McLean Hospital, a Division of Massachusetts General Hospital

MCLEAN HOSPITAL McLean Hospital, a Division of Massachusetts Gen- eral Hospital and Laurence Malin. Case i-CA- 15552 September 30, 1982 DECISION AND ORDER BY MEMBERS JENKINS, ZIMMERMAN, AND HUNTER On October 20, 1981, Administrative Law Judge Robert A. Gritta issued the attached Decision in this proceeding. Thereafter, the General Counsel and the Charging Party filed exceptions and sup- porting briefs, the Respondent filed cross-excep- tions and a brief in support thereof and in opposi- tion to the General Counsel's and the Charging Party's exceptions, and the Charging Party filed a brief in opposition to the Respondent's cross-excep- tions. 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, find- ings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. I The General Counsel and the Charging Party have excepted to cer- tain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incor- rect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. The Charging Party also asserts that the Administrative Law Judge was biased against the Charging Party in his interpretation of testimony at the hearing. Upon our full consideration of the record, we perceive no evidence that the Administrative Law Judge prejudged the case or demonstrated a bias against the Charging Party in his analysis or discussion of the evidence. Accordingly, we find without merit the Charging Party's allegation of bias on the part of the Administrative Law Judge. Member Hunter adopts the decision of the Administrative Law Judge, for the reasons stated by the Administrative Law Judge, except that he finds no Weingarten violation on the ground that he would not extend Weingarten to the nonunion context. See his dissent in Materials Research Corporation, 262 NLRB 1010 (1982). Furthermore, Member Hunter does not believe that employees have the right to preinterview consultation with their representative. See his dissent in Pacific Telephone A Telegraph, 262 NLRB 1048 (1982). In adopting the Administrative Law Judge's dismissal of the complaint, Member Jenkins and Member Zimmerman rely on evidence credited by the Administrative Law Judge that Charging Party Malin refused to re- spond adequately to legitimate questions by management representatives concerning his unauthorized entry into the Respondent's hospital facility with an unidentified person. In view of the sensitive psychiatric patient care responsibilities undertaken at the Respondent's facility, the Respond- ent had ample business justification for seeking to elicit such information from Malinm In these circumstances, it is evident that Malin's refual to respond adequately to the Respondent's legitimate inquiries reasonably subjected him to the imposition of discipline. They have carefully exam- ined the record, including the Respondent's disciplinary treatment toward other employees in a variety of circumstances, and find no basis to con- clude that Malin was disparately treated or otherwise discriminated 264 NLRB No. 68 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. against because of his filing and aggressive pursuit of numerous unfair labor practice charges and his written and verbal communications and protests directed at management policies Further, they note that at the February 1, 1979, interview with Supervisor Richards, Malin's request did not pertain to the participation of a representative or witness on his behalf, but concerned only Malin's attempt to postpone the interview in order to secure legal advice from private counsel, of which there is no affirmative evidence that such counsel acted as Malin's representative or witness. Further, according to the credited evidence, at the February 2, 1979, interview, Malin was offered an opportunity to forgo the interview entirely but elected to participate voluntarily. In these circumstances, they find, in agreement with the Administrative Law Judge, that Malin's discharge was not attributable to any breach of Sec. 7 rights as set forth in N.LR.B. v. J. Weingarten, Inc., 420 U.S. 251 (1975). Although Member Jenkins and Member Zimmerman adopt the Admin- istrative Law Judge's dismissal of the complaint, they find it unnecessary to consider, adopt, or rely on certain findings made by the Administra- tive Law Judge, in the following respects: (1) In view of the finding that the Respondent's discharge of Malin was not attributable to his filing and pursuit of unfair labor practice charges, protests, and other communica- tions directed at management, they find it unnecessary to consider or adopt the Administrative Law Judge's findings that Malin's activities in this regard were not protected concerted activities under Sec. 7 of the Act and that the Regional Director's dismissal of two of Malin's previous charges are properly a factor in determining concertedness herein. (2) In the absence of an allegation properly raising the issue of coercive interro- gation or any evidence in support thereof, they find it unnecessary to consider or adopt the Administrative Law Judge's discussion concerning the applicability herein of Johnnies Poultry Co., 146 NLRB 770 (1964). (3) Inasmuch as the evidence fails to establish that Malin's request at the February I, 1979, interview pertained to the participation of a representa- tive or witness, and reveals that on February 2, 1979, Malin elected to participate voluntarily, after being given the option of forgoing the inter- view, they find it unnecessary to consider or adopt (a) the Administrative Law Judge's findings and discussion concerning rights cognizable under Weingarten in circumstances other than those presented herein, (b) the Administrative Law Judge's findings that Malin may have attended the meetings "to provoke an incident," that Malin would necessarily have at- tended the February 2 interview even if he had not heard the option given to him to forgo the interview entirely, and that Malin's request for "a witness" prior to the February 2 interview referred to legal counsel, and (c) the Administrative Law Judge's finding that a make-whole remedy would be inappropriate even if Malin had "acquired" Weingarten rights. Member Jenkins dissented in Coca-Cola Bottling Co. of Los Angeles, 227 NLRB 1276 (1977), cited by the Administrative Law Judge, and would not, in any event, rely on the majority decision in that case. DECISION STATEMENT OF THE CASE ROBERT A. GRITTA, Administrative Law Judge: This case was heard before me for 13 days in December 1979 and January and February 1980 in Boston, Massachu- setts, based upon a charge filed by Laurence Malin, an individual (herein Malin), on February 1, 1979, and a complaint issued by the Acting Regional Director for Region I of the National Labor Relations Board on June 22, 1979.' The complaint alleges that McLean Hospital, I All dates herein are in 1979 unless otherwise specified. 459 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a Division of Massachusetts General Hospital (herein Re- spondent and/or McLean), violated Section 8(aX1) and (4) of the National Labor Relations Act, as amended, by its threat of discipline and suspension and discharge of Laurence Malin following its refusal to allow representa- tion of Malin at several investigatory interviews. In addi- tion, Respondent gave reasons for Malin's separation to the state unemployment agency which General Counsel alleges are false and misleading. Respondent's timely answer denied the commission of any unfair labor prac- tices. All parties hereto were afforded full opportunity to be heard, to examine and cross-examine witnesses, to intro- duce evidence, and to argue orally. Briefs were submit- ted by General Counsel, Respondent, and the Charging Party. All briefs were duly considered. 2 Upon the entire record 3 in this case and from my ob- servation of the witnesses and their demeanor on the wit- ness stand, and upon substantive, reliable evidence con- sidered along with the consistency and inherent probabil- ity of testimony, I make the following: FINDINGS OF FACT I. JURISDICTION The complaint alleges, Respondent admits, and I find that McLean Hospital, a Division of Massachusetts Gen- eral Hospital, is a Massachusetts corporation engaged in the treatment and care of mentally ill patients at its Bel- mont, Massachusetts, location. Jurisdiction is not in issue. McLean has a gross annual income exceeding $250,000 and in the past 12 months, in the course and conduct of its business operations, purchased and received at its Bel- mont, Massachusetts, facility foodstuffs and medical sup- plies transported in interstate commerce from States other than the State of Massachusetts. I conclude and find that McLean Hospital, a Division of Massachusetts General Hospital, is a health care institution within the meaning of Section 2(14) and is an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. 11. ISSUES 1. Whether Respondent violated Section 8(aXl) of the Act by denying Malin's request to consult with his coun- sel before continuing the interview on February 1. 2. Whether Respondent violated Section 8(a)(1) of the Act by threatening to issue a disciplinary warning to Malin during the February I interview. 2 Much of the Charging Party's brief posed arguments on issues non- existent in this case because they were outside the scope of the charge, outside the scope of the complaint, unrelated to any material fact that must be proven, too remote to be considered in resolution of the ultimate fact or they represented consideration, reconsideration, and reconsider- ation again of an issue previously laid to rest. s A joint stipulation to amend the record was filed by General Counsel and Respondent with notice to and service on the Charging Party. I re- ceive the stipulation into the record as AI. Exh. I. Several letters from parties in this case were received by me subsequent to the brief due date. Other than to acknowledge their receipt herein, I have not considered the substance of either in the resolution of the issues in this case. 3. Whether Respondent violated Section 8(a)( I) of the Act by denying Malin's request for presence of a witness at the February 2 interview. 4. Whether the suspension of February 1 and the dis- charge of February 2, 1979, violated either Section 8(aX)() or Section 8(a)4) or both. 5. Whether the information supplied to the state unem- ployment agency by Respondent was such that it violat- ed Section 8(aXl). IIl. BUSINESS OF RESPONDENT McLean Hospital, a Division of Massachusetts General Hospital, is a corporation engaged solely in the psychiat- ric care of the mentally ill. It has a single facility in Bel- mont, Massachusetts, which is composed of many sepa- rate cottages and buildings designed to implement the ap- proach McLean has to rehabilitation and treatment. Each cottage or building has a nursing staff headed by a clini- cal nursing supervisor. All units receive 24-hour cover- age by the shift staff consisting of a charge nurse, child care workers, or mental health workers. Each unit has some degree of security with several units being locked, with access only by key or identification from within. The child care workers and mental health workers are assigned to particular units but are required to "float" and work temporarily in other units to maintain the re- quired staff or to augment a particular staff for one reason or another. Usually each staff person is identified with his assigned unit. Child care workers work with the children patients and mental health workers work with the adult patients. The rules and policies relating to all units are adminis- tered and enforced by the personnel office and the var- ious management levels in each medical division. In this case we are concerned with the nursing department man- aged by Rose Marie Hobson, director of nursing. All nurses, child care workers, and mental health workers are responsible to the director and her supervisors. The duties and responsibilities of the child care workers and mental health workers are, for all practical purposes, identical. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. Background4 Malin was employed by McLean in April 1974 as a child care worker. His assigned unit was Hall Mercer, Children's Center. On January 18, 1976, Malin wrote a letter to Mrs. Smith, associate director of nursing, re- questing a transfer to an adult unit, containing some sug- gestions for personnel administration changes, asking to be supervised by someone other than Clinical Nursing Supervisor Tierney and denying any work performance deficiencies. On March 5, 1976, Malin submitted another transfer request through Mrs. Smith and indirectly the personnel department. On March 15 Malin circulated a question- naire for staff ideas delineating the specifics for any re- 4The background facts are from undisputed testimony and exhibits ad- mitted into the record for this specific purpose. 