621 F.2d 510 (2nd Cir. 1980), 560, Montefiore Hosp. and Medical Center v. N.L.R.B.

Docket Nº:560, 790, Dockets 79-4156, 79-4184.
Citation:621 F.2d 510
Party Name:MONTEFIORE HOSPITAL AND MEDICAL CENTER, Employer-Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Marji Gold and Michael Fisher, Employees-Intervenors.
Case Date:April 28, 1980
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 510

621 F.2d 510 (2nd Cir. 1980)

MONTEFIORE HOSPITAL AND MEDICAL CENTER, Employer-Petitioner,

v.

NATIONAL LABOR RELATIONS BOARD, Respondent,

and

Marji Gold and Michael Fisher, Employees-Intervenors.

Nos. 560, 790, Dockets 79-4156, 79-4184.

United States Court of Appeals, Second Circuit

April 28, 1980

        Argued Jan. 14, 1980.

Page 511

        Jerold D. Jacobson, New York City (David H. Diamond, Fred Kolikoff, Guggenheimer & Untermyer, New York City, of counsel), for employer-petitioner.

        Robert Sewell, Atty., N. L. R. B., Washington, D.C. (Norton J. Come, Acting Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Assn. Gen. Counsel, James Y. Callear, Atty., N. L. R. B., Washington, D.C., of counsel), for respondent.

        Loren Siegel, Brooklyn, N.Y. (Amy Gladstein, Gladstein, Reif & Siegel, Brooklyn, N.Y., of counsel), for employees intervenors.

        Proskauer, Rose, Goetz & Mendelsohn, New York City (Howard Lichtenstein, Allan H. Weitzman, James H. Carmichael, New York City, of counsel), for amicus curiae Hospital Association of New York State.

        Irwin Geller, New York City, for amicus curiae Committee of Interns and Residents.

Page 512

        Roan & Grossman, Kansas City, Mo. (Clifton L. Elliott, Gina Kaiser, Kansas City, Mo., of counsel), for amicus curiae American Hospital Association.

        Before LUMBARD, MANSFIELD and NEWMAN, Circuit Judges.

        MANSFIELD, Circuit Judge:

        Intervenors Dr. Marji Gold and Dr. Michael Fisher filed an unfair labor practice charge with the National Labor Relations Board (Board) against petitioner Montefiore Hospital and Medical Center (Hospital), alleging that in violation of § 8(a)(1) of the National Labor Relations Act (the Act), 29 U.S.C. § 158(a)(1), 1 it unlawfully suspended them for strike activity and retaliated against them for filing charges with the Board. The Hospital seeks review of a Board order ruling in favor of Drs. Gold and Fisher on all counts, and the Board cross-petitions for enforcement of its order. We reverse the order in part and grant enforcement in part.

        These proceedings arise out of a lawful economic strike, with 10 days' notice, of unionized employees at the Bathgate Avenue Clinic of the Hospital (i. e., service, maintenance, technical and certain professional employees represented by District 1199, National Union of Health and Hospital Employees, AFL-CIO) in July of 1976. Drs. Fisher and Gold, not themselves union members, were part-time "preceptors," who taught and consulted with interns and residents at the Hospital who were engaged in the clinic's program of family practice medicine. They walked out without notice to the Hospital in sympathy with the union strike and joined the union picket line. During the strike, one physician (Dr. John Seed), three nurses and a receptionist remained on duty. The normal complement consisted of 10 to 12 physicians and some 24 to 27 others. The clinic remained open, treating those patients it could and referring elsewhere those whom it could not treat.

        While on the picket line, according to the findings of an Administrative Law Judge below, Gold and Fisher approached arriving patients, identified themselves as doctors, told the patients of the strike, and opined that they would receive better medical care if they went to a "full service, non-struck facility." They made no inquiry into the condition or ailments of these patients, nor did they tell them that some services were being offered at the clinic. One woman, a Mrs. Aguilar, who had an appointment with Dr. Seed and proved to be in need of immediate assistance, was told (as she described it) that she "could not be taken care of there." She went elsewhere for treatment.

