Glenside Hospital

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Glenside Hospital and Lewis Friedland. Cases 1-CA- 12431 and I-CA-12572 January 5, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On August 25, 1977, Administrative Law Judge Lo- well Goerlich issued the attached Decision in this proceeding. Thereafter, Respondent and General Counsel each filed exceptions, a supporting brief, and answering briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions 2 of the Administrative Law Judge and to adopt his recommended Order, as modified herein. While we agree with the Administrative Law Judge that Respondent violated Section 8(a)(4), (3), and (1) by discharging employee Lewis Friedland, we do not adopt his recommendation that Respondent be re- quired to make the other parties whole for their liti- gation costs. In Tiidee Products, Inc.,3 and then in Heck's Inc.,4 we explained that we would award litigation costs only where Respondent's defense was "patently friv- olous." In making this determination, we have con- sidered, inter alia, whether a respondent has previ- ously been found to have committed other violations of a similar nature. But, where the respondent's de- fense is "debatable," we have not awarded litigation costs, even where the respondent has "engaged in 'clearly aggravated and pervasive misconduct' or in the 'flagrant repetition of conduct previously found unlawful.' "5 Here, while we agree with the Adminis- trative Law Judge's finding that Friedland was dis- charged for filing an unfair labor practice charge and for union activity, we find that Respondent's primary defense that Friedland was discharged for laxity in making suicide checks and ward rounds, although I We adopt the Administrative Law Judge's finding that Respondent's discharge of Lewis Friedland violated Sec. 8(aX3), (4), and (1) of the Act. Indeed, while we have not acquiesced in the First Circuit's position in Colerti's Furniture, Inc. v. N.L.R.B., 550 F.2d 1292 (C.A. 1, 1977), we find that the evidence of record clearly establishes that, but for Friedland's filing of an unfair labor practice charge on November 9, 1976, and his union activity, he would not have been discharged. 2 We adopt the Administrative Law Judge's dismissal of the allegation that Respondent violated Sec. 8(a)( 1) by verbally warning employee Frank Hood about his keeping records on employees and threatening to report them to the Board, on the ground that this allegation was not fully litigated. 3 194 NLRB 1234 (1972). 215 NLRB 765 (1974). 234 NLRB No. 4 ultimately rejected, was at least, debatable. We, therefore, do not adopt the Administrative Law Judge's recommendation that Respondent be re- quired to pay litigation costs to the other parties.6 We agree with the General Counsel, however, that the recommended Order should be modified to re- quire that all documents collected and assembled by Respondent in connection with its investigation of Friedland's work performance, which investigation was begun only because Friedland had filed an un- fair labor practice charge, be removed from his per- sonnel file. This is necessary in order to remove any blot from Friedland's work record which resulted from Respondent's misconduct.7 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge as modified below, and hereby orders that the Respondent, Glen- side Hospital, Boston, Massachusetts, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modi- fied: 1. Substitute the following for paragraph 2(a) and renumber footnote 35 as footnote 36: "(a) Offer Lewis Friedland immediate and full rein- statement to his former position or, if such position no longer exists, to a substantially equivalent posi- tion, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered by reason of Respondent's discrimination against him with backpay and interest thereon to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977).35 -35 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962)." 2. Substitute the following for paragraph 2(b): "(b) Remove and expunge from Lewis Friedland's personnel file all documents collected and assembled in connection with its investigation of Lewis Fried- land's unfair labor practice charge of November 9, 1976, including the 'Memorandum to Personnel File,' dated November 15, 1976." 5 Hecks Inc., supra at 767; see also Kings Terrace Nursing Home and Health Facility, 227 NLRB 251 (1976). 6 While Member Murphy agrees that the extraordinary remedy of awarding litigation costs is not warranted here, she has found such a remedy appropriate in other contexts. See her dissent in Betra Manufacturing Com- pany, 233 NLRB 1126 (1977), where she would have directed that the union be reimbursed for its attorney's fees. 7 In accordance with our decision in Florida Steel Corporation, 231 NLRB 651 (1977), we shall also apply for purposes of backpay the current 7- percent rate for periods prior to August 25, 1977, in which the "adjusted prime interest rate" as used by the Internal Revenue Service in calculating interest on tax payments was at least 7 percent. 62 GLENSIDE HOSPITAL 3. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all parties participated and had the opportunity to give evidence, the National Labor Relations Board found that we committed cer- tain unfair labor practices and has ordered us to post this notice. We intend to abide by the following: WE WILL NOT unlawfully discharge any of our employees or discriminate against them in any manner because of their union affection or be- cause they engage in union activities, or because they use the Board's processes or file unfair labor practice charges. WE WILL NOT unlawfully threaten to suspend or discipline any of our employees for engaging in protected concerted activities. WE WILL NOT unlawfully spy or create the im- pression that we are spying on our employees' union activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the ex- ercise of their rights guaranteed by Section 7 of the National Labor Relations Act to engage in self-organization, to bargain collectively through a representative of their own choosing, to act to- gether for collective bargaining or other mutual aid or protection, or to refrain from any and all these things. WE WILL offer Lewis Friedland immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent job, without prejudice to his rights and privileges. WE WILL restore the above-named employee's seniority and pay him the backpay he lost be- cause we discharged him, plus interest. WE WILL remove from Lewis Friedland's file and expunge all documents collected and assem- bled in connection with our investigation of Lewis Friedland's unfair labor practice charge of No- vember 9, 1976, including the disciplinary "Mem- orandum to Personnel File," dated November 15, 1976. GLENSIDE HOSPITAL DECISION STATEMENT OF THE CASE LOWELL GOERLICH, Administrative Law Judge: An or- der consolidating cases, amended complaint, and notice of hearing was issued on