460 MCLEAN IIOSPI[AL sponses. The responses were to be the foundation for a personal report by Malin on the Children's Center. Malin anticipated the report to be 50 pages and the information supplied was to be for tabulation for his making of gen- eral conclusions. Malin retained sole responsibility for the report. On March 18 Malin was suspended by Tier- ney for the unauthorized initiation of his survey. Tierney stated that Malin had violated McLean's policy of seek- ing prior approval of such projects. Malin questioned Tierney's authority and stated he would report to work anyway, whereupon Tierney directed him in writing not to appear on McLean grounds. The following day Malir filed his first charge, in a series of charges, with thec Board's Regional Office for Region 1 contending the sus- pension was based upon his concerted activities. On March 22 Malin wrote six letters to McLean manage- ment and professionals with copies of the others attached to each individually addressed letter. Malin. in his letter to Dr. Onesti, director of child psychiatry. claimed obvi- ous program deficiencies, suggested talking about his perceptions and learning the perceptions of Dr. Onesti. stating he wanted to assemble his thoughts and have questions and preliminary proposals clearly and carefull> worked out before speaking or writing. Malin further stated that he did not need permission to prepare a sub- jective letter or to circulate notes among friends and co- workers. Malin also stated that it was his belief that the Children's Center could become an outstanding place of- fering superb and imaginative care for children as well as the generation of new knowledge about children, their problems, and needs. Malin wrote: Yet, I think, patient and staff needs will have to be approached very differently if the Children's Center is to succeed other than just financially. One could argue that new institutions always hav'e problmcrs. but that is too facile and unacceptable an excuse when changes in attitude and treatmeint of people. not financially costly, could, I submit. greatly in- prove things. Malin's letter to Mrs. Makin, director of nursing, was his formal complaint against nurse Tierney and Mrs. Smith. He stated: Since my suspension results from attempting to pre pare a fifty (50) page constructive criticism of what seems to me the Children's Center's continuing and widely shared personnel grievances, morale prob- lems and program deficiencies-a subjective pulling together of ideas and hopefully beneficial and effec- tive proposals, in no way "research"-, I do not be- lieve I can expect real justice from the Children's Center's nursing administration. Hence, I ask for your intervention on my behalf and that of the people with whom I work and the patients for whom we care. Malin's letter to the board of trustees of the Massachu- setts General Hospital/McLean Hospital explained the drift of contemporary law and public opinion to bhe hi *d- ing boards of trustees accountable for the actions of cm- ployees. Malin states that only a malcontent (a condition akin to hypl)chrondria) or a deeply concerned person working tiir the inplroveminnt aiid xsel-being of the insti- tution in \htuci he is employed would write to trustees. Malil referred io hit report ai a "modest effort of mine to sslitkI a fifts p:,ge le!teli is a ctstructixe 'personal report' of my perceliiin" In his letter to I)r. Frazier. psychiatrist in chief. Mlailin explained: I was in the process of vxritine a "personal report" in the form of a fifty page letter on continuing morale prbhlems. grievances and what seem to me programl deficilc ies in hopoe (f making construc- tively beneficial] prliopfla!s for change in the Chil- dren's Cent rl-. Malin wrote to Dr. 1) Marnc ffe. director of McLean, re- questing that the hospital conlene a grievance committee and making a spccifit reuuett foir persons to sit on the committee to ine, tlgate his usp!it!sion. On March 23 Holh. personel di'cchti. rcspoinded to Malinm' letter stating an irmvc',tigitm of hisg sit',peIolson lals in progress. During April 1976 M:ilin \5rote Hohy. personnel direc- tor. accusing \l(l c In of dilaors itictics .alid a coserup of maladministration in the Children', Center. On April 22 Malin sas re irstited to Mcl.tan' adult unit anrd re- ceised pay for th: ie ' il , t ias t uspend(ed On April 28 the first chailtr ,: \i s il hlr a\. s. ith the NI RB's Re- gional ()ffice appro\ hi. On Mla 5, 1')"h. M:iin file d his eccond charge claim- ing discrimination Inxoled in reinstatemcrit A non- Board adiusltmeU i %r:ol. rll,.' asITU] M.lin withdlrew the charge tm Iiint 4 . 7 177h ()1n J.,lrc 14. !')6. Malip suggest- ed in a itleter ton F)r I)Dc'i'ineffi ihat lr;lrivinec cornm ril!tce illnvstlgate \s'.l:t \F ip -:.'ih n d mal.adniistration Malin',; purt-sei f',r oii h a3 lnnlilltce v.ouild be to make Ait ;pce' report dte'irl l to i r1(:ivt a epc titiorn of what N, ii , hLi, d l oone , I'l 'i '\cr Till Wst 3 nmonts in re- sp'l it.', Ihli atlen''t hl.' tn ff'r i,- ': hospital admitnistra- uilirn c itisCil ,r:dl otlr .gtr'till aimed i iniproving the c,: rail work iitutiln :n the Childrell's Center Mel eii's pr i'n, ! I depa--rtltr;I ccr responded With Mllin clhalmil r, 'hai! ",ork perlft;.rnmarnc, prohimcns" such as his prir nr dlis ,]i:, - v I. rc ntot suthjeci to tie grine\rince proc durt .Nditi\r:dnb. Maliin \ ri, told 1o quit corre- si.m; : 'g xsitt' h cpital tlficT ils. rndlinited, NMalin again ,rote l). [)eNr iletAiffe Or Jirtle ' ' 197t. claimine a con- tinueld c-,t' i of nial;iiltiristratiort tnd repcated viola- tioi's o1! the Ni RA, orairact ;as. pre fe'-ional ethics, and the first 1m ifdriTrIl. \ahlin tieId hie ould seek the aid of the Joint C(ninissio on Acci di.tatlcl of Hospitals, the He:llth & Welfaire Departmentt. l.ah,i Department. JtilicCe l)epartrint. St:,!-' Meital & Puctlic Health Bal'rd, State Ratc S tIing Corntminisioni, Board of Regis- trationr in Mediciinc & Nursing. He~alth Facilities Appeal Boatrd publ', .ird pri\; tt bhird- party insuree'. state and Federal COrti:. iati puhlic opinint Malin wrote It is in th, h ,s)pital'\ ietrsi stteat i spec.ial ad hoe grin'a\ .i0ce , o!'!ilt' ' ii , . tan0:' he iimmediately con\ eni-d t(o ]o, qi into hi'. lunj}i , ,uipcnsion, tht coildili.S atiloMilig it llaid t!;i SeriOLus questions it has ai acd TIhe mrnlrmittr c should itc chat ged with 461 DECISIONS OF NATIONAL LABOR RELATIONS BOARD investigation of detailed allegations I shall present to it and with making an open report of conclusions and recommendations. I shall expect to testify before the committee at length. The same day Malin wrote Cater, in personnel, con- cerning "my charges of cover-up of maladministration in the Children's Center remains tainting the entire hospital administration." Malin admonished the hospital that con- stitutional violations could result in loss of Federal moneys and requested an appointment with Mrs. Makin to discuss conditions in the Children's Center relating to nursing. Cater set up a meeting for Malin with Mrs. Hobson, director of nursing, for July 1, 1976. Malin met with Hobson on July 1 and, getting no sat- isfaction, wrote Hobson on July 19. Malin continued his argument for an investigation into his suspension, the maladministration of the hospital, and the latest malfea- sance of the board of trustees by its refusal to answer Malin's letters. In December 1976 Malin contacted the Joint Commis- sion on Accreditation of Hospitals arranging to supply information during the survey of McLean by the JCAH. On December 31 Malin informed McLean that he in- tended to supply information to the JCAH and requested certain hospital documents to prepare his presentation. He requested of the Children's Center a copy of the ac- tivities program plan. Malin stated that he was going before the commission as representative of other employ- ees, present and past, seeking only improvement in the overall work situation in the Children's Center. On January 17, 1977, Malin presented his report to the JCAH.5 Malin again stated that he was representing him- self and other employees of McLean and expressly re- served his common law copyright to the entire report. His report included, inter afia, "Planning a children's center," nurses with ethical courage, and excerpts from other works dealing with hospital management quoting "the greatest commitmen t management can make to staff development can be summed up in one word: Listen." On March 4, 1977, Malin received a verbal warning from Clinical Nursing Supervisor Wahl for failing to deal cooperatively with his immediate supervisors and other supervisors. Wahl stated that continuation of these problems or other performance problems could lead to disciplinary action including termination. On March 7 Malin filed his third charge alleging that the warning and threat of discharge were for his concerted activities and for filing charges. On April 15 the Regional Director dismissed the 8(a)(4) portion of the charge. This same day Malin re- ceived his annual appraisal which, inter alia, stated that Malin does not follow lines of communication and cir- cumvents his supervisor specifically telling her there is no need to discuss issues with her. The conclusion was that Malin needed considerable improvement. Malin ob- jected to the appraisal on April 19 and filed his fourth charge on April 20, 1977, alleging discrimination in his a The report, G.C Exh. 36, was rejected as an exhibit of Malin's con- certed activities and/or to show Respondent's animus toward Malin. General Counsel moved in his brief to admit the exhibit and upon reflec- tion I reverse my ruling and admit G.C Exh. 36 into the record. appraisal because of concerted activities. On April 21 Malin amended the fourth charge adding a violation of the no-solicitation/no-distribution rules. On April 28 the Regional Office issued an 8(a)(1) complaint while Malin appealed the dismissal of the 8(a)(4) portion. On June 1, 1977, Malin filed his fifth charge alleging discrimination against employee Garry Leopold. This same day the Regional Director dismissed the 8(a)(4) portion of the fourth charge. On June 16 Malin with- drew the fifth charge in its entirety. The Regional Director on July 18, 1977, approved a settlement agreement on the third and fourth charges re- quiring a withdrawal of the oral warning referenced in the March 4 letter and removal of references to "group discussions" and the oral warning from Malin's annual appraisal of April 15, 1977. The settlement specified that the hospital could still require its employees to follow lines of communication and supervision established by the hospital. In August 1977 a new nursing instructor was installed. On September 1 Malin authored and typed an open letter to the new instructor. The letter is suggestive of: a better form of supervision than had occurred in the past, effica- cious management of children, changes in the physical setup of the Children's Center, changes in the philosophy of the Center and society today, and pathology of chil- dren and staff personality traits as an influence on the children patients. Malin suggested to one coworker that employees should sign the letter and it was distributed for employee signatures. On September 12 Hobson, di- rector of nursing, sent a letter to Malin reminding him of the lines of communication and supervision and particu- larly that matters relative to patient care and safety must be immediately directed to the nurse in charge responsi- ble for the unit. On September 20 Malin filed his sixth charge alleging Hobson's letter to be discriminatorily motivated in retaliation for concerted activities. On October 18, 1977, the Regional Director dismissed the sixth charge affirmatively explaining that Hobson's September 12 letter was a privileged communication of the hospital. This same day Malin filed his seventh charge alleging the hospital's no-solicitation and no-dis- tribution rules to be violative. The next day Malin amended the seventh charge to include the hospital ethics-confidentiality policies and rules as violative of the NLRA and the first amendment of the U.S. Constitution. The charge was also amended by Malin alleging that the hospital denied Malin a transfer and his request for sev- eral annual reports because he engaged in concerted ac- tivities. On October 30 Malin requested to withdraw from the settlement agreement for the third and fourth charges specifically because he contended that the Board's notice was illegal and discriminatory. The fol- lowing day he appealed the Regional Director's dismissal of his sixth charge. On November 2, 1977, Malin filed his third amend- ment to the seventh charge adding Massachusetts Gener- al Hospital Corporation as a charged party and also filed his eighth charge alleging discrimination against nurse Ellen Petersen. On November 14 the Regional Director 462 MCLEAN HOSPITAL denied Malin's request to withdraw from the settlement of the third and fourth charges. The following month on December 16 the Regional Director dismissed Malin's eighth charge. Malin, on De- cember 27, filed his ninth charge alleging that the hospi- tal ethics policy and confidentiality rule recently revised were still violative of the Act. On December 30 Malin's appeal of the dismissal of his sixth charge was denied by the General Counsel in Washington. On January 17, 1978, Malin amended his ninth charge adding as an alleged violation the newly revised no-so- licitation rule and the first amendment to the U.S. Con- stitution as further basis for a violation of denial of free association. This same day Malin filed his 10th charge al- leging the new no-solicitation rule as a further violation of the NLRA. On January 27 Malin's further appeal of the Regional Director's dismissal of his sixth charge was denied. On February 6, 1978, Malin filed a motion to stay the settlement of the third and fourth charges basing his motion upon the Board's language in the "Notice to Em- ployees" which Malin claimed was discriminatory and unlawful on its face. On May 9, 1978, the Regional Director dismissed the 8(a)(4) allegations of Malin's 7th, 9th, and 10th charges but allowed the 8(a)(1) allegation of no-solicitation and ethics. Additionally, the Regional Director found no vio- lation in McLean's handling of Malin's recent transfer re- quest nor in McLean's refusal of Malin's request for annual reports of the hospital. The Regional Director further stated that nursing stations are working areas so a prohibition against the distribution of material in those locations is not unlawful. The next month, on June 6, the Regional Director wrote Respondent that complaint would issue on 8(a)(l) issues of the 7th, 9th, and 10th charges and the no-solici- tation allegations of the 4th charge since the settlement agreement of the 4th charge had been partially revoked. In July the Regional Director nullified his previous revocation of the settlement of the 4th charge and decid- ed to issue complaint on the 7th, 9th, and 10th charges only.6 On July 13 Malin demanded of the General Coun- sel in Washington that the settlement agreement for the third and fourth charges be set aside. The General Coun- sel instead, on August I, affirmed the Regional Direc- tor's action and denied Malin's request. On September 25 Malin sent to the hospital a 5-by-7- inch card with the legend: Attention Employees I and other hospital employees are forming, protect- ed under the National Labor Relations Act and the First and Fourteenth Amendments to the U.S. Con- stitution, a workers' grouping for the general im- provement of working conditions (broadly con- strued) at McLean and Massachusetts General Hos- pital-the Massachusetts General Hospital Corpora- tion. 6 General Counsel moved in brief to admit G.C. Exh. 65; however, I reaffirm my ruling rejecting the exhibit and deny his motion for admis- sion. We need your help, ideas, suggestions, grievances; we need your support! Please write, including your home telephone number, to: Laurence Malin [Mental Health Worker, Bowditch I, Night shift] 20 Irving Street Belmont, Massachusetts 02178 Malin requested that the hospital post the notice and supply him with copies of McLean's and Massachusetts General Hospital's annual reports. In the next several months Malin spent time preparing for the January 1979 hearing of the 7th, 9th, and 10th charges and placed advertisements in the communication books in the various units at McLean, inviting employees to the coming hearing. On December 8, 1978, Malin, accompanied by Region- al Office staff attorney Sax, during Malin's nonworking hours visited a locked patient unit at McLean, South Belknap I. Access to the unit was gained by Malin's set of hospital keys. Sometime later the Regional Office and Respondent considered settlement of the case