Extract
St. Barnabas Hospital, 1000 (2001)
St. Barnabas Hospital and United Salaried Physicians and Dentists. Case 2-CA-31504
August 9, 2001 DECISION AND ORDER BY MEMBERS LIEBMAN, TRUESDALE, AND WALSH On February 24, 2000, Administrative Law Judge Steven Fish issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings1 as explained below, and conclusions and to adopt the recommended Order.2 We agree with the judge that the Respondent violated Section 8(a)(1) of the Act by terminating four physicians for engaging in protected concerted activity when they threatened to stop performing voluntary on-call work. Facts The relevant facts are discussed in detail in the judge's decision. In essence, they are as follows: On July 1, 1997, the Respondent began providing health care services at Lincoln Hospital pursuant to an "affiliation agreement" that was executed between Respondent and the New York City Health and Hospital Corporation. The Respondent, which replaced New York Medical College as the provider of services, hired most of the physicians employed by New York Medical College, including the four discriminatees. The Respondent continued the New York Medical College practice of paying physicians an annual salary for working set hours during the week and an hourly rate for on-call work (work performed after regularly scheduled hours or any weekend hours) that they chose to perform. 1 The Respondent has excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. 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. 2 In its brief to the Board, the Respondent argues that the Board should reopen the record to examine the supervisory status of the discriminatees. We do not agree. As the judge stated, the Respondent presented no evidence at the hearing to support the contention that the discriminatees are supervisors. Nor does the Respondent's brief to the Board present any evidence to support its contention. The Respondent had the burden to establish that the alleged discriminatees were statu-tory supervisors and it failed to meet this burden. NLRB v. Kentucky River Community Care, Inc., 121 S.Ct. 1861 (2001). In June 1998, the Respondent discharged the discriminatees after it received a letter from them in which, responding to the Respondent's proposed policy changes regarding patient care procedures, they threatened to stop performing the voluntary on-call work. Discussion The judge found that the physicians the Respondent employs at Lincoln Hospital performed on-call work on a voluntary basis. We agree. Dr. William Stahl implemented the on-call program when he served as New York Medical College's chief surgeon.3 As the judge explained, Dr. Stahl "was adamant" that the on-call system was "entirely voluntary and not a condition of employment, and that any physician has the right to refuse to perform on-call work at any time." When the Respondent took over the affiliation contract in July of 1997, it made no changes in the on-call program. As the judge explained, "the discriminatees credibly testified that they believed . . . that the performance of on-call work was voluntary, and that they had the right to decline to perform such work, if they so chose." In fact, the record reflects that on several instances physicians chose not to perform any on-call work. As one discriminatee, Dr. Prakashchandra Rao, testified, on several occasions he did not perform on-call work for a particular month because he "just didn't want to do it." Dr. Kenneth Schwartz, the Respondent's network chief of surgery, testified that he believed the on-call work was mandatory. His view, however, was based on experience at other hospitals, none of which followed the Respondent's practice of paying physicians on a separate basis for performing on-call work. We also find it significant, as did the judge, that, after Schwartz became the Respondent's chief of surgery, he never informed the employees that the on-call work would henceforth be mandatory. To the contrary, the Respondent considered, but specifically rejected, increasing physician salaries to in-corporate a set number of on-call hours per month. In sum, the judge was well warranted in finding that the discriminatees performed on-call work o...See the full content of this document
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