Washington Adventist Hospital, Inc.

WASHINGTON ADVENTIST HOSPITAL 95 Washington Adventist Hospital, Inc and Daniel R - Driver Case 5-CA-18604 September 30, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On April 7 1988 Administrative Law Judge Robert W Leiner issued the attached decision The General Counsel filed exceptions and a supporting brief and the Respondent filed an answering brief The National Labor Relations Board has delegat ed its authority in this proceeding to a three member panel The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge s rulings findings and conclusions and to adopt the recommended Order I ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis missed I In adopting the judge s decision we note that the General Counsel produced no evidence that other employees had engaged in disruptions of the computer system similar to that engaged in by the Charging Party Driver and there is therefore no evidence that the Respondent tolerated such disruptions Thus although Drivers message may have initially been within the Acts protection we agree with the judge that the pro tection was lost as a result of the method Driver chose to communicate the message Accordingly we find it unnecessary to pass on the judge s discussion of whether the activity engaged in by Driver was concerted within the meaning of Sec 7 of the Act Harvey A Holzman Esq for the General Counsel Paul M Eskildsen Esq (Akin Gump Strauss Hauer & Feld) of Washington D C for the Respondent Ralph H Goldstein Esq (Connerton Ray & Simon) of Washington D C for the Charging Party DECISION STATEMENT OF THE CASE ROBERT W LEINER Administrative Law Judge This matter was heard in Washington D C on 12 and 13 January 1988 on issues raised by the General Counsel s complaint alleging in substance that the above cap tioned Respondent (the hospital) in violation of Section 8(a)(1) of the National Labor Relations Act (the Act) on or about 17 November 1986 terminated the employment of the Charging Party Daniel R Driver because he en gaged in concerted activities protected by Section 7 of the Act Respondents timely answer admits certain alle gations of the complaint denies others and denies com mission of any unfair labor practices In particular Re spondent denies that the Charging Party was engaged in protected or concerted activities during the incident for which he was discharged ' At the hearing all parties were represented by coup sel and were given full opportunity to call and examine witnesses submit oral and written evidence and to argue on the record At the close of the hearing all parties waived the right to present final argument and elected to submit posthearing briefs Thereafter counsel for the parties filed timely posthearing briefs which have been carefully considered On the entire record 2 including the briefs and from my observation of the demeanor of the witnesses as they testified I make the following i M FINDINGS OF FACT I JURISDICTION RESPONDENT AS STATUTORY EMPLOYER Based on the commerce and jurisdictional allegations of the complaint Respondent a Maryland corporation with an office and place `of business in Takoma Park Maryland was and is engaged as a health care institution in the operation of an acute care hospital whose annual operations (gross revenues in excess of $250 000 and annual purchase of goods in excess of $5000 from points directly outside the State of Maryland ) bring it within the statutory and commerce standards for the assertion of Board jurisdiction over health care institutions within the meaning of Section 2(2) (6) (7) and (14) of the Act 3 II THE ALLEGED UNFAIR LABOR PRACTICES Respondent Washington Adventist Hospital is an acute care institution located in Takoma Park Maryland where it employs over 1400 employees in a 300 bed facil ity The vice president for clinical affairs Milton Step man Ph D supervises inter alia the employees of the pharmacy His immediate subordinate supervisor in the pharmacy is Patricia Prins Computers By about August 1986 Respondent had installed a computer system in its hospital with about 150 terminals connected to a mainframe computer The pharmacy ter minals in the computer system became live in Septem ber 1986 During the August training period the phar macy employees practiced using the terminals for their recordkeeping and communication functions but the pharmacy terminals were not hooked up to the main frame computer and were not actually in use Pharmacy employees practiced by sending messages of all kinds (in cluding personal messages) to each other By November 4 _ L 1 I The underlying unfair labor practice charge was filed and served on Respondent on 20 January 1987 The complaint is dated 280uly 1987 2 General Counsels unopposed motion toi correct the transcript is granted "At the hearing supplementing admissions in its answer Respondent admitted that Ronald Marx president Milton ;R Siepman vice president and Patricia Prins director of pharmacy at all material times have been and are Respondent s supervisors within the meaning of Sec 2(11) of the Act and its agents within the meaning of Sec 2(13) of the Act 291 NLRB No 1 S 96 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1986 140-150 terminals hospitalwide were connected to the mainframe When physicians on their rounds decide on the drugs or medications they wish to prescribe the information is sent (not by computer) to the pharmacy with written in structions The pharmacy employees then take the in structions and place that order for medications or