arising out of charges 7, 9, and 10. Malin opposed any form of set- tlement. On January 10, 1979, Malin wrote to General Counsel Irving in Washington and expressed his opposition to set- tlement of the no-solicitation cases and demanded that the cases proceed to hearing and review before the full Board. Malin states: The McLean cases would be the very first employ- ee solicitation/distribution/conversation cases in NLRB history to raise clearly and strongly, on a factual basis, the fundamental issues of employee Sec- lion 7 freedom of speech and association to improve working conditions. In my 10 NLRB cases I have at- tempted to vindicate or establish NLRA rights for numerous other employees. So I have acted as a private Attorney General. The same day Malin sent a letter to the board of trustees, Massachusetts General Hospital Corporation, entitled "Notice of Intent to Unionize" as follows: Notice of Intent to Unionize Dear Trustees of Massachusetts General Hospital: (1) As soon as McLean Hospital promulgates new solicitation/distribution/conversation rules, I shall send copies of the new rules to every regional and national union potentially interested in organiz- ing first McLean Hospital, then Massachusetts Gen- eral Hospital. Also, I shall be ready to advise any reputable unions on strategy and tactics for successfully orga- nizing first McLean Hospital, then Massachusetts General Hospital. (2) In the near future I shall effectively bring to the attention of the Massachusetts Rate Setting 463 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Commission McLean's expenditure of funds to your lawyers, of the Boston firm Herrick & Smith, who are attempting to maintain what I contend are un- lawful rules interfering with employee National Labor Relations Act, Section 7, fundamental rights of speech and association. (3) Having studied Joint Commission on Accredi- tation of Hospitals' functioning, and having had first-hand disillusioning experience in 1977 at McLean with JCAH accreditation procedures, I and other employees will work for JCAH's aboli- tion and replacement by federal governmental ac- creditation. We will seek an open, fair, comprehensive accred- iting process. One that protects cooperating em- ployees who in good faith offer information. And one that gives high priority to all working condi- tions (construed in a modern very broad sense) for hospital employees as a foundation for quality health care. Further, we will seek to have hospital boards of trustees made directly and legally responsible to employees and the public for hospital conditions of work. It is a sad mistake for boards of trustees to isolate themselves from and not respond to employ- ees seeking only to improve the institutions in which they are working. I send you this genuinely benevolent New Year's greeting as a NLRB Section 7 protected concerted activity (also protected under the First and Four- teenth Amendments to the United States Constitu- tion) to improve working conditions for all McLean and MGH employees. On January 13 Malin renewed his opposition to the proposed settlement of the no-solicitation cases in an- other letter to General Counsel Irving. Malin demanded that the prior settlement agreement (charges 3 and 4) be revoked and founded such demand upon Respondent's "Petition to Revoke Subpoena of Francis DeMarneffe," a subpoena issued in behalf of Malin, the Charging Party in the pending case. Malin stated that any informal settle- ment between Respondent and the Board he would liti- gate to the Supreme Court. This same day Malin sent to Massachusetts General Hospital Corporation a notice of intent to subpoena Dr. F. Sargent Cheever, chairman, board of trustees of Massachusetts General Hospital. Board attorney Sax was engaged in settlement discus- sions with Respondent's counsel Brown and told Brown that she and Malin were on the hospital premises on De- cember 15, 1978. Sax in turn told Malin that she in- formed Brown of the incursion. Brown later asked Sax if she were ever in a McLean patient unit with Malin. Sax responded that she and Malin attended a lecture at McLean, but avoided any response to being on patient units with Malin. Sax again informed Malin of her con- versation with Brown about McLean premises and told Malin that she was concerned about the consequences of their trip to the locked patient unit of McLean during Malin's nonworktime. B. Denial of Presence of Representative 1. February 1, 1979 Malin testified that Clinical Nursing Supervisor Shel- ley Richards interviewed him during working hours con- cerning specific past conduct as follows: At 6 o'clock in the morning, February 1, 1979, Shelley Richards came into Bowditch One, through the door leading to the parking lot, and went into the conference room, took Hilda McDonald in there with her and she met with Hilda McDonald in the closed conference room. After Shelley Richards finished talking with Hilda McDonald, she came out of the conference room and said to me that she wanted to speak with me, and asked me to accompany her to the conference room. We went in there. Q. Anyone else? A. No, we were alone. Q. Did you close the door? A. Yes. Q. What time would this have been, now? A. Sometime around 6:30 in the morning of that day. Q. (By Mr. diCiero) Tell us as near as you can recall what Ms. Richards said to you and what you said to her. A. After we both sat down at this long confer- ence table in a conference room at Bowditch One, the door was closed and we were alone. After we both sat down, there was silence for a minute or two and I asked Ms. Richards what was on her mind and she told me that she had a question for me. She told me that I was observed on Decem- ber 15, 1978, going into the South Belknap One with an unidentified woman and that I was ob- served going into South Belknap One with this un- identified woman by Joan Bruce. Q. Who is Joan Bruce? A. Joan Bruce is or was, to my knowledge, the head of nursing, as I recall, the head of nursing in- struction at McLean Hospital. Q. Shelley Richards say anything else? A. Yes, the conversation continued. She said that I knew there was a confidentiality rule at McLean Hospital and I asked her what con- fidentiality rule she was referring to and she pointed to the bookshelf in which there are various books and policy manuals. I asked her if she meant the confidentiality rule in the Nursing Training Manual and she said yes. I told her that any of my visits to McLean Hos- pital in December 1978 in my off-duty time were related to my engagement in protected concerted activities and I didn't feel that I had to answer ques- tions concerning my engagement in protected con- 464 MCLEAN HOSPITAL certed activities and I thought she was unlawfully interrogating me. I told Ms. Richards--As I recall, she said then that she wasn't asking any questions about my en- gagement in protected concerted activities but that she was questioning me with regard to my work performance. I didn't understand that since I wasn't working and I thought she wasn't working at the time that she was speaking about in December. Q. Did you say that to her? A. Yes, I did. Q. What did you say to her about work perform- ance? A. I told her that I wasn't working at the time that she was speaking about, specifically, 3 p.m. on December 15, 1978, and, again, she told me that her question did concern my work performance and, as my supervisor, she had a right to ask me such ques- tions and I told her that I wasn't refusing to answer the question but that, and I wasn't confirming or denying it, but that I wanted an opportunity to con- sult with legal counsel before answering the ques- tion because I felt it wsas related to my engagement in protected concerted activities. Richards, again, repeated the question about what I was doing on SB I on December 15 and at 3 p.m. and I told her once again that I wasn't confirming or denying what she was saying and I certainly wasn't refusing to answer the question but that I wanted an opportunity to consult with legal counsel before giving her an answer. Q. You told her that twice? A. We went through this, I think at least two times. Possibly three times. Q. Was anything said about written questions? A. I was just getting to that. I did suggest to Ms. Richards that she put her questions in writing to me and that I would respond to her in writing. Ms. Richards told me that my violation of the Hospital's confidentiality rule-that she told me that she could place me on verbal warning on my violation of the Hospital's confidentiality rule, that my violation of it was so serious that she had to place me on writ- ten warning. She also told me that I had been warned about insubordination and I told her that I couldn't recall having been warned about insubordination and that I had not been insubordinate at McLean Hospital. Ms. Richards said that since I wasn't going to give her answers to her questions that she was going to suspend me indefinitely and I asked her- and she told me that I would have to meet with Mrs. Hobson to discuss the written warning and that the meeting take place between Shelley Rich- ards, myself and Mrs. Hobson. Shelley Richards also said that this was Hospital's customary proce- dure. She asked me then if I wanted to meet with Mrs. Hobson, and her that day. I told her that I needed time to consult with legal counsel and I said that I preferred to meet with Ms. Hobson the following day. Ms. Richards then told me that she would speak with Ms. Hobson and try to set up a time for the following day and she asked me where she could get hold of me to let me know what time Ms. Hobson could meet with me. I told her that I would be home that morning, and I could be reached by telephone. I asked Ms. Richards if I would be paid during the time I would be suspend- ed and she told me that that was the one thing that she had forgotten to find out, whether pay would accompany the suspension. I told her also that I was going to file NLRB charges over the warning and suspension. I think I also told her that I was very sorry that she was being placed in the position that she was being placed in; that I felt that she was being told to do this by higher management. Q. What did she say to that? A. She didn't say anything to that. I think I made some comment to her that Michael Brown had done his job very well or something of that sort. Q. Did she answer that? A. She didn't answer that. The conference was then over at that point and I went back to- Malin further testified to the incident: I met with Ms. Richards about six-thirty in the morning. That was on Thursday morning on Febru- ary 1, 1979. Ms. Richards came to where I was sitting on Bowditch I, and asked me to accompany her into the conference room of Bowditch I. She closed the door. We sat down together and there was silence. I asked her what she wanted to speak to me about. She told me that I had been observed enter- ing SB I, on December 15, 1978, with an unidenti- fied woman. That I had been observed by Joan Bruce, nursing instructor. And she wanted to know what I was doing on SB 1 with an unidentified woman on December 15, 1979. Q. You did not take Sax onto the unit that day, did you Mr. Malin? A. On December the 15th? Q. Yes. A. No, I didn't. Q. Did you take anybody-another unauthorized woman onto the unit on December 15, 1978? A. No, I didn't. Q. Then why did you just not deny to Ms. Rich- ards at that meeting that you never did? A. Well, for numerous reasons which I have al- ready stated on the record. If you would like me to restate them, I will. * * * * * 465 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. (By Mr. Brown) Since you testified that you had brought nobody onto the unit on December 15th, why, Mr. Malin, did you not merely truthfully deny to Shelley Richards on the Ist of February, 1979, that you brought nobody onto the unit on De- cember 15, 1978? A. For a number of reasons, and I will state them. Because of the telephone conversations I had had with Carol Sax- Q. May I stop you and ask you how did that relate to why you did not tell Shelley Richards, "I was not on the unit on December 15th"? A. I felt apprehension that the Hospital was in some way going to move to discipline me. And I felt that, because the Hospital had previously disci- plined me. Q. We know what the Hospital had previously done, Mr. Malin, that is a matter of record. But please tell me what is the connection be- tween what Ms. Sax said to you on the phone and why you just did not simply say to Ms. Richards, "You have the wrong date. I never was on the unit on December 15, 1978, with an unidentified woman." That is the truth, isn't it, Mr. Malin? A. I was beginning to answer your question when you were interrupting me. Q. Please excuse me, Mr. Malin. JUDGE GRITTA: Answer the question now. THE WITNESS: I was beginning to answer his question when he interrupted me. JUDGE GRITTA: Counsel has a right to interrupt you when he is interrogating, especially when it is a multi-part answer. What he is asking you to do is recall the reasons why-you indicated more than one. And then he is asking you how that relates to what you were asked by the supervisor? Now, do you get the framework? THE WITNESS: Yes, Your Honor. Q. (By Mr. Brown) All right. So you told us that one of the reasons you did not tell Shelley that, "I wasn't on the unit on De- cember 15th," was because of your conversations with Ms. Sax earlier in January. What was another reason why you did not truth- fully deny to Supervisor Richards, "I wasn't on the unit on December 15th"? A. Because I felt additional questions would come after that. And I did not know where I was going to limit the questioning-at what point. I then had three cases pending before the Board for trial at that time. And I was concerned about revealing to the Hospital the sort of things that we were prepar- ing to litigate. The sort of things that we were con- cerned about and were going to be bringing up at trial. I was concerned about damaging the cases and a great deal of work. Q. (By Mr. Brown) Well, let's go into it a little bit more, Mr. Malin. You testified that the second reason was because you did not know where the questioning would stop, and you had cases pending before the Board, and you did not want to jeopardize those cases? Is that fairly accurate-summary of what you just tes- tified? A. I did not want to reveal- Q. Is it, Mr. Malin? A. Is that an accurate summary of what I testi- fied-yes-in answer to your question. Q. You were weighing in your mind, Mr. Malin, on the one hand your supervisor has asked you a question. On the other hand you have your other protected activities-your Board actions, your cases, your trial preparation. And you were weighing in your mind this scale? Correct, Mr. Malin? In other words, your protected activities never came into your mind when you said-when