February 28, 1977. The charge filed by Barbara Hart in Case l-CA-12430 on November 9, 1976, was served on Glenside Hospital, the Respondent herein, on the same date. The charge filed by Lewis Fried- land in Case 1-CA-12431 on November 9, 1976, and the amended charge filed on December 23, 1976, were served on the Respondent on December 9 and 27, 1976, respec- tively. The charge filed by Friedland in Case i-CA-12572 on December 23, 1976, and the amended charge filed on February 16, 1977, were served on the Respondent on De- cember 27, 1976, and February 16, 1977, respectively. In the consolidated complaint,' it was charged that the Re- spondent did on or about December 20, 1976, unlawfully discharge its employee Lewis Friedland in violation of Sec- tion 8(aX3) of the National Labor Relations Act, as amended, herein referred to as the Act, and violated Sec- tion 8(aXl) in the following respects: created an impression of surveillance, threatened Friedland with suspension, and issued Friedland a counseling slip.2 The Respondent filed a timely answer denying that it had engaged in or was engaging in the unfair labor prac- tices alleged. The consolidated cases came on for hearing at Boston, Massachusetts, on May 2, 3, 4, 6, 23, 24, and 25. Each party was afforded a full opportunity to be heard, to call, exam- ine, and cross-examine witnesses, to argue orally on the record, to submit proposed findings of fact and conclu- sions, and to file briefs. All briefs have been carefully con- sidered. FINDINGS OF FACT,3 CONCLUSIONS, AND REASONS THEREFOR 1. THE BUSINESS OF THE RESPONDENT The Respondent is and has been at all times material herein a corporation duly organized under and existing by virtue of the laws of the Commonwealth of Massachusetts. At all times herein mentioned, the Respondent has main- tained its principal office and place of business at 49 Ro- binwood Avenue in the city of Boston (Jamaica Plain), and Commonwealth of Massachusetts, and is now and continu- ously has been engaged at said location in the operation of a proprietary hospital (herein called the hospital). I Upon agreement of the parties. Case I-CA-12430 was severed from the consolidated cases and the complaint in said case dismissed. 2 Amendments were allowed to cover additional alleged 8(aXI) viola- tions. 3 The facts found herein are based on the record as a whole and observa- tion of the witnesses. The credibility resolutions herein have been denved from a review of the entire testimonial record and exhibits, with due regard for the logic of probability, the demeanor of the witnesses, and the teachings of N.LRB. v. Walton Manufacturing Company d Loganville Pants Co., 369 U.S. 404, 408 (1962). As to those witnesses testifying in contradiction to the findings herein, their testimony has been discredited, either as having been in conflict with the testimony of credible witnesses or because it was in and of itself incredible and unworthy of belief. All testimony had been reviewed and weighed in the light of the entire record. No testimony has been preter- mitted. 63 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Respondent's gross annual revenue exceeds $250,000, and it annually receives at its Massachusetts lo- cation goods valued in excess of $50,000 directly from points outside the Commonwealth of Massachusetts. The Respondent is and, at all material times, has been engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED District 1199, Massachusetts, National Union of Hospi- tal and Health Care Employees, RWDSU, AFL-CIO (herein called the Union), is a labor organization within the meaning of Section 2(5) of the Act. 111. THE UNFAIR LABOR PRACTICES A. The Alleged 8(a)(1) Violations In the spring and summer of 1976, a union organization- al campaign occurred among the Respondent's employees. During the campaign, the Respondent vigorously opposed the Union. Elections were conducted on August 5, 1976, in which the Union was defeated. After the elections, certain union proponents, including Friedland, continued their as- sociation. Among other things they "congregated in the cafeteria during [their] supper hours and break time." In early November, a group of union sympathizers, in- cluding Friedland, contacted Julia Davila, shift supervisor, suggesting to her that they thought "the schedule was un- fair, that it reflected unfairly regarding several specific black workers that were there at the time." Employee Bar- bara Hart called the schedule "schizophrenic." Davila res- ponded that she did not have to talk to the employees and that they "could report her to the Labor Board if [they] wanted to." Hart was suspended 3 days without pay. Fried- land, angry about Hart's treatment "since nobody else was disciplined," procured permission to speak to Davila. Prior to Friedland's presentation, Davila called employee Win- ifred Mardia, stating, "I am going to call her over. She was neither for nor against the Union." According to Fried- land, he said, "How can you suspend a woman with three children?. . . How, in good conscience, could you suspend a woman with three children for an incident involving a group of us?" Davila immediately committed Friedland's statement to writing and asked him to sign it. Friedland refused. Several days later Friedland was called to the of- fice of Director of Nursing Marian Davis. Davis told Friedland that he had "guilt tripped" Davila and "it was none of [his] business to get involved in the suspension of another employee." Friedland replied that it was his "busi- ness, that it was the activity of the group, that this also affected [him] as a member of the shift." He said that "it was a concerted activity" and "it was [their] right . . . protected by the National Labor Relations Act." Davis replied, "[W]e have a policy of dealing with people as indi- viduals," and that Friedland's activity was "improper and inappropriate" and that "if [he] did it again [he] would be I The Hlart incident is covered by pars. 9(a) and (b) of the consolidated complaint. 