associa-
tion was held to discuss the situation. On June 3, 1993, Dr.
Trujillo issued two counseling memoranda to Dr. Kermani,
one regarding the counseling session held on May 26, 1993,
regarding the incident following the suicide of his patient,
the other for ‘‘disseminating information’’ from a counseling
session to other psychiatrists at a meeting wherein Dr.
Kermani created an ‘‘impression of mistreatment of you and
other . . . physicians by the ‘administration,’ thus creating
an atmosphere of fear and divisiveness among the medical
staff.’’ Dr. Kermani was placed on 6-months probation start-
ing June 1, 1993.
On June 17, 1993, the Association filed an unfair labor
practice charge in Case 2–CA–26624 regarding Dr.
Kermani’s discipline. The Regional Director issued a com-
plaint and notice of hearing on October 28, 1993, and on
May 17, 1994, an informal settlement agreement was entered
into between the parties which provided among other things,
the revocation of Dr. Kermani’s probation.
Dr. Kermani testified that on or about June 1, 1994, he
was called to Dr. Trujillo’s office and given a letter acknowl-
edging the revocation of his probation. Dr. Trujillo said that
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891NEW YORK UNIVERSITY MEDICAL CENTER
he always thought of Dr. Kermani as a good and conscien-
tious doctor but warned him, ‘‘it is better to disassociate
yourself from Kirschbaum and Graham.’’ Dr. Kermani stated
that when he refused, Dr. Trujillo became angry and said,
‘‘Then I will have to shoot them through you . . . Next time
there will be no Association that you went to for cover.’’ Dr.
Trujillo recalled telling Dr. Kermani that ‘‘[t]hese people (re-
ferring to Graham and Kirschbaum) who have expressed the
most personal animosity towards me, are shooting me
through you.’’ Dr. Trujillo also acknowledged telling Dr.
Kermani that it was better to resolve ‘‘professional’’ issues
on professional grounds and that he could not always be
‘‘running for cover.’’
Dr. Graham testified that after the Association filed the
charge in Case 2–CA–26624, Dr. Trujillo declared he would
no longer meet with the Association or deal with the execu-
tive board and did not do so. However, Dr. Trujillo denied
that he refused to continue meeting with the Association, as-
serting that neither party had called for further meetings be-
cause the meetings were not contributing to solving the seri-
ous problems being faced by the Hospital, —the budget defi-
cit and quality assurance issues. Further, Dr. Trujillo main-
tained that he had no authority to recognize the Association
as the bargaining representative of the psychiatrists and that
he did not do so.
The ‘‘Guru’’ Group
Dr. Portnow testified that in the summer of 1994, the act-
ing director of child and adolescent services, Dr. Inamdar,
suggested to Dr. Portnow that he could help reestablish lines
of communication between Dr. Trujillo and the psychiatrists.
After consulting with Dr. Graham, Dr. Portnow spoke to Dr.
Trujillo who indicated the psychiatrists he wanted on the
committee, excluding Drs. Kermani and Mahon. Eventually,
the ‘‘guru’’ committee was comprised of Drs. Portnow,
Inamdar, Geller, Graham, Weiss, and Kirschbaum, all being
also members of the Association’s executive board except for
Dr. Inamdar.
The ‘‘guru’’ meetings took place on Thursday afternoons
wherein discussions were had on issues concerning the func-
tioning of the hospital, i.e., ‘‘9–3’’ working hours, the budget
and the possibility of layoffs. Dr. Portnow related that at
these meetings Dr. Trujillo usually ended up criticizing the
Association for one thing or another including its attorney.
Dr. Trujillo testified that while the unfair labor practice
charge was pending before the Board there was little contact
between the Association and the Respondent. He stated that
Dr. Portnow had raised the prospect of instituting a ‘‘so-
called gurus’’ meeting, i.e., the senior people who have the
capacity to understand the issues and give him good feed-
back about things. Dr. Trujillo related that he agreed to Dr.
Portnow’s suggestion as to the members of the committee,
offering only that he wanted Dr. Inamdar to be included. Dr.
Trujillo denied telling Dr. Portnow that there were doctors he
did not want on the committee.
Other Alleged Statements of Animus
Dr. Geller testified that soon after Dr. Trujillo came to
Bellevue Hospital Dr. Trujillo began talking to him about the
Association and his distress that the doctors would set them-
selves up in an ‘‘adversarial’’ position with respect to the
management of the hospital and himself in particular. When
Dr. Geller mentioned the Association regarding itself as
somewhat of a union, Dr. Trujillo stated there could be no
such thing as a union of physicians at the hospital ‘‘that such
a thing should cease to be.’’ Dr. Geller related that Dr. Tru-
jillo often expressed his unhappiness with the Association
and its officers in opposing his policies and aims and that
Dr. Geller should sever himself from people like Drs.
Graham, Kermani, and Mahon whom he regarded as det-
rimental to the psychiatric department. Dr. Geller added that
in late 1994, Dr. Trujillo told him that he had a high esteem
for Dr. Geller and Dr. Weiss but that if he had his way, he
would be glad to get rid of people like Drs. Graham,
Kermani, Kirschbaum, and Mahon.
Dr. Trujillo testified that he did not recall discussing the
‘‘notion of adversity’’ with Dr. Geller but admitted that he
believed the Association was not contributing to the mission,
goals, and objectives of the psychiatry department, and that
he was ‘‘just declaring a fact.’’
Dr. Portnow testified that in October 1994, when Dr. Tru-
jillo learned that Dr. Graham was seeking reelection as presi-
dent of the Association’s executive board, Dr. Trujillo be-
came absolutely livid, stating, ‘‘You guys don’t know what’s
in your best interest’’ that Dr. Graham was incompetent and
that the Association was useless. According to Dr. Portnow,
Dr. Trujillo sought to enlist his influence in defeating Dr.
Graham in favor of Dr. Kirschbaum. On Graham’s reelec-
tion, Dr. Trujillo accused Dr. Portnow of failing him in this
task. In his testimony, Dr. Trujillo admitted much of what
Dr. Portnow had stated about this but in milder language re-
garding Dr. Graham and the Association. Dr. Portnow also
testified that on March 9, 1995, Dr. Trujillo stated to him
that ‘‘the Association interfered with his ability to run the
department and that the department would be better off with-
out the Association.’’
The Discharges
The evidence shows that in the fall of 1994 HHC notified
the Respondent that the mental health portion of the affili-
ation contract budget at Bellevue had to be reduced by ap-
proximately $2 million. According to the testimony of sev-
eral of the Respondent’s witnesses they ‘‘tried to protect the
psychiatrists working at Bellevue’’ by arguing against the re-
duction and offering an alternate proposal. After prolonged
negotiations, however, HHC insisted on the budget cut and
determined it could only be achieved by a reduction in the
staff of 10 psychiatrists.
After the number of layoffs was determined, although it
had fluctuated during the negotiations with a reduction from
12 to 10 psychiatrists at the very end of the process, Dr. Tru-
jillo and his senior administrators implemented plans to reor-
ganize the psychiatric department as developed in the fall of
1994 and early 1995. According to the testimony of the Re-
spondents’ witnesses they first determined that the reduction
should be made in the in-patient rather than the out-patient
units. They then decided that a unit would have to be closed
and other medical units combined or reorganized. Because
the new system would require the implementation of a treat-
ment plan to rapidly stabilize and dispose of patients, the Re-
spondent began to review the productivity and performance,
especially the management and leadership skills of psychia-
trists and of the unit chiefs, to determine which would be
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892 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 However, Dr. Trujillo also tesitifed that this statement was not
accurate ‘‘if you apply all accounting rules.’’
8 Dr. Kermani stated that Dr. Hazzi was a medical internist, not
a psychiatrist. It should also be noted that Drs. Varas, Steiner, and
Ravelo were hired by the Respondent subsequent to 1990.
9 Dr. Wallack acknowledged that he has cited Dr. Kermani in arti-
cles he has written on AIDS and that Dr. Kermani has expertise in
ethical and legal issues dealing with AIDS.
10 Dr. Wallack stated that there were not many medical-psychiatric
units throughout the country and that there were only two in New
York City.
most effective in the new structure and ‘‘enable the depart-
ment to fulfill its mission with ten less psychiatrists.’’
According to Dr. Castaneda, he and Drs. Trujillo, Wallack,
Levy, and other administrators participated in the decisions
as to which psychiatrists would be laid off. The 10 psychia-
trists selected, including the 6 alleged discriminatees here
were notified on March 22, 1995, of their terminations.
These included Drs. John Graham, Abraham Kermani, Mar-
tin Geller, Stanley Portnow, Maeve Mahon, Jerome Steiner,
Richard King, Henry Wernstein, Michael Gray, and Andrew
Chau. On the foregoing date, the alleged discriminatees testi-
fied that they were summoned to the 22nd floor and given
a form letter signed by Selzer notifying them, in part, that
reductions would have to be implemented and that ‘‘[d]ue to
the necessity to take action as soon as possible your last day
of employment will be March 24, 1995.’’ Each of the alleged
discriminatees were told that he or she was being terminated
due to budgetary reasons rather then their job performances.
Dr. Trujillo stated that he told Dr. Kirschbaum that he and
Dr. Weiss were other persons on the list for layoff and that
he may have told Dr. Kirschbaum that he had interceded
with Brier at the last minute to save his job. While Dr. Tru-
jillo denied making similar remarks to Dr. Weiss, he recalled
that he may have told Dr. Weiss, as well as the ‘‘gurus,’’
that ‘‘it was not a good idea, in a budgetary shortness to
have an open issue like the 9:00 to 3:00. It makes you very
visible for the chopping block.’’
Dr. Portnow testified that on March 24, 1995, while on the
22nd floor saying goodby to a secretary, he encountered Dr.
Varas who told him he had nothing to do with Dr. Portnow’s
termination. Dr. Trujillo also denied responsibility for the
termination since it was a matter between Brier, Dean Farber,
and Dean Scotch. Dr. Portnow stated that Dr. Trujillo men-
tioned that he and Dr. Wallack had been interviewing doctors
for a very long time and that they had many good candidates
from Columbia.
Dr. Portnow also testified that during March 1995, after
his termination, he had occasion to return to Bellevue Hos-
pital wherein he encountered Dr. Varas, Brier, Deans Farber
and Scotch ,and Dr. Trujillo, all of whom either denied mak-
ing the decision regarding whom to terminate or indicated
that the decision had been made between Dr. Trujillo and the
department of Psychiatry, or Dr. Trujillo and Brier. Dr.
Portnow added that Dean Farber had stated that he was
‘‘horrified’’ the way the most senior people had been treated,
and the fact that seniority had not been considered in the lay-
offs. Dr. Portnow related that on March 30, 1995, he re-
turned again to Bellevue and in a conversation with Dr. Tru-
jillo was told, ‘‘You guys are never going to work for Belle-
vue again. You’re history.’’ Dr. Trujillo denied saying this.
After the terminations, in a memorandum dated March 27,
1995, issued by Selzer, the Respondent announced the end
of the ‘‘9 to 3’’ work schedule. As of April 3, 1995, all phy-
sicians who presently worked 9 a.m. to 3 p.m. would be re-
quired to provide services between the hours of 9 a.m. to 4
p.m. on-premises. The individual doctors had these options:
(1) except the 9 a.m. to 4:30 p.m. hours; (2) accept employ-
ment with HHC at Bellevue; and (3) or resign.
The Implemented Reorganization Plan as it Affects
the Terminations
In his memorandum to HHC entitled ‘‘Future of Bellevue
Department of Psychiatry’’ and dated January 30, 1995, Dr.
Trujillo stated that there was close to 100 percent occupancy
on the in-patient wards and that the department of psychiatry
generated a ‘‘modest but growing profit’’7 Nonetheless, at
the Respondent’s level of funding as of January 27, 1995,
Dr. Trujillo stated that ‘‘senior management’’ sanctioned,
among other things: (1) the closing of a 27-bed adult unit,
for a net redistribution of 25 nursing, 2 physician, and 5
other clinical lines, and (2) a reduction of the census (beds)
of the forensic unit to 15, a net ‘‘savings’’ of 10 nursing,
2 physicians and 2 other clinical lines. Dr. Trujillo explained
that the Respondent sought to close a larger unit so as to
maximize the redistribution potential of the professionals as-
signed to the unit, particularly the nurses. In regard to the
forensic unit, Dr. Trujillo admitted that the Respondent
‘‘might have been thinking about’’ reducing the patient ca-
pacity of the unit so as to eliminate two psychiatric positions,
among others.
With respect to the reorganization plan eventually imple-
mented by the Respondent, Dr. Castaneda testified that he
wrote the memorandum dated April 10, 1995, entitled ‘‘Inpa-
tient Psychiatry Departmental Restructuring,’’ in order to de-
scribe and define the new ‘‘mission’’ of each of the remain-
ing units. The relevant changes, if any, made to the staffing
and function of the in-patient units are discussed below.
12 SOUTH
The plan identifies 12 South as a general unit which ‘‘will
continue to function as previously.’’ The Respondent termi-
nated Drs. Kermani and Steiner and replaced them with Dr.
Buckingham and, on a part-time basis, Dr. Sageman. Drs.
Buckingham and Sageman were transferred from the out-pa-
tient walk-in clinic and consultation-liaison units, respec-
tively. The Respondent did not terminate or otherwise re-
move Drs. Brodie, Ravelo, or Hazzi from the unit.8
At the time he was terminated, Dr. Kermani had been em-
ployed by Bellevue for approximately 25 years, was a full
clinical professor at NYU’s School of Medicine, and had
earned certification by the American Boards of Psychiatry
and Neurology, Child Psychiatry, and Forensic Psychiatry. In
addition, Dr. Kermani had authored approximately 25 aca-
demic articles, including articles on AIDS, as well as a book
on forensic psychiatry.9 For the past 15 years of his employ-
ment by the Respondent, Dr. Kermani served as the unit
chief of Bellevue’s medical-psychiatric unit.10
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893NEW YORK UNIVERSITY MEDICAL CENTER
11 On his performance evaluation dated March 16, 1993, Dr.
Castaneda rated Dr. Kermani ‘‘satisfactory’’ in the so-called unit
chief skill areas. These types of evaluations were the subject of nu-
merous complaints by the Association to the Respondent.
12 Dr. Castaneda stated that the Respondent’s psychiatric residency
program, a premier program nationally, rotates all its psychiatric
residents through 19 North.
13 R. Exh. 33 consists of two sets of different notes allegedly taken
by Bernstein who did not testify. The notes consists of a laundry list
of complaints, some of which attribute views to Dr. Geller and Dr.
Ambrose who also did not attend the meetings.
14 On redirect examination, Dr. Geller testified that the drug he did
not realize was a benzodiazepine was Librium, not Valium, that he
had not prescribed Librium in 15–20 years, and that no one had ever
questioned his prescription, or lack thereof, of either Librium or Val-
ium.
Dr. Wallack testified that the administrators felt the inter-
nists were providing the primary ‘‘leadership’’ in the unit
and that they needed someone who could better coordinate
and/or integrate the medical and psychiatric care of the pa-
tients on the unit. Dr. Wallack stated that he did not put such
concerns in writing but that he had spoken to Dr. Kermani
about his ‘‘goals’’ for the unit. Dr. Wallack stated that Dr.
Castaneda recommended Dr. Buckingham to replace Dr.
Kermani as unit chief, and that Dr. Buckingham had dem-
onstrated expertise in treating medical as well as psychiatric
patients, and was board-certified in family medicine. Dr.
Wallack further noted that Dr. Sagemen had run the con-
sultation-liaison unit at Bellevue for 16 years and that Dr.
Ravelo was bilingual and had fellowship training in geriatric
psychiatry.
With respect to Dr. Kermani’s termination, Dr. Castaneda
testified that the most important factor for him was that Dr.
Kermani had difficulty implementing policies intended to up-
grade the unit. However, while Dr. Castaneda admitted that
Dr. Kermani was a competent scholar he maintained that Dr.
Kermani had difficulty ‘‘mobilizing’’ the team and providing
an efficient treatment program on the unit.
Dr. Trujillo stated that he recalled that Dr. Castaneda and
the other administrators said that Dr. Kermani did not have
the updated clinical skills to run a hyper-acute unit, that he
lacked the ‘‘leadership’’ skills to motivate the staff on the
unit, and that he did not have the capacity to ensure that the
documentation and quality assurance programs would be im-
plemented.11
In regard to Dr. Steiner, Dr. Wallack stated that he had
been a problem when he had worked in the consultation-liai-
son unit and that they had been asked by the directors to get
him out of that unit. Dr. Wallack stated that Dr. Steiner had
similar problems on 12 South and that he was not proficient
in treating patients with heart disease or a need for com-
plicated psychopharmacology. Dr. Castaneda testified that
Dr. Steiner was a competent group therapist and had ‘‘spon-
taneous enthusiasm’’ to initiate group programs. However,
Dr. Castaneda described Dr. Steiner’s clinical judgment as
‘‘sub-optimal,’’ and stated that he regarded him as ‘‘func-
tioning below average.’’ Dr. Trujillo stated that he had re-
viewed 25 records while Dr. Steiner was in the consulta-
tion—liason unit and concluded that Dr. Steiner needed reas-
signment because his clinical skills were not up to caring for
patients who were very ill or had serious disorders.