you did not answer Shelley Richards? A. No. They were dominant in my mind. Q. That is my point, Mr. Malin. You weighed-and the protected activities won? Is that correct? A. I wasn't weighing. Q. But you were considering both aspects-an- swering your supervisor, and the protected activi- ties? Correct, Mr. Malin? A. My- Q. Correct, Mr. Malin? A. My concern at the time- Q. Yes or no? A. No. Q. You explain it to us, Mr. Malin, because you are confusing me. A. Good that- Q. Excuse me, sir? A. It is good that I have a chance to answer you. My concern with the question at the time was that it would lead to unlimited questions which in some way I was concerned-I didn't know just what it would lead to-might damage cases that I was very concerned about litigating. I felt they in- volved very important right for all the employees of the Hospital-speech rights- Q. Protected concerted activities? A. Section 7 speech rights, which is a protected concerted activity or- Q. Thank you, Mr. Malin. You felt by answering Ms. Richards' questions it would affect the Section 7 rights of you and other employees? Correct? A. That was one of my concerns. Q. (By Mr. Brown) You testified that one reason you did not answer Ms. Richards was because of conversations you had with Carol Sax on the tele- 466 MCLEAN HOSPITAL phone in January. The second reason that you did not answer Ms. Richards, you testified, was because of your other Section 7 activities and the activities of other employees-your other Board cases. You did not want to jeopardize those cases. What other reasons were there? A. I thought it might lead to unlimited ques- tions-and where would I draw the line. That was not clear to me. I needed to get some advice that- to be able to consult. I did not know what were the proper grounds of interrogation at that time. Q. But you felt basically that you did not have to answer her because of the protected activities? Cor- rect, Mr. Malin? A. I did not refuse to answer her. Richards testified as follows: Q. And did there come a time when you were on the unit and talked to Mr. Malin concerning this? A. Yes, I talked to Mr. Malin on February Ist. Q. And when did that conversation take place? A. The conversation took place at approximately six-fifteen in the morning of February Ist. Q. And where did it take place? A. In the conference room on Vowtich I [sic]. Q. And would you tell us what you said and what Mr. Malin said, if anything, during that meet- ing. A. I asked Mr. Malin to join me in the confer- ence room. We went in, closed the door, sat down, at opposite sides of the table. I remember telling him the facts as they had been presented to me by Mrs. Hobson. That he had been seen by Miss Bruce on the fifteenth of December with an unidentified woman on SBI. I asked him if there was reason to be concerned about that or could he explain those circumstances. Q. Did he respond to you? A. No, he didn't. There was a pause and he pushed his chair back from the table. He started at me and then made a very precise statement that if indeed he was on McLean grounds on that day, that he was involved in protected concerted activi- ties and therefore, I could not ask him about it. I tried to tell him that I felt my question was one that I did have a right to ask, that I was asking him about the responsibilities of his job, the responsibil- ities given to him as a mental health worker and that he was issued keys and therefore, access to units and that as a Supervisor I had a right to ask him about the exercise of that responsibility. He told me again that I could not continue to ask him those sorts of questions and that he wouldn't con- firm or deny his presence there and that if I contin- ued to ask about that incident, then I was interro- gating him. I tried once again to clarify that I was not attempting to ask questions about his protected concerted activities, that I was only trying to clari- fy whether or not there had been a breach of the hospital policy. As a Supervisor, I felt that I did indeed have the right to ask those questions. He told me once again that I was interrogating him. He asked me why so much time had gone by between the incident and when I was asking him about the circumstances and I told him that I had only learned about it a week before and here I was. He told me that other staff did that all the time and therefore, I shouldn't be concerned. I told him that when and if it happened and it was brought to my attention I would have dealt with it. He told me again that if I continued to ask him questions that I could expect charges, that I was indeed interrogat- ing him, unlawfully. He then began to apologize after a fashion in that he was sorry we had come to an adversarial position and did I realize that over the previous months he associated my presence on the unit-that he was made anxious by my presence on the unit and associated it with small harassments. I tried one more time to clarify my question, that I was not so concerned with the identity of the person or his purpose but was trying to clarify whether he understood the hospital policy and that unauthorized persons were not allowed. He told me once again that I was interrogating him. I felt, at this point, and I told him, that we were at an im- passe. I felt that his inability to respond to me to be insubordinate, that I had no further choice but to suspend him until the situation could be resolved, hopefully through a meeting with Mrs. Hobson. He asked me, rather casually, whether that was a sus- pension with pay or without pay. I told him I didn't know and that I would attempt to have an answer for that when I called him later that morning to tell him of the arrangements that I was hoping to make with Mrs. Hobson for that meeting. He smiled and told me that he hadn't seen Mrs. Hobson in quite some time and he would look forward to that meet- ing. He went out on the unit, I thought to pick up his belongings but he indeed sat down and seemed to assume that he was continuing to work for the rest of the shift and I indicated to him at that time that he should leave and he did so. Q. Do you recall Mr. Malin at that meeting men- tioning that he had to speak to his legal counsel, his attorney? A. Yes, I do. Q. Tell us under what circumstances that refer- ence came up during the meeting. A. On one of the several occasions where I was attempting to clarify my question to him, he told me that, again, he wouldn't confirm or deny his presence there but before he answered the question he would want to speak with legal counsel. Q. Do you recall him asking you to put your questioning in writing? A. I did not recall that, no. Q. All right. Do you recall him asking you where the policy that you referred to was written? A. Yes, I do, but I refrained from going to the manuals or refreshing his memory. I was very cer- 467 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tain that he knew the policy that we were talking about. Q. Now, did you have any reaction to the meet- ing that you testified to between you and Mr. Malin? A. I had some very strong reactions in the course of that meeting. Q. What were those reactions, Miss Richards? A. I think initially it was confusion as to why what I felt was a very simple question was proving so difficult. I tried several times to state the ques- tion in different ways hopefully so that Mr. Malin could answer to it. Q. When you say difficult, difficult to whom, to you or to him? A. To him. As time went on, I became more frustrated in that attempt and I think I began to re- alize that it was more to the point that he would not answer my question, that he felt his protected concerted activities were involved and that at that time that was stopping him from answering the question. I think, then, as he began to repeatedly tell me that I was interrogating him and harassing him, I think I became more angry and more con- cerned that he could not differentiate his protected concerted activities from what I was trying to ask him about, as his responsibilities as a mental health worker. And, in not being able to clarify that for him, I think at the end of the meeting I realized that I truly was at an impasse and he was not going to answer my questions and that he was indeed telling me that I had no right in the world to ask him those questions. 2. February 2, 1979 Malin stated that after he was suspended McLean made contact with him to schedule a meeting with Hobson, director of nursing. The contact was by Rich- ards on February 1. Malin's testimony is as follows: Around 9 o'clock that morning, Shelley Richards called me at home. Q. What happened at that time? What was the conversation? A. Shelley told me that she had spoken with Ms. Hobson and that Ms. Hobson would see Ms. Rich- ards and myself the next morning at 9:00 a.m. She told me that my suspension was with pay. I asked her if I was going to be fired the next day. She told me that I was going to be placed on writ- ten warning. I asked her if I could bring a witness and she told me that I couldn't bring a witness. I asked her a second time if I could bring a witness and she said no, that I couldn't bring a witness the next day. Q. How long did that conversation last? A. It was a very brief conversation, a couple of minutes. Q. . .. . After the conversation with her on the phone what did vou do? A. I sketched out the Charge based on the threat- ened written warning and the suspension around Noon that afternoon I went to the Region One office and filed the Charge in the case that we are now litigating, I-CA-15552. Q. Did you have an opportunity at any time, that day or that evening, to speak to any of your attor- neys? A.... when I woke up that evening I made a telephone call to Staughton Lynd in Ohio with whom I had spoken. Q. Is Mr. Lynd an attorney? A. Mr. Lynd is an attorney. He is also an expert in the area of employee speech and private work settings. He had sent me a number of his articles that we had a couple of telephone conversations re- garding the litigation that I was preparing both to litigate and any informal settlement agreement as well as General Counsel proceeded on the solicita- tion distribution cases against McLean Hospital. Q. (By Mr. diCiero) After speaking with Attor- ney Lynd, what, if anything else, did you do? A. I, based upon my conversation with Mr. Lynd, in which I discussed- MR. BROWN: Objection. JUDGE GRITrA: Mr. Malin, counsel tried to ask a question about Mr. Lynd's conversation. He with- drew the question so we don't want to get into that. Now, the question is what you did. You don't have to preface it with why, just tell us what you did. It saves objection; it keeps the record straight. Just tell us what you did. A. I wrote a letter to Ms. Hobson in which I set forth-well- Q. (By Mr. diCiero) You wrote a letter to Ms. Hobson. What was your intention to do with that letter? A. My intention with the letter was to give it to Ms. Hobson at the meeting which I was going to schedule to have with her at 9:00 the next morning. Q. Directing your attention to the following day, now, February 2, did you appear at Ms. Hobson's office at the appointed time? A. I did. Q. What time was that, around 9 o'clock? A. It was. Q. Who else was present? A. Shelley Richards was sitting at a table in the office. Q. When you arrived-describe for us what you did when you first got there? A. I was in the outer office. Ms. Richards came out and asked me to go in with her. I went in. She closed the door. I had on a winter coat and I took it off. I put it on a chair. I had my letter that I pre- pared earlier in the morning, previous night, at- tached to which was a copy of the Charge in the instant case and I had it in a briefcase and I put the 468 MCLEAN HOSPITAL briefcase on the table. I took the letter and charge out. Before anything was said, I handed them to Mrs. Hobson who then read the letter. Q. All right. Tell us, as near as you can recall, what happened after you gave her the Charge-I'm sorry, after you gave her the letter. A. Ms. Hobson read the letter and read the at- tached Charge and then passed the letter and the Charge to Ms. Richards who was sitting next to her and Ms. Richards proceeded to read the letter and the Charge. After Ms. Richards gave the letter back to Ms. Hobson, Ms. Hobson looked at the letter once again and told me that she couldn't accept my apology and she told me that I had been warned about in- subordination and she pointed to a letter probably September, September 1977 letter, that the hospital had sent me and I told her that I hadn't been insub- ordinate, that I asked Ms. Richards for, that I hadn't refused to answer Ms. Richards questions the previous day that I had asked for an opportunity to consult with legal counsel, and that I felt that my letter which I had given Ms. Hobson that day, Feb- ruary 2, answered Ms. Richards questions of the previous day and set forth my position. Ms. Hobson then said that she couldn't accept the prepared statement and I told her that I didn't know what further answers she was looking for and I felt the letter adequately answered Ms. Richards questions of the previous day. I told her that I thought it explained what my position was with regard to answering questions re- lated to my engagement of protected concerted ac- tivities. Ms. Hobson then told me that she had no choice but to immediately terminate me for my insubordi- nation to Ms. Richards on the previous day. She told me that there's certain formalities that we would have to go through to effect termination. She then went to the telephone and made a tele- phone call and then came back and told me that I would have to go to the personnel office to arrange for my benefits if I wanted to continue them or not and that would, after that, have to go the security office to turn in my keys and that they would give me a slip of some sort and that I would take that to her secretary and there'd be an arrangement for my final paycheck, whether I wanted to receive it at the hospital or have it sent to me. Then I shook hands with Ms. Hobson and Ms. Richards, and I went to the personnel office and to the security office and then I went home. Richards testified that she telephoned Malin several hours after her meeting with him on February I to notify him of a second meeting on February 2 with Hobson concerning the suspension. Richards testified that she at- tended the February 2 meeting also: Q. Following this morning meeting with him, did you speak to him again that morning or any other time? A. Yes, I did, on the phone at eight-thirty that morning. Q. That same morning, February Ist? A. February Ist. Q. What, if anything, did you say to him and did he say to you? A. I told him that we had a meeting with Mrs. Hobson the next day on the 2nd. Q. Did you tell him what time? A. At nine o'clock? Q. Okay. I'm sorry. I didn't mean to interrupt. A. That