5 "Section 7 guarantees, and §8(a)(1) protects from employer interfer- ence the rights of employees to engage in concerted activities .... N.L.R.B. v. Erie Resistor Corp. et al., 373 U.S. 221, 233 (1963). suspended." Thereafter Davis submitted a "Memorandum to Personnel File" in respect to her conversation with Friedland dated November 15, 1976, noting that "Fried- land was counseled today." (G.C. Exh. 13.) The memoran- dum cited Friedland's "inappropriate remarks" to Davila in reference to the suspension of Barbara Hart: "[Hlow does it feel to take bread out the mouths of three children, how can you live with your conscience." In regard to the suspension of Hart, the memorandum reveals, "I told him I would not discuss disciplinary action involving one em- ployee with another employee. Mr. Friedland stated '[O]f course you know I am filing charges with the Labor Board around this issue.' "4 Friedland was not told that he was being counseled nor did he receive a copy of the counseling slip. In protesting the alleged unjust suspension of Hart over an incident in which Friedland participated as one of a group, Friedland was exercising employee rights to engage in concerted activities protected by Section 7 of the Act.5 "Even individual protests are protected as concerted activi- ty if the matter at issue is of moment to the group of employees complaining and if the matter is brought to the attention of management by a spokesman, voluntary or appointed for that purpose, so long as such person is speak- ing for the benefit of the interested group." Carbet Corpora- tion, 191 NLRB 892 (1971), citing Hugh H. Wilson Corpora- tion, 171 NLRB 1040, 1046 (1968). Accordingly, the Re- spondent violated Section 8(a)(I) of the Act when, through Director of Nursing Davis, it threatened Friedland with suspension and issued a counseling slip in regard to the incident because he had engaged in protected concerted activities. 6 During the course of the foregoing counseling session, Davis said there had been meetings going on or at least rumors of meetings. Friedland responded that "the meet- ings that had been going on were the result of the harass- ment that people that had actively engaged in the union had been subjected to since September. And if the Compa- ny didn't want meetings to go on, the best way to counter those meetings would probably be to ease up on the policy of harassment and surveillance ... ." Friedland testified without contradiction (as related to Davis in the conversation above) that Davila one evening said, "[W]hat is all the whispering... I am going to put a stop to the whispering. I feel like this place is going to explode." Later Davila remarked, "I know there are meet- ings going on. The union business is starting up again." The above statements of Davis and Davila created an im- pression of surveillance in violation of Section 8(aX1) of the Act. After employee Edna Rockwood testified on May 4, 1977, as she and other employees were approaching the elevator, she asked Davila, "What do you think about this? Are you mad?" According to Davila, she answered, "I am not mad. I am sorry that you do things like this, because you will cut your own throat because you are no longer- because you are all the time in the window.... all the 6 "Concerted activity exists when an employee's complaints and dissatis- faction are directed to employment conditions of concern to other employ- ees." Waco Insulation Inc., 223 NLRB 1486, 1487 (1976). 64 GLENSIDE HOSPITAL time looking at Mr. Friedland passing by for supper." Dav- ila explained, "[I ]f she was doing that, she was not doing her duty." [Emphasis supplied.] It would have been a dull employee indeed who would not have reasoned that Davila's remark was a threat against Rockwood's job security for giving testimony under the Act. Moreover, the remark had the tendency of intimi- dating and discouraging other employees from testifying. Davila's remark, uttered in the presence of several employ- ees, constituted a violation of Section 8(a)(1) of the Act.7 See Dollar General Corporation, 189 NLRB 301, 307 (1971). B. The Discharge of Lewis Friedland Glenside Hospital is an accredited psychiatric hospital licensed by the Massachusetts Department of Public Health. Dr. Melvin E. Cohen8 is its administrator. Gerald DeBlois is the chairman of the board. Lewis Friedland, who was discharged on December 20, 1976, was hired on November 18, 1975. He worked as a mental health worker in C-3, a locked ward for suicidal, assaultive, and severely disturbed patients. Among these patients are some who were placed on suicide precautions. Such status required a suicide check 9 which was performed by the mental health worker observing the patient at inter- vals of 15 minutes. Among other reasons, a record of these checks was maintained since the suicide of a patient might subject the Respondent to a potential legal liability. Ward checks 10 were also required of the mental health workers. Friedland, who was known to the Respondent as an ac- tive supporter of District 1199's electoral efforts, as noted above, continued his union affection after the election loss on August 5, 1976. For the first 6 months of his employ- ment he was considered by the Respondent as a competent and valued worker. He was studying for his doctor's degree at Brandeis University where he had completed I year of study." It was only after he filed an unfair labor practice charge against the Respondent for interfering with, re- straining, and coercing its employees in their exercise of Section 7 rights by "threats, intimidation and other acts" on November 9, 1976, that it was brought to Dr. Cohen's attention that his work performance had allegedly deterio- rated dramatically. This knowledge resulted from an inves- tigation of Friedland's "work history" conducted by Dr. Cohen, triggered by the filing of the unfair labor practice charges. Dr. Cohen had conferred with Gerald DeBlois, the chairman of the board, about the matter and, according to Dr. Cohen, DeBlois said, "[I If there is information, that is forthcoming that requires action you have the authority to take whatever action it indicates." 7 In that the evidence offered to support the General Counsel's allegation in par. 8(a) in respect to employee Frank Hood is unclear, the allegation is dismissed. 8 Dr. Cohen is a doctor of educational psychology and administration. 9 Ronald Charles Althenn, Friedland's immediate supervisor, described the duties in connection with suicide precaution checks as follows: The mental health workers were assigned to teams of patients. There may be one or two patients on a team on suicide precaution. Now, that mental health worker is not necessarily expected to do all of the checks throughout the entire 8-hour period on that particular patient. That mental health worker is responsible for seeing to it that if he or she cannot do it that somebody else does do it. The suicide sheet is the documentation of the check made on the patient. [Emphasis supplied.] The investigation 12 principally concerned Friedland's work habits. Written statements were solicited by Dr. Co- hen from employees and supervisors, all of which were unfavorable. After conferring individually with each of the writers, by phone or in person, the chairman of the board, and the Respondent's lawyers, Dr. Cohen composed a let- ter of dismissal which was cleared by the latter group. Ac- cording to Dr. Cohen, such clearance was sought because: I think with the seriousness of the allegations and the very active role that Mr. Friedland played during the spring and summer of 1976 that I wanted the chairman of the board to be aware of the decision that I was going to make. I wanted to make sure-not being an attorney my- self-that I wanted to get clarification of any questions I might have. I also, in my own opinion and experience through the years, expected pretty much that I would have to go some hearing