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National Labor Relations Board v. New York University Medical Center

January 21, 1983


Application for enforcement of order of National Labor Relations Board issued against New York University Medical Center, finding that the Center had violated § 8(a) (1) of the National Labor Relations Act by disciplining its employees for their participation in leafleting. Remanded.

Author: Timbers



Circuit Judges.

TIMBERS, Circuit Judge:

This case brings sharply into focus the propriety of the Wright Line*fn1 test of the National Labor Relations Board (Board) for evaluating mixed motive discharges. The Board applies, pursuant to § 10(e) of the National Labor Relations Act, 29 U.S.C. §§ 151, 160(e) (1976) (Act), for enforcement of its order, 261 N.L.R.B. No. 118 (1982), issued against New York University Medical Center (Center). The Board found that the Center had violated § 8(a) (1) of the Act, 29 U.S.C. § 158(a) (1) (1976), by disciplining three employees for engaging in protected leafleting activity. The Center initiated disciplinary proceedings in the wake of the first contested leafleting incident, took further action after subsequent leafleting, and took final action after two employees had engaged in picketing to protest the prior disciplinary actions.

Applying its Wright Line test, the Board found that the General Counsel had made out a prima facie case of unlawful motivation and that the Center had not sustained its consequent burden of proving that it disciplined the employees for a legitimate reason, namely, the alleged unprotected picketing. The Board, therefore, did not have to reach the question whether the picketing was protected activity under the Act. Accordingly, it ordered that one discharged employee, Leigh Benin, be reinstated with backpay and that disciplinary measures taken against two other Center employees, Laszlo Berkovits and Faustino Vargas, be rescinded.

Since we hold that the leafleting was protected activity under the Act, we are prepared to enforce so much of the Board order that countermands the disciplinary measures taken in direct response to the leafleting. Since we hold, however, that the Board's Wright Line test is not the appropriate legal standard for assessing the final disciplinary action taken after the picketing, we remand for further proceedings and we retain jurisdiction pending the Board's further order.


During September 1979 elections were scheduled by District 1199, National Union of Hospital and Health Care Employees (Union) at the Center to choose delegates to the national convention of the Union's parent organization. Balloting for employees in the Center's Guild Division was scheduled for September 18 and in the Hospital Division one week later. The three employees in question -- Vargas, Benin, and Berkovits (all technicians) -- were dissident members of the Union who belonged to a splinter national political organization called the Committee Against Racism (CAR). The CAR faction of the Union, along with employees aligned with members of the Progressive Labor Party, decided to present a slate of its own candidates in opposition to a delegate slate comprised mainly of incumbents.

The dissident slate received sixty percent of the vote in the first round on September 18. To continue the momentum generated by the election results, those supporting the CAR slate initiated an aggressive leafleting drive, a tactic it had used intermittently in the past, to garner support from the Center's employees. CAR supporters passed out several leaflets to the employee electorate asking for its votes. One leaflet incurred the Center's wrath because of the way it depicted recent searches of Black and Hispanic employees by the Center's security guards:

"The bosses are making it harder for us everyday! Every pay check buys less food and other necessities! 26 hospitals have closed, costing thousands of jobs. At NYU harassment (for calling in sick, etc.) and arbitrary firings have increased tenfold. And the NYU bosses have turned their security guards into a fascist gestapo illegally searching workers and firing them.

"The bosses inflation, hospital closings, layoffs, harassment, and firings have hit lower paid, mainly black and latin workers hardest. At the same time the bosses are building up Klan and Nazi "white power" punks to further divide us. All of this builds fascism, which will put all workers in chains. We must fight racism to unite workers against the bosses growing fascism.

"In all of this, the leadership of 1199 from Davis down to Punk dis-organizer Roger Hayes have allowed the bosses to walk all over us. By refusing to fight and blocking those of us who are willing to fight the bosses, Davis and Co. are helping the bosses to build fascism.

"Moreover, while CAR has been organizing workers, on a multi-racial basis, to beat up the segregationist Klan all over the county, Davis has built segregation into 1199 by setting up Divisions that separate nurses aides, building service, kitchen, central service, etc -- (Hosp. Div.) who are almost 100% black and latin, from technicians, social workers, etc. -- (Guild) half of whom are white. The lower paid Hospital Div. workers are discriminated against by the 1199 contract. They work 37 1/2 hours and get 2 weeks vacation, while 2/3 of the Guild work 35 hours and get 4 weeks vacation. 1199's percentage raises also give less to lower paid workers. We are organizing a campaign to abolish these racist divisions in order to unite 1199ers.

"On Tuesday, Sept. 18th NYU Guild Div. 1199ers voted for the CAR-PLP slate (#2) by a 60% majority! WE URGE HOSPITAL DIVISION MEMBERS TO VOTE SLATE 2 AT THE 1199 MEETING on Tuesday, Sept. 25th at 7:30AM, 2:PM, 4:PM in I.R.M. Room 610A (take the elevator in IRM to the sixth floor and walk like you are going to first ave.)

"Turn 1199 into an anti-fascist union led by the anti-racist rank and file."

In response, the Center sent warning letters to Benin and Vargas advising them that their participation in the leafleting warranted discipline and that resumption of similar activity would be ground for suspension or discharge. The two employees countered by filing a grievance on October 2, asserting that the Center had no cause to issue the warning letters.

These two employees, along with Berkovits, subsequently assisted in preparing and/or distributing another leaflet. The leaflet reported the election results, disclosed that Benin and Vargas had received warning letters, and repeated the accusation concerning the searches by the Center's security guards:

"In the past two weeks three important things have happened at N.Y.U.On Sept. 18 Committee Against Racism's (CAR) Slate 2 won the election in the Guild Division (the election for delegates to the 1199 constitutional Convention). On Sept. 25 the union misleadership organizer, Roger Hayes, stuffed the ballot box in the Hospital Division election with 44 extra votes.On Sept. 28 the N.Y.U. management gave correction notices to the two main leaders at N.Y.U. of the International Committee Against Racism, Leigh Benin and Sam Vargas, Slate 2 candidates. . . .

"Why is the N.Y.U. management trying to harass us? It is to try to intimidate N.Y.U. workers and fire Sam Vargas, Committee Against Racism member, and Leigh Benin, CAR and PLP member. It is because N.Y.U. workers led by CAR have shown that we can take the bosses head on: we fought and won against some racist firings and we are making headway in turning 1199 into a militant, anti-racist union by destroying all the racist divisions in the union to unite us into a powerful multi-racial union.

"We reaffirm our charge that the N.Y.U. management is using the security guards for fascist gestapo tactics to intimidate black and Spanish workers. (Some security guards are opposed to this.) For example, Thurs, Sept 27, a Spanish kitchen worker was taken from the door beside the Emergency Room exit and taken to the Security guard's office and searched thoroughly. They found nothing!

"If the N.Y.U. mamagement feels threatened, it has reason to be because we mean business!"

On October 5, the Center suspended Benin because of the leaflet activity.

In protest, Benin and Vargas, along with other individuals associated with CAR,*fn2 picketed in front of the home of the Center's assistant administrator, Safian, on October 8.Apparently the employees believed that Safian had played a significiant role in meting out the discipline. Benin carried a sign stating that Safian was guilty of unfair labor practices. Vargas' sign announced an upcoming CAR rally. Although Vargas and Benin never intruded upon the administrator's property, at least one of the other picketers did, leaving two signs ...

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