he said was convenient for him. He asked me if he could bring a witness to that meet- ing. I answered no. He asked me if he could expect to be fired. I had no answer. JUDGE GRIT1A: Does that mean you didn't tell him anything? THE WITNESS: Correct. I deferred the question until the following day. I also told Mr. Malin at that time that, having asked Ms. Hobson, that his suspension was with pay. Q. (Mr. Brown) And what is it that you recall him replying to you? A. I remember him agreeing to the meeting time. I remember him asking about bringing a witness. I remember his comment that, as he had indicated earlier that morning, that the charges would be de- livered to you, Mr. Brown. Q. Did he make reference to what he meant by charges? A. No. Q. Did you know what he meant by charges? A. I assumed he meant charges with the Labor Board. Q. Now, does the policy-strike that. Does the hospital have any policy that you know of regard- ing the allowing of witnesses to meetings where performance or behavior or discipline of that em- ployee are being discussed? A. Yes. Q. What is that policy? A. The policy is to not allow a witness. The em- ployee's choice is to come to that meeting or not come to that meeting. Q. And if the employee chooses not to come to the meeting? A. Then decisions are made without the employ- ee's input. Q. Prior to the-Did a meeting, in fact, take place on February 2nd? A. Yes, it did. Q. And who was at that meeting? A. Mrs. Hobson, Larry and myself. Hobson testified as to what transpired at the February 2 meeting with Malin as follows: 469 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. Did you meet with Mr. Malin on February 2nd? A. Yes, we did. Q. Where did this meeting take place? A. In my office. Q. What time did it take place? A. It started at nine o'clock, February 2nd. Q. Now, to the best of your recollection, would you repeat, if necessary-if you have already told it to Mr. diCiero-or amplify your testimony that you gave to Mr. diCiero; and tell us as completely as possible what transpired at that meeting on Febru- ary 2nd? What you said? What he said? A. Mr. Malin arrived just before nine o'clock on the morning of February 2nd, 1979. My secretary so notified me. I went out to the outer hall waiting area where Mr. Malin was sitting in a chair just next to the doorway to my secre- tary's office. I greeted Mr. Malin. I said, "Good morning," and he responded in kind. I then informed Mr. Malin that it was my under- standing that he had asked Ms. Richards if he could have a witness present at this meeting with myself. And that she had informed him that he could not. That I wanted to let him know that this was proce- dural, that witnesses were not allowed at such meet- ings. But that he had two choices. That he could decide to enter into the meeting as scheduled with Ms. Richards and myself, without a witness present; or he could elect to refuse to attend the meeting as structured without a witness. In such an event, then I would have to make a decision based on the infor- mation I had at that point in time. Mr. Malin made no comment. As I was speaking with him explaining this issue, he moved past me, and moved through my secretary's office. And I decided to join him since he was moving. And I walked with him through my secretary's office. He went into my office. There was no comment, no dialogue. Ms. Richards was sitting at the conference table in my office. Mr. Malin proceeded to place a jacket he had over his arm on a chair at the conference table, and put a briefcase he was carrying on top of the conference table. He opened the briefcase from which he removed some papers. I still remained standing. He was standing. He turned to me and handed the papers to me. At that point he then seated himself at the confer- ence table. I also seated myself. I read the papers-the two papers that he handed to me. The two documents were a letter dated Feb- ruary 2, 1979, from Mr. Malin, addressed to myself. And a document charge against the Employer from the National Labor Relations Board, dated Febru- ary 1, 1979. I proceeded to read both documents. There continued to be no dialogue. There was si- lence. I read through the documents without comment, to myself. I handed the two documents to Ms. Richards to read. There continued to be no dialogue. Mr. Malin looked at me as I read it. I looked up at him a couple of times. He watched Ms. Richards intently as she read the two documents. I watched him. There was no dialogue. It was a mute meeting up to this point. When Ms. Richards completed reading both of the papers, she handed them to me. At that point, I explained to Mr. Malin that the meeting that was taking place was structured within the nursing department to allow employees who have either received a letter of warning, or had been suspended-to have an opportunity to have a dialogue with their supervisor and either their Di- rector of Nursing or the Associate Director of Nursing, depending on the area of assignment. Since Mr. Malin was assigned at that time to Bowditch I, appropriately, the meeting included my presence. I went on to share with Mr. Malin that I had dif- ficulty accepting this letter as a letter of apology, because his record had indicated, and I was aware of the fact that he had been insubordinate in the past. And his suspension was directly as a result of his having been insubordinate the day before; and I saw no reference to that in this letter. I made reference to two pieces of paper I had on the conference table, one of which was a letter from myself to Mr. Malin, dated September 12, 1977. I referred to a statement or a sentence or two in that letter. I also referenced another document that I had on the conference table, which was a performance evaluation written by Ms. Rita Wahl, former Clini- cal Nursing Supervisor, on Mr. Malin's perform- ance. This performance evaluation was dated some- time in April of 1977. There were two or three ref- erences, at least, in that evaluation to incidents of insubordination, both to Ms. Wahl and to a cover- ing supervisor a Ms. Arlene Tierney. I went on to explain to Mr. Malin that I could not agree to terms in his letter, that he had handed to me that morning. He indicated in that letter that I was to ex- punge-I am not sure if that was the actual word- but I was to remove from his record any indication that he had been suspended, or any indication that he received a letter of warning. I told him I could not; I would not accede to these demands. Then I asked Mr. Malin if he were now available to have a dialogue to discuss with myself and with Ms. Richards the incident that was reported regard- ing his having been seen on a locked unit with an unauthorized woman. Mr. Malin responded, "I don't have to answer any questions as my activities were related to my protected concerted activities." 470 MCLEAN HOSPITAL I then commented to Mr. Malin in explanation that the questions his supervisor had asked him the day before, that I was asking now, were related to his performance responsibilities as they correlated to his obligations to protect patient's rights to priva- cy and confidentiality. I then went on to explain to Mr. Malin that the issue in the meeting the day before had moved from asking questions about a possible violation of Hospi- tal policy to one of insubordination, since he had re- fused to be responsive when his supervisor asked questions. And that his history had indicated that he had been insubordinate in the past. Would he now answer questions relevant to this incident? Mr. Malin repeated a second time that he did not have to answer questions, as his activities related to protected concerted activities. I repeated the questions-I repeated that the questions are intended to get answers relevant to your responsibilities as an employee and your obli- gations to uphold those policies that are to respect the patient's rights to confidentiality and privacy. Mr. Malin responded. "You have obviously been prepared." A long pause. I made no comment. I then said to Mr. Malin. "I have difficulty and I cannot accept your apology as sincere, as the record has indicated, you have been insubordinate in the past." Mr. Malin then said, "Well, it was a conditional apology anyway." And I responded, "Exactly." I then asked Mr. Malin if he were then prepared to respond to questions relevant to-regarding the Hospital policy regarding-to the patient's rights to privacy and confidentiality, and his insuoordinate behavior of the day before' Mr. Malin then commented that he had not re- fused to answer Ms. Richards' questions the day before; but had asked for an opportunity to seek legal counsel. He went on to comment that Ms. Richards had asked him questions about who the person was that he had brought on to South Belknap I. Ms. Richards spoke for the first time in the meet- ing at that point. She said to Mr. Malin, "Larry, when I talked to you yesterday, I asked no questions intending to identify the person that you were seen with. In fact, what I said was that I did not care if it was 'Tom, Dick or Harry--that it was important to me"'--this is Ms. Richards-"to know the facts regarding the reported incident that you were seen with an unau- thorized person on a locked unit." At this point, Mr. Malin commented, "I see no further point-I see no point in any further discus- sion." And made a final statement that his activities were related to his protected concerted activities. At that point, I concurred. I commented that I saw no further point in a further dialogue. We were in a circular conversation that was leading nowhere. And that, based on Mr. Malin's insubordination of the day before, and his continued demonstration of being uncooperative, I had no alternative but to ter- minate his employment. At that point, I remember asking Mr. Malin if he would be available to have a meeting with the per- sonnel representative at McLean Hospital, who rep- resents mental health workers. Mr. Malin indicated that he would be. I ex- plained to him the purpose of that meeting, as it would provide him an opportunity to speak with a person outside of the nursing department about what had just transpired, if he so wished. And that he would have an opportunity to get information regarding the transfer of certain benefits-for exam- ple, if he carried hospitalization insurance-that it would be important for him to have that kind of in- formation. And that Ms. Calcaterra, the personnel representative, would explain to him certain steps in the termination procedure. I called Ms. Calcaterra from my office phone in my office with Mr. Malin still present to see if she would be available. She indicated that she would be. I then informed Mr. Malin of this; and that Mr. Malin would be along shortly. I returned to the conference table in my office. I asked Mr. Malin if he wished his termination check to be made available to him that day-that he had the right to that if he wished. And he said, "No." He asked what were the other alternatives. I indicated that he could either come back and pick it up or he could have it mailed to him. He said that he preferred to have it mailed. I then explained to Mr. Malin that he was then an ex-employee. And as such, an employee who was being terminated rather than leaving voluntar- ily and was not in good standing at the point of his termination-that I would appreciate it if he would not contact patients at McLean Hospital, because the patients have enough to deal with-that they should be protected from employee related issues. In addition, I indicated to Mr. Malin that he cer- tainly had the right to continue any friendship or relationships he had established with fellow employ- ees at McLean. But that he was not to call or ar- range to meet McLean employees on the hospital grounds when they were on duty. I asked Mr. Malin if there were any patients on Bowditch 1, that would be particularly affected by his abrupt termination-that we, the staff, could help them deal with this issue. Mr. Malin very quickly said, "No," that there were no patients on Bowditch I that he thought would need help dealing with this issue. But there were three or four patients that he had contact with when he worked overtime and floated on other units. And he named them by name, one of which he identified on an incorrect unit, but who was a patient at that time in the hospital and might have some reaction to his abrupt termination. 471 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I think it was about that time in the conversation that Ms. Richards asked Mr. Malin if he had any belongings on Bowditch I that needed to be re- trieved from him. He said, "No," that the only thing that he had on the unit was a drinking cup and asked if she would make that available to a fellow employee who worked on Bowditch I. I asked Mr. Malin if he had any questions-if there was any information he had a need of that he would like to ask me. And he responded, "No," that there were not. Mr. Malin rose, shook my hand after he shook Ms. Richards' hand; made a comment to the effect, "I don't think I should say 'thank you."' I asked him if he were aware of the fact that the Personnel Department had relocated from a build- ing across the grounds to a building behind the Ad- ministration Building. I was concerned he might go in the wrong direction for his meeting with Ms. Calcaterra. He said that he had been aware of the relocation. And he thanked me for my consideration. And Mr. Malin left my office, I think, shortly thereafter. Analysis and Conclusion The facts surrounding the February I and 2 incidents are complete and substantially undisputed. Only the nature of the request for a representative on February 2 is ambiguous. Richards stated that Malin asked if he could have a witness present on February 2 and she denied his request in keeping with Respondent's policy. Malin characterized (in writing) his request as seeking permission for his legal counsel to represent him in the interview on February 2. (It is inconsequential that Malin may have received advice that his counsel's presence was his legal right.) Without discrediting either witness on this point, I conclude that Malin's request for repre- sentation on February 2 was meant for his legal counsel's presence, not some unidentified witness person or fellow employee. Further, I credit Hobson's testimony wherein she recounted to Malin prior to the start of the February 2 interview that he was not required to attend without a witness unless he wanted to. Malin's testimony to the contrary I do not credit. However, I would find the Weingarten7 rule satisfied if Hobson had not given Malin an option until after she read his volunteered letter. At that point, the interview had not started. Malin, during his entire stint in the witness chair, exhibited a calculated effort to sustain his charges and allegations