at some point. a * * I felt it would be fairly controversial. That I might end up in a hearing day after day after day .... Dr. Cohen further testified: I say this loudly. We knew darn well we'd be in court. I was not going to fire [Friedland] because you would make me look like a fool. I wanted to get plenty on him before firing him. I would document it and get witnesses. I would not be done on one incident. Thus, from the beginning, Friedland's discharge was pro- grammed with the idea that any claim of unlawfulness re- specting the discharge, which apparently the Respondent anticipated, would be well rebutted. Indeed, the credible record established that the investigation was not instigated for the purpose of exonerating Friedland or of fairly weigh- ing the facts but was orchestrated to obtain a guilty find- ing. See Mueller Brass Co., a Subsidiary of U. V. Industries, Inc., 208 NLRB 534 (1974). Nevertheless, I am not con- vinced that this was Dr. Cohen's idea, for the credible record supports the inference that the idea originated with others and that Dr. Cohen was only an obedient function- ary as were those who submitted statements against Fried- land. Indeed, the investigation commenced with Friedland wearing the wrong shoe, for Dr. Cohen observed, "In my opinion, the person who filed this particular charge has got some serious problems." '0 In regard to ward checks Althenn testified: The mental health workers were expected to check every room and check every patient. They would check every room in relation to . . . sharp instruments and to make sure that all patients were okay. Anything else would be checked, anything that would have to be dealt with, in the ward. H Davis referred to him as a "brilliant young man." 12 Dr. Cohen testified that the investigation had not been conducted earlier "lbJecause the information was not coming to Ihis) office about [Friedland's ] poor work habits until the people were asked about this." 65 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is evident that the Respondent harbored union animus and a deep-seated antipathy against Friedland. During the election campaign, the Respondent "asked [its] employees to vote for the hospital against the union." Publications to this point were distributed by the Respondent. In mid-Oc- tober 1976, when Neil Glickman was interviewed for hir- ing, Davis asked him how he felt about the Union, after which she said that the Respondent did not "want that to start again." 13 Friedland's termination letter dated December 20, 1976, cited 20 reasons for his discharge, to wit: To: Lewis Friedland Mental Health Worker, 3-11 Nursing Department In order to respond to the N.L.R.B. unfair labor practice charge that you filed against the Hospital we have investigated your employment history to see if there was any basis for the charge. We found that the terms and conditions of your employment are on a par with other individuals in your job classification; you received the same wages, fringe benefits, and increases as did other employees. We have found no reason to believe the Hospital has committed any unfair labor practice against you.? 4 However, we have found that your work and conduct have been seriously deficient and have therefore decid- ed to terminate your employment here at Glenside ef- fective today 12/20/76. The reasons for your termination are as follows: you have frequently not performed required suicide prevention supervision of patients and reporting of this information, thereby endangering those patients as- signed to you, causing other staff to look after some of your responsibilities, and diminishing the standard of care the Hospital seeks to provide. you have frequently not performed required ward re- sponsibilities including ward rounds and checks. Here again you have lowered the standard of care and ig- nored your assigned responsibilities in a ward which handles potentially violent and/or suicidal patients. you have made unprofessional and denegrading [sic] comments regarding patient care and Hospital proce- dures within patient areas. you have made inappropriate remarks and been insu- bordinate to the evening Nursing Supervisor. you have acted inappropriately by placing patients in seclusion for minor infractions. you have directed staff that they did not have to follow instructions of the evening Nursing Supervisors. 13 "[E Ivery equivocal act that was done may be properly viewed in the light of the respondent's animus toward the effort to organize its men." N.L.R.B. v. Houston and North Texas Motor Freight Lines, Inc., 193 F.2d 394, 398 (C.A. 5, 1951). you have told a co-worker that you would attempt re- venge on those individuals you consider to be anti- union. you have failed to correct the deficiencies in your work for which you have been counseled by your Supervi- sors, and in fact you have shown difficulty relating to any staff with Administrative responsibilities. your conduct has caused the Hospital difficulty in staff- ing your shift on C-3 because many employees do not want to work with you; in addition, we have had diffi- culty getting staff to work double shifts when you are on duty. you have criticized the policies and nature of care given by the Hospital subsequently affecting new workers at- titudes towards the Hospital and towards the patients. patients have conveyed their dissatisfaction and their complaints to the Unit Supervisor regarding your au- thoritarian attitude and indifference to patients in dis- tress. you have been late an unusual amount of times and above the average for a mental health worker on your shift. you have verbally threatened co-workers and Supervi- sors that you are keeping written reports on them and that you will report them to Federal officials. your work performance in the past several months has deteriorated dramatically resulting in less attention to patient needs and necessitating other staff to complete some of your assignments. by your actions you have caused devisiveness [sic] and discontent with co-workers on your shift and within your ward. you have accused supervisory staff of racial discrimina- tion and caused devisiveness [sic] with co-workers, es- pecially black workers in relation to these unfounded accusations. you have neglected specific patients and spent an un- usual amount of time with personal friends which has created dangerous working situations, within your ward. you have spent an unreasonable amount of time off the ward and also on the telephone engaged in activities unrelated to patient care, and at times have interfered with the communication system to other parts of the Hospital. you have been negative toward your work assignments and at times antagonistic toward staff members which has resulted in decreasing staff morale. 