19 NORTH
Like 12 South, the plan lists 19 North as a general unit
which will continue its previous function. Dr. Geller stated
the traditional function of the unit was to teach residents and
medical students.12 The Respondent terminated Dr. Geller,
promoted Dr. Halamandaris to acting unit chief, and trans-
ferred Dr. Sussman to the unit from the out-patient clinic
listed as the ‘‘Biological Psychiatry-Psychopharmacology
Service’’ on the psychiatric service schedules.
Dr. Geller had been employed by the Respondent at Belle-
vue for approximately 27 years before he was terminated. He
had served as a unit chief since 1974 and was an associate
clinical professor at the Respondent’s School of Medicine.
Dr. Wallack stated that Dr. Geller was loyal, devoted, hard-
working, and one of Respondent’s most popular psychiatrists.
However, Dr. Walllack maintained that residents and staff
complained about Dr. Geller’s performance and that the sen-
ior leadership had became concerned over his quality of
teaching and supervision of residents. Dr. Wallack testified
that they tried to give Dr. Geller ‘‘remedial direction’’ and
had asked him to make changes in the quality of his teach-
ing. Although he described the decision to terminate Dr. Gel-
ler as a difficult one, Dr. Wallack stated that the Respondent
would have probably made a change in the ‘‘leadership’’ of
the unit regardless of the layoffs. Dr. Wallack admitted, how-
ever, that he probably had more feedback from around the
nation about Dr. Geller’s termination than anyone else.
As a result of complaints from the residents and the Direc-
tor of the residency-in-training, Dr. Carol Bernstein, Dr.
Castaneda testified that a meeting with the residents was held
on September 20, 1994, without Dr. Geller to address the
complaints.13 In response to the criticisms, Dr. Geller wrote
a memorandum to Dr. Castaneda and Dr. Bernstein detailing
proposed changes to the manner in which the unit was run.
Dr. Castaneda testified, however, that Dr. Geller was not suc-
cessful in implementing many of his proposals and faulted
Dr. Geller for his alleged inability to ‘‘rein in’’ Dr. Ambrose
or to provide adequate treatment planning. Dr. Castaneda
also stated Dr. Geller’s command of psychopharnacology
was poor and cited an instance in which Dr. Geller allegedly
admitted he did not know valium was classified as a
benzodiazepine.14 Dr. Castaneda did say, however, that Dr.
Geller was extremely devoted and worked harder than most
physicians.
The Respondent introduced into evidence Dr. Castaneda’s
written performance evaluation of Dr. Geller in 1993 and a
clinical evaluation of unit 19 North by Dr. Varas in 1994.
Dr. Castaneda rated Dr Geller ‘‘good’’ or ‘‘outstanding’’ in
9 of 11 categories, including ‘‘outstanding’’ ratings in
diagnostic/assessment skills and teaching skills.
21 NORTH
The plan categorizes 21 North as an ‘‘acute’’ unit which
receives patients from other units, continues the process of
stabilization, and completes the appropriate documentation
for patient disposition to state-or community-bound facilities.
The Respondent terminated, Drs. Portnow and Gray, and re-
placed them with Drs. Weiss and Sadka who were trans-
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894 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 The emergency room is commonly referred to as CPEP-Com-
prehensive Psychiatrist Emergency Services-and is listed as ‘‘intake
and emergency service’’ on the psychiatric service schedules.
16 At the time he was terminated, Dr. Portnow stated that he was
the only psychiatrist at Bellevue who used hypnosis in his clinical
practice.
17 See pp. 80–94. Other psychiatrists listed on the psychiatric serv-
ice schedules who were also named in the article are. Magda Camp-
bell, Robert Cancro, Jeffrey Foster, Marc Galanter, Richard
Oberfield; Elizabeth Spencer, Norman Sussman, and Henry
Weinstein.
18 Drs. Castaneda and Varas testified that the Respondent tracks
length-of-stay (LOS) statistics on a daily basis and that such statis-
tics are a daily source of concern and discussion. In reviewing the
LOS statistics for the last 3 years preceding the terminations and that
Drs. Portnow, King, Steiner, Weiss, Leingang, Halamandaris,
Kermani, Guss, Perry, Geller, and Pumerantz all had high LOS num-
bers. Although Dr. Castaneda stated that many of the doctor’s statis-
tics could not be fairly compared because of the different patient
populatiions involved or because of additional reponsibilities such as
residency training, he pointed out that Weiss had the longest LOS
statistics for the general adults wards, and that 18 South; which was
manned by Drs. Graham and Chan, had low LOS numbers..The Re-
spondent did not adduce any documents containing LOS statistics to
substantiate Dr. Castaneda’s testimony.
19 The Respondent introduced into evidence Dr. Castaneda’s writ-
ten evaluation of unit 21 North which contained a number of criti-
cisms. In a memorandum addressed to Dr. Wallack and dated Au-
gust 15, 1994, Dr. Portnow responded to the evaluation and pointed
out the unfair and prejudicial manner in which it was conducted.
Among other things, Dr. Portnow noted that the evaluation was con-
ducted without notice and at a time when Dr. Gray was on vacation.
20 The Respondent asserts that Dr. Graham was replaced as unit
chief by Dr, Kirschbaum, a former president and current officer of
the Association, as indicative that this decision was not influenced
by association activity. However, the existence of unlawful motiva-
tion is not inherently negated by a showing that only some of a
greater number of union activists are terminated or laid off on a par-
ticular occasion. Schaeff, Inc., 321 NLRB 202 (1996).
ferred from 20 South and the emergency room, respec-
tively.15
Dr. Portnow has practiced psychiatry since 1961 and had
been employed by the Respondent at Bellevue for 26 years
before he was terminated. Dr. Portnow served as unit chief
at Bellevue for 21 years, including a 3-year stint as unit chief
of the forensic unit. Dr. Portnow was also a full clinical pro-
fessor at the Respondent’s School of Medicine, and had writ-
ten or coauthored 10 academic articles and delivered 95 lec-
tures on various topics in the field of psychiatry. He is cer-
tified by the American Boards of Psychiatry and Neurology
as well as Forensic Psychiatry and has expertise in psycho-
analysis, psychopharmacology, brief pschotherapy, and hyp-
nosis.16 In the May 20, 1996 edition of New York magazine,
Dr. Portnow was named one of: The Best Doctors in New
York.17
Dr. Wallack stated that 21 North had a long history of pa-
tients with excessively long lengths of stay and that Dr.
Portnow was felt to be a weak manager. Dr. Wallack further
stated that 21 North was being converted to a community-
bound unit, one of the most difficult tasks, and that Dr.
Weiss had a demonstrated ability to get people through treat-
ment and into the community faster than the other unit
chiefs.18 Dr. Wallack maintained that Dr. Weiss was ‘‘far
and above’’ more capable of running a community-bound
unit than anyone else.
Although he admitted Dr. Portnow has plenty of expertise
and experience, Dr. Castaneda maintained that his lack of
‘‘leadership’’ was ‘‘overwhelming.’’ Dr. Castaneda stated
that Dr. Portnow had ‘‘failed’’ at implementing therapeutic
programs and that there had been complaints concerning the
manner in which the unit had been run. During his evalua-
tion of the unit, Dr. Castaneda testified that Dr. Portnow fre-
quently was not present, that the unit lacked structure, that
the staff was not instructed on how to treat patients and its
participation was erratic, and that patients lacked a clear dis-
position19
18 SOUTH
The plan states that 18 South has become an ‘‘intensive
treatment’’ unit with a target LOS of 14 days. The plan also
provides: ‘‘Medical staff will be expected to complete a thor-
ough medical and psychiatric assessment, initiate prompt
psychotherapy and other therapeytic modalities as directed,
and make a prompt determination regarding likely disposi-
tion.’’ The Respondent terminated Drs. Graham and Chau
and reassigned Drs. Kirschbaum, Harnes, Stockfish, and
Welner to this unit.20 Dr. Castaneda testified that Drs.
Stockfish and Weiner were temporarily loaned to 18 South
to assist with its increased workload.
Prior to his termination, Dr. Graham had been employed
by the Respondent at Bellevue for 27 years, 19 of which he
served as a unit chief. At the time of his termination, Dr.
Graham was an associate clinical professor at NYU’s School
of Medicine and was certified by the American Board of
Psychiatry and Neurology.
Dr. Wallack testified that Dr. Graham was a problem in
terms of psychiatric, managerial, and interpersonal abilities.
Dr. Wallack stated that there were concerns that Dr. Graham
had precipitously discharged patients, inappropriately referred
patients to the emergency room, failed to complete discharge
summaries leading to rejection of patients, and had allowed
the legal status of patients on the ward to lapse.
Dr. Wallack related that the Respondent received numer-
ous written complaints about Dr. Graham and while they
tried to work with him, he responded in ongoing ‘‘defiance
and oppositional behavior.’’ Dr. Wallack explained that Dr.
Graham failed to cooperate with their attempts to improve
his clinical care, length of stay, work with other disciplines
or to provide quality assessment, and management programs.
As a result Dr. Wallack stated that Dr. Castaneda held re-
peated counseling sessions with Dr. Graham, culminating in
a meeting on the day before Christmas during which Dr.
Wallack discussed Dr. Graham’s behavior, attitude, and lack
of leadership concerning the treatment and discharge plan-
ning of his patients. After the meeting, Dr. Wallack stated
that he wrote a memorandum to Dr. Graham and that he
‘‘would have’’ caused it to be distributed to him. However,
Dr. Graham testified that he never saw nor received such a
memorandum. While Dr. Wallack admitted that he did not
believe that Dr. Graham would be able to make the
‘‘changes’’ needed on the unit, he did not recall sending fur-
ther written warnings to Dr. Graham.
The testimony of Dr. Castaneda regarding Dr. Graham was
similar to Dr. Wallack’s. Dr. Castaneda testified that Dr.
Graham had severely impaired leadership skills and difficulty
assimilating new information. Dr. Castaneda stated that Dr.
Graham was unable to consider his shortcomings, and that he
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895NEW YORK UNIVERSITY MEDICAL CENTER
21 The Respondent also introduced a three-page performance eval-
uation of Dr. Graham by Dr. Castaneda which was dated March 16,
1993, on p. 1. However on p. 1, in the ‘‘organizational and leader-
ship skills’’ category, there is a faint checkmark in the ‘‘good’’ sec-
tion and a darker checkmark in the ‘‘satisfactory’’ section. On p. 2
of the evaluation, there are written comments by Dr. Castaneda and
the page is signed solely by him.
The General Counsel also introduced a copy of Dr. Graham’s
evaluation into evidence. The General Counsel’s copy showed a
clear checkmark in the corresponding ‘‘good’’ section and what ap-
pears to be a checkmark that was scribbled over in the ‘‘satisfac-
tory’’ section. In addition, the General Counsel’s copy contained no
handwriting at all on the second page. Dr. Graham further stated that
Dr. Castaneda said he deserved a better mark and scratched out the
checkmark in the ‘‘satisfactory’’ section and placed a checkmark in
the ‘‘good’’ section.
The second page of the evaluations of Drs. Geller, Portnow, and
Kermani all contain Dr. Castaneda’s written comments and only his
signature. Drs. Geller and Portnow both testified that they did not
recall seeing the second page of their evaluations.
With respect to Dr. Kermani’s evaluation Dr. Castaneda stated that
he filled the second page a couple of days after he initially showed
the evaluation to Dr. Kermani but did not recall whether he later
showed him the page with his handwritten comments on it.
22 The record shows that the suicide of Kermani’s patient occurred
on or about May 15, 1993, and that Case 2–CA–26624 was filed by
the Association on June 17, 1993. (G.C. Exh. 5, R. Exh. 65.)
23 While Dr. Trujillo stated that he had little contact with Dr.
Mahon he said he was not surprised by Dr. Castaneda’s comments
about her. Dr. Varas stated that, Dr. Mahon was not ‘‘appropriately
knowledgeable’’ about the peer review process.
24 However, according to the testimony of Dr. Varas, Drs. Gruns,
Currier, Ravelo, Rubin, Welner, Bardey, Gosselin, Guss, Munoz-
Silva, Jordan, and Halamandaris were all hired after them and there-
fore had 5 or less years of experience at Bellevue.
was given to ‘‘grandstanding . . . speaking to some audience
instead of ever engaging a discussion of the issues.’’ Dr.
Castaneda alleged that 18 South functioned poorly, had the
most complaints from other agencies, and that Dr. Graham’s
interactions with the directors of other disciplines was ex-
tremely negative.
The Respondent introduced into evidence approximately a
dozen memorandum purporting to address performance—re-
lated problems of Dr. Graham. All but two of the memo-
randa were dated between June 16, and December 27, 1993,
and concerned alleged deficiencies of Dr. Graham with re-
spect to the completion of medical records and charts, inad-
equate participation in LOS, peer review and clinical discus-
sions, nonattendance, and inappropriate discharges and refer-
rals to admission. In the memorandum dated December 27,
1993, and addressed to Dr. Graham, Dr. Wallack expressed
concern over Dr. Graham’s ‘‘consistently oppositional
stance’’ stating that he was ‘‘invariably challenging and ar-
gumentative-choosing diatribe over cooperation.’’ After enu-
merating Dr. Graham’s alleged deficiencies, Dr. Wallack di-
rected Dr. Graham to ‘‘immediately take steps to correct
[the] deficiencies.’’21
Prior to 1993, Dr. Graham recalled receiving one discipli-
nary memorandum and that involved one incident regarding
his absence from Bellevue. Dr. Graham testified that he did
not see the memoranda dated June 16, July 13, and August
6, until he met with Dr. Castaneda on September 22. In the
memoranda dated October 4 and 5, 1993, and addressed to
Drs. Trujillo and Castaneda, respectively, Dr. Graham indi-
cated that he thought he was being harassed by the Respond-
ent because of his position with the Association and his in-
volvement with the pending National Labor Relations Board
(NLRB) charge filed by the Association on Dr. Kermani’s
behalf. In a memorandum dated October 20, Dr. Graham fur-
ther stated, ‘‘This is the first time I learned that you had
long-standing difficulties in getting me to implement vir-
tually all administrative initiatives. Your criticisms in no way
lead me to believe that a campaign of harassment in my case
is not under way.’’ Dr. Graham explained that his personnel
file was essentially empty until June 1993, about the time
when the NLRB charge was filed.22 Dr. Graham stated that
he never received Dr. Wallack’s memorandum dated Decem-
ber 27 containing the numerous criticisms of his perform-
ance. After he met with Drs. Wallack, Castaneda, and Varas
on December 23, Dr. Graham sent Dr. Wallack a memoran-
dum requesting documentation of the criticisms made against
him, but never received a response to his request.
On December 29, 1993, during a meeting with Drs. Tru-
jillo and Varas, Dr. Graham stated that Dr. Trujillo told him
that he just had to ‘‘amend a few things,’’ that no one was
looking for his job.
20 SOUTH
The Respondent closed this unit, terminated Dr. Mahon,
and reassigned Dr. Weiss to 21 North.
Dr. Mahon has been practicing psychiatry since 1978 and
was employed by the Respondent at Bellevue for 8 years. At
the time of her termination, she was an assistant clinical pro-
fessor at the Respondent’s School of Medicine. She is board-
certified in psychiatry and neurology.
Dr. Wallack testified that when the Respondent looked at
the reductions in nursing, social work, and the psychiatrists,
they ‘‘obviously’’ tried to preserve as many beds as possible
and decided to close 20 South, a relatively small 19-bed unit.
Dr. Wallack said that Dr. Mahon had generated concerns by
the other disciplines in terms of her attitude and performance
and that there had been difficulties in getting her to cooper-
ate with ‘‘changes in the systems.’’ Dr. Wallack stated that
although the Respondent considered Dr. Mahon an adequate
performer, it had better people to choose for retention.
Dr. Castaneda stated that Dr. Weiss and persons from
other disciplines complained that Dr. Mahon was difficult to
work with, that she would not listen to other people, and that
she was not a ‘‘team player.’’ Although intelligent and
knowledgeable, Dr. Castaneda stated Dr. Mahon was not
even regarded as an average attending psychiatrist.23 How-
ever, the Respondent introduced into evidence Dr. Mahon’s
1993 performance evaluation. She was judged to be ‘‘good’’
or ‘‘outstanding’’ in six of eight categories including the area
entitled ‘‘Working Relationships with Staff.’’
In sum, Dr. Castaneda testified that all the psychiatrists
who were terminated were less competent than their col-
leagues relative to the duties required by the reorganization
of the department. Dr. Castaneda explained that their ‘‘level
of competence relative to the newly assigned duties, respon-
sibilities for each position, was below the availablility of tal-
ent and skill and experience in the department.’’24
The Respondent acknowledges that after the alleged
discriminatees were terminated, a number of psychiatrists
employed by the Respondent at Bellevue have left the hos-
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896 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
25 Dr. Wallack testified that Drs. Welner, Rubin, Pommerantz,
Hames, and Mitchell are no longer employed at Bellevue.
26 Although Bellevue Hospital Center (HHC) appears on both ad-
vertisements, applicants are directed to send their resumes to ‘‘Dr.
Joel Wallack, Deputy Director, Department of Psychiatry.’’ (G.C.