both in the manner in which he responded and the substance of his responses. Malin was obviously guided by his intent to sustain his positions as the Charging Party. This intent was especially viewable in his explanation of purpose for his acts or conduct. In addition, Malin equivocated whenever it suited his purpose and attempted to fence with Respondent's counsel. For the most part, I resolve any credibility resolution against Malin finding support for such resolution in the objective evidence which was N.L.R.B. v. Weingarten, Inc., 420 U.S. 251 (1975). authored long before the hearing of this case. In discred- iting Malin substantially, I rely on the following princi- ple: That the resolution of an issue depends upon proof of facts. Neither mere conclusions nor expressions of feeling satisfy that standard. Even the positive assertion of a witness can be so diluted and qualified by other tes- timony of the same witness as to render such assertion of no probative value. General Counsel contends that Malin's requests on February 1 and 2 gave rise to "Weingarten rights" which Respondent violated by refusing to allow Malin a repre- sentative during the interviews. As General Counsel sug- gests in his brief, there are certain considerations which must be met before any rights inure to the employee faced with an investigatory and/or disciplinary interview initiated by the employer. First, however, the foundation for the right should be restated. The right inheres in Section 7's guarantee of the right of employees to act in concert for mutual aid and protection. Therefore, the exercise of the right must be related to concerted activities for mutual aid and protec- tion. Second, the employee must request a representative for the right to have representation to exist. Third, the employee can only make such a request where the em- ployee reasonably believes the interview will result in disciplinary action. Assuming a given employee has such a Weingarten right, his exercise may not interfere with le- gitimate employer prerogatives. In addition, if the em- ployee so chooses, he may forgo his right and participate in the interview without his requested representative. Without deciding whether Malin had reasonable grounds for believing that he would be disciplined by either Richards or Hobson (there is considerable doubt in my mind that Maliii did not intentionally attend the in- terviews to provoke an incident), I am of the opinion that General Counsel has failed to establish a violation of the Act based upon Weingarten. In reaching this conclusion I was influenced by the following considerations: On both occasions of the inter- view Malin wanted to be represented by his private legal counsel who is neither an employee of Respondent nor a representative of any employees of Respondent, save Malin. In my view, employees have no statutorily pro- tected right to be represented at investigatory and/or disciplinary interviews by their private counsel from the outside. Representation by private counsel is not tanta- mount to union representation within the rule of Wein- garten nor does representation of an employee by his pri- vate counsel constitute concerted activity within the pur- view of the Act as construed in Glomac Plastics, Inc., 234 NLRB 1309 (1978). Thus, Malin's requests are fatal to his cause and, additionally, because his requests are not bottomed upon acting in concert for mutual aid and pro- tection as guaranteed in Section 7 of the Act. Further, Malin's request to have time to consult with legal coun- sel on February I was not made until complete disclo- sure of the interveiw's substance and at a time subse- quent to development of any new or additional material. The Board has ruled previously that employers are not required to postpone or adjourn interviews with employ- ees to allow the presence of a particular representative 472 MCLEAN HOSPITAL (or witness) explaining that an employee's right to repre- sentation at an interview may not interfere with legiti- mate employer prerogatives. The fact that it would not have been a disaster to postpone the meeting to await the arrival of the requested representative is, therefore, im- material. Coca-Cola Bottling Co. of Los Angeles, 227 NLRB 1276 (1977). The holding in Climax Molybdenum Company. etc., 227 NLRB 1189 (1977), relied on by the Charging Party, is distinguishable on several grounds. First, in Climax the representative was the official repre- sentative of the employees' union which was under con- tract to the employer and was present at the interview pursuant to the contract. Second, the request for consul- tation to prepare for the interview was made prior to the start of the interview; therefore, little or no delay would have resulted had the employer not denied the request. Also, Malin's testimony showed unequivocally that he was prepared, in advance, for both interviews evincing his intent to participate whether his request for his legal counsel was granted or not. This is particularly applica- ble to the February 2 interview with Hobson since the record shows that Malin consulted with counsel the eve- ning before and then prepared the letter he presented to Hobson at the start of the interview. If I were persuaded, which I am not, that Malin did not hear Hobson's state- ment relative to his option to attend the interview, I would still conclude that Malin participated of his own volition because of his demonstrated preoccupation with his complaints or accusations. Malin was hellbent on pre- senting the letter and charge to Hobson and attendance at the interview without a representative was secondary. Finally, unless as General Counsel argues Malin's request on February 1 should be interpreted to mean "presence at the interview," Malin's request was not to have a rep- resentative present but a plea for delay so he could absent himself for consultation. I find no support in cited cases for General Counsel's argument of interpretation. The Charging Party's citation of General Nutrition Center, Inc., 221 NLRB 850 (1975), besides being based upon a nebulous theory, "a Section 7 right to prior and continuing legal consultation," is inapposite. The holding in General Nutrition was based upon the concerted wal- kout of the employees to go to the NLRB Regional Office. The reference to legal counsel was hypothetically associated with such a concerted walkout constituting dicta in the case and unrelated to the holding. Therefore, it has no precedential value. Contrary to the Charging Party's argument, I do not read Weingarten as requiring an employer to not only give an employee the choice of attending or not attending the interview if representation is refused, but also to additionally affirmatively express assurances of nonreprisal if the employee elects not to attend. Therefore, the lack of such assurance does not make out an unfair labor practice. Usually, in the event of an election by the employee not to attend, the em- ployer simply decides the question without input from the employee and the employee receives the result with- out benefit of the interview. The Charging Party advances the additional argument that his "Weingarten rights" are more extensive because the subject of the unlawful interview was his concerted activities as a single employee acting in the significant in- terest of fellow workers. Even if such a proposition cor- rectly stated the law, the factual basis required as a foun- dation to support the theory is lacking in this record. Rather, the record shows the interviews to be complete- ly concerned with Malin's work performance and par- ticularly as it relates to his off-duty conduct an Respond- ent's premises.8 Albeit contended by General Counsel and the Charg- ing Party that Respondent's interrogations on February 1 and 2 was coercive and, therefore, violative of Section 8(a)(l), I will make no such finding for several reasons: One, the eivdence in the record does not support such a finding; two, Johnnie's Poultry Co., 146 NLRB 770 (1964), does not apply in the situation where the employ- er is engaged in the normal administration of its business, such as investigation of discipline; and, third, the allega- tion of coercive interrogation is completely outside the scope of the charge and the complaint in this case. Addi- tionally, any allegation of interrogation, inter alia, was removed from the case during the investigatory stage by the Board's Regional Director and thus forecloses any consideration at the hearing stage. Accordingly, I shall not consider the contentions. The dueted argument that Respondent in some way planned and designed the entire scenario of Malin's inter- view and discipline is pure speculation and guesswork. In my view, it does not even approach suspicion which in itself would be totally insufficient. I conclude and find that the fact of some advance knowledge of what an em- ployer seeks in an investigatory interview is ordinary and expected if an employer is to scrutinize all sides of the question. Further, I find that the delay in McLean's in- vestigation and the demonstrated indecisiveness of McLean to discipline Malin is partially attributable to what I consider to be reprehensible conduct of a Board attorney during trial preparation and/or settlement nego- tiations. I, therefore, reject the argument as unsupported by the record evidence. Both the Charging Party and General Counsel argue that, with the interviews being unlawful, any conduct flowing from such interviews is, therefore, unlawful con- stituting violations of Section 8(a)(1). I disagree with the proposition as stated. The Board has expressly denied in- dependent violations of Section 8(a)(1) for discipline meted out at unlawful interviews unless General Counsel shows that the employee was disciplined for requesting a representative or for engaging in other protected activity unrelated to the exercise of the employee's Weingarten rights. Kahn's and Company, Division of Consolidated Food Co., 253 NLRB 25 (1980). Assuming, arguendo, I were convinced that Malin ac- quired the Weingarten rights, I would not order a make- whole remedy because General Counsel, in my view, has not shown Respondent's discipline of Malin was based upon the subject of the alleged unlawful interviews. The record shows the opposite; i.e., that Malin was disci- s Malin's testimony and positions in brief suggest that he argues, be- cause he was individually contesting the confidentiality rule. he can with impunity disregard the rule or violate it I At the hearing I rejected Resp Exh 1. On reflection I grant its motion for admission in brief and receive Resp. Exh. I into the record. 473 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plined for his failure to respond to his superivsors' ques- tions which were related to prior conduct of Malin while on Respondent's premises. I would therefore be guided by the principle enunciated in Kraft Foods, Inc., 251 NLRB 598 (1980), and find that General Counsel failed to make a prima facie showing of the appropriateness of a make-whole remedy. Further, I would find that, even had General Counsel prevailed with a prima facie show- ing, Respondent negated such showing by demonstrating that its decision to discipline was not based on informa- tion sought by the interview. I make no distinction be- tween information obtained at the interview and informa- tion sought under the purpose of the interview as either relates to reliance thereon by this Respondent for the de- cision to discipline. C. Threat To Issue Disciplinary Warning to Malin, February I The facts relating to this allegation are few and are re- counted in section III,B, supra, Malin stated that Rich- ards said she could issue a verbal warning for the breach of the confidentiality rule, but the circumstances of the incident warranted placing Malin on written warning. Richards disputed any mention of a warning to Malin stating that she only suspended him for his refusal to re- spond to her questions about the incident involving the alleged breach of the confidentiality rule. Richards' testi- mony is more in keeping with the admitted facts or un- disputed facts relating to the February interviews. Rich- ards also impressed me as a sincere witness recalling the facts without regard for whether or not such facts sup- ported Respondent's position. Malin, or the other hand, continued his obvious attempt to support the allegations of his charge with his testimony, under the guise "as best I recollect." I was not impressed with his recollection as much as I was with his total preoccupation with his charge allegations-both past and present-and his at- tempts at every opportunity to offer self-supporting testi- mony. I credit Richard's version of the conversation re- lating to the discipline and conclude that Malin was only suspended for insubordination with no mention of disci- pline for breach of the confidentiality rule. Even if I were to credit Malin, which I do not, his recall of the conversation evinces Richards' rhetorical reference to discipline for rule violations, not an attempt to threaten Malin. 