drugs into the computer When the pharmacists have prepared the drugs or medications in the pharmacy that informa tion is fed into the computer and a record is made to show the particular drugs that have been actually sent up to the patients in a specific hospital unit 4 The computer is also used to transmit information from one hospital department to another In this regard the computer is used as a substitute for the telephone Thus the computer commencing in or about September 1986 was used for maintaining patient medical records financial records preparing bills and for communication within the hospital Systemwide messages originate only from the data processing office The data processing office employees are responsible for operating the mainframe of the coin puter Routinely a few minutes before midnight each night the data processing office alerts all terminals with a systemwide message that at midnight the system will close down so that it can perform the nightly runs This means that the computer is shut down so that infor matron stored in the computer is printed out in the 4 hours between midnight and 4 am The printouts show in hard copy what the lab result tests were what medications in fact were sent to the patients and similar data Every terminal receives warning on its screen of the systemwide shutdown at midnight This warning is called a break message When a terminal user wishes to send a message to an other terminal or terminals he may do so without dis turbing the work if any being performed on the receiv ing terminal by sending the message along with a notifi cation on the receivers screen that the message is wait ing The notification to the receiver that such a message is waiting appears as a little blinking light on the receiv mg terminal When the receiver decides to cease work and call up the waiting message he merely presses a button reads the message and then presses another button to erase the incoming message Once the message is read the receiving computer terminal operator pushes another button and his work reappears On the other hand as opposed to these terminal to ter minal messages the system permits the operator of a ter urinal to send a systemwide break message The break message after being typed on the transmitting terminal is sent merely by pushing a button In short there are only two messages terminal to terminal and break mes sages In terminal to terminal messages of course more than one terminal may be selected the sender may select more than one terminal to receive the message In the case of a break message however as soon as the 4 Among other things the pharmacist will make use of the computer to test the drug order on an interaction screen This will indicate whether the physician has inadvertently ordered two or more drugs that might bung on an adverse reaction in the patient break message key is hit the break message appears on every screen which is turned on (Tr 30) The break mes sage wipes off whatever appears on the screen being uti lized by the terminal user It supercedes all other work (Tr 30-31) To clear a break message the terminal user need press only two buttons in order to clear the screen but the correct usage of the buttons is necessary in order to do so (Tr 231) In the case of a break mes sage unlike the simple terminal to terminal message the break message does not become erased when it disap pears from the screen on clearing but remains in the system as part of computer memory When the break message is erased the superceded work appearing on the screen is brought up either automatically or by use of commands In neither case however is the terminal work lost it is only an interruption (Tr 34-35) The clearance of a break message from the memory function of the system is not merely a question of simple erasure it requires the use of the terminal user s security code and permits erasure only from his terminal It does not permit one terminal user to erase the break message from terminal memory in other departments (Tr 35) In order to erase a break message from computer memory every terminal in the hospital must be cleared on an individual basis (Tr 37) The only time a break message is sent is when the data processing department desires to send a systemwide mes sage indicating that the computer system is going to be brought down at a particular time There is no other use for break messages even for an emergency notifica tion of the entire hospital computer system Specifically break messages are not used for emergency communica tions on a hospitalwide basis (Tr 44-45) There is no written or oral policy restricting break messages to the aforementioned limited purpose It is merely a matter of usage (Tr 45) Prohibitions The relevant writing that guides employee conduct in the use of the computer system is the security agreement which each employee with access to the computer must sign before he is given access to the computer system The security agreement executed by the Charging Party Driver (G C Exh 5) deals principally with the confi dentiality of the employees password and security code It does provide however 4 I will not attempt to access any unauthorized information via the computer system The security agreement also provides that if the user vio lates any of the above statements he will be subject to disciplinary action as provided in the personnel policy manual Driver signed the security agreement in the summer of 1986 knowing that he would be bound by its provisions and that it forbade placing unauthorized