14 Unfair labor practices charges filed by Fnedland have been found to have merit, supra. GLENSIDE HOSPITAL there are many examples in your work schedule where you have not kept to a four day work week as agreed upon, and your late call-outs has resulted in a shortage of staff within a ward that has many emergencies. Dr. Cohen testified that it was "[a]bsolutely correct" that all these reasons were relied upon as "a basis for dis- charge." However, he indicated that the "major ones" were contained in the first and second paragraphs. It would seem that if these matters were of the serious nature de- scribed in the letter either the supervisors who had the responsibility of protecting the patients and directing the mental health workers would have been lax in their duties or the charges against Friedland were not as crucial as the letter indicated. The latter was obviously the case since Friedland's work habits varied little from those of other employees and, until the investigation, had not been con- sidered as of such a character as to warrant either serious disciplinary action or discharge. In fact, no significant dis- ciplining was taken against Friedland until the occasion on which Davis counseled him as above mentioned. More- over, the first written report of Friedland's alleged short- commings as an employee, composed by his immediate supervisor, Ronald Althenn, was dated December 16, 1976, more than a month after the charge was filed and 4 days before Friedland's discharge. This report was the result of Davis' inquiry and direction. In the report, Althenn re- ferred to Friedland's performance as "quite high" which shifted from a "patient care focus" to "an obsessional pre- occupation regarding his critical feelings toward hospital administration."i5 (Davis put it this way: "Apparently, [Friedland] was not willing to let sleeping dogs lie and let us go on and conduct the hospital in the way it should be.") In his report, Althenn referred to his attempt to resolve the "polarity" among the staff in C-3 at a staff meeting on December 13, 1976.i6 (The credited record indicates that this polarity sprang from the fact that workers in C-3 who were against the Union were less than compatible with workers for the Union and vice versa.) Althenn in his re- port observed, "Mr. Friedland, appearing very anxious (ac- tually seemed to be grinding his teeth) stated: You know, they do keep records on us while pointing toward the ad- ministration building. 7 . . . Mr. Friedland's only state- ment seemed to be an attempt to reinforce Mrs. Hood's feeling of discomfort." (Mrs. Hood, a union partisan had said that "she did feel that she was under close observation, thus causing her to feel uncomfortable.") While Althenn did not specifically cite any of the reasons Cohen listed for discharging Friedland he, nevertheless, recommended his discharge. This seems incredible when it is considered that Althenn and Friedland drank beer together after work and Althenn thought that while off duty he and Friedland got '5 When Respondent's counsel observed that he was a "little confused" about this assertion, Althenn answered. "My opinion is that Mr. Friedland's performance on the ward dropped because he was so involved, and I can use no term other than this, he was preoccupied with criticisms of the hospital. It was an obsessional preoccupation and this was causing him not to be able to do his work." He cited as an example the second paragraph in the report. (Resp. Exh. 7.) 56 Althenn explained that meetings of this character were utilized to exert peer pressure as a means of accomplishing a desired objective. Herein they are referred to as "peer pressure" meetings. 17 Hood testified credibly that Rosalie Joanne Minior, an antiunion par- along "nicely." Teresa Brugman testified: "I felt [Althenn] had a good relationship with Lewis [Friedland]. If Fried- land was the employee depicted in the dismissal letter, Al- thenn's relations with him do not reveal it, whether at work or play. Moreover, Althenn was tolerant and sympathetic toward Friedland. Althenn testified: "[1 ]t seemed to me he looked awfully tired and he looked kind of depressed. This was after the union had lost the election. We talked about that for a while. We came up with the conclusion that he had been working very hard. .... We figure that this period of depression or sadness or the fatigue would go after a while and that would resolve the matter." In any event, Althenn never gave Friedland a counseling slip. i8 When Althenn was asked if he had spoken to Friedland about his performance, he answered: "I spoke to him on a few occasions. [Emphasis supplied.] Generally speaking, when there is a problem on the ward with any of the staff, what I try to do is not put the person on the hot seat, so to speak, but to deal with things in a group situation. .... I would not say anything to the effect such as, 'Lou, you are not doing the suicide precautions.'. . . I would rather say, 'We are having a problem with suicide precautions. Some people are doing more than others. Some are doing far less than others. I think we could talk about this. .... In this way, I hope to create pressure to get the individual not performing to raise his performance." This apparently was the extent of Althenn's counseling of Friedland. Under these circumstances, and from the credible record as a whole, Althenn's thoughts of recommending the discharge of Friedland, it is clear, were quickened and conditioned by Cohen's investigation. The credible record is also clear that the additional statements critical of Friedland were obtained through the same stimulus. Generally, these state- ments reflect the feeling that Friedland's shortcomings stemmed from his continued union affection. For example, mental health worker Bernard H. Suddette, who had once been a union supporter, wrote on December 16, 1976: "Since the election I find Lou to be defensive about his and other pro-union people's actions." (Resp. Exh. I.) Mental health worker Cathy L. Adams wrote: "My biggest com- plaint regarding Louis Friedland is that I feel that he has bred discontentment & suspicion among the staff on ward C-3." (Resp. Exh. 2.) Registered Nurse Diane Auger wrote: "He [Friedland] decreases moral [sic] by his general attitude, i.e. facial expressions & posture indicate to me that he sees his work as routine & monotonous." (Resp. Exh. 3.) Mental health worker Rosalie J. Minior, who op- posed the Union, wrote: "I personally do not like and often find it unpleasant to work with Mr. Friedland." (Resp. Exh. 5.) tisan, told Friedman that she had been instructed to "watch his phone calls" which heightened the tension. According to Teresa Brugman. unit supervi- sor of C-3, she instructed Althenn to "keep a closer eye" on Friedman's reporting on the suicide precaution sheets. Additionally, if the Respondent's testimony is to be believed, Althenn was urged to document Friedland's activities which, nevertheless, was not done. Thus, it appears that Friedland had some justification for expressing his apprehension in Althenn's "peer pressure" meeting. Strangely enough, considering the nature of the meeting, Althenn's statement does not reveal that he did anything to alleviate the apprehension of either Hood or Friedland. 