1, therefore, conclude and find that Richards did not threaten to issue a warning to Malin for the alleged breach of the confidentiality rule. Accordingly, I shall recommend that the threat allegation be dismissed. D. Suspension and Discharge In addition to the facts set out in section IV,B, supra, Malin testified that he and Board attorney Sax were on McLean premises on two occasions in December 1978. On December 8, 1978, he and Sax entered the locked pa- tient unit know as SBI during the early afternoon before Malin was scheduled to go to work. They used Malin's master key to gain entry. Malin took Sax into the unit so she could view the physical surroundings in preparation for the no-solicitation/no-distribution cases filed by Malin and set for hearing. They were on the locked unit for several minutes then left the locked unit and McLean's premises. The following week, on December 15. Malin and Sax attended a public lecture in McLean's auditorium at ap- proximately 3 p.m. On this occasion neither Sax nor Malin entered any locked patient units. Malin knew that he was observed in the locked patient unit with an unidentified female and nothing was said to him by Respondent until February 1. Malin testified that Sax did call him on January 17 and 26 to tell him that she and Brown had just talked about her and Malin being on McLean's premises in December 1978. Malin stated that Sax expressed concern for herself and Malin because of the incident involving the locked patient units. Sax testified that she called Malin on several occasions in January and informed Malin that she had told Re- spondent's counsel, Brown, that she and Malin had been on the hospital grounds in December 1978. Sax did not tell Brown that she and Malin were inside locked patient units nor that she and Malin had been on the hospital grounds on two occasions in December 1978. Sax avoid- ed Brown's direct question relating to Malin and a female in locked patient units in the afternoon during December 1978. Sax stated that she did not respond to the direct question because she did not think such mat- ters should be discussed over the telephone. The conver- sations with Brown occurred several times and each time Sax called Malin to report to him. Sax testified that she reported the conversations with Brown to Malin because she was concerned with the consequences to Malin. Later in mid-February Sax did tell Brown that she had not been completely truthful with him about the inci- dents in December 1978 and she apologized. Malin further testified that he knew McLean had a no- access rule for off-duty employees, especially in locked patient units, and also enforced an unauthorized visitors rule by requiring persons with no hospital )usiness to leave the premises. Malin also stated that he did not know of any rule which denied employees the right to bring outsiders onto the hospital premises and into locked patient units. Malin further stated that, even if he did violate a hospital rule by taking Sax into locked pa- tient units, there was no injury or damage to anyone and nothing occurred with patients as a consequence of his conduct. Hobson, director of nursing, testified that Malin had been insubordinate in the past with his supervisors and in much the same manner. Malin had refused to discuss cer- tain issues with his supervisor, Tierney, because he (Malin) did not feel the need to do so . This particular insufficiency of Malin had been directly communicated to him in writing at the time it occurred and was found to be unimproved at a subsequent appraisal. Respond- ent's policy on disciplinary warnings is one of permanen- cy. The warnings stay in an employee's file ad infinitum. Hobson, before deciding to terminate Malin, reminded him of his prior conduct and then sought again an expla- nation of his insubordination with Richards on February I and an explanation of his conduct in December 1978 when he was observed with an unidentified female in a 474 MCLEAN HOSPITAL locked patient unit at a time when he was not working. Malin stated that he did not have to answer any ques- tions as his activities (entry into SBI with unidentified woman) were related to his protected concerted activi- ties. Malin later remarked to Hobson, "You have obvi- ously been prepared." Nurse Anderson testified that she was informed, upon being hired, only of family visitors to patients. She was not informed of nonemployee, nonfamily vistors. She did recall that patient privacy included no discussion of pa- tients with nonclinical persons. Anderson worked I year and in that time was aware of six instances where non- employee entries to locked patient units were allowed. Three of the incidents involved her own visitations after she voluntarily quit. In each instance she was admitted by employees she knew and stayed several minutes in the area where she had worked. Anderson stated that the daughter of an employee, off work due to injury, rang the doorbell and a staff person let her in. The staff person knew her and went to get her father's paycheck and gave it to her. The daughter then left the unit. On another occasion a nurse, who had quit, returned during the next week to pick up her paycheck. Anderson also saw a doctor's wife at the nurses' station using the hospi- tal telephone for several minutes. Anderson stated that on none of the occasions was the nonemployee person requested to leave the unit. Anderson further testified that, in May 1978 while dis- cussing a new work schedule in a staff meeting, someone present said the new schedule was unlawful because people would be working more than 40 hours. Someone else stated that "we will get the NLRB on our back." Anderson thereupon said, "Well, maybe that would be useful, we could talk to them about a few other things at the same time." The crowd present burst into laughter at her remark. The following day Richards engaged Ander- son in a conversation about the remark. Anderson testi- fied: A. As I recall it, Shelley asked me why I made the comment about the N.L.R.B. I said that it was clearly a joke-everybody laughed. And she said, "Did I know that the hospital was involved with a court case with the N.L.R.B. at that point, involving Larry Malin." And I said, "Yes, I did." She asked me what I knew about the case. I said I did not know very much about the case, but I did know Larry. And I mentioned that I knew Larry- that I talked to Larry about the case. And she said that all the people who had been in- volved with Larry regarding his cases-it had not necessarily been good for them. She expressed an element of genuine concern for me. She said, "You could get your professional record marred. He had one obsession and that was his cases with the Hospital." And I responded that I was an adult. I would make my own decisions. That I had always come to her and used the appropriate channels for voicing any complant that I had at the Hospital. Q. Was there more to the conversation? A. There was more that did not relate to this. Coworker Grabill testified that he talked with Malin during working hours about various subjects; e.g., how to make things better for patients, how to make things better for employees, and the solicitation and distribution rules. Grabill stated that he saw the "intent to unionize notice" before Malin sent it to the hospital. Grabill was upset over Malin's departure and asked about Malin's discharge after seeing the note in the communications book respecting his termination. Richards told Grabill that Malin was terminated for refusing to discuss or apologize concerning the incident of letting some non- staff or nonpatient person onto a hospital unit. Grabill stated that, about a week after Malin's discharge, Rich- ards was talking to him about a problem that had come to her attention involving Grabill's inability to communi- cate to his supervisors. During the discussion Grabill stated that he did not understand that a problem existed. Grabill testified that Richards asked if he was pulling a "Malin tactic." Coworker Oltsch testified that each night while the patients slept the staff persons socialized by talking. The discussions included whatever interested you, what is in the news, what concerns you about the workplace, and dealing with certain patients. Specifically, the employees discussed political issues, patient problems, and the work environment. The work environment discussions in- volved the way the place is set up, rules and regulations, hospital policies, and from time to time solicitation and distribution. Oltsch also discussed the confidentiality rule with Malin during the summer of 1978. After Malin's ter- mination he saw the note in the communications book. The note gave the reason for Malin's termination as a se- rious violation of hospital policy and expectation. Oltsch stated he was confused and spoke to Richards to get her side of the incident. He had previously spoken by tele- phone to Malin to get his side; now he wanted the offi- cial position from Richards. Oltsch told Richards that the hospital had a policy of reviewing people's work, confronting the person with his work performance and giving them time to improve, then reassessing his per- formance. He told Richards that in his view such a pro- cedure had not been followed with Malin. Richards stated that, when she questioned Malin about the inci- dent, he refused to address the question. She said that Malin should have been accountable to his supervisor for letting someone into the patient unit and that there could not be any intervening reason to negate this accountabil- ity to the hospital. During the discussion Grabill's name and the fact that he was upset over Malin's termination came up. Oltsch testified, "I am not really that clear on whether she made a statement like that. But we were talking about Jon [Grabill] and I said that I thought that he had been somewhat upset by the incident-that we worked with Larry closely. And we both thought that he was a good worker. And she said at one point, as I recall, 'that at one point he [Grabill] seemed so upset that what he was saying-he sounded just like Larry-,' Shelley said in reference to Jon." 475 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Analysis and Conclusion General Counsel contends that Malin was engaged in activity protected by the Act and that Respondent sus- pended and discharged him because of that protected ac- tivity rather than the asserted reason of insubordination. General Counsel argues pretext and discriminatory motive to support his allegation of violations of Section 8(a)(1) and (4). The Charging Party argues somewhat parallel to General Counsel.' ° In either situation the case is one of employer motivation. As such, the causality test of Wright Line, a Division of Wright Line, Inc., 251 NLRB 1083 (1980), applies. General Counsel must make a prima facie showing sufficient to support the inference that protected conduct was a motivating factor in the employer's decision. The burden then shifts to the em- ployer to demonstrate that its decision would have been the same in the absence of the protected activity. Gener- al Counsel offered evidence of Malin's past and present activity; the concerted and/or protected nature of Malin's conduct; Respondent's knowledge thereof; Re- spondent's animus against Malin or his activity; the pre- cipitous nature of Respondent's action against Malin as triggered by the protected activity; and the pretextual nature of Respondent's reason for disciplining of Malin. General Counsel has attempted to show that Malin's activity on hospital premises was in concert with other employees and involved wages, hours, or working condi- tions thereby coming under the protection of Section 7 of the Act. After consideration of the entire record, and particu- larly the testimony of General Counsel's employee wit- nesses, I am not convinced that Malin's actions against Respondent were in concert with other employees or in- volved activities protected by the Act. Malin's repeated references "to the benefit of the many employees" does not make it so. Besides such a statement being self-serv- ing and otherwise discredited, the bulk of the evidence shows Malin's efforts to be individual. Malin reserved his common law copyright on occasion or specifically dis- credited any input from other employees in his work. General Counsel's reliance on the open letter to the new nursing instructor in September 1977, which was signed by other employees, overlooks the substance of the ex- hibit as it relates to protected activity. The letter was an individual effort by Malin and did not deal with factors identified with other employees and their working conditions. Albeit the signatures give the appearance of concert to the effort, the evidence shows the work to be individually Malin's and that it deals mainly with policy making, administration of the hospi- tal, teaching philosophy, and patient programming of the hospital which are subjects not critical to the mutual aid or protection of employees. In my view, the letter does not involve the furtherance of rights which inure to the benefit of fellow employees. Rather, the letter is an ex- tension of Malin's personal attack on the hospital philos- ophy and administration. Malin's request of the hospital '0 Those portions of the Charging Party's brief dealing with issues not material to the complaint allegation; factors outside General Counsel's theory of the case; the substance of hospital rules previously under scruti- ny; or the substance and evaluation of rejected exhibits (except those ex- hibits admitted since the hearing) have not been considered. to post his "workers group notice" and his "notice of intent to unionize" communicated to the hospital was merely an attempt by Malin to legitimize conduct not otherwise protected. I conclude, from all the evidence (of which Malin's prolific use of "first person signular" is part), that Malin had no intent to form a workers group or any other group. The first notice was a sham to dis- guise the added request for the hospital's annual reports which Malin had unsuccessfully sought in the past. The notice of intent to unionize also was a sham designed to short circuit any reaction to the hospital's efforts to settle the pending cases involving the no-solicitation/no-distri- bution rule as promulgated. The intent notice also was an attempt by Malin to forestall reaction by the hospital to his prior entry onto the locked patient area, SBI. My conclusions are buttressed by the record that aptly dem- onstrates that Malin was preoccupied with his litigation which he felt was more substantial than did Respondent or the Board's Regional Office; e.g., Malin consistently added the word "conversation" to his description of Sec- tion 7 rights and the claimed transgression of Respond- ent's no-solicitation rule and added the first amendment to the U.S. Constitution as a basis for his allegations of illegality coupled with the demand that only the full Na- tional Labor Relations Board should consider the cases. In addition, the record is void of any affirmative conduct by Respondent directed at employees which is based upon the rules, the pending litigation, or Malin's several notices. That is to say that the employees were not sub- jected to discipline or restraints as a result of the exist- ence of the rules, the cases, or Malin's notices. Further, the record testimony of fellow employees evinces only general discussions with Malin concerning several topics of interest, not prior support for Malin by fellow work- ers or approval of Malin's conversations with or corre- spondence to supervisors or management officials of McLean by fellow workers. The record is conspicuously void of any joint efforts by Malin and his fellow workers for a period of 3 years. During this period, however, Malin actively pursued his individual complaints and criticisms of the hospital policies and administration. Alleluia Cushion Co., 221 NLRB 999 (1975), cited in brief, is distinguishable in that the complainant therein, although individually complaining, complained of condi- tions which if changed would not have benefited him but only fellow employees. Albeit Malin's individual activity was extensive, I find that Malin was not engaged in con- certed activities protected by Section 7 of the Act.12 II Although the record contains (for restrictive purposes) past unfair labor practice charges against Respondent, there has been no considera- tion of such charges (or complaints) on their merits. In the last analysis a charge is only an accusation and a resultant complaint is only a determi- nation by the