infor mation in the system The hospital in its Personnel Policy and its Corn puter Policy manuals maintains various provisions to insure computer security (G C Exhs 10 11 and 12) These documents principally relate to the maintenance of security based on the confidentiality of employee identifi cation password codes and the confidentiality of medi cal records WASHINGTON ADVENTIST HOSPITAL 97 Respondents statement of Personnel Policy (G C Exh 9) General Rules of Conduct section 5 provides a penalty of discharge for the first offense of certain named acts Section 5 provides that the examples con tamed are not all inclusive Although section 5 lists 19 ex amples of misconduct where the penalty for first offense is discharge including falsifying hospital records sabo tage dishonesty and theft insubordination concealment of defective work intentional destruction of hospital property gross neglect of duty and intentional disclo sure of confidential information it nowhere directly bears on the improper or unauthorized use of the corn puter system In section 2 however which the penalty for a first offense is merely a written warning (a second offense suspension for 3 days and discharge for third of fense) one of the items of misconduct is 2 Unauthor ized use of or damaging hospital equipment It should be noted however that Respondents per sonnel policy statement regarding Discipline (G C Exh 9) also refers to section 5 of the employee hand book (G C Exh 13) The handbook section as well as the personnel policy provision (G C Exhs 9 and 13) provides a discharge for first offense in cases of engag ing in sabotage (No 6) and gross neglect of duty (17) Dr Siepman testified (Tr 47-48) that the usage by which employees know that they are not to use the computer system for unauthorized purposes is based on the ,individual security agreement that based on that document there is an expectation that no unauthorized information will be placed by the operator into the com puter system (Tr 48) Respondents insistence on computer security accord ing to Respondent (Br at 4-5) as appears in its person nel policy manual its employee handbook and its com puter security agreements are all occasioned by Re spondent s concern, for the integrity and confidentiality of information in the computer system These reasons derive from tl3e obligation of patient privacy Respond ent s proprietary business interest and the avoidance of tampering and, mismanagement in diagnosis and treat ment of acute disease Because of these interests and obli gations the hospital carries insurance against liability for actions of its employees (Tr 138) The Employment and Discharge of the Charging Party Driver was hired as a part time pharmacist in 1982 and became a full time pharmacist in 1983 He was dis charged on November 17 1986 The discharge letter (G C Exh 4) read Dear Dan It is with a great deal of regret that we have to terminate your services at this hospital effective today The unauthorized break message which you entered into the computer system and displayed on every terminal throughout the hospital this morning is viewed as gross misconduct and totally unaccept able leaving us with no alternative but to take this action Enclosed you 11 find your termination check con listing of the following We deeply regret having to take this action Yours sincerely M R Siepman Vice President The evidence shows and Respondent concedes (R Br at 6 et seq) that Driver an outspoken employee was known to Respondent to openly and often advocate views concerning religion politics Respondents admen istration and its employment policies In 1985 he wrote a letter to Hospital President Marx criticizing a wage freeze and then wrote a letter to fellow employees re questing them to complain to their supervisors about the wage freeze (Tr 236) In 1985 employer employee meet rags he criticized the hospital s employment policies In fact in or about March of 1985 he distributed handbills to 10 or 15 employees relating to the same mat ters about which he wrote to Hospital President Marx Since his distribution of the handbills was at the hospi tal s main entrance (Tr 67) it made the hospital uncom fortable (Tr 66-67) and Siepman asked Driver to dis continue passing out the handbills (Tr 242) Though Driver refused to tell Siepman whether he would cease handbilling Driver nevertheless discontinued the hand billing (Tr 243) Siepman and Driver had a series of con versations concerning inter alia Driver s objections to hospital employment and fiscal policy (Tr 335) These resulted in no discipline criticism or pressure much less retaliation against Driver because of these activities (Tr 335-337) This was also true notwithstanding that in four or five meetings of pharmacy employees with Supervisor Patricia Prins at which Driver complained of working conditions (Tr 343-344) he was never disciplined or criticized for his criticisms of hospital policy Indeed Vice President Siepman had an open door policy to employees and Driver availed himself of that policy in voicing his objections to hospital employment policy (Tr 345) The November 13 1986 Letter to Employees from President Marx On or about November 13 1986 President Marx dis tributed along with paychecks a letter to all fellow workers the principal subject of which was the hospi tal s review of costs and job positions to gain greater efficiency and economy (G C Exh 2) in order to strengthen the hospitals position in the market place Among the efficiency measures would be a reduction of