Exh. 11.)
27 Dr. Kermani testified that each doctor was responsible for his
own patients, met with his team separately, and that there were su-
pervisors from the other disciplines present at the team meetings.
pital and that the Respondent has not offered to rehire any
of the alleged discriminatees.25
Indeed, Dr. Kermani testified that he found advertisements
for psychiatrists positions at Bellevue in the New York
Times on July 30, and December 3, 1995. The advertisement
placed on July 30 lists three available positions (1) chief of
adolescent psychiatry in-patient services; (2) child and ado-
lescent psychiatrist, and (3) adult psychiatrist for new out-
patient service. The advertisement placed on December 3
lists the following ‘‘attending psychiatrist’’ positions as
available: (1) adult consultation and liaison; (2) pediatric
consultation and liaison, (3) forensic mental health acute
care, (4) new and innovative day treatment program, (5)
adult out-patient mental health division; and (6) comprehen-
sive psychiatric emergency service.26
The Job Duties and Responsibilities of Unit Chiefs
Four of the alleged discriminatees, Drs. Kermani, Graham,
Geller, and Portnow held the title of in-patient unit chiefs for
which Drs. Kermani, Graham and Geller received a salary
supplement of $1500 for performing these duties. Dr.
Portnow testified that he had been promised $2500 but never
received it. As regards the duties and responsibilities of unit
chief the General Counsel’s witnesses testified as follows.
Dr. Kermani denied unequivocally that he had the author-
ity to hire, transfer, suspend, lay off, recall, discharge, dis-
cipline, or promote employees or to adjust their grievances.
However, he stated that on numerous occasions Dr.
Castaneda had ‘‘directed him to tell certain doctors to im-
prove aspects of their performance.’’ On one occasion, Dr.
Kermani related that Dr. Castaneda called him into his office
and ordered him to take notes as Dr. Castaneda ‘‘counseled’’
the doctor and pursuant to Dr. Castaneda’s direction, Dr.
Kermani issued the counseling memorandum under his signa-
ture to the doctor.
On reporting to his ward, Dr. Kermani stated that he
would review the admissions book listing the patients admit-
ted overnight and the doctor to whom the patient had been
assigned. After examining his new patients and writing notes
on their medical charts, Dr. Kermani would make rounds to
visit and reexamine his old patients. Depending on the par-
ticular day. Dr. Kermani related that he would then attend ei-
ther a team meeting, a staff meeting, a ‘‘supervisory’’ meet-
ing, and/or a unit chief meeting.
Dr. Kermani testified that ‘‘team’’ meetings were held
once a week, were attended by a social worker, an activity
therapist, a psychologist, etc., and concerned solely his pa-
tients.27 Dr. Kermani stated that the purpose of the meetings
was to plan a comprehensive approach to his patient’s needs
and their disposition. In regard to the so-called ‘‘super-
visory’’ meetings, Dr. Kermani stated that such meetings
were held each week with Dr. Castaneda on an individual as
well as a group (doctors only) basis. Dr. Kermani further
stated that Dr. Varas visited 12 South once a week and that
Drs. Wallack and Trujillo also visited the ward occasionally.
Dr. Kermani indicated that each month the unit chiefs met
with Dr. Trujillo, Castaneda, Wallack, Weiss, and Levy who
would instruct them about hospital policies and procedures.
Dr. Geller testified that usually changes in policies such as
medications or quality assurance policies were discussed in
unit chief meetings as well as upcoming reviews or inspec-
tions. Dr. Geller noted that speakers from nursing, social
service, etc., would appear and discuss various issues or
problems. Dr. Geller stated that the unit chiefs were expected
to convey such information to their colleagues so they under-
stood the new policies but that the unit chiefs did not have
the authority to make sure such policies were followed by
others.
Dr. Kermani testified that he did not have responsibility
for any aspect of another doctor’s ethical obligation to report
any conduct which might harm a patient. With respect to the
other ward personnel such as nurses and social workers, Dr.
Kermani stated that each discipline bore different responsibil-
ities toward patients and had its own set of supervisors on
the ward.
Dr. Geller related that he and the other attending psychia-
trist worked independently but that he would speak to the
other doctor ‘‘as a colleague’’ if he disagreed with his treat-
ment of a patient. If disputes arose with or among the other
disciplines, Dr. Geller stated that he would try to mediate a
solution and if unsuccessful, would report the matter to the
supervisors of the respective disciplines or to Dr. Castaneda.
Dr. Graham testified that he had a ‘‘moral’’ task as a unit
chief to have a collegial atmosphere, to have people working
together well, and to see that the patients were content. Dr.
Graham stated that each psychiatrist made individual deter-
minations with respect to the treatment of their own patients
and that problems which arose with other ward personnel
were referred to the supervisors of the respective discipline
if the matter could not otherwise be resolved. Dr. Graham
denied having the authority to discipline employees.
Dr. Portnow testified that he and the other doctor on the
ward, Dr. Michael Gray, practiced separately and that he
never ‘‘interfered’’ with Dr. Gray unless Dr. Castaneda
brought something to his attention. For example, Dr. Portnow
stated that he was asked to figure out a way to improve Dr.
Gray’s handwriting. In another instance, Dr. Portnow stated
that he, Dr. Halamandaris and Dr. Gray sat down together
and ‘‘brainstormed’’ over possible ways to lower the latter’s
LOS statistics.
Concerning patient assignments, on 12 South Dr. Kermani
stated that a nurse or clerk would initially assign patients to
each doctor based on a predetermined order agreed to by
him, Dr. Steiner and Dr. Ravelo that reflected the proportion
of hours they worked at the hospital. Dr. Kermani stated that
this resulted in a few less patients being assigned to him
since he worked only until 3 p.m. as opposed to Drs. Steiner
and Ravelo who worked until 4:30 p.m. Dr. Kermani further
stated that they sometimes assumed the care of patients ac-
cording to their professional interests or abilities by ‘‘gentle-
men’s agreement’’ and that he did not have authority to uni-
laterally decide the manner in which patients were to be as-
signed.
In much the same manner, Dr. Portnow testified that the
adult patients on 21 North were assigned by the nursing staff
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897NEW YORK UNIVERSITY MEDICAL CENTER
and that he and Dr. Gray were assigned an equal number of
patients. Dr. Portnow expressly denied that he had the au-
thority to modify the patient assignments. Dr. Portnow relat-
ed that at one time, he denied a doctor’s request to switch
patients because she did not want to treat patients with a par-
ticular type of personality disorder. Moreover, at Dr. Tru-
jillo’s suggestion, Dr. Portnow stated that he spoke to a psy-
chiatric resident, Dr. Peter Goetz, about the possibility of
being assigned as a resident to 21 North but that he did not
guarantee him postresidency employment because he did not
have such authority.
Dr. Graham testified that the case assignments on 18
South were routine, that patients were assigned according to
a set quota. Dr. Graham stated that he did, however, decide
to have Chinese-speaking patients assigned to Dr. Chan be-
cause he spoke Chinese and that he could have chosen to
have more input in patient assignments.
Although not a unit chief, Dr. Mahon testified that she and
Dr. Weiss discussed the manner in which patients were to be
assigned on 20 South and decided that they would let the
head nurse make such assignments on an equal basis between
them.
With respect to the hiring and transfer of employees, Dr.
Kermani stated that he did not interview any of the doctors
that were assigned to his ward before they were hired. He
recalled that Dr. Castaneda merely introduced Dr. Ravelo to
him shortly before she began working on 12 South and that
he was initially told by Dr. Steiner himself that he was being
transferred to the ward.
Dr. Portnow stated that he met all the doctors who worked
on his ward after they had been hired, with the possible ex-
ception of Dr. Gray who Dr. Portnow was unsure about.
After he began working on 19 North, Dr. Geller testified
that only one additional doctor, Dr. Halamandaris, was as-
signed to the ward. Dr. Geller stated that he was informed
by Dr. Trujillo or Dr. Castaneda that a favorable opportunity
has arisen, that Dr. Halamandaris and his young adult pro-
gram might be coming to 18 North. Dr. Geller said he hap-
pily responded that that was nice but that he never thought
he had the power to say no.
Dr. Graham testified that he and Dr. Sunnen spoke to Dr.
Chan for 15–20 minutes after he had been interviewed by the
assistant director. Thereafter, Dr. Graham stated that he
called upstairs and said that Dr. Chan seemed fine. Dr.
Graham stated that his meeting with Dr. Chan was a matter
of courtesy and denied that he had hired Dr. Chan, noting
that he did not review any documentation or take part in dis-
cussions of Dr. Chan’s salary.
The record shows that in or about March 1993, the Re-
spondent directed Drs. Kermani, Graham, Portnow, and Gel-
ler to submit evaluations of the psychiatrists on their respec-
tive wards. However, no evidence was adduced to show
whether the evaluations had any effect on the job status, sal-
aries, or other working conditions of the psychiatrists.
The General Counsel asserts that according to the testi-
mony of its witnesses the integrity of the evaluation process
is highly questionable. Dr. Kermani testified that Dr.
Castaneda directed him to give the psychiatrists low grades
while Dr. Graham stated that Drs. Castaneda and Wallack
told him to grade others in the satisfactory range. Dr.
Portnow stated that he prepared an evaluation for Dr. Gray
which Dr. Castaneda discarded and made his own ‘‘phan-
tom’’ evaluation of Dr. Gray.
In order to schedule time off, Dr. Kermani testified that
the doctor making such a request had to assure Terri Lockett
in the personnel department that the ward was covered,
meaning at least two physicians would be on duty during the
doctor’s absence. Once Lockett approved the request, Dr.
Kermani stated that the senior doctor, i.e., the unit chief had
to sign the request which would then be submitted to Dr.
Trujillo who could refuse the request, which Dr. Kermani
stated occurred on many occasions. As a matter of courtesy,
Dr. Kermani stated that he and his colleagues would notify
each other when they were going to be absent or late. With
regard to public holidays, Dr. Kermani stated that Dr. Tru-
jillo’s office was solely responsible for arranging coverage
for the units and that a list of ‘‘moonlighters’’ was main-
tained for that purpose.
Dr. Graham agreed that unit chiefs were responsible for
ensuring appropriate and adequate coverage on their units.
Dr. Graham explained that the doctors on his ward coordi-
nated their vacation schedules amongst themselves, though
he said that this was his choice. Dr. Graham stated that cov-
erage for public holidays was handled by the administration
and that he and the other doctors were available on-call if
needed.
Drs. Geller and Portnow testified that they and the other
doctors on their wards would work out their vacation sched-
ules among themselves to ensure that they did not request
time off at the same time but that they still had to sign the
leave requests and then submit them to Dr. Castaneda or Dr.
Wallack for approval.
However, the testimony of the Respondent’s witnesses is
in significant respects contrary and inconsistent with that of
the General Counsel’s witnesses.
Dr. Castaneda, the director of inpatient services since
1992, testified that he is responsible for about 360 beds.
There are 13 psychiatric units, each with an average of 25
beds. The number of doctors in each unit varies from two
to six or more. There is a total of about 50 doctors. In addi-
tion, there are nurses, social workers, therapists, clerks, main-
tenance workers, and cleaners working in each unit. With re-
gard to the 50 doctors, Dr. Castaneda stated that he has only
the unit chiefs to help him supervise them. While the other
workers have a separate line of supervision, the unit chief is
responsible for overseeing and supervising the work of all
those workers to make sure the unit is functioning properly.
In other words, the unit chief is responsible for the unit.
Dr. Castaneda testified that he was a unit chief for about
5 years before he was promoted to his present position. Dr.
Castaneda related that when he was a unit chief he effec-
tively recommended the discharge of a doctor and other per-
sonnel. He said the unit chiefs have authority over everybody
who works in the unit, could select and effectively rec-
ommend doctors for hiring, and prevent the hiring of other
personnel if they disapproved of them. Each unit chief did
not have greater authority than any other unit chief.
On May 13, 1993, Dr. Kermani issued a warning notice
to one of the doctors in his unit. It concluded by saying that
if the doctor failed to perform properly, ‘‘then necessary ac-
tion will be taken against you.’’ He had written a critical
memorandum to the same doctor on May 11, 1993.
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898 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Dr. Wallack testified that unit chiefs participate in the hir-
ing process, they interview candidates before a decision is
made, and he gives significant weight to their recommenda-
tions. Dr. Graham and Dr. Portnow each wrote a memoran-
dum which shows their involvement in the hiring process.
Dr. Portnow located a prospective employee.
Dr. Castaneda testified that the unit chief would determine
the philosophy of treatment prevailing on the unit. This in-
cluded not only supervising the doctors but the integration of
all the disciplines. The unit chief has discretion to assign
cases according to the capabilities of the doctors and usually
has less cases because of his other responsibilities. As a rule,
the cases should not be distributed by rote.
Dr. Castaneda has weekly meetings with unit chiefs to an-
nounce new information about policies, practices, and regula-
tions. The unit chiefs are responsible for disseminating infor-
mation and implementing instructions in their units with re-
gard to all staff, not just doctors. It is the responsibility of
the unit chief to make sure that the legal status of all patients
is correct. Dr. Graham, as unit chief, wrote a lengthy memo-
randum to a state official on June 9, 1993, concerning the
discharge of a patient. He stated, ‘‘I, as Unit Chief met with
Ms. Irene Freedberg, Associate Director of Social Work, Ms.
Wilma Shochat, Associate Director of Social Work, and . . .
treating doctor, Dr. Gerard Sunnen.’’ He took responsibility
for this matter and directed the treating doctor and other per-
sonnel.
On October 12, 1992, Dr. Castaneda sent a detailed
memorandum to all unit chiefs concerning upgrading of inpa-
tient programs. On October 19, 1992, Dr. Kermani responded
in detail and stated there was a need to improve staffing. On
May 6, 1993, Dr. Kermani gave a further report on what he
had done in his unit. He also stated, ‘‘I have made myself
available 24 hours a day, seven days a week.’’ A detailed
memorandum from Dr. Portnow to Dr. Castaneda describes
new programs he wanted to implement with staffing and
space needs.
The unit chiefs are responsible for the charting (prepara-
tion and maintenance of proper medical records) in the unit.
Documents in evidence show the department expected the
unit chiefs to make sure the doctors in their units performed
proper charting. Similarly, the unit chiefs were expected to
see that doctors in their unit did proper documentation in
connection with restraint and seclusion episodes.
The unit chiefs are responsible for scheduling vacation for
doctors and making sure they worked their scheduled hours.
As Dr. Castaneda testified, ‘‘I have 50 people . . . I’m not
. . . granting each one of them their vacations.’’ The form
used for vacations requires the unit chief’s signature and it
is the unit chief’s responsibility to make sure the unit is ade-
quately staffed. Similarly, the unit chief is responsible for
scheduling days off. Documents show that Dr. Kermani ad-
justed the hours of the doctors in his unit and was expected
to make sure they worked their scheduled hours. Dr.
Graham, as unit chief, responded to a memorandum concern-
ing the scheduling of days off.
The unit chiefs did written evaluations of the doctors
working in their units. When Dr. Graham wrote to Dr. Tru-
jillo complaining about the evaluation system, Dr. Trujillo
responded to Dr. Graham, as unit chief, showing that unit
chiefs were responsible for the evaluations and that their
input would be considered.
According to the Respondent the evidence shows that Drs.
Graham and Kermani wrote a number of memorandums
demonstrating their supervisory or managerial status. In one,
Dr. Graham referred to ‘‘my staff’’ and discusses the phys-
ical needs of the unit. He wrote about a petition by patients
for supervised smoking privileges. He requested a status re-
port on a leak. Dr. Kermani wrote about a policy matter, lack
of patient transport, and the need for a unit secretary.
Dr. Castaneda testified concerning the responsibility of the
unit chief to oversee patient care matters and investigate and
report on any problems. The unit chief attends a number of
meetings, and goes on rounds. ‘‘He is the only conduit of
information between the director and the attendings on the
unit.’’ Unit chiefs attend quality assurance meetings and are
expected to make recommendations to improve patient care.
The unit chief is responsible for coordinating the teaching ac-
tivities on his unit. He assigns students to the doctor he feels
is best qualified to provide education and supervision.
Dr. Geller testified that he had no responsibility to super-
vise the other doctor in his unit. He testified that he was very
successful in mediating disputes in his unit. The Respondent
asserts that this shows that he was responsible for resolving
disputes whether he resolved them by mediation or a more
authoritarian process. He attended unit chief meetings, com-
municated the information to the other doctors in his unit, re-
viewed charts, assigned vacations, and approved requests for
time off.
Dr. Portnow testified that unit 21 North had three individ-
ual practices and appeared to take no responsibility for the
other two. He admitted that he attended unit chief meetings
and communicated the information to other doctors. He ad-
mitted doing a written evaluation of another doctor and sign-
ing an approval form in connection with time off. He testi-
fied that all the supervisory responsibility belonged to Dr.
Castaneda and Dr. Levy. He said he didn’t do 90 percent of
the duties listed in the job description for unit chief.