18 A counseling slip was similar to a warning slip. 67 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Althenn and his supervisors were aware of the prounion and antiunion sympathies of the employees in C-3.19 Ac- cording to Althenn the polarity "basically started out with ... pro-union or anti-union .... After a period of time it was like an 'us against them.' " Of the regular employees in C-3 Rachel Hood and Friedland were on the union side and Kathy Adams and Rosalie Minior were on the Re- spondent's side. Crandall Huckins, an antiunion activist, who described his position as being "extremely anti- union," worked sometime with Friedland. 20 Huckins testi- fied that he constantly brought Friedland's shortcomings to his supervisors' ears, including Dr. Cohen's. According to Althenn, the polarity was manifested by the employees "not talking to each other about patients" and "not working together." 2 1 Althenn handled the matter by peer pressure meetings. He would say, "Look, it seems that there is a lot of polarity going on. There is division. People are not working together. I think the people on the ward should have the most input into what we can do about this." At one of these meetings Hood said that she thought Minior was keeping "tabs on their comings and goings." In fact, Hood had asked for a transfer as did several other employees. Apparently the situation involving polarity was not viewed as so critical as to warrant correc- tion by transfer, even though Althenn said he had reported it to his superiors. Althenn testified that he received reports from Minior, Adams, and Huckins that Friedland was not "performing the suicide precautions and generally not doing his work." Even though Althenn received these reports, he did not thereafter "scrutinize" Friedland's work or reprove him.22 Moreover, Althenn testified that he had received no "in- structions or directions from any of [his] supervisors with respect to Mr. Friedland." Apparently Althenn recognized that Friedland was not solely responsible for the C-3 working ambiance. Said Al- thenn: "I told him just as I have told other mental health workers, especially when there was a lot of polarity and a lot of friction among workers regarding the union, that I did not want to come down on him. This is the word that I used. I did not want to come down on him anymore than on anyone else. I have said this to other people, not just to Lewis." [Emphasis supplied.] The one time Althenn spoke to Friedland, about not reporting to Althenn before leaving the ward, Althenn noticed an improvement. 19 If Brugman is to believed, she told Dr. Cohen that she "felt Lewis was bitter because of the union election." In response to this point and others, including laxities in suicide precaution checks raised by Brugman, Dr. Co- hen advised, "[C ontinue talking with Ron [Althenn] about speaking to Lewis." Brugman was a disingenuous witness. o0 Huckins testified that he did the orientation on Friedland and that at the end of 2 months he reported to Davila that Friedland was "one of the best mental health workers [he] had seen." An incompatibility developed when Friedland opted for the Union. 52 Friedland and Hood were working together. They were assigned to the same team. a2 Such an attitude on the part of Althenn reflects the credence he placed on the complaints. 2s In this respect, it is significant that Dr. Cohen devoted only a 3-minute conversation to reviewing Friedland's work habits with Althenn, who, as Friedland's immediate supervisor, was undoubtedly the best informed per- son on the subject. This conversation was confined to Dr. Cohen asking Althenn, "[W Ihat percentage of the time was Mr. Friedland not performing his duties in terms of suicide precautions and the ward rounds." Althenn The revelations above, and those in the record as a whole, are clear and convincing that Friedland had not been slated by Althenn as a subject for discharge until after the filing of the unfair labor practices charges. Althenn's basis for recommending Friedland's discharge, i.e., "the passage of time," is at odds with the credible record. It is quite clear that there would have been no such recommen- dation had Althenn not been prodded by Davis, who was engaged in assisting Dr. Cohen in amassing derogatory evidence against Friedland. Althenn topped off his honest feeling about Friedland's desirability as an employee by saying, "I didn't want to lose him." Indeed, as noted above Althenn's report does not include any of the specifics set out in Friedland's discharge letter. Apparently, it was of such an ambiguous nature that it "confused" counsel for the Respondent. Not so with Dr. Cohen; he seized upon it as one pretext to discharge Friedland.2 3 In United States Rubber Company v. N.LRB., 384 F.2d 660, 662-663 (C.A. 5, 1967), the court observed, "Perhaps most damning is the fact that both [employees] were sum- marily discharged after reports of their misconduct . . . without being given any opportunity to explain or give their versions of the incidents." See also Metal Cutting Tools, Inc., 191 NLRB 536, 543 (1971). While counseling was one of the Respondent's standard procedures,2 4 Fried- land was summarily fired without counseling and without an opportunity to defend against allegations of misconduct solicited from employees who the Respondent had reason to believe were biased antiunion partisans, 25 or supervisors who shared the same union animus as the Respondent. Cohen explained this apparent lack of fairplay by asserting, "For two reasons. One, the evidence to me, was over- whelming. The second is you will see in the policies and procedures booklet, any offense of this nature does not require a long discussion with the hospital administra- tor." 26 The overwhelming evidence consisted almost entirely of partisan accusations of doubtful probative value which pri- or to the filing of the unfair labor practice charges had generated no definitive disciplinary action. Moreover, Dr. Cohen's reliance on the policies and procedures booklet was misplaced since the rule therein obviously refers to "acute" or "crisis" situations whereas Friedland's alleged problem was a "chronic kind of situation," which, it is replied, "[A ]t least 30 or 40 percent of the time." The fact that this informa- tion was not included in Althenn's report suggests the conclusion that it was omitted either because it was untrue or because Althenn, in view of the manner in which the checks were administrated, did not think of it as reflecting upon Friedland's desirability as an employee. 24 Dr. Cohen testified: "Most of the time termination does not take place without prior counseling, which is documented." 25 For example: Minior, in response to an inquiry from Brugman, assert- ed that Friedland was a "sociopath" and that she "would love" to see him fired. 