        The strike came to an end on July 17, 1976. After management meetings to review the conduct of Gold and Fisher, they were discharged on July 22 because of their conduct during the strike. The discharges were reviewed by a panel of staff physicians, which recommended that since Gold and Fisher had been disciplined sufficiently by the separation, they be allowed to return to work. Upon receipt of this recommendation Dr. Martin Cherkasky, the President of the Hospital, met with Gold and Fisher on September 8. Receiving their assurances that they would not in the future engage in abandonment of their duties or patients nor in obstructing patients seeking care at the clinic and their concession that those activities may not have been entirely appropriate, he recommended their reinstatement to the Trustees. The two doctors resumed their part-time positions on October 1, 1976.

        In late 1976 the Hospital decided to expand its Family Practice Program as of

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February 1, 1977, creating two full-time faculty positions. Dr. Gold applied for one of those positions. She was recommended for the position by the Director of the Residency Program, whose recommendations were normally accepted. Dr. Fisher applied for the second position and was also recommended. In the meantime, on November 17, 1976, Gold and Fisher filed unfair labor practice charges based on the July discharge, resulting in issuance of the complaint that led to the present proceedings on review. Dr. Cherkasky refused to approve recommendations of them for full-time positions during the pendency of those proceedings. He felt that their filing of charges was inconsistent with the doctors' assurances of September 8, casting doubt on their good faith, and he was concerned about the propriety of their professional conduct during the strike.

        In June 1976, prior to the strike, Gold and Fisher sought to convert their temporary privileges regarding admission of patients to Montefiore Hospital to permanent admitting privileges. Although the grant of these privileges was recommended by the head of the Department of Medicine, the Trustees deferred consideration until November 1977 because of their activity during the July 1976 strike.

        Based on these findings of fact, Administrative Law Judge Charles W. Schneider held that the doctors violated no duty in striking without notice, supporting the Union's strike and picketing, but that their picket line conduct specifically, their identifying themselves as doctors and, when prospective patients attempted to enter the clinic, turning them away with the statement they would receive better care at a full-service, non-struck facility was unprotected. Since one motive for the discharge was lawful and one unlawful, he found the Hospital's discharge of them violated § 8(a)(1). He nevertheless refused to order back pay for the period of discharge, due to their unprotected strike activity.

        The Judge found that the deferral of full-time employment for Gold and Fisher was in retaliation for their filing of unfair labor practice charges, thus violating §§ 8(a)(4) 2 and 8(a)(1) of the Act, 29 U.S.C. § 158(a)(4), (a) (1). He ordered that the doctors be offered full-time positions, with lost wages for the period of delay. He found that the evidence did not support a conclusion that permanent admitting privileges were withheld because of protected activity.

        The Board reversed the ALJ's determination that the picket line activity was unprotected, and accordingly ordered back pay for the period of discharge. It also ruled that the evidence showed that the deferral of action on the applications for permanent admitting privileges was in retaliation for protected strike activities, and ordered immediate consideration of those applications. In all other respects it adopted the holdings of the ALJ.

        We believe that the original conclusions of the ALJ were correct. We reverse the order of the Board insofar as it departs from his recommendations.

        DISCUSSION

        This petition for review presents three legal questions: (1) whether Drs. Gold and Fisher were engaging in protected activity when they went on strike in sympathy with striking hospital employees without giving the Hospital prior notice, (2) whether the two doctors' statements on the picket line to prospective patients were protected, and (3) whether the hospital's temporary discharge of the doctors and its withholding of full-time appointments and permanent admitting privileges from them was permissible. 3

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  1. Failure to Give Advance Notice of Strike.

            The Hospital argues that Gold and Fisher were obligated to give advance notice of their intention to strike, and therefore their strike without doing so was unprotected by the Act. Two other doctors who struck after giving notice were not disciplined by the Hospital. The sources of this obligation are said to be, first, § 8(g) of the Act, 29 U.S.C. § 158(g) (which pertains solely to health care employees) and, second, established limitations on the right to strike under the Act.

            Section 8(g) of the Act, enacted as part of the 1974 Health Care Amendments to the Act, Pub.L.No.93-360, § 1(e), 88 Stat. 396, states:

    "A labor organization before engaging in any strike, picketing, or other concerted refusal to work at any health care institution shall, not less than ten days prior to such action, notify the institution in writing and the Federal Mediation and Conciliation Service of that intention . . . . The notice shall state the date and time that such action will commence. The notice, once given, may be extended by the written agreement of both parties."

            The term "labor organization" is defined in § 2(5) of the Act, 29 U.S.C. § 152(5), to mean:

    "any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or...

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