Dr. Castaneda testified that there was a job description in
existence for many years for the unit chief position and that
it was kept in the policy manual at the nursing station in
each unit. All four alleged discriminatees denied that they
had ever seen a job description to their position even though
one alledgedly existed and was kept in the policy manual in
their unit. Dr. Graham testified that when Dr. Trujillo came
to the department there was an aborted effort to draw up a
job description for the inpatient unit chief but ‘‘nothing ever
came of it because it would have had to be agreed to by the
unit chiefs and it was never finished.’’ Dr. Graham related
that Dr. Portnow was appointed to head a committee to do
so. Dr. Castaneda pointed out that he had not made them unit
chiefs but had found them in place when he was promoted
to director.
Credibility
In determining the credibility of the respective witnesses
here, I have carefully considered the record evidence and
have based my findings on my observation of the demeanor
of the witnesses, the weight of the respective evidence, estab-
lished and admitted facts, inherent probabilities and reason-
able inferences which may be drawn from the record as a
whole. Gold Standard Enterprises, 234 NLRB 618 (1972); V
& W Castings, 231 NLRB 912 (1977); Northridge Knitting
Mills, 223 NLRB 230 (1976). I tend to credit the account of
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899NEW YORK UNIVERSITY MEDICAL CENTER
28 American Freightways Co., 124 NLRB 146 (1959).
what occurred here as given by the General Counsel’s wit-
nesses. Their testimony was given in a believable and forth-
right manner, was generally consistent and corroborative of
each other, and with other evidence present in the record. In
contrast the testimony of the Respondent’s witnesses, was in-
consistent at times and I especially found the testimony and
the demeanor of Dr. Trujillo to be less than credible. In fact
it should also be noted that Dr. Trujillo’s testimony even
supports that of the General Counsel’s witnesses in some in-
stances.
C. Analysis and Conclusions
The complaint alleges that the Respondent threatened its
employees with cutbacks, layoffs, and other consequences if
they continued their protest activities in violation of Section
8(a)(1) of the Act. The Respondent denies this allegation.
Section 8(a)(1) of the Act provides that it shall be an un-
fair labor practice for an employer to interfere with, restrain,
or coerce employees in the exercise of their statutory right
to engage in, or refrain from engaging in concerted activity.
It is well settled that the test of interference, restraint, and
coercion under Section 8(a)(1) of the Act does not turn on
the employer’s motive or on whether the coercion succeeded
or failed. The test is whether the employer engaged in con-
duct which, it may reasonably be said, tends to interfere with
the free exercise of employee rights under the Act.28 This
provision is modified, however, by Section 8(c) of the Act,
which defines and implements the first amendment right of
free speech in the context of labor relations. NLRB v. Four
Winds Industries, 53 F.2d 75 (9th Cir. 1969). Section 8(c)
permits employers to express ‘‘any views, arguments or
opinions’’ concerning union representation without running
afoul of Section 8(a)(1) of the Act if the expression ‘‘con-
tains no threat of reprisal or force or promise of benefit.’’
NLRB v. Marine World USA, 611 F.2d 1274 (9th Cir. 1980);
NLRB v. Raytheon Co., 445 F.2d 272 (9th Cir. 1971). The
employer is also free to express opinion or make predictions,
reasonably based in fact, about the possible effects of union-
ization on its company. NLRB v. Gissel Packing Co., 395
U.S. 575, 618 (1969). In determining whether questioned
statements are permissible under Section 8(c), the statements
must be considered in the context in which they were made
and in view of the totality of the employer’s conduct. NLRB
v. Marine World USA, supra, NLRB v. Lenkurt Electric Co.,
438 F.2d 1102 (9th Cir. 1971). Also recognized must be the
economically dependent relationship of the employees to the
employer and the necessary tendency of the former, because
of the relationship, to pick up intended implications of the
latter that might be more readily dismissed by a more disin-
terested ear. NLRB v. Gissel Packing Co., supra at 617;
NLRB v. Marine World USA, supra.
The undisputed evidence shows that the Respondent con-
ducted three separate staff meetings with the psychiatrists in
which Dr. Trujillo and/or Brier announced that the psychia-
trist would no longer be able to work on-premises at Belle-
vue from 9 a.m. to 3 p.m. without a salary reduction or addi-
tional work hours, because of budgetary problems. After the
initial meeting on September 30, 1994, the Respondent re-
quested that the psychiatrists return a memorandum selecting
either a salary reduction or additional work hours.
The record shows that Drs. Graham, Portnow, Mahon and
Kermani, the selected representatives of the Association’s
Executive Board, all spoke out forcefully at these meetings
against the Respondent’s announced change in policy. The
evidence further shows that the Association met and dis-
cussed the issue, advised its members to return the memoran-
dum ‘‘under protest,’’ which many did, and later submitted
a proposal on the 9 a.m. to 3 p.m. issue which Dr. Trujillo
rejected.
Thus, the evidence clearly establishes that the Association
and its members psychiatrists engaged in a series of con-
certed actions in protest against the Respondent’s announced
changes in their working hours and that the Respondent was
aware of such activities.
In early October 1994, the Respondent conducted the sec-
ond of the above-described ‘‘9 to 3’’ staff meetings in the
Rose Room at Bellevue. At this meeting, Dr. Mahon strongly
opposed the change indicating that she had been hired to
work from 9 a.m. to 3 p.m. at a lower salary and questioned
why these doctors were being penalized, and why there was
a need for so many administrators. After the meeting, while
Dr. Portnow was waiting for an elevator, Dr. Trujillo re-
marked that Dr. Mahon’s behavior was ‘‘disgraceful, dis-
loyal, undesirable and that it would lead to ‘trouble’ for the
attendings.’’
Dr. Portnow testified that the same day or the day after,
while Dr. Portnow was in Dr. Trujillo’s office, Dr. Trujillo
told him that the Association would be ‘‘punished’’ for its
position on the 9 a.m. to 3 p.m. issue, that it was a political
issue and that they should have taken the offer of renegotiat-
ing their worktime to eight-tenths. When Dr. Trujillo was
asked whether he made the foregoing statement to Dr.
Portnow, Dr. Trujillo responded that he often told the
‘‘gurus’’ that if they did not do something ‘‘constructive’’ to
deal with the 9 a.m. to 3 p.m. issue, there would be further
budgetory problems, that the problem would just get worse
and effect everybody. Dr. Trujillo admitted that he may have
told Dr. Weiss, as well as other ‘‘gurus’’ that ‘‘it was not
a good idea, in a budgeting shortness to have an open issue
like the 9:00 to 3:00. It makes you very visible for the chop-
ping block.’’
The record is replete with evidence of statements of ani-
mus by Dr. Trujillo toward the Association and the Associa-
tion’s executive board and would lend credence to the view
that Dr. Trujillo would not hesitate to tell the Association
that it would be ‘‘punished’’ for opposing a change in the
9 a.m. to 3 p.m. work schedules. The Respondent’s conten-
tions that Dr. Trujillo was simply trying to warn the psychia-
trists that a failure to resolve the 9 a.m. to 3 p.m. issue
would cause more budgeting problems and possibly layoffs
is irrelevant. However, given Dr. Trujillo’s demonstrated his-
tory of animus toward the Association and its officers, no
reasonable person would have believed that Dr. Trujillo’s
pronouncements were anything but a threat. This remains
true even if one credits Dr. Trujillo’s statement that a failure
to resolve the 9 to 3 issue makes the psychiatrists ‘‘very visi-
ble for the chopping block.’’ From all of the above, I find
and conclude that the Respondent violated Section 8(a)(1) of
the Act by threatening to punish employees implicitly with
layoff, cutbacks, and other consequences if they continued
their protected concerted protests, since it tended to restrain
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900 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
29 An employer simply cannot present a legitimate reason for its
actions but must persuade by a perponderance of the evidence that
the same action would have taken place even in the absence of the
protected conduct T & J Trucking Co., 316 NLRB 771 (1995); GSX
Corp. v. NLRB, 918 F.2d 1351 (8th Cir. 1990).
30 At the meetings when the 9 to 3 issue was discussed between
management and the psychiatrists, the executive board members of
the Association strongly voiced their opposition to the change. The
alleged discriminatees were all members of the Association’s execu-
tive board.
31 Office of Workers Compenstion Programs v. Greenwald
Colleries, supra; Manno Electric, supra; Wright Line, supra.
and coerce employees in the exercise of their Section 7
rights.
1. The discharges
The complaint alleges that the Respondent violated Section
8(a)(1) and (3) of the Act by discharging employees Drs.
Graham, Kermani, Geller, Steiner, Portnow, and Mahon be-
cause they joined, supported, or assisted the Association and
engaged in concerted activities concerning terms and condi-
tions of employment or other mutual aid or protection, and
in order to discourage employees from engaging in such ac-
tivities or other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection. The Re-
spondent denies these allegation.
Section 8(a)(3) of the Act make it an unfair labor practice
for an employer to discriminate ‘‘in regard to hire or tenure
of employment or any term or condition of employment to
encourage or discourage membership in any labor organiza-
tion.’’ Under the test announced in Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982), and approved by the Supreme Court
in NLRB v. Transportation Management Corp., 462 U.S. 393
(1983), a discharge is violative of the Act only if the em-
ployee’s protected conduct is a substantial or motivating fac-
tor for the employer’s action. If the General Counsel carries
his burden of persuading that the employer acted out of
antiunion animus, the burden of persuasion then shifts to the
employer to prove its affirmative defense that it would have
taken the same action even if the employees had not engaged
in protected activity. Office of Workers Compensation Pro-
grams v. Greenwich Collieries, 114 S.Ct. 2552–2558 (1994);
Southwest Merchandising Corp. v. NLRB, 53 F.3d 1334
(D.C. Cir. 1995); Manno Electric, 321 NLRB 278 fn. 12
(1996); Wright Line, supra. Also see J. Huizinga Cartage
Co. v. NLRB, 941 F.2d 616 (7th Cir. 1991).29 However,
when an employer’s motives for its actions are found to be
false, the circumstances may warrant an inference that the
true motivation is an unlawful one that the employer desires
to conceal. Shattuck Denn Mining Corp. v. NLRB, 362 F.2d
466 (9th Cir. 1960); Limestone Apparel Corp., 255 NLRB
722 (1981); Golden Flake Snack Foods, 297 NLRB 594, 595
fn. 2 (1990). See also Peter Vitale Co., 313 NLRB 970
(1994). The motive may be inferred from the total cir-
cumstances proved. Moreover, the Board may properly look
to circumstantial evidence in determining whether the em-
ployer’s actions were illegally motivated. Associacion Hos-
pital del Maestro, 291 NLRB 198 (1988); White-Evans Serv-
ices Co., 285 NLRB 81 (1987); NLRB v. O’Hare-Midway
Limousine Service, 924 F.2d 692 (7th Cir. 1991). That find-
ing may be based on the Board’s review of the record as a
whole. ACTV Industries, 277 NLRB 356 (1985); Heath
International, 196 NLRB 318 (1972).
In carrying its burden of persausion under the first part of
the Wright Line task the Board requires the General Counsel
first to persuade that antiunion sentiment was a substantial or
motivating factor in the challenged employer decision.
Manno Electric, Inc., supra at fn. 12; Wright Line, supra. In
establishing unlawful motivation, the General Counsel must
prove not only that the employer knew of the employees
union activities or sympathies, but also that the timing of the
alleged reprisals was proximate to the protected activities and
that there was antiunion animus to ‘‘link the factors of tim-
ing and knowledge to the improper motivation.’’ Hall Con-
struction v. NLRB, 941 F.2d 684 (8th Cir. 1991); Service
Employees Local 434-B, 316 NLRB 1059 (1995).
From all of the above. I am persuaded that the General
Counsel has established that a motivating factor in the dis-
charge of the six alleged discriminatees was their protected
concerted activities based on the abundant evidence of ani-
mus toward the Association and its various executive board
members on the part of the Respondent, their open opposi-
tion to the change in the 9 to 3 work schedule and other ac-
tivities on behalf of the psychiatrists and the Respondent’s
knowledge thereof,30 the unlawful implicit threats of cut-
backs, layoffs and other consequences if they continued to
protest such change, and the timing of the discharges relative
to their protected activity. Accordingly, the burden shifts to
the Respondent to establish that it would have terminated
Drs. Graham, Kermani, Geller, Steiner, Portnow and Mahon
even in the absence of their protected concerted activities.
Office of Workers’ Compensation Programs v. Greenwich
Collieries, supra; Wright Line, supra.
The Respondent asserts that the layoff of the six alleged
discriminatees was not in violation of Section 8(a)(1) and (3)
of the Act because it was motivated by a reduction in budget
mandated by the Health and Hospital Corporation of New
York City and based on the Respondent’s judgment concern-
ing the best personal to operate the reorganized department
and not by their activity on behalf of the Association.
I do not agree.
The record as a whole establishes that Dr. Trujillo opposed
the very existence of the Association and that when it be-
came clear that the Association was actively going to oppose
his actions, Dr. Trujillo responded by refusing to continue to
meet with the Association, by berating and disparaging its
leaders, by attempting to induce some of them to abandon
the Association or to ‘‘cooperate’’ with him, by threatening
them, by trying to influence their elections and failing that,
by terminating them at his first opportunity.
From the evidence here, I find that the Respondent has
failed to meet its burden of persuading that it would have
taken the same action against the six alleged discriminatees
here even if they had not engaged in protected activity.31
In each case individually, the evidence shows that the Re-
spondent terminated Drs. Kermani, Portnow, Geller, Graham,
Mahon, and Steiner because of their leadership and support
of the Association and its activities.
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32 I am aware of the ‘‘serious incident’’ involving the suicide of
one of Dr. Kermani’s patients. This however does not seem to be
a part of the reason for his termination subsequently. Moreover, the
Respondent mistakenly states in its brief that Dr. Kermani received
a poor evaluation from Dr. Castaneda. A review of his evaluation
shows a fair or satisfactory rating.
Dr. Ebrahim Kermani
The evidence establishes that Dr. Kermani was one of the
most eminently qualified psychiatrists employed at Bellevue.
Dr. Kermani had worked at Bellevue for 25 years and was
the unit chief of Bellevue’s medical-psychiatric unit, one of
few such units in the nation, for the past 15 years. Dr.
Kermani was also a full clinical professor at NYU’s School
of Medicine, was board-certified in psychiatry and neurol-
ogy, child psychiatry, and forensic psychiatry, and was the
author of approximately 25 academic articles, including arti-
cles on AIDS, as well as a book on forensic psychiatry. In
addition, since 1990 Dr. Kermani has been the vice president
of the Association.
Despite such achievements, the evidence shows that Dr.
Kermani was a particular, recurring target of Dr. Trujillo’s
animosity toward the Association and its activities. First, the
evidence shows that Dr. Trujillo attempted to place Dr.
Kermani on probation for 6 months for seeking the assistance
of the Association after a series of unwarranted ‘‘counsel-
ing’’ sessions by Dr. Trujillo. Dr. Kermani’s probation was
revoked only after the Association filed an unfair labor prac-
tice charge against the Respondent and the Regional Director
issued a complaint. Undaunted, a year later Dr. Trujillo
warned Dr. Kermani to ‘‘disassociate’’ himself from Drs.
Kirshbaum and Graham and when Dr. Kermani refused,
threatened to ‘‘shoot them through you . . . Next time there
will be no Association that you went to for cove.’’32
The credited testimony of Dr. Geller further shows that
Dr. Trujillo stated that he regarded Dr. Kermani, among oth-
ers, as being ‘‘detrimental’’ to the department of psychiatry
and that he wished he could get rid of him. Dr. Portnow also
testified that Dr. Trujillo specifically named Kermani as one
of the people that he would not accept on his so-called
‘‘guru’’ committee. Moreover, although the uncontroverted
evidence shows that the so-called ‘‘mission’’ of the medical-
psychiatric unit was not changed as a result of the reorga-
nization, the Respondent terminated Dr. Kermani anyway.
The Respondent’s witnesses offered a myriad of various
reasons why Dr. Kermani was terminated. Dr. Wallack stated
that the internists, not Dr. Kermani, were providing the pri-
mary ‘‘leadership’’ on the unit and that they needed someone
who could better integrate the medical and psychiatric care
of the patients on the unit. Dr. Wallack further stated that he
spoke to Dr. Kermani about such matters in terms of his
‘‘goals’’ for the unit. Dr. Castaneda testified that the most
important factor was that Dr. Kermani had difficulty ‘‘imple-
menting policies’’ and ‘‘mobilizing’’ the team to provide an
efficient treatment program on the unit. Dr. Trujillo related
that he recalled that Dr. Castaneda and the other administra-
tors said that Dr. Kermani did not have the updated clinical
skills to run a hyper-acute unit, that he lacked the ‘‘leader-
ship’’ skills and could not ensure that the documentation and
quality assurance programs would be implemented.
Although Dr. Castaneda acknowledged that ‘‘he had no re-
sponsibility for the walk-in clinic and that he merely had
‘‘some idea’’ of its function, he testified that he rec-
ommended that Dr. Buckingham replace Dr. Kermani as unit
chief. Aside from his experience in treating medical-psy-
chiatric patients, Dr. Buckingham’s unique qualification was
that he was board-certified in family medicine.