26 On this point, the Respondent offered the following: If the hospital requires immediate termination ofemployment involving behavior, such as wilful misconduct, gross negligence, dishonesty, in- subordination, use of intoxicants, or violation of Hospital regulations or ethics, such an employee will be dismissed without previous notice and shall receive no further wages. [Resp. Exh. 10.] 68 GLENSIDE HOSPITAL clear, never reached a seemingly critical stage until Fried- land filed unfair labor practices with the Board.27 Dr. Cohen's testimony manifests a studied effort to grasp at straws to buoy his apparent deviation from stan- dard practices. The Respondent's principal reasons for discharging Friedland, i.e., endangering patients and diminishing the standard of care the hospital seeks to provide by frequently not performing the required suicide precautions and re- ports and lowering the standard of care by frequently not performing ward rounds and checks, are not supported by substantial evidence and are pretextuous in nature. Both Althenn and Brugman agree that Friedland's alleged fail- ures in respect to suicide precautions did not endanger the lives of any patients. This was true because the practice was that the work in C-3 was shared by the mental health workers, including suicide prevention checks and ward checks. This ward was "the most difficult ward to work in." It received those patients "requiring acute or close supervi- sion or [who were] acutely ill." Thus, it is understandable that workers would share tasks, which they did. In fact, teams were assigned for the ward checks. If there were delinquencies in regard to the checks, they were not con- fined to one employee. Prounion employee Hood testified that "Rosalie Minior and Randy and Huckins" "per- formed the tasks the least in the fall of '76." On the other hand, Minior, Adams, and Huckins complained about Friedland's work habits. In any event, the failure to initial the suicide precaution sheet had not been subject to any disciplinary action or threats of discharge as it pertained to C-3 mental health workers. It was tolerated by Althenn and those supervisors above him. In this connection it is indeed significant that these supervisors insisted that nothing was occurring in C- 3 which endangered the lives of the patients. The fact that Friedland was never called upon to answer the charges and only statements were taken from those who were antagonistic toward Friedland 2 8 supports a con- clusion that the "real motive" of the Respondent in dis- charging Friedland was to discourage union activity and affection 29 and to effect a reprisal against an employee for filing a charge of unfair labor practices under the Act. "Illegal motive has been held supported by a combina- tion of factors, such as 'coincidence in union activity and discharge' . . . 'general bias or hostility toward the union' . .. variance from the employer's 'normal employment routine' . . . and an implausible explanation by the em- ployer for its action." McGraw-Edison Company v. N.L.R.B., 419 F.2d 67, 75 (C.A. 8, 1969). All these factors are present in the instant case. It is well established that the existence of even a proper reason for discharge is no defense if the discharge was actually made, as here, for an improper purpose. See The 27 Apparently there was no written rule covenng summary discharge for chronic cases. At least none was produced. Such cases were given, in prac- tice, the benefit of more or less protracted counseling before discharge. This did not occur in Friedland's case. 28 Brugman testified that she did not solicit a statement from Hood because "I felt she was a friend of Lewis and it would put her in a very bad position." 29 "Obviously the discharge of a leading union advocate is a most effec- tive method of undermining a union organizational effort." N.LR.B. v. Longhorn Transfer Service, Inc.. 346 F.2d 1003, 1006 (C.A 5. 1965). John Klann Moving and Trucking Company v. N. L R. B., 411 F.2d 261, 263 (C.A. 6, 1969). It would unduly prolong this Decision to analyze each of the other reasons advanced by the Respondent as a basis for its action in discharging Friedland. Suffice it to say these reasons were drawn from the same well and manifest- ed the same motives. They were additional pretexts to ice the cake more thickly and to create an acceptability when, in fact, the motive was tainted. However, two of the rea- sons listed in the December 20 termination letter as justifi- cation for the discharge, which the General Counsel main- tains constituted a violation of Section 8(aXl) of the Act, warrant further comment, viz: you have verbally threatened co-workers and Supervi- sors that you are keeping written reports on them and that you will report them to Federal officials. you have accused supervisory staff of racial discrimina- tion and caused devisiveness [sic] with co-workers, es- pecially black workers in relation to these unfounded accusations. When the Respondent discharged Friedland, in part30 because he "threatened" to use the Board's procedures (which is the inescapable meaning of the words used by the Respondent in light of the credited record in this case), the Respondent interfered with his rights guaranteed by Sec- tion 7 of the Act and hence violated Section 8(a)(4) of the Act. In light of the circumstances revealed by the credited record, the discharge of Friedland, in part, for the latter reason set out above involving racial discrimination3 l in- terfered with Friedland's right to engage in protected con- certed activities (see Diagnostic Center Hospital Corp. of Texas, 228 NLRB 1215 (1977)), and was also a violation of Section 8(a)(l) of the Act. Accordingly, it is found that by the discharge of Lewis Friedland on December 20, 1976, the Respondent violated Section 8(a)(X), (3), and (4) of the Act. CONCLUSIONS OF LAW 1. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 2. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and it will effectuate the purposes of the Act for jurisdiction to be exercised herein. 3. By interfering with, restraining, and coercing em- ployees in the exercise of rights guaranteed by Section 7 of the Act, the Respondent engaged in unfair labor practices within the meaning of Section 8(aXl1) of the Act. 30 "[I If his discharge was even partially motivated by his union activity. there is a violation of § 8(a)3)." N. L R.B. v. George J. Roberts & Sons, Inc., d/b/a The Roberts Press, 451 F.2d 941, 945 (C.A. 2, 1971). 