Regional Office of General Counsel that reasonable cause exists to litigate that raised by the charge. The Charging Party's discus- sions and supporting substantive arguments in brief relative to the prior charges against Respondent, complaints issued by the Regional Office, or settlement agreements reached by the parties, therefore, have not been considered as applicable to the resolutions required in the instant case. iz Albeit the dismissal of two of Malin's charges (filed on behalf of two separate employees without their consent) is not dispositive of the issue, it is a factor to be considered when determining concert or not. 476 MCLEAN HOSPITAL Even assuming that Malin's activities were somehow protected under Section 7, there is no evidence to show that the activities motivated Respondent to discipline Malin. The record discloses the opposite, that Respond- ent accommodated Malin and his complaints at every turn, attempting to clarify relative positions when neces- sary. However, Respondent's motivation is not thus de- termined, for General Counsel alternatively alleges that Malin's filing of charges and subsequent cooperation with the Regional Office staff was the real reason for Malin's discipline. It is undisputed that Malin filed 11 charges, including the instant charge, against Respondent and cooperated with the Board's Regional Office in the investigation of the charges.'3 As far as I can tell from the record, Respondent was also cooperative in the in- vestigations. Although not dispositive of any issue herein, the record does disclose that several charges were withdrawn by Malin as subject to dismissal and several were dismissed by the Regional Director. Several others were settled with or without the joinder of the Charging Party. General Counsel has not offered any in- dependent evidence to show that Respondent was moti- vated to discipline Malin because of his conduct in utiliz- ing the Board processes. The mere fact that an employee has filed charges or otherwise been involved in Board procedures is insufficient to establish a violation of Sec- tion 8(a)(4). The cases show that the Board's approach to Section 8(a)(4) generally has been a liberal one to fully effectuate the section's remedial purpose; however, dis- crimination cognizant by the section must be proven. In my view, such proof must include a direct and causal connection between the filing of the charges and the al- leged resultant adverse action of Respondent. This Gen- eral Counsel has failed to produce. What remains of General Counsel's case is the conten- tion that Respondent's stated reasons for the suspension and discharge are false and, if discredited, would in con- junction with timing of the discipline and shown dispar- ity of treatment between Malin and other employees sup- port the inference that Respondent's actions were dis- criminatory. I disagree for several reasons. General Counsel's reference to timing of the entry into SBI with Sax and Respondent's investigation of the incident is mis- placed since the asserted reason for the discipline is only indirectly related to the entry incident. Also, the dispar- ity of treatment as advanced by General Counsel deals with infractions not similar to the asserted reason and would require an abstractual evaluation of policies of Re- spondent to make a comparison. Even if such evaluations were germane, I would hesitate to suggest my abstrac- tions for those of Respondent. Indeed, the very exhibit relied upon by General Counsel shows discipline, includ- ing discharge, for insubordination in the past which in my view evinces equality of treatment of employees. In addition, the record clearly discloses that Malin was warned on more than one occasion for his insubordina- Is Malin, in fact, exhibited an intelligent grasp of NLRB procedures and case law. It is noteworthy. however, that Malin consistently styled his charges "trustees of Massachusetts General Hospital" (the target of his Individual conflict), rather than "McLean Hospital, a Division of Massachusetts General Hospital," the Regional Office's consistent style for the case tion to the very supervisory position involved on Febru- ary 1; i.e, clinical nursing supervisor. 4 Thus, the disci- pline meted out to Malin was progressive as McLean's policy suggests. Respondent's asserted and undisputed reason for disci- plining Malin was insubordination on February 1 and continuing to February 2. General Counsel does not dis- pute the fact that Malin refused to answer Richards on February 1 and Hobson on February 2. General Counsel argues, however, that the refusal was not insubordination because Malin refused politely, apologetically, and with a nonprofane attitude; therefore, the reason must be some- thing other than his insubordination. The Charging Party argues that he did not refuse to answer, but rather he was privileged to not answer because Respondent was attempting to interrogate him about his protected con- certed activities, specifically, his entry into SBI accom- panied by Board attorney Sax. The Charging Party rea- sons that, because he and Sax were preparing his prior case for hearing, he could take Sax on hospital premises without regard for hospital policies and rules. In particu- lar, since he did not have to disclose his case to Re- spondent, he was further privileged to do so without per- mission and without regard for the administration of the hospital. Thus, the Charging Party feels he had an abso- lute right to make the questioned entry and an absolute right to refuse to discuss the entry with supervision. Respondent argues that Richards and Hobson had a right to question Malin about the entry into SBI and to suspend him for refusing to answer on February I and to discharge him for continuing the refusal on February 2. What is at issue here is not whether reasons advanced by Respondent to support the suspension and discharge of Malin were or were not adequate to justify the action taken. There is no statutory requirement that employers exercise good judgment or even reasonableness. Like- wise, there is no penalty exacted when that judgment or reason fails to some degree. What General Counsel must establish is that Richards and Hobson were not motivat- ed by Malin's conduct during the interviews on February I and 2, but rather by his prior extracurricular activity directed toward the hospital or the National Labor Rela- tions Board's Regional Office. General Counsel contends that other employees who violated the hospital confidentiality rule were not disci- plined at all or received much less discipline. Further, that Malin did not display or demonstrate a refusal to be accountable in matters concerning immediate patient care. The Charging Party echoes General Counsel's con- tentions adding that the confidentiality rule was ambigu- ous and (under his interpretation) in violation of the Act or, in the alternative, that his conduct on December 8, 1978, did not violate the rule under any interpretation. Further, the Charging Party asserts that he did not un- derstand the application of the rule to unauthorized visi- 14 General Counsel's and the Charging Party's arguments to the con- trary notwithstanding, the merits of the prior warnings are not open to review in this case, nor is the use of such prior warnings for insubordina- tion in violation of any settlement agreement, whether alleged or not 477 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tors nor did he understand what Richards was seeking in the interview. 15 In my view, neither General Counsel nor the Charging Party has offered an argument on point. Malin was not disciplined under the confidentiality rule albeit the initial interview proceeded with the confidentiality rule in focus. It was Malin's umbrage taken at the interviews which precipitated the discipline. General Counsel and the Charging Party argue that Malin's conduct was not insubordinate, I do not accept. Malin was insubordinate to Richards several times on February I and to Hobson on February 2. On none of the occasions was his insub- ordination related to protected concerted activities. The direct concern of Malin was his prior entry into the locked unit with an unauthorized person. Any relation to his pending case and its preparation was coincidental, and any substantive or detrimental disclose of the case which could be caused by the interview is not apparent. Malin's collateral remarks' 6 to both Richards and Hobson belie his lack of understanding, evince his antici- pated preparedness for what might happen, and reveal insolence toward and contempt for the authority of his supervisors. Malin admitted knowledge of the no-access rule for off-duty employees and the visitation rules as ap- plied to patients, but disclaimed knowledge of any rule against nonemployee visitors accompanied by a staff person. The record clearly shows that the hospital has rules regulating who may come into a patient unit, which prevent nonpatient-nonemployees from being on the patient units without proper authorizations. Such au- thorizations come from the hospital's administrators or the staff on duty on the subject unit. The rules are en- forced by the staff, both rank and file and supervisors. 7 The testimony of Malin relating to prior use of his keys to gain entry into several patient units during off-duty hours does not serve to qualify the hospital's rule, but rather show that Malin operated covertly where his indi- vidual case preparation was concerned. Admittedly, Malin chose not to reveal his NLRB case to Respondent when he made the entry with Board attorney Sax, and remained constant in his secrecy when questioned by Richards and Hobson.'8 In my opinion, Malin acted at his peril when he decided that his actions under scrutiny were protected activity and completely insulated from inquiry. Red Top, Inc., 185 NLRB 989 (1970), cited by the Charging Party in his brief in support of his refusal to respond, has questionable application as cited. In Red Top, the three employees were engaged in bargaining conferences on behalf of an employee advisory commit- tee, clearly protected by the Act. However, any impro- priety which occurs while engaged in protected activity is A discussion with Richards could very well have cleared up a mis- understanding, if one existed. "' Remarks during the two interviews from the uncontradicted and credited testimony of Richards and Hobson: "You have obviously been prepared and are following instructions"; "Brown [attorney] has done a good job for you"; (paraphrasing) "Malin stated he was sorry that Rich- ards and he had come to an adversarial position." i? General Counsel staff employee witnesses testifying were not ques- tioned with regard to unauthorized or unidentified persons in patient units or the use of master keys during off-duty houi s. '" It is obvious to me that both Malin and Sax knew they committed a wrong when they entered SBI on December 8, 1978, for each in his or her own way attempted to avoid consequences of the act. must be weighed. If it is determined that the employee's manner was activated by improper motives, then the protection of the Act is lost. Therefore, even in situa- tions where the activity is clearly protected (unlike the instant case), improprieties which occur during the pro- tected activity do not necessarily come under the Act's umbrella. I note particularly that it was not the propriety of Malin's remarks that invoked the hospital's discipline upon Malin, but rather his steadfast refusal to answer his supervisor's questions or otherwise cooperate with her during the interview. Therefore, I conclude and find the following: McLean did have a proprietary and lawful interest in Malin's off- duty activity on its premises; McLean did have existing rules, taken collectively, which deny unrestricted access to staff employees to any and all locked patient units; Malin was aware of and understood the hospital rules pertaining to unauthorized visitors to locked patient units; Malin did violate the hospital rules on December 8, 1978, when he admitted himself and Board attorney Sax into the locked patient unit, SBI; Malin and Sax, without regard to hospital rules, were not engaged in an activity protected by the Act when they entered the locked patient unit, SBI, whether or not they were pre- paring an unfair labor practice case for hearing; Richards on February I lawfully questioned Malin about the entry of himself and an unidentified female into SBI;'9 Malin's refusal to respond to Richards on February I was insub- ordination for which he could be lawfully disciplined; Hobson on February 2 lawfully questioned Malin about the entry incident and the prior insubordination of Feb- ruary 1; Malin's refusal to respond to Hobson was insub- ordination for which he could be lawfully disciplined, in- cluding discharge. Having found the "entry" of Malin and Sax to be un- protected, Malin's argument in his brief shifting blame for the entry to attorney Sax and the National Labor Re- lations Board's Regional Office is of no avail. Malin cannot have his cake and eat it too. If Malin were not the moving force in the entry, he should have fixed blame on February I and avoided the consequences of refusing to answer his supervisor's inquiry. Moreover, as I view the record, General Counsel has not presented any credible evidence of animus or hostil- ity toward Malin or his many activities and, in the ab- sence of such evidence, a discriminatory motive cannot be inferred even if I were to reject Respondent's asserted reason and accept General Counsel's proof on timing and disparity. Accordingly, I shall recommend that the al- leged violations of Section 8(a)(1) and (4) based upon Respondent's suspension and discharge of Malin be dis- missed. E. Statements to State Unemployment Agency Having found Respondent's discipline of Malin to be lawful, I conclude and find that Respondent's communi- cation to the state unemployment agency is not in viola- 19 In my view, Richards could have lawfully questioned Malin on the identity of the person accompanying him into the locked unit 478 MCLEAN HOSPITAL tion of Section 8(a)(1) and, accordingly, I shall recom- mend dismissal of that complaint allegation. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Respondent did not violate Section 8(a)(1) or (4) of the Act by a threat to issue discipline or by conducting interviews with employee Laurence Malin, or by sus- pending and discharging employee Laurence Malin, or by assigning reasons for Laurence Malin's separation with the State of Massachusetts Division of Employment Security. Upon the foregoing findings of fact, conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended: ORDER 20 The complaint is dismissed in its entirety. 20 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. he adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 479