New York University Medical Center v. National Labor Relations Board

156 F.3d 405
CourtCourt of Appeals for the Second Circuit
DecidedSeptember 25, 1998
DocketNos. 97-4332, 97-4362
StatusPublished
Cited by1 cases

This text of 156 F.3d 405 (New York University Medical Center v. National Labor Relations Board) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
New York University Medical Center v. National Labor Relations Board, 156 F.3d 405 (2d Cir. 1998).

Opinion

JACOBS, Circuit Judge.

This is a petition for review and a cross-petition for enforcement of an order of the National Labor Relations Board adopting the findings of an administrative law judge (Kleinman, J.), who concluded that New York University Medical Center (“NYU Medical Center”) violated Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1) and (a)(3), by laying off ten psychiatrists at Bellevue Hospital and by threatening adverse consequences if they continued their participation in a labor organization. The ALJ found that NYU Medical Center’s unit chiefs were not “supervisors” under the Act and ordered (inter alia) that NYU Medical Center reinstate the unit chiefs and Staff Psychiatrists with back pay and full benefits. On appeal, NYU Medical Center (1) argues that each of the doctors was terminated for demonstrated administrative and clinical deficiencies, and that there is no substantial evidence to support the NLRB’s finding that NYU Medical Center’s actions were motivated by animus against the labor organization; and (2) that in any event the four unit chiefs were supervisors within the definition of the Act, and therefore outside the Act’s protection. NYU Medical Center also contends that the statements characterized as threats by the NLRB were no more than predictions of likely consequences flowing from the Association’s recalcitrance on certain issues. For the reasons set forth below, each petition is granted in part and denied in part.

BACKGROUND

NYU Medical Center, a subdivision of New York University, provides physicians’ services and other medical services to Bellevue Hospital under an Affiliation Agreement with New York City Health and Hospitals Corporation (“HHC”), which owns and operates Bellevue. Before the layoffs at issue, Belle-vue’s Inpatient Department was divided into 13 separate psychiatric wards, called “Units,” each with a unit chief, two to six doctors, and an average of 25 beds. Each unit was also served by nurses, social workers, therapists, and maintenance people, but these classes of employees had their own, in some ways more clearly delineated, lines of authority.

A. The Doctors

What follows are brief descriptions of the key participants in the ease. Dr. Trujillo is the Director of Psychiatry at Bellevue. Dr. Castaneda, the Director of Inpatient Services, reported to Dr. Trujillo. Dr. Castaneda headed a staff of approximately 50 physicians, both psychiatrists and other medical specialists, including unit chiefs. The complainants in this action are six of the ten doctors laid off on March 25, 1995: Drs. Kermani, Geller, Graham, and Portnow were unit chiefs, while Drs. Mahon and Steiner were attending psychiatrists.

Dr. Kermani had been employed at Belle-vue for 25 years, and was board certified in psychiatry and neurology, child psychiatry, and forensic psychiatry. He was unit chief of a combined medical-psychiatric unit and had substantial expertise in the treatment of patients with AIDS.

Dr. Portnow had been employed at Belle-vue for 26 years, 21 years as a unit chief. Widely published and well-known as a lecturer, he had expertise in several subspeeialties of psychiatry, and was board certified in psychiatry, forensic psychiatry, and neurology. Prior to the layoffs, he was unit chief of an inpatient adult unit.

Dr. Geller was employed at Bellevue for 27 years, 21 years as a unit chief. Dr. Geller was chief of the teaching unit.

Dr. Graham was employed by NYU Medical Center for 27 years, 19 as a unit chief. He was board certified in psychiatry and neurology.

Dr. Mahon worked in a unit that was closed as a result of the budget cuts that precipitated this case. Shortly before her termination, she received a favorable evaluation.

Dr. Steiner worked with Dr. Kermani. Dr. Wallach testified that Steiner had been transferred there after experiencing problems in another unit.

[408]*408 B. The Association

In 1973, the psychiatrists at Bellevue formed the Association of Staff Psychiatrists, Bellevue Hospital, for the purpose of addressing such matters as working hours, working conditions, salaries, and member grievances. At the time of the layoffs, the Association’s membership included 45 psychiatrists, and the Executive Board consisted of Dr. Graham, president; Dr. Kermani, vice president; Dr. Geller, faculty representative; Dr. Steiner, treasurer; and Drs. Portnow and Mahon, members at large.

Soon after Dr. Trujillo became the director of psychiatry in October 1991, he began talking to Dr. Geller about the Association. Trujillo told Geller that he “had heard very good things about [Geller] and about the unit [Geller] worked on,” that the unit “was one of the finer units at the hospital, [and] that [Geller] was one of the finest physicians.” Trujillo then added that he was distressed that the doctors would put themselves in a position “adversarial” to Bellevue management and (in particular) himself. When Geller indicated that Association members regarded their association as being somewhat of a union, Trujillo stated that there could be no such thing as a union of physicians at a hospital and that “such a thing should cease to be.”

In May 1993, Bellevue Medical Director Dr. David Cohen phoned Dr. Kermani at home after one of Kermani’s patients committed suicide by jumping out of a window at Bellevue. Dr. Kermani, under the mistaken impression that the caller was a resident on duty, told him that dealing with the family was an administrator’s job, and hung up. Dr. Kermani did drive to the hospital almost immediately, however, and later apologized to Dr. Cohen. Pamela Brier, Executive Director of Bellevue, and Dr. Cohen reacted initially by demanding that Kermani be fired. They simmered down, however, and a compromise was reached whereby Kermani would be counselled by Trujillo, but remain.

In the counselling sessions, Dr. Trujillo told Dr. Kermani that the Association had given him “nothing but a headache,” and denounced its president, Dr. Graham as a “son-of-a-bitch,” who had written “idiotic” letters. Trujillo told Kermani that the Association made too many demands and that Kermani should “disassociate” himself from Drs. Graham and Kirshbaum (then president and secretary of the Association, respectively)-

Dr. Kermani reported Dr. Trujillo’s statements to Dr. Graham, who called an emergency meeting of the Association. Shortly after the meeting, Dr. Trujillo reprimanded Kermani for disseminating confidential information arising out of a counselling meeting, and placed him on a six-month probation.

On June 17, 1993, the Association filed an unfair labor practices charge on Dr. Kerma-ni’s behalf, alleging that NYU Medical Center was retaliating against him for his Association activities when he was placed on probation. Based on that charge the NLRB’s Regional Director filed a complaint. An informal settlement agreement between the parties provided for, among other things, revocation of Dr. Kermani’s probation.

Shortly after this disposition, Dr. Trujillo told Dr. Kermani that he had always believed that Kermani was a “conscientious and good doctor,” but warned “it is better to disassociate yourself from Kirshbaum and Graham.” When Kermani demurred, Trujillo (according to Kermani’s version) became angry and stated “Then I will have to shoot them through you ...

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