The Respondent’s explanations for Dr. Kermani’s termi-
nation are completely unsubstantiated. There is not a single
memorandum by the Respondent criticizing Dr. Kermani for
any of his alleged deficiencies nor is there any probative tes-
timony that Dr. Kermani was verbally warned to improve his
performance. In view of Dr. Kermani’s breadth of experience
and expertise, the Respondent’s testimony that he lacked
‘‘leadership’’ skills appears self-serving and is worth little, if
any, consideration. In that regard, the Respondent also com-
pletely failed to show how Dr. Buckingham’s certification in
family medicine is of any use in a medical-psychiatric unit.
On the other hand, Dr. Castaneda readily acknowledged that
Dr. Kermani’s familiarity and expertise in the area of AIDS
are very useful in such a unit.
In view of Dr. Kermani’s demonstrated experience and
qualifications, Dr. Trujillo’s continuous animosity toward
him and the Association, and the inadequate reasons ad-
vanced by the Respondent to explain his termination, it is
clear that the Respondent violated Section 8(a)(1) and (3) of
the Act by discharging Dr. Kermani.
Dr. Stanley Portnow
Like Dr. Kermani, the record shows that Dr. Portnow was
one of the most highly qualified and experienced psychia-
trists at Bellevue. Dr. Portnow was employed by the Re-
spondent at Bellevue for 26 years, of which 21 were spent
as a unit chief. In that regard, Dr. Portnow served as the unit
chief of the forensic unit for 3 years. Dr. Portnow was also
a full clinical professor at NYU’s School of Medicine. He
is certified in forensic psychiatry as well as psychiatry and
neurology and has expertise in psychoanalysis, psychopharm-
acology, brief psychotherapy, and hypnosis. Dr. Portnow has
written or coauthored 10 academic articles, has been a con-
sultant or adviser to countless organizations, and has deliv-
ered almost 100 lectures on various topics in the field of psy-
chiatry. Recently, New York magazine named Dr. Portnow
one of ‘‘The Best Doctors In New York.’’
In the early 1970s, Dr. Portnow helped found the Associa-
tion and was elected to its executive board in the fall of
1994. As discussed below, Dr. Trujillo’s particular animus
toward Dr. Portnow stemmed from his ‘‘failure’’ to use his
influence to defeat Dr. John Graham’s reelection as president
of the Association.
It appears from the record that Dr. Portnow was the person
to whom Dr. Trujillo stated that he would ‘‘punish’’ the As-
sociation for its position on the 9 to 3 issue. In the same
time period, after Dr. Trujillo’s hand-picked candidate, Dr.
Kirschbaum, refused to run and Dr. Graham was reelected
president of the Association, the credible evidence shows that
Dr. Trujillo blamed Dr. Portnow and stated, ‘‘You’re the one
they respect. You’re the one they would listen to and you
failed me.’’ Asked about this statement, Dr. Trujillo re-
marked, ‘‘Well, I—you know had high hopes for Dr.
Portnow. He failed to persuade other people of my advise to
him. He failed to persuade other people, which he did.’’
The memo shows that 21 North was converted to an
‘‘acute’’ unit which was responsible for continuing the sta-
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902 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
bilization of the patients and completing the requisite docu-
mentation for their disposition to state- or community-bound
facilities. For its type of unit, Dr. Castaneda stated that it
was particularly important to have someone who could im-
plement therapeutic programs.
Dr. Wallack stated that Dr. Portnow was felt to be a
‘‘weak’’ manager and that 21 North had a long history of
patients with excessively long lengths of stay. Dr. Castaneda
stated that Dr. Portnow’s lack of ‘‘leadership’’ was ‘‘over-
whelming,’’ that he had failed at implementing therapeutic
programs and that there had been complaints concerning the
manner in which the unit had been run. Dr. Wallack main-
tained that Dr. Weiss had a demonstrated ability to get peo-
ple through treatment and into the community faster than the
other unit chiefs and that Dr. Weiss was ‘‘far and above’’
more capable of running a community-bound unit than any-
one else. Although the Respondent maintained but did not
adduce any documents containing LOS statistics, Dr.
Castaneda testified that Dr. Weiss had the longest LOS sta-
tistics for the general adult wards.
In his rebuttal to Dr. Castaneda’s evaluation, Dr. Portnow
noted that 21 North had been acclaimed for its over intensive
group psychotherapy program, reasonable length of stay,
minimum 30-day readmissions, charting, and infrequent use
of restraint and seclusion procedures. Dr. Portnow further
stated that he had trained at the Meninger Foundation which
he stated is ‘‘synonymous’’ with the term ‘‘therapeutic mi-
lieu’’ and that his wards had always received high marks in
that regard.
The totality of the evidence shows that Dr. Portnow’s ter-
mination made absolutely no sense and could have only been
the result of Dr. Trujillo’s animus toward him and the Asso-
ciation. The Respondent’s stated reasons for Dr. Portnow’s
termination are materially inconsistent and unsubstantiated.
In that regard, the Respondent claimed that Dr. Portnow’s
ward had high LOS numbers but did not adduce any docu-
ments substantiating this claim, even though such records are
kept on a daily basis, by individual doctors and by ward.
Moreover, one administrator, Dr. Wallack, claimed Dr.
Portnow’s replacement, Dr. Weiss, had a demonstrated abil-
ity to treat and dispose of patients quickly while Dr.
Castaneda testified that Dr. Weiss had the highest LOS sta-
tistics for adult patients at Bellevue.
As a whole the Respondent’s decision to terminate the
discriminatees is highly suspect, to say the least. For one
thing, although the Respondent closed only one ward, it ter-
minated four highly experienced unit chiefs. —Drs. Kermani,
Portnow, Geller, and Graham. At the same time, the Re-
spondent retained at least 11 psychiatrists who had 5 years
or less of experience at Bellevue. Except for Dr.
Halamandaris and perhaps Dr. Ravelo, there was no testi-
mony that these doctors had any unique qualifications which
would insulate them from termination.
What is clear is that Dr. Trujillo continually demonstrated
animus against the Association and its executive board mem-
bers, and that he was particularly upset with Dr. Portnow for
failing to use his influence to defeat Graham’s reelection as
president.
Given Dr. Portnow’s unquestioned qualifications and expe-
rience, the conflicting and unsubstantiated reasons offered by
the Respondent for Dr. Portnow’s termination, and Dr. Tru-
jillo’s general animosity toward the Association, its executive
board as well as Dr. Portnow’s ‘‘failure’’ to defeat Dr. Gra-
ham’s reelection, it is abundantly evident that the Respondent
unlawfully discharged Dr. Portnow in violation of Section
8(a)(1) and (3) of the Act.
Dr. Martin Geller
Dr. Geller was employed by the Respondent at Bellevue
for 27 years and served as a unit chief for 21 years. He was
also an associate clinical professor at NYU’s School of Med-
icine.
Dr. Geller had been an elected member of the Associa-
tion’s executive board since 1980. Much like Dr. Portnow,
the evidence shows that Dr. Geller became a target of Dr.
Trujillo’s hostility because he would not disavow the Asso-
ciation and because he dared to tell Dr. Kermani that Dr.
Trujillo had accepted his 7:30 a.m. to 3 p.m. work schedule.
Shortly after Dr. Trujillo arrived at Bellevue, Dr. Geller
testified Dr. Trujillo said that he had heard very good things
about Dr. Geller and about the unit that he worked on, that
it was one of the finer units at the hospital, and that he was
one of the finest physicians there. Nonetheless, Dr. Geller
stated Dr. Trujillo said he was ‘‘distressed’’ that the doctors
would set themselves up in an ‘‘adversarial’’ position with
respect to the management of the hospital, and particularly
to himself, that they would possibly work counter to the aims
of the director, that at a time of crisis, when it was very im-
portant for the psychiatry department to move forward, he
felt that this was a ‘‘destructive’’ activity. When Dr. Geller
spoke up for the Association, he testified that Dr. Trujillo
said there could be no such thing as a union of physicians,
that such a thing should cease to be, and that we should
more or less straighten up our act and cooperate with him
and help him to bring the department forward. Subsequently,
Dr. Geller stated that Dr. Trujillo warned him that he was
doing himself no favors by linking himself with people who
he regarded as being ‘‘detrimental’’ to the department, like
Drs. Kermani, Graham, and Mahon. Dr. Geller stated Dr.
Trujillo said that he should either ‘‘sever’’ himself from the
Association or use whatever influence he could to get the ex-
ecutive board to cooperate with Dr. Trujillo. In late 1994, Dr.
Geller stated that Dr. Trujillo said he had high esteem for
Drs. Geller and Weiss but that if he had his way, he would
be glad to get rid of people like Drs. Kermani, Graham,
Mahon, and Kirschbaum.
After learning that Dr. Geller apparently had told Dr.
Kermani that Dr. Trujillo had agreed to accept his 7:30 a.m.
to 3 p.m. schedule, Dr. Geller testified that Dr. Trujillo said,
‘‘Marty, you really fucked it up . . . . Now I can’t do what
I promised . . . . You talk too much.’’ When Dr. Geller pro-
tested, he stated Dr. Trujillo said, among other things, ‘‘You
fucking people, you don’t give a damn about the future of
the department. All you care about is yourselves.’’
Dr. Wallack stated that residents and staff complained
about Dr. Geller’s performance and that the senior leadership
became concerned over his quality of teaching and super-
vision of residents. As a result, Dr. Castaneda testified that
a meeting with the residents was held on September 20,
1994, without Dr. Geller to address the complaints. In re-
sponse to the criticisms allegedly made at the meeting, Dr.
Geller wrote a memorandum to Drs. Castaneda and Bernstein
detailing proposed changes to the manner in which the unit
was run. However, Dr. Castaneda testified that Dr. Geller
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903NEW YORK UNIVERSITY MEDICAL CENTER
was not successful in implementing many of his proposals
and faulted Dr. Geller for his alleged inability to ‘‘rein in’’
Dr. Ambrose or to provide adequate treatment planning. Dr.
Castaneda further stated that Dr. Geller was deficient in
scheduling events, allocating staff and devising a treatment
milieu. Dr. Castaneda also stated Dr. Geller’s command of
psychopharmacology was poor and cited an instance in
which Dr. Geller allegedly admitted he did not know Valium
was classified as a benzodiazepine.
Although he described the decision to terminate Dr. Geller
as a difficult one, Dr. Wallack stated that the Respondent
would have probably made a change in the ‘‘leadership’’ of
the unit regardless of the layoffs.
Dr. Castaneda’s written performance evaluation of Dr.
Geller shows that he was rated ‘‘good’’ or ‘‘outstanding’’ in
9 of 11 categories, including ‘‘outstanding’’ ratings in
diagnostic/assessment skills and teaching skills. Moreover,
both Dr. Castaneda and Dr. Wallack described Dr. Geller as
extremely devoted, hard working, and one of the Respond-
ent’s most popular psychiatrists. Dr. Wallack stated that he
probably had more feedback from around the nation about
Dr. Geller’s termination than anyone else. To replace Dr.
Geller, the Respondent designated Dr. Halamandaris as act-
ing unit chief and reassigned Dr. Sussman from an out-pa-
tient unit listed as the ‘‘Biological Psychiatry—Psycho-
pharmacology Service.’’
On the whole, the Respondent’s explanations for terminat-
ing Dr. Geller are simply not credible. It is completely im-
plausible that Dr. Geller could function as the unit chief of
Bellevue’s only training unit for 21 years, receive an out-
standing written performance evaluation from Dr. Castaneda
in 1993 (the only individual evaluations performed in many
years) and then have his performance deteriorate so much
over the following year as to merit termination regardless of
the budget crisis. Although there may have been complaints
by the residents about their training, the manner in which
these complaints were treated by the Respondent is highly
suspicious. It simply strains credibility to believe that Dr.
Geller was terminated because of the complaints of some
residents. This is inconsistent with Dr. Wallack’s testimony
that Dr. Geller was one of the Respondent’s most popular
physicians. Dr. Castaneda’s testimony also does not ring true.
It is difficult to believe that he could give Dr. Geller above
average or outstanding ratings in March 1993, and then tes-
tify that he was terminally deficient in basic skills such as
devising a treatment milieu or that his command of
psychopharmacology was poor. In the latter instance, Dr.
Geller’s testimony shows that the fact that he did not know
Librium was a benzodiazepine is completely meaningless.
Given the Respondent’s far-fetched explanations for Dr.
Geller’s discharge, we are left with Dr. Trujillo’s animus to-
ward Dr. Geller for telling Dr. Kermani about their so-called
special deal. In this regard, Dr. Trujillo’s overreaction is con-
sistent with the tenor of his memorandum to Dr. Kermani
which reprimanded him for ‘‘unilaterally’’ disseminating in-
formation to the Association and its members. Moreover,
apart from such animus, there was no ostensible reason for
Dr. Trujillo to react as he did inasmuch as Dr. Geller’s
hours—7:30 a.m. to 3 p.m.—already satisfied HHC’s de-
mand that each physician work 7-1/2 hours each day.
When one considers Dr. Geller’s years of service as a unit
chief in the training unit, his largely unblemished work his-
tory, the Respondent’s inconsistent and implausible justifica-
tions for his termination, and Dr. Trujillo’s evident animus
toward him and the Association, I can only consider that the
Respondent terminated him in violation of Section 8(a)(1)
and (3) of the Act.
Dr. John Graham
Dr. Graham was employed by the Respondent at Bellevue
for 27 years, 19 of which he served as a unit chief. Dr.
Graham was also an associate clinical professor at NYU’s
School of Medicine and was certified by the American Board
of Psychiatry and Neurology.
Dr. Graham has been a member of the Association since
it was founded and has been president of the Association
since 1990. During that time, the record also shows that he
has been the main proponent of the Association in its deal-
ings with Dr. Trujillo and the Respondent. Accordingly, the
record shows that on behalf of the Association Dr. Graham
sent Dr. Trujillo various memoranda regarding issues such as
wages, working hours, disciplinary grievances, the physician
evaluation process, etc. The record shows that the bulk of
these memoranda were sent between February 13, 1992, and
May 19, 1993. Shortly thereafter, as noted supra, Dr. Trujillo
refused to continue meeting with the Association.
The credible evidence shows that Dr. Graham has been the
unerring target of Dr. Trujillo’s scorn and hostility since the
inception of the latter’s employment at Bellevue. The testi-
mony of numerous witnesses for the General Counsel show
that Dr. Trujillo has called Dr. Graham a ‘‘headache,’’ de-
scribed him as being ‘‘incompetent’’ and ‘‘detrimental’’ to
the department, stated that he wrote idiotic letters and even
stated that he would like to get rid of him. The evidence fur-
ther shows that Dr. Trujillo attempted to induce Drs.
Kermani and Geller to ‘‘disassociate’’ themselves from Dr.
Graham and the executive board and that he actively tried to
persuade Dr. Portnow to defeat Dr. Graham’s bid for reelec-
tion to the presidency of the Association.
The evidence also shows that 18 South was converted into
an ‘‘intensive treatment’’ unit with a target LOS of 14 days.
The memo states: ‘‘Medical staff will be expected to com-
plete a thorough medical and psychiatric assessment, initiate
psychotherapy and other therapeutic modalities as indicated,
and make a prompt determination regarding likely disposi-
tion.’’ Both Drs. Graham and Chan were terminated and Dr.
Kirschbaum, and Drs. Hames, Stockfish and Welner were re-
assigned to the unit.
Dr. Wallack stated that the Respondent received numerous
complaints about Dr. Graham and cited problems with a pre-
cipitous discharge, an inappropriate emergency room referral,
incomplete discharge summaries, and lapsed legal status of
patients. Dr. Wallack further testified that they had tried to
work with Dr. Graham but found that he responded in ongo-
ing ‘‘defiance and oppositional behavior.’’
Dr. Castaneda testified that Dr. Graham had severely im-
paired leadership skills, that he had difficulty assimilating
new information, that he was unable to consider his short-
comings, and that he was given to ‘‘grandstanding—speaking
to some audience instead of ever engaging a discussion of
the issues.’’ Dr. Castaneda further stated that Dr. Graham’s
interactions with the directors of the other disciplines were
extremely negative and that 18 South functioned poorly and
had the most complaints from other agencies.
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904 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In support of these contentions, the Respondent adduced
approximately a dozen memoranda regarding performance-re-
lated problems of Dr. Graham, of which all but two were
dated between June 16, and December 27, 1993. In the
memorandum dated December 27, 1993, Dr. Wallack noted
Dr. Graham’s ‘‘consistently oppositional stance’’ and stated
that he was ‘‘invariably challenging and argumentative-
choosing diatribe over cooperation.’’ After enumerating Dr.
Graham’s alleged deficiencies, Dr. Wallack directed Dr.
Graham to ‘‘immediately take steps to correct [the] defi-
ciencies.’’ Dr. Wallack admitted that he did not anticipate
that Dr. Graham would be able to make substantive changes
and that he would have to make a ‘‘change’’ on the unit.
Prior to June 1993, Dr. Graham recalled receiving one dis-
ciplinary memorandum involving a single incident of absen-
teeism.
Dr. Graham testified that he did not see the memoranda
dated June 16, July 13, and August 6, until he met with Dr.
Castaneda on September 22 and that he never received Dr.
Wallack’s memorandum dated December 27. After he met
with Drs. Wallack, Castaneda and Varas on December 23,
Dr. Graham sent Dr. Wallack a memorandum requesting doc-
umentation of the criticisms made against him but never re-
ceived a response.