31 Among other things, Friedland told Davila that "none of the black workers on our shift were given Thanksgiving off even though they had seniority in terms of time" and that he "considered it a form of discrimna- tion." 69 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. By unlawfully discharging Lewis Friedland on De- cember 20, 1976, and refusing to reinstate him, the Respon- dent engaged in unfair labor practices within the meaning of Section 8(a)(1), (3), and (4) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY It having been found that the Respondent has engaged in certain unfair labor practices, it is recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It having been found that the Respondent unlawfully dis- charged Lewis Friedland on December 20, 1976, and has since failed and refused to reinstate him, because of his protected concerted activities, in violation of Section 8(a)(3) of the Act, it is recommended in accordance with Board policy, that the Respondent offer the foregoing em- ployee immediate and full reinstatement to his former posi- tion, or, if such position no longer exists to a substantially equivalent position without prejudice to his seniority or other rights and privileges, dismissing if necessary any em- ployees hired on or since December 20, 1976, to fill any of said positions, and make him whole for any loss of earnings he may have suffered by reason of the Respondent's acts herein detailed, by payment to him of a sum of money equal to the amount he would have earned from the date of his unlawful discharge to the date of an offer of reinstate- ment, less net earnings during such period, to be computed on a quarterly basis in the manner established by the Board in F. W. Wodlworth Company, 90 NLRB 289 (1950), and including Isis Plumbing & Heating Co., 130 NLRB 716 (1962). Relying on Tiidee Products, Inc., 194 1234 (1972), 196 NLRB 158 (1972); Heck's Inc., 215 NLRB 765 (1974); and The Hartz Mountain Corporation, 228 NLRB 492 (1977), the General Counsel requests that the Respondent be re- quired to make the parties whole for litigation expenses incurred as a result of the Respondent's unlawful conduct. I have examined these cases and it is my opinion that the policies therein enunciated justify the granting of the Gen- eral Counsel's request. In this case, the Respondent, deliberately, well knowing the calculated risk, caused the discharge of an employee,32 obtaining thereby a carefully planned result, i.e., the dis- couragement of union activity and the discouragement of its employees' appealing to the Board for the correction of and restraint on the Respondent's misconduct. Having ob- viously reaped the benefit of its premeditated misconduct, which is in the nature of an unjust enrichment, the Respon- dent ought not now be allowed to object to the payment of the full price, including the parties' litigation expenses. Moreover, while the Respondent flouts the Act, the evil 32 "We believe that a discriminatory discharge of an employee because of his union affiliations goes to the very heart of the Act." N.LR.B. v. Entwistle Manufacturing Company, 120 F.2d 532, 536 (C.A. 4, 1941). See also May Department Stores Company d/b/a Famous-Barr Company v. N. L R.B., 326 U.S. 376 (1945); Bethlehem Steel Company v. N.L.R.B., 120 F.2d 641 (C.A.D.C., 1941). 33 "A mere cease and desist order . . may serve only to represent formal acknowledgment of the law while the offender maintains full posses- which the Act seeks to eradicate continues unabated and the Respondent is afforded "a chance to profit from a stubborn refusal to abide by the law." See Franks Bros. Company v. N.LR.B., 321 U.S. 702, 705 (1944).33 The rem- edy under the Act anticipates a restoration of the status quo ante and the deterence of future violations of the Act. The Board under Section 10(c) of the Act is authorized to order an offender "to take such affirmative action . . . as will effectuate the policies of this Act." Here it is patent that the conventional remedies have not operated as a deterrent for, in the face of their sanctions, the Respondent deliberately flouted the Act. In choosing its course, the Respondent obviously assumed the contingent liabilities flowing from its misconduct as expenditures worth the risk. Thus, in order that the Act does not cave in to the pressures of this kind of tactic and that the Government and other litigants are not put to great expense in obtaining even the conven- tional relief, it seems meet and right that, if the Act is to be effectuated, the parties be allowed their litigation costs ex- pended in this case, the extraordinary relief requested by the General Counsel. Such expenses are allowed. Upon the basis of the foregoing findings of fact, conclu- sions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER34 The Respondent, Glenside Hospital, Boston, Massachu- setts, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in District 1199, Massa- chusetts, National Union of Hospital and Health Care Em- ployees, RWDSU, AFL-CIO, or any other labor organiza- tion, or discouraging employees from availing themselves of the Board's processes of filing unfair labor practice charges by unlawfully discharging any of its employees or discriminating in any other manner with respect to their hire or tenure of employment in violation of Section 8(a)(3) and (4) of the Act. (b) Unlawfully threatening to suspend or discipline em- ployees for engaging in protected concerted activities. (c) Unlawfully spying or creating the impression that it is spying on its employees' concerted or union activities. (d) In any other manner interfering with, restraining, or coercing any employees in the exercise of the rights guaran- teed them by Section 7 of the National Labor Relations Act, as amended, to engage in self-organization, to bargain collectively through a representative of their own choosing, to act together for collective bargaining or other mutual aid or protection, or to refrain from any and all these things. 2. Take the following affirmative action which will ef- fectuate the policies of the Act: (a) Offer Lewis Friedland immediate and full reinstate- ment to his former position or, if such position no longer sion of the fruits of its violation." Montgomery Ward & Co., Incorporated v. N. LR.B., 339 F.2d 889, 894 (C.A. 6, 1965). 34 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 70 GLENSIDE HOSPITAL exists, to a substantially equivalent position, without preju- dice to his seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered by reason of the Respondent's discrimination against him in accordance with the recommendations set forth in the section of this Decision entitled "Remedy," and otherwise comply fully with the "Remedy." (b) Remove the "Memorandum to Personnel File," dated November 15, 1976, from Lewis Friedland's file. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary to analyze the amount of backpay due under the terms of this recommended Order. 35 In the event that 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 (d) Post at its Jamaica Plain hospital, Boston, Massachu- setts, copies of the attached notice marked "Appendix."3 5 Copies of said notice, on forms provided by the Regional Director for Region 1, after being duly signed by the Re- spondent's representative shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily post- ed. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region I, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 71