On December 29, 1993, Dr. Graham stated that Dr. Tru-
jillo told him that he just had to ‘‘amend a few things,’’ that
no one was looking for his job. Subsequently, except for
memoranda dated November 22 and 23, 1994, from Dr.
Castaneda requesting, and acknowledging the receipt of, a
list of inappropriate admissions, there were no further per-
formance-related memoranda sent to Dr. Graham. Indeed, for
the 3-year period preceding the terminations, Dr. Castaneda
testified that 18 South had the lowest LOS statistics.
A review of the evidence reveals that Dr. Graham was dis-
charged not because of performance-related problems but
rather because he was the outspoken leader and president of
the Association.
At the threshold, it is noteworthy that the flood of per-
formance-related memoranda concerning Dr. Graham began
the day after counsel for the Association signed the unfair
labor practice charge filed by the Association on Dr.
Kermani’s behalf. Given the fact that Dr. Graham had re-
ceived only one such memorandum in his preceding 25 years
of employment at Bellevue, this hardly appears coincidental.
Moreover, the Respondent offered no credible explanation as
to why Dr. Graham did not receive many of these memo-
randa in or about the date they were supposedly issued. In-
stead, he was presented with several of the memoranda at
once in a so-called counseling session with Dr. Castaneda
which was followed by yet another disciplinary memoran-
dum summarizing the September 22 meeting. It is also high-
ly suspect that Dr. Graham never received Dr. Wallack’s
memorandum dated December 27, 1993, which essentially
could be characterized as a final disciplinary warning. Even
more troublesome is the fact that the Respondent offered no
explanation as to why Dr. Graham’s 1993 performance eval-
uation was apparently downgraded after Dr. Castaneda re-
viewed it with Graham. (Compare G.C. Exh. 28 and R. Exh.
4.) In sum, these developments suggest that Dr. Graham was
being ‘‘set up’’ for possible termination because of the Asso-
ciation’s activities.
Secondly, assuming arguendo that Dr. Graham did experi-
ence performance problems during 1993, there is little evi-
dence that such problems existed thereafter. Subsequently,
the sole performance-related memorandum issued by Dr.
Castaneda to Dr. Graham alleged that he was delinquent in
submitting an inappropriate referral list to him. This action
was, in effect, rescinded by Dr. Castaneda’s memorandum of
the next day alluding to a ‘‘misunderstanding’’ about the as-
signment. Therefore, the evidence fails to show that Dr. Gra-
ham’s performance was substandard in or about the time he
was terminated.
In fact, the only objective criteria cited by the Respondent,
unsubstantiated as it may be, shows that Dr. Graham’s unit
had the lowest LOS statistics at Bellevue for the 3-year pe-
riod preceding his termination! Objectively, there could not
be a more important criterion for selecting personnel for the
so-called ‘‘intensive’’ units created by the Respondent’s re-
structuring. Yet, instead of assigning Dr. Graham to one of
these units, the Respondent transferred Dr. Stockfish, a fel-
low-in-training, and Dr. Welner, who was on loan from the
forensic unit, to 18 South.
More than any other member of the executive board, the
record clearly demonstrates that Dr. Trujillo disliked Dr.
Graham for, among other concerted actions, his continuous
and adversarial attacks on the administration, for the Asso-
ciation’s filing of Kermani’s unfair labor practice charge, and
finally for the Associations openly ‘‘adversarial’’ position on
the 9 to 3 issue.
Thus, the foregoing evidence clearly demonstrates that
such animus was the reason Dr. Trujillo got ‘‘rid of Dr.
Graham,’’ as he had threatened to do. Therefore, I find that
the Respondent violated Section 8(a)(1) and (3) of the Act
by discharging Dr. Graham.
Dr. Maeve Mahon
Dr. Mahon has practiced psychiatry since 1978 and was
employed by the Respondent at Bellevue for 8 years. She
was also an assistant clinical professor at NYU’s School of
Medicine and is board-certified in psychiatry and neurology.
Dr. Mahon has been a member of the executive board of
the Association since 1992. During the so-called 9 to 3 meet-
ings, the uncontroverted evidence shows that Dr. Mahon was
an outspoken critic of the Respondent’s announced plans to
eliminate 9 to 3 work hours at Bellevue.
Like the other members of the executive Board, the evi-
dence shows that Dr. Trujillo directly expressed animosity
toward Dr. Mahon. Immediately after the 9 to 3 meeting held
in the Rose Room, the testimony of Dr. Portnow shows that
Dr. Trujillo said that Dr. Mahon’s behavior at the meeting
was ‘‘disgraceful, disloyal, undesirable and that it would lead
to trouble for the attendings.’’ The testimony of Dr. Geller
further establishes that on more than one occasion Dr. Tru-
jillo told him that he would like to get rid of Dr. Mahon,
among other members of the executive board.
Dr. Wallack said that other disciplines had problems with
Dr. Mahon’s attitude and performance and that there had
been difficulties in getting her to cooperate with ‘‘changes in
the systems.’’ Dr. Castaneda testified that Dr. Weiss and per-
sons from other disciplines complained that Dr. Mahon was
difficult to work with, that she would not listen to other peo-
ple, and that she was not a ‘‘team player.’’ Although intel-
ligent and knowledgeable, Dr. Castaneda stated Dr. Mahon
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905NEW YORK UNIVERSITY MEDICAL CENTER
33 As indicated, Dr. Steiner was not called as a witness here. From
the failure of a party to produce a witness who may reasonably by
assumed to be favorably disposed to that party an adverse inference
may be drawn regarding any factual question on which the witness
is likely to have knowledge. International Automated Machines, 285
NLRB 1122 (1987). However, with the testimony of the other five
alleged discriminatees and the above evidence in the record, I do not
give this the usual weight in this connection.
was not even regarded as an average attending psychiatrist.
However, on Dr. Mahon’s 1993 performance evaluation, Dr.
Weiss rated her ‘‘good’’ or ‘‘outstanding’’ in six of eight
categories, including a ‘‘good’’ rating in the area entitled
‘‘Working Relationships with Staff.’’
Dr. Wallack related that when the Respondent looked at
the reductions in nursing, social work, and the psychiatrists,
they ‘‘obviously’’ tried to preserve as many beds as possible
and decided to close 20 South, a relatively small 19-bed unit.
The foregoing evidence amply demonstrates the lack of
credibility that should be accorded the testimony of Dr.
Wallack and Dr. Castaneda. Dr. Weiss’ performance evalua-
tion of Dr. Mahon completely contradicts the gravamen of
their testimony, namely that Dr. Mahon had an ‘‘attitude’’
and was difficult to work with. Even the rationale for the
closing of 20 South is suspect inasmuch as it directly con-
tradicts Dr. Trujillo’s January 30 proposal to HHC to close
the biggest unit so as to ‘‘maximize’’ the redistribution po-
tential of the professionals, particularly the nurses, assigned
to such a unit.
The record leaves little question that Dr. Mahon was ter-
minated because she was an outspoken member of the execu-
tive board who dared to openly and persistently oppose Dr.
Trujillo’s mandate to eliminate the 9 to 3 schedules of the
psychiatrists at Bellevue. It was only in this regard that she
was not a ‘‘team player’’ for the evidence further shows that
she was given an outstanding evaluation which completely
contradicts the testimony of Dr. Wallack and Dr. Castaneda
that she was not even an average attending or that she had
difficulties working with the staff. Moreover, the record fur-
ther shows that Dr. Trujillo, in effect, threatened to get rid
of Dr. Mahon and characterized her vocal opposition as
‘‘disgraceful, disloyal, undesirable’’ behavior which would
lead to ‘‘trouble.’’
Under these circumstances, the evidence clearly shows that
the Respondent violated Section 8(a)(1) and (3) of the Act
by discharging Dr. Mahon.
Dr. Jerome Steiner
Unlike the other alleged discriminatees, Dr. Steiner did not
testify.
At the time of the terminations, Dr. Graham testified that
Dr. Steiner was a member of the executive board and a treas-
urer of the Association. Dr. Graham further stated that the
results of the Association’s elections, the last of which oc-
curred in the fall of 1994, are publicized.
Dr. Wallack testified that Dr. Steiner had been a problem
in the consultation-liaison unit and that they had been asked
by the directors to get him out of that unit. Dr. Wallack stat-
ed that Dr. Steiner had similar problems on 12 South and
was not proficient in treating patients with heart disease or
a need for complicated psychopharmacology. Although a
competent group therapist, Dr. Castaneda described Dr.
Steiner’s clinical judgment as ‘‘suboptimal,’’ and stated that
he regarded him as ‘‘functioning below average.’’ After re-
viewing 25 records of his work in the consultation-liaison
unit, Dr. Trujillo stated that Dr. Steiner needed reassignment
because his clinical skills were not up to caring for patients
who were very ill or had serious disorders.
Although no evidence was adduced to show that Dr. Tru-
jillo exhibited animus specifically against Dr. Steiner, as dis-
cussed supra, Dr. Trujillo’s animus toward the members of
the executive board is evident. And, unlike Drs. Kirshbaum
and Weiss, there is no evidence to suggest that Dr. Trujillo
regarded Dr. Steiner as one of the more reasonable person-
ages on the executive board.
Thus, we are left with the unsubstantiated testimony of
Drs. Wallack, Castaneda, and Trujillo concerning Dr.
Steiner’s alleged deficiencies. In that regard, it is noteworthy
that Dr. Steiner’s performance evaluation was not offered
into evidence. As discussed above, given Dr. Trujillo’s ani-
mus and the lack of trustworthiness of the Respondent’s wit-
nesses, the totality of the evidence favors the view that the
Respondent terminated Dr. Steiner because of his standing in
the Association and thereby violated Section 8(a)(1) and (3)
of the Act.33
Moreover, the inconsistent and contradictory testimony of
the Respondent’s witnesses regarding the circumstances of
the budget crises, the reorganization of the psychiatry depart-
ment and the selection of the doctors to be terminated illus-
trates further that the Respondent’s explanations for the ter-
minations of Drs. Kermani, Portnow, Geller, Graham,
Mahon, and Steiner are entirely pretextual.
In the fall of 1994, Ivan Selzer testified that HHC first
proposed to cut $2 million from the Respondent’s budget for
the department of psychiatry. Selzer stated that this ‘‘bottom
line’’ never changed and he first became aware of the identi-
ties of the doctors to be laid off in the early part of 1995
when Dr. Trujillo submitted a budget reduction to Brier.
However, Selzer said this plan was not the January 30 plan
submitted to Brier by Dr. Trujillo and no such plan was ever
adduced into evidence.
Approximately 2 months before the terminations, Dr.
Wallack testified that he had no idea how many psychiatrists
were going to be laid off or who they were going to be. The
week before the terminations, Dr. Brier told Drs. Wallack
and Trujillo that they would have to implement a plan to re-
duce the budget as soon as possible. In or about that time,
Dr. Wallack stated that the Respondent received notice of the
actual amount of the budget cut and determined that as many
as a dozen psychiatrists would have to be laid off. There-
after, Dr. Wallack stated that there were endless meetings
among the administrators on the 22nd floor and that over the
weekend, he spoke with Drs. Trujillo, Castaneda, and others
trying to decide which of the various plans would be imple-
mented. At the end of such discussions, Dr. Wallack stated
that the Respondent arrived at a list of 10 to 12 people that
they felt should be replaced or laid off.
Dr. Castaneda testified repeatedly that he initially became
aware of the number of psychiatrists that were going to be
laid off on the morning the terminations were announced,
which was March 22, 1995. On that day, Dr. Castaneda stat-
ed that Dr. Trujillo or Dr. Wallack told him that his depart-
ment was going to be cut by 9 or 10 lines. Thereafter, Dr.
Castaneda stated that he took part in a series of face-to-face
and/or telephone discussions with Drs. Trujillo, Wallack,
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906 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Levy and other administrators which ended in the selection
of the reorganization plan to be implemented and the 10 psy-
chiatrists to be terminated.
In or about January 1995, Dr. Trujillo testified that a $2
million reduction became a ‘‘fixed’’ number and that he
thought he would have to lay off as many as 20 psychiatrists.
On Monday, March 20, Dr. Trujillo stated that he reached
an agreement with HHC to cut 12 psychiatry lines. At ap-
proximately 5 p.m. as he was walking out of Brief’s office,
Dr. Trujillo stated that Brier agreed to two fewer layoffs.
After he left Brier’s office, Dr. Trujillo stated that he tele-
phoned Dr. Cancro and told him that the ‘‘10 lay off plan’’
had to be implemented and the names of doctors who were
going to be terminated.
On Tuesday morning, Dr. Trujillo stated that he met with
Drs. Castaneda, Wallack, and other administrators and told
them they had to lay off 10 people. Thereafter, Dr. Trujillo
stated both that he was ‘‘generally present’’ and ‘‘in and
out’’ during the discussions among his staff regarding the re-
organization and the layoffs and that he agreed with Dr.
Castaneda’s description of what was said during those dis-
cussions.
The foregoing testimony of Dr. Castaneda and Dr. Trujillo
concerning the selections of the doctors to be terminated sim-
ply cannot be reconciled, at least in the manner suggested by
the witnesses. According to Dr. Trujillo he told Dr. Cancro
the names of the doctors to be terminated on Monday, March
21, and informed Dr. Castaneda of the numbers of psychia-
trists who needed to be terminated the following day. Ac-
cording to Dr. Castaneda, when he learned of the number of
psychiatrists to be terminated, he and the other administrators
engaged in a series of conversations which resulted in the se-
lection of the reorganization plan and then the identities of
doctors who were going to be discharged ostensibly because
they did not fit into the plan’s scheme.
This material conflict in the manner in which the doctors
were selected for termination only makes sense if one con-
cludes that Dr. Trujilli decided the identities of the doctors
to be laid off, informed Dr. Cancro of his decisions and then
told Dr. Castaneda the following day. Then, of course, Dr.
Castaneda had to scramble to reassign doctors to the gaping
vacancies created by the terminations. Hence, there was the
assignment of a doctor-in-training, Dr. Stockfish, and a doc-
tor ‘‘loaned’’ from the forensic unit Dr. Welner, to 18 South,
one of the ‘‘intensive’’ units, which are the cornerstone of
the Respondent’s reorganization plan.
As noted above, other aspects of the doctors selected for
termination vis-a-vis the plan just do not make sense other-
wise. For instance, the Respondent closed only one unit but
terminated four unit chiefs, all of whom had significant expe-
rience and expertise. This perhaps might make sense if the
unit chiefs made considerably more money than the
attendings but this defense was not offered by the Respond-
ent, and no evidence concerning the salaries of any of the
doctors was adduced. Also, Drs. Castaneda and Wallack tes-
tified that the number of nurses was a critical factor in se-
lecting which reorganization plan was feasible but there was
no testimony about the number of nurses assigned to the
wards or whether any of them were terminated at the same
time the psychiatrists were. Similarly, there was no expla-
nation as to why the terminations had to be made in such
a precipitous fashion, especially since the $2 million ‘‘bot-
tom line’’ had been known for months. It is also implausible
that the Respondent began making plans to reorganize the
psychiatry department as much as 6 months before the termi-
nations took place yet produced only one budget plan before
such terminations and that the administrators involved all did
not take any notes or did not review any notes before testify-
ing in the instant proceeding.
The foregoing evidence shows that the Respondent’s ex-
planations for the terminations of the discriminatees com-
pletely lack credibility. The evidence further suggests that
one person, Dr. Trujillo, ultimately decided who would be
terminated and that such decisions were influenced by his
animus against the Association and its leaders, Drs. Graham,
Kermani, Portnow, Geller, Mahon, and Steiner.
The Respondent in its brief contests that the Association
is a labor organization within the meaning of the Act. Al-
though I did find the Association to be a labor organization
under the Act, assuming arguendo that it had been found not
to be, the evidence nevertheless clearly demonstrates that the
Respondent violated Section 8(a)(1) of the Act by terminat-
ing Drs. Kermani, Portnow, Geller, Graham, Mahon, and
Steiner because of their protected concerted activities on be-
half of the psychiatrists at Bellevue.
Section 8(a)(1) of the Act prohibits employers from inter-
fering, with, restraining, or coercing employees from acting
together for mutual aid or protection or from engaging in
other protected concerted activities. In order to establish a
violation of Section 8(a)(1), it must be shown that the em-
ployee engaged in protected concerted activity, that the em-
ployer had knowledge of the concerted nature of such activ-
ity, and that the employee’s protected activity was a ‘‘mov-
ing reason’’ in the employer’s decision to take adverse action
against the employee. See Peter Vitalie Co., 313 NLRB 971,
975 (1994); Manimark Corp., 307 NLRB 1059, 1061 (1992).
See also Wright Line, supra.
Once the General Counsel establishes his burden of per-
suasion, the employer has the burden of showing that the
same action would have taken place even in the absence of
the protected conduct. Id. I find that the Respondent has
failed to carry its burden in this respect.
Of course, where the evidence shows the employer’s mo-
tive to be unlawful and the employer’s asserted reasons for
its actions are pretextual, i.e., they do not exist or are not
relied on, the Board is justified in concluding that the false
reason was proposed to mask its unlawful reason and in rely-
ing upon such evidence to find a violation of the Act. Lime-
stone Apparel Corp., 255 NLRB 722 (1981); Golden Flake
Snack Foods, 297 NLRB 594, 595 fn. 2 (1990); and Peter
Vitalie Co., supra.
Concerted activity is activity engaged in ‘‘with, or on the
authority of other employees, and not activity solely by and
on behalf of the employee himself.’’ Manimark Corp., 307
NLRB 1059, 1061 (1992), citing Meyers Yurosek & Son,
Inc., 306 NLRB 1037 (1992) (spontaneous group protest to
announcement of change in working hours found to be con-
certed activity).
In the case at bar, there is absolutely no question that the
members of the Association, led by Drs. Graham, Kermani,
Portnow, Geller, Mahon, and Steiner, engaged in protected
and concerted activity throughout the life of the Association.
Even after Dr. Trujillo refused to continue meeting with the
Association. More recently, the record shows that the alleged
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907NEW YORK UNIVERSITY MEDICAL CENTER
discriminatees mobilized the members of the Association into
protesting the Respondent’s 9 to 3 issue to the Respondent
on behalf of the psychiatrists at Bellevue.
The analysis and conclusions set forth above concerning
the terminations of the alleged discriminatees remain the
same: the evidence conclusively demonstrates that said
discriminatees were terminated because of their concerted ac-
tivities on behalf of their fellow psychiatrists, thereby violat-
ing Section 8(a)(1) of the Act.
2. The Respondent’s affirmative defenses
The Respondent asserts that four of the alleged discrim-
inatees, Drs. Graham, Kermani, Geller, and Portnow were
unit chiefs and as such, supervisory or managerial employees
excluded from the coverage of the Act.
Section 2(11) of the Act provides:
The term ‘‘supervisor’’ means any individual having
authority, in the interest of the employer, to hire, trans-
fer, suspend, layoff, recall, promote, discharge, assign,
reward, or discipline other employees, responsibility to
direct them; or to adjust their grievances, or effectively
to recommend such action, if in connection with the
foregoing the exercise of such authority is not of a
merely routine or clerical nature, but requires the use
of independent judgment.
In enacting Section 2(11), Congress emphasized its intention
that only truly supervisory personnel vested with ‘‘genuine
management prerogatives’’ should be considered supervisors,
and not ‘‘straw bosses, leadmen, set-up men and other minor
supervisory employees.’’ S. Rep. No. 105, 80th Cong., 1st
Sees. 4 (1947).
The status of supervisor under the Act is determined by
an individual’s duties, not by his title or job classification.
New Fern Restorium Co., 175 NLRB 142 (1969); Inter-
national Longshoremen’s Assn. v. Davis, 476 U.S. 380, 396
fn. 13 (1986). It is well settled that an employee cannot be
transformed into a supervisor merely by the vesting of a title
and theoretical power to perform one or more of the enumer-
ated functions in Section 2(11) of the Act. Advanced Mining
Group, 260 NLRB 486 (1982); Magnolia Manor Nursing
Home, 260 NLRB 377 (1982). To qualify as a supervisor, it
is not necessary that an individual possess all of these pow-
ers. Rather, possession of any one of them is sufficient to
confer statutory status. NLRB v. Bergen Transfer & Storage
Co., 678 F.2d 679 (7th Cir. 1982).
However, consistent with the statutory language and legis-
lative intent, it is well recognized that Section 2(11)’s dis-
junctive listing of supervisory indicia does not alter the es-
sential conjunctive requirement that a supervisor must exer-
cise independent judgment in performing the enumerated
functions. HS Lordships, 274 NLRB 1167 (1985); NLRB v.
Wilson-Crissman Cadillac, 659 F.2d 728 (6th Cir. 1981). In-
deed, as the Court stated in Beverly Enterprises v. NLRB,
661 F.2d 1095 (6th Cir. 1981), ‘‘Regardless of the specific
kind of supervisory authority at issue, its exercise must in-
volve the use of true independent judgment in the employer’s
interest before such exercise of authority becomes that of a
supervisor.’’ Thus, the exercise of some supervisory author-
ity in a merely routine, clerical perfunctory or sporadic man-
ner does not elevate an employee into the supervisory
ranks,’’ the test must be the significance of his judgment and
directions. NLRB v. Wilson-Crissman Cadillac, supra; Hydro
Conduit Corp., 254 NLRB 433 (1991). Consequently, an em-
ployee does not become a supervisor merely because he
gives some instructions or minor orders to other employees.
NLRB v. Wilson-Crissman Cadillac, supra.
Nor does an employee become a supervisor because he has
greater skills and job responsibilities or more duties than fel-
low employees. Federal Compress Warehouse Co. v. NLRB,
398 F.2d 631 (6th Cir. 1968). Additionally, the existence of
independent judgment alone will not suffice for, ‘‘the deci-
sive question is whether [the employee has] been found to
possess authority to use independent judgment with respect
to the exercise . . . of some one or more of the specific au-
thorities listed in Section 2(11) of the Act.’’ Advance Mining
Group, 260 NLRB 486 (1982); NLRB v. Brown & Sharpe
Mfg. Co., 169 F.2d 331 (1st Cir. 1958). In short, ‘‘some kin-
ship to management, some empathetic relationship between
employer and employee must exist before the latter becomes
a supervisor for the former.’’ Advance Mining Group, supra,
NLRB v. Security Guard Service, 384 F.2d 1 (5th Cir. 1967).
Moreover, in connection with the authority to recommend ac-
tions, Section 2(11) of the Act requires that the recommenda-
tions must be effective.
The burden of proving that an employee is a ‘‘supervisor’’
within the meaning of the Act, rests on the party alleging
that such status exists. RAHCO, Inc., 265 NLRB 235 (1982);
Tucson Gas & Electric Co., 241 NLRB 181 (1979). How-
ever, in NLRB v. Health Care & Retirement Corp. of Amer-
ica, 987 F.2d 1256 (6th Cir. 1991), the Sixth Circuit held
that the General Counsel has the burden of establishing su-
pervisory status. Where the possession of any one of the
aforementioned powers is not conclusively established, or
‘‘In borderline cases’’ the Board looks to well-established
secondary indicia, including the individual’s job title or des-
ignation as a supervisor, attendance at supervisorial meetings,
job responsibility, authority to grant time off, etc., whether
the individual possesses a status separate and apart from that
of rank-and-file employees. NLRB v. Chicago Metallic Corp.,
794 F.2d 531 (9th Cir. 1986); Monarch Federal Savings &
Loan, 237 NLRB 844 (1978; Flex-Van Corp., 288 NLRB
956 (1977). However, when there is no evidence that an indi-
vidual possesses any one of the several primary indicia for
statutory supervisory status enumerated in Section 2(11) of
the Act, the secondary indicia are insufficient by themselves
to establish statutory supervisory status, J. C. Brock Corp.,
314 NLRB 157 (1994); St. Alphonsus Hospital, 261 NLRB
620 (1982).
In NLRB v. Health Care & Retirement Corp., 114 S.Ct.
1178 (1994), the Supreme Court rejected the Board’s ‘‘pa-
tient care’’ analysis test which found that a nurse’s assign-
ment and direction of other employees did not involve the
exercise of supervisory authority because it stemmed from
the nurse’s professional judgment in the interest of patient
care and was ‘‘not in the interest of the employer.’’ Instead,
the Court held that the Board must apply the statutory cri-
teria set forth in Section 2(11) of the Act in the health care
field in the same manner as any other industry.
In so doing, the Court set forth the test for determining
whether an individual is to be deemed a supervisor. There
is no reason that the test would be inapplicable to staff psy-
chiatrists. Cf. North General Hospital, 314 NLRB 14 (1994)
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908 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
34 The Respondent’s direct and cross-examination of witnesses on
the supervisory issues was based, in part, on a unit chief job descrip-
tion which was undated. (P. Exh. 2.) Although Dr. Castaneda testi-
fied that the job description is maintained in a manual located in the
nurse’s station on each unit, all of the unit chiefs who testified stated
that they had never seen it before.
35 Dr. Castaneda stated that his supervisor, Dr. Galanter, learned
of the doctor’s subpar performance from other sources but relied on
Dr. Castaneda’s assessment of the doctor’s perfornance.
36 Dr. Joel Wallack, the Deputy Director, indicated that he over-
sees all hiring for the department of psychiatry. Dr. Wallack testified
that he would ask the unit chief to participate in inverviews or bring
the candidate to met the unit chief so that he could get the chief’s
input before a final hiring decision was made. Dr. Wallack stated
that the unit chief’s opinion would be given significant weight and
that he did not recall one instance where they didn’t listen to a unit
chief who opposed hiring a particular candidate.
37 Shortly after Dr. Trujillo was hired, Dr. Geller testified that Dr.
Trujillo asked him to be part of a committee which interviewed ap-
plicants for various administrative positions. There was no further
evidence adduced concerning what input, if any, this committee had
with respect to the selection of candidates.
(where the Board, 1 month after the decision in Health Care
Retirement Corp., held inter alia, that the director of psy-
chiatric in-patient service for a hospital was not a supervisor
where ‘‘there [were] no differences between his duties and
those of [staff psychiatrists].’’ The Board noted: The mere
fact that Dr. Robinson ‘‘monitors’’ certain procedures and
‘‘takes care of problems’’ does not establish that his inter-
action with the other professionals in the department raises
the level of responsible direction. North General Hospital,
314 NLRB 14 (1994). Accordingly, we find that Dr. Robins
is not a statutory supervisor.
The Supreme Court noted that in making a determination
on the question of one’s supervisory status.
The statute requires the resolution of three ques-
tions,and each must be answered in the affirmative if
an employee is to be deemed a supervisor. First, does
the employee have authority to engage in one of the 12
listed activities [in section 2(11)]? Second, does the ex-
ercise of that authority require ‘the use of Independent
judgment’? Third, does the employee hold authority ‘in
the interest of the employer’? [114 S.Ct. at 1780.]
In Providence Hospital, 320 NLRB 717 (1996), the Board
had occasion to review the Supreme Court’s decision and
commented: When a professional gives directions to other
employees, those directions do not make the professional a
supervisor merely because the professional used judgment in
deciding what instructions to give. For example, designing a
patient treatment plan may involve substantial professional
judgment, but may result in wholly routine direction to the
staff that implements that plan. 320 NLRB at 12. See also
Nymed, Inc., 320 NLRB 806 65 fn. 10 (1996) (designing a
plan of medical care is not an exercise of supervisory judg-
ment). The Board further noted that the Supreme Court rec-
ognized the Board’s distinction between authority arising
from professional knowledge and the ‘‘authority encompass-
ing front-line management.’’ Id. The Board concluded, ‘‘We
fully expect, therefore, that the analysis of most cases raising
supervisory issues will be made pursuant to the Board’s tra-
ditional approach of analyzing whether the direction is done
with independent judgment.’’ Id. at 13.
It is well settled that the job title ‘‘supervisor,’’ in and of
itself, is an insufficient basis to qualify an individual as a su-
pervisor within the meaning of Section 2(11) of the Act.
Rather, it must be established that an individual exercises
independent judgment in one or more of the powers enumer-
ated in Section 2(11) of the Act. Accordingly, the exercise
of supervisory judgment in a merely routine, clerical, per-
functory, or sporadic manner does not elevate an employee
into supervisory ranks, the test of which must be the signifi-
cance of the judgment and directions. Lakeview Health Cen-
ter, 308 NLRB 75 (1992).
As indicated hereinbefore the burden of proving that an in-
dividual is a supervisor rests squarely on the party asserting
that such status exists. Tucson Gas & Electric Co., 241
NLRB 181 (1979); Ohio Masonic Home, 295 NLRB 390
(1989). Whenever there is inconclusive or conflicting evi-
dence on specific indicia of supervisory authority, the Board
will find that supervisory status has not been established with
respect to those criteria.
Based on the totality of the evidence, it is clear that the
Employer has failed to show that the unit chiefs at Bellevue
exercised independent judgment with regard to any of the
factors establishing supervisory status under Section 2(11) of
the Act.
Dr. Castaneda testified that he was a unit chief at Bellevue
from 1987 until 1992. In his present capacity as the director
of in-patient psychiatric services, Dr. Castaneda stated that
unit chiefs serve as his immediate connection with the psy-
chiatrists and physicians in training. Dr. Castaneda main-
tained that the unit chiefs are responsible for supervising
from two to six or more physicians on his unit.34 On cross-
examination, Dr. Castaneda further testified that although the
other ward personnel have departmental supervisors and are
represented by unions, unit chiefs have the authority to, and
routinely exercise such authority, to influence matters such as
the hiring and firing of such personnel.
When he was a unit chief, Dr. Castaneda testified that he
supervised several physicians and physicians in training, pro-
vided evaluations for them, recruited, interviewed and se-
lected them for hiring, and initiated the termination of one
of the doctors.35 Dr. Castaneda further stated that he partici-
pated in the hiring of other persons in other disciplines, such
as nursing and social work.36
Drs. Graham, Kermani, Geller, and Portnow, all experi-
enced unit chiefs, testified that they had no authority at all
to hire, fire, or otherwise discipline employees.37 However,
Dr. Kermani testified that, in one instance, he was directed
by Dr. Castaneda to sit and take notes during a ‘‘counsel-
ing’’ session held by Dr. Castaneda who later directed him
to issue a counseling memorandum to the other doctor based
on his notes. In another instance, Dr. Graham testified that
on one occasion he and another doctor spoke to a prospective
hire after he had been interviewed by the assistant director
and that Dr. Graham subsequently told the assistant director
that ‘‘the applicant seemed fine.’’
Inasmuch as Dr. Castaneda’s testimony is completely un-
substantiated, the Respondent has clearly failed to show that
unit chiefs have any authority whatsoever to hire, fire, or
otherwise discipline employees. There was no evidence pre-
sented that unit chiefs posses the authority to transfer, lay
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909NEW YORK UNIVERSITY MEDICAL CENTER
38 In a memorandum dated October 12, 1992, and addressed to all
unit chiefs, Dr. Castaneda (and the directors of the other disciplines)
mandated, in his own words, ‘‘a basic core of therapeutic activities’’
that were to be conducted on the wards.
off, or recall employees or to effectively recommend such
action. Nor was evidence adduced that unit chiefs have the
power to adjust employee grievances. With regard to the su-
pervision of clinical activities, Dr. Castaneda stated that unit
chiefs identified and implemented the philosophy of treat-
ment on their units which included supervising the function-
ing of the attendings and the other disciplines.38
In 1987, Dr. Castaneda stated that the unit chiefs distrib-
uted the case load according to the capabilities of the physi-
cians and the balance of responsibilities such that the unit
chief generally had less patients than the attendings. Because
of their administrative responsibilities, Dr. Castaneda stated
that he reduced the case load of the unit chiefs ‘‘as a rule.’’
To the extent that such a rule is not followed, Dr. Castaneda
stated it depends on the quality of the unit chief to exert con-
trol over his or her domain. ‘‘The better organized unit chief
would make sure that there is an adequate reporting and as-
sessment of each patient that comes in, and that those cases
are distributed accordingly—It was routine that the strengths
and weaknesses of the physicians were assessed at times of
specific patient assignments.’’
The testimony of Drs. Kermani, Portnow, Geller and
Graham all show that patient assignments are made by the
nursing staff and are completely a matter of routine.
Dr. Castaneda further stated that as a unit chief, he was
responsible for disseminating and instructing the rest of the
staff of all disciplines as to the nature of new policies and
regulations and for ensuring such were implemented. For ex-
ample, Dr. Castaneda stated that unit chiefs are responsible
for ensuring that the legal status of all the patients on the
ward are monitored and complied with, that quality assurance
standards are understood and followed, and that everyone on
the ward participates in adequate treatment planning.
Dr. Castaneda testified that he holds unit chief meetings
on Monday at 11 a.m. to discuss the managerial duties re-
garding functioning of each of the units and information
which should bring the unit chiefs up-to-date as to the mis-
sion of the department which they are supposed to dissemi-
nate and implement on each of their respective units. Dr.
Castaneda said that he also meets with each unit chief regu-
larly depending on their level of functioning or seniority and
that most of his communications with them occur verbally.
The testimony of the aforementioned witnesses for the
General Counsel show that unit chiefs merely communicate
the information disseminated in the unit chief meetings and,
as discussed above, do not have any authority to ensure that
any changes in hospital policies or procedures are followed
by the attending pschiatrists on their unit.
Dr. Castaneda also testified that unit chiefs organize inci-
dent reviews so as to be able to respond to queries and ex-
plain the actions taken in a particular case to both internal
and external sources. Dr. Castaneda further stated that unit
chiefs serve as the ‘‘ultimate word’’ on the unit as to which
clinical path to follow with a particular patient. Dr.
Castaneda related that unit chiefs play a crucial role in the
identification of problems and the implementation of solu-
tions to quality of assurance issues such as length-of-stay or
restraint and seclusion matters, and are also responsible for
ensuring that medical coverage is adequate on their units.
Thus, according to Dr. Castaneda, the unit chief decides what
mainly is best for the patients.
Although unit chiefs ‘‘sign off’’ on leave requests, the tes-
timony of Drs. Graham, Kermani, Portnow, Geller, and
Mahon show that attendings and unit chiefs regularly confer
with each other to ensure that their vacation requests do not
conflict and that as a practical matter, such conflicts do not
occur and that unit chiefs routinely sign off on such requests.
There was no probative evidence offered by the Respondent
as to the existence of a conflict regarding vacation requests
or any instance where such a request was refused. The testi-
mony of Dr. Kermani and Dr. Graham further established
that the administration was completely responsible for as-
signing so-called ‘‘moonlighters’’ to substitute for the unit
chiefs and attendings on public holidays.
Dr. Graham, Portnow, Geller, and Kermani all testified
that attendings and unit chiefs treat their patients independ-
ently and on occasion, confer in a collegial manner over
treatment issues. Dr. Portnow also testified that he and the
attendings on his ward have ‘‘brainstormed’’ over ways to
help one of the attendings lower the length of stay of his pa-
tients. There was no testimony that unit chiefs regularly re-
view the medical charts of the attending psychiatrists al-
though the record appears to show that this was done to a
limited extent to prepare for a review by the Joint Committee
on the Accreditation of Hospitals (JCAHO).
In connection with the JCAHO review, the evidence shows
that unit chiefs were directed to fill out evaluations of attend-
ing psychiatrists on their wards. However, there is no evi-
dence that unit chiefs make specific recommendations for
promotions, raises, discipline, or even continued employ-
ment. Inasmuch as there is no evidence that such evaluations
affect employee status, such evaluations have clearly been
held by the Board not to confer supervisory status. See
Passavant Health Center, 284 NLRB 887 (1987); Waverly-
Cedar Falls, 297 NLRB 390 (1989); Ohio Masonic Home,
295 NLRB 390 (1989). Moreover, the testimony of Drs.
Kermani, Graham, and Portnow show that they were either
directed as to the range of grades to be given or that their
recommendations were completely ignored.
Dr. Castaneda stated that unit chiefs also coordinate the
teaching activities on his unit, e.g., he will assign medical
students to the attending best qualified to provide education
and supervision.
Dr. Geller testified that he reviewed the medical charts of
the residents and medical students, gave them advice, taught
them and filled out evaluations of them. However, inasmuch
as the Board has clearly held that interns and residents are
not employees under the Act, such activities are not indic-
ative of supervisory authority. See North General Hospital,
314 NLRB 14 (1994).
The Respondent introduced a unit chief job description
into evidence. However, inasmuch as all the witnesses for the
General Counsel who were former unit chiefs testified that
they had never seen the job description and the Respondent
adduced no probative extrinsic evidence supporting, its use
as establishing the ‘‘supervisory’’ duties as listed therein, I
do not find it supportive of the Respondent’s contention as
to supervisory status. However, this job description does con-
tain some supervisory criteria.
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910 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Respondent may contend that unit chiefs are generally
regarded, even by themselves as supervisors, who are in
charge of their units. However, such an argument is mis-
placed, for it is well established that the subjective percep-
tions of others are not dispositive with respect to determina-
tions of supervisory status by the Board. See Blue Star
Ready-Mix Concrete, 305 NLRB, 429, 430 (1991) (employer
holding out of individual as supervisor not dispositive of
issue).
In sum, the record shows that the Respondent has not car-
ried its burden of adducing probative evidence to show that
unit chiefs satisfy any of the criteria enumerated in Section
2(11) which would qualify them as ‘‘supervisors’’ under the
Act. In applying the analysis set forth in cases such as Provi-
dence Hospital, supra; Ten Broeck Commons, 320 NLRB
806 (1996). Also see Parkview Manor, 321 NLRB 477
(1996).
The Respondent also asserts as an affirmative defense that
all six alleged discriminatees were faculty members and,
therefore, excluded from the coverage of the Act as manage-
rial employees.
The Act does not explicitly state that managerial employ-
ees shall be excluded from the protection of the Act. How-
ever, in NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974),
the Supreme Court stated that managerial employees must be
excluded from the protection of the Act. Moreover, in Bell
Aerospace, 219 NLRB 384 (1975), the Board on remand cit-
ing Eastern Camera & Photo Corp., 140 NLRB 569 (1962),
and General Dynamics Corp., 213 NLRB 851 (1974), de-
fined managerial employees as follows:
[T]hose who formulate and effectuate management poli-
cies by expressing and making operative the decisions
of their employer, and those who have discretion in the
performance of their jobs and independent of their em-
ployer’s established policy.... [M]anagerial status is not
conferred upon rank-and- file workers, or upon those
who perform routinely, but rather it is reserved for
those in executive-type positions, those who are closely
aligned with management as true representatives of
management.
NLRB v. Yeshiva, 444 U.S. 672 (1985), marked the first
case in which the Supreme Court extended the mangerial ex-
clusion to college faculty members. In Yeshiva the Court
held that full-time faculty members at Yeshiva, a large pri-
vate university, were managerial employees and thus outside
the protection of the Act. In doing so, the Court stressed that
its holding did not extend to all professors. Therefore, the
issue of a college faculty’s status, as either managerial em-
ployees or employees, is fact specific.
In Yeshiva, the Court maintained that the faculty’s duties
constituted the essential managerial functions of a university.
The Court maintained that this was evidenced by the fact that
[the faculty members’] authority in academic matters is
absolute. They decide what courses will be offered,
when they will be scheduled, and to whom they will be
taught. They debate and determine teaching methods,
grading policies, and matriculation standards. They ef-
fectively decide which students will be admitted, re-
tained, and graduated. . . . To the extent the industrial
analogy applies, the faculty determines . . . the product
to be produced, the terms upon which it will be offered,
and the customers who will be served. [Id. at 688.]
That Yeshiva’s administration could veto faculty decisions
was not dispositive to the Court. The Court rejected the con-
tention that this reservation of authority rendered the fac-
ulty’s rule advisory rather than managerial.
Where the Board has conferred managerial status upon
faculty members, the faculty have effective control over
course offerings and scheduling, the general structure of the
curriculum, and standards governing the admission, retention,
and graduation of students. See Livingstone College, 286
NLRB 1308 (1987). American International College, 282
NLRB 189 (1986); University of New Haven, 267 NLRB 939
(1983). Additionally, these cases attributed managerial status
based on faculty influence in decisions regarding appoint-
ment promotion and tenure. Id. That the faculty’s decisions
may be reviewed by the administration need not preclude a
finding of managerial status. In University of Dubuque, 289
NLRB 349 (1989), the Board conferred managerial status de-
spite evidence that the administration vetoed a majority of
the faculty members’ recommended decisions.
Where faculty members have been afforded protection
under the Act, the Board has relied on the fact that the ad-
ministration either unilaterally or effectively made the deci-
sions essential to university operations. Decisions involving
personnel may fall into this category. In Florida Memorial
College, 263 NLRB 1248, 1254 (1982), enfd., 820 F.2d 1182
(11th Cir. 1987), the Board found faculty members to be em-
ployees where the administrators hired professors without
faculty participation. Faculty authority was deemed to be
merely ‘‘ a sophisticated version of the familiar suggestion
box.’’ Id. at 1252. Similarly, in Loretto Heights College v.
NLRB, 742 F.2d 245 (10th Cir. 1984), the Board held that
faculty members were not managerial employees, noting that
faculty recommendations were afforded little weight by the
administration when making personnel decisions.
In Kendall School of Design, 279 NLRB 281 (1986), the
Board held the faculty to be employees where the faculty
were unable to determine course content and texts. Also see
Cooper Union of Science & Art, 273 NLRB 1768 (1985)
(Board held that faculty members were employees where the
University Trustees restructured academic organization with-
out faculty participation and over strong faculty opposition),
enfd. 783 F.2d 29 (2d Cir. 1986), cert. denied 479 U.S. 815
(1987).
Additionally, the Board has found faculty members to be
employees where professors lack control over major financial
decisions affecting the university. See Cooper Union, supra
at 1773; Florida Memorial College, supra at 1249.
Unlike Yeshiva and its progeny, the clinical psychiatrists
at Bellevue are not ‘‘full-time’’ faculty members. Nor are
they otherwise educationally related personnel whose colle-
gial authority with respect to academic matters was deemed
to be so closely connected with the ‘‘business’’ of the uni-
versity that these decisions constituted governance of the in-
stitution. Montefiore Hospital & Medical Center, 261 NLRB
569 (1982). Rather, they are full-time clinical psychiatrists
who are affiliated with the Respondent’s School of Medicine
solely as an outgrowth of their employment by Respondent
at NYU. They are not on the Medical School’s tenure track
nor is there any evidence that they participate on committees
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911NEW YORK UNIVERSITY MEDICAL CENTER
39 See NLRB v. Natural Gas Utility of Hawkins County, 402 U.S.
600, 604–605 (1971); Concordia Electric Corp., 315 NLRB 752
(1994); Fayette Electrical Cooperative, 308 NLRB 1071 (1992).
which decide or effectively recommend course content,
teaching methods, grading policies, matriculation standards,
admission standards, degree requirements, the size of the stu-
dent body, the tuition to be charged, etc. See also Lewis &
Clark College, 300 NLRB 155 (1990). Nor was there any
probative evidence adduced by the Respondent showing that
the clinical psychiatrists employed at Bellevue by the Re-
spondent formulate or effectuate employer policies with re-
spect to employee relations matters. See North Arkansas
Electric Cooperative, 185 NLRB 550 (1970).
Based on the foregoing, the record fails to establish that
the clinical psychiatrists at Bellevue are ‘‘managerial’’ em-
ployees and excluded from the protection of the Act.
For the last affirmative defense the Respondent asserts that
all actions complained of were dictated by the New York
City Health and Hospitals Corporation, a governmental agen-
cy not subject to the coverage of the Act. To the extent that
the Respondent performed a governmental function on behalf
of the HHC, or acted under the direction and control of the
HHC, it also was not subject to the coverage of the Act.
In Res Care, Inc., 280 NLRB 670 (1986), the Board held
that, in deciding whether to assert jurisdiction over an em-
ployer with close ties to an exempt government entity, it
would examine the control over essential terms and condi-
tions of employment retained by both the employer and the
exempt entity to determine whether the employer is capable
of engaging in meaningful collective bargaining 280 NLRB
at 672.
In Management Training Corp., 317 NLRB 1355 (1995),
the Board overruled Res Care. In doing so, the Board estab-
lished a new test for asserting jurisdiction over employers
that operate under contracts with government entities:
[I]n determining whether the Board should assert juris-
diction, the Board will only consider whether the em-
ployer meets the definition of ‘‘employer’’ under Sec-
tion 2(2) of the Act, and whether such employer meets
the applicable monetary jurisdicitional standards.
Section 2(2) of the Act excludes from the term ‘‘employer’’
both Federal and state governmental entities as well as ‘‘po-
litical subdivisions thereof.’’ There is no evidence in the
record however, that the Respondent is exempt from the
Board’s jurisdiction on this basis. Moreover, I have found
above that the Respondent annually derives gross revenues in
excess of 500,000 annually in the conduct of its business op-
erations and purchases and received at its New York facili-
ties goods and supplies valued in excess of 50,000 directly
from points outside the State of New York. I therefore find
that the Respondent is an employer within the meaning of
Section 2(2) of the Act and subject to the coverage of the
Act.39
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of the Respondent, set forth in section III,
above, occurring in connection with the Respondent’s oper-
ations described in section I, above, have a close and inti-
mate relationship to trade, traffic and commerce among the
several states and tend to lead to labor disputes burdening
and obstructing commerce and the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act.
Having found that the Respondent unlawfully terminated
Drs. Kermani, Graham, Geller, Steiner, Portnow, and Mahon,
the Respondent shall be ordered of offer them immediate re-
instatement to their former positions, discharging if necessary
any replacement hired since their termination, and that they
be made whole for any loss of earnings or other benefits by
reason of the discrimination against them in accordance with
the Board’s decision in F. W. Woolworth Co., 90 NLRB 289
(1980), with interest computed as in New Horizons for the
Retarded, 283 NLRB 1173 (1987). See also Florida Steel
Corp., 231 NLRB 651 (1977), and Isis Plumbing Co., 138
NLRB 716 (1962).
Because of the nature of the unfair labor practices found
herein, and in order to make affective the interdependent
guarantees of Section 7 of the Act, I recommend that the Re-
spondent be ordered to refrain from in any like or related
manner abridging any of the rights guaranteed employees by
Section 7 of the Act. The Respondent should also be re-
quired to post the customary notice.
CONCLUSIONS OF LAW
1. The Respondent, New York University Medical Center,
A Division of New York University, is now and has been
at all times material herein an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act, and a health care institution within the meaning of Sec-
tion 2(14) of the Act. Moreover, based upon the record and
admitted facts it will effectuate the purposes of the Act for
the Board to assert jurisdiction over the Respondent herein.
2. The Association of Staff Psychiatrists is a labor organi-
zation within the meaning of Section 2(5) of the Act.
3. The Respondent, in violation of Section 8(a)(1) of the
Act, has interfered with, restrained, and coerced its employ-
ees in the exercise of their rights under Section 7 of the Act
by impliedly threatening its employees with cutbacks, layoffs
and other consequences if they continued to protest the an-
nounced discontinuance of the Respondent’s policy and prac-
tice of allowing employees to work at Bellevue 9 a.m. to 3
p.m. with credit for on-call and other off-site research duties.
4. The Respondent engaged in unfair labor practices in
violation of Section 8(a)(1) and (3) of the Act by terminating
Drs. Kermani, Graham, Geller, Steiner, Portnow, and Mahon
because they protested the changes in the 9 a.m. to 3 p.m.
work hours, joined, supported or assisted the Association,
and engaged in concerted activities concerning terms and
conditions of employment, or other mutual aid or protection,
and in order to discourage employees from engaging in such
activities or other concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, and has
thereby discriminated, and is discriminating, in regard to the
hire or tenure or terms or conditions of employment of its
employees.
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912 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
40 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
41 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
National 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.’’
5. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended40
ORDER
The Respondent, New York University Medical Center, a
Division of New York University, New York, New York, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Impliedly threatening its employees with cutbacks, lay-
offs, and other consequences if they continue to protest the
announced discontinuance of the Respondent’s policy and
practice of allowing employees to work at Bellevue 9 a.m.
to 3 p.m. with credit for on-call and other off-site research
duties.
(b) Terminating employees because they protested the
changes in the 9 a.m. to 3 p.m. hours and joined, supported
or assisted the Association, and engaged in concerted activi-
ties concerning terms and conditions of employment or other
mutual aid or protection, and in order to discourage employ-
ees from engaging in such activities or other concerted ac-
tivities for the purpose of collective bargaining or other mu-
tual aid or protection.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed in Section 7 of the Act.
2. Take the following affirmative action necssary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of these Order, offer Drs.
Ebrahim, Kermani, John Graham, Martin Geller, Jerome
Steiner, Stanley Portnow, and Maeve Mahon full reinstate-
ment to their former positions, or if their jobs no longer
exist, to a substantially equivalent position, without prejudice
to their seniority or any other rights or privileges previously
enjoyed.
(b) Make Drs. Kermani, Graham, Geller, Steiner, Portnow,
and Mahon whole for any loss of earnings and other benefits
suffered as a result of the discrimination against them in the
manner set forth in the remedy section of the decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge, and
within 3 days thereafter notify the employees in writing that
this has been done and that the discharge will not be used
against them in any way.
(d) Preserve and, within 14 days of a request make avail-
able to the Board or its agents for examination and copying,
all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this Order.
(e) Within 14 days after service by the Region, post at its
facility in New York, New York copies of the attached no-
tice marked ‘‘Appendix.’’41 Copies of the notice, on forms
provided by the Regional Director for Region 2, after being
signed by the Respondent’s authorized representative, shall
be posted by the Respondent and maintained for 60 consecu-
tive days in conspicuous places including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these proceed-
ings, 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 employees employed by
the Respondent at any time since March 29, 1995.
(f) Within 14 days after the service by the Region, file
with the Regional Director a sworn certification of a respon-
sible official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.
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 vio-
lated 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
concerted activities.
WE WILL NOT impliedly threaten our employees with cut-
backs, layoffs and other consequences if they continue to
protest the Respondent’s announced discontinuance of its
policy and practice of allowing employees to work at Belle-
vue from 9 a.m. to 3 p.m. with credit for on-call and other
off-site research duties.
WE WILL NOT terminate employees because they joined,
supported, or assisted the Association or any other labor or-
ganization and engaged in concerted activities for the pur-
poses of collective bargaining or other mutual aid or protec-
tion.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed to you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Drs. Ebrahim Kermani, John Graham, Stanley
Portnow, Martin Geller, Maeve Mahon, and Jerome Steiner
full reinstatement to their former jobs or, if these jobs no
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913NEW YORK UNIVERSITY MEDICAL CENTER
longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privileges
previously enjoyed.
WE WILL make Drs. Kermani, Graham, Portnow, Geller,
Mahon and Steiner whole for any loss of earnings and other
benefits resulting from their unlawful discharges, less interim
earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlawful
discharges of Drs. Kermani, Graham, Portnow, Geller,
Mahon and Steiner, and WE WILL within 3 days thereafter,
notify them in writing that this has been done and that the
discharges will not be used against them in any way.
NEW YORK UNIVERSITY MEDICAL CENTER, A
DIVISION OF NEW YORK UNIVERSITY
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