about 25 employees The letter ends thanking the em ployees for their support Driver testified that he attended a meeting of the phar macy department employees on November 13 1986 pre sided over by Supervisor Patricia Prins Prins told him that Vice President Siepman would attend a meeting in the following week at the hospitals pharmacy (Tr 344) where he would be able to question the layoff of em ployees mentioned in the November 13 letter from Presi dent Marx Prior to November 13 due to rumors beginning in Oc tober impending layoffs were a prime topic of employee conversations in which Driver participated (Tr 272) 98 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD After the November 13 meeting Driver next worked commencing 7 am on November 17 1986 a 12 hour shift (Tr 278) By about 7 15 Driver drafted a short note to mockingly paraphrase President Marx s letter He placed the note in the window of the pharmacy to be seen by employees coming to obtain pharmaceutical services (Tr 280) The note measured approximately 4 inches by 6 inches The note read as follows (Tr 281- 282) Dear Fellow Workers Help keep up the payments on administrators va cation homes and Mercedes Benzs Send your co workers out the door without a job Thank you for your cooperation Driver testified that he placed the message in the window to encourage conversation with coemployees about the layoffs (Tr 282) and he hoped that as a result of the conversations the employees would complain to their supervisors in order to get the administration to re verse its decision on the layoffs (Tr 282) Driver recalls that a nurse saw the sign and they had a conversation in which Driver spoke about the topheavy bureaucracy which was not properly administering the funds of the hospital thus causing the layoffs (Tr 284) He also start ed conversations with other persons (nurses) and he asked them if they had survived the layoffs (Tr 285) There is no evidence concerning responses by employ ees It was Driver s intent to paraphrase Marx s letter (Tr 288) He knew that President Marx drove a Mercedes Benz (Tr 289) He did not know whether any of the ad ministrators had vacation homes (Tr 289) The Break Message at 7 45 a in In the 20 minutes that his note was up in the pharmacy window only a few employees encountered it and he de ceded that the use of the computer was the way to get his message to more employees (Tr 290) According to his subsequent conversation with Vice President Step man he then acted on the spur of the moment and decid ed to send the message that appeared in the pharmacy window to all employees (at computer terminals) by use of the computer He then typed the message on his ter minal Notwithstanding that Driver had been trained on the use of the computer for a month and notwithstand ing that no employee had been discovered using the computer system to send personal messages after the training period (at least to the knowledge of employees who testified and to Respondents supervisors) Driver nevertheless hit the break message command button and the message appeared on all active screens at this peak period of computer traffic 5 Dear Fellow Workers Help keep up the payments on administrators va cation homes and Mercedes Benzs Send your co 6 It is undisputed that from about 7 a in to 10 30 a m the computer system is used at its maximum capacity At that time the system records and stores information concerning physicians rounds the admission of patients into the hospital the entry of physicians orders and laboratory orders to the pharmacy lab results etc (Tr 115- 116) workers out the door without a job Thank you for your cooperation Although the evidence does not show how many coin puters were in operation it is undisputed that with regard to operating terminals Driver s break message precluded anything on an operating screen and interrupt ed the work of anyone using the terminals having some thing on the screen Vice President Siepman testified (Tr 154-155) and the testimony is not disputed that the ap pearance of the break message caused a considerable amount of consternation among the terminal users be cause of its unexpected content and unexpected timing He testified that he was informed that the employees did not know how to deal with the message and particularly did not know how to get rid of the break message ap pearing on their screens Thereafter the data processing department sent four or five employees to cleanse the 100 odd terminals that had the break message either on the face of the screen or in its memory bank The data processing department had been receiving telephone calls from employees who did not know what to do with the message Vice President Siepman first learned of the appearance of the break message about 8 30 am when the vice president of data processing (Northam) came to Siepman with a printed copy of the break message Northam told Stepman that the message had originated in the pharma cy Based on the content of the message Northam and Siepman decided to tell President Marx of the message because they believed that it was aimed at him They saw Marx about 5 minutes later and Marx angry over the content told them that this was a vilification of him and his position and a personal attack on him He told them that it was totally out of line to send a message of this nature hospitalwide (Tr 81) and he told Stepman to go to the pharmacy find out who the author was and to fire him (Tr 82) Sometime before this November 17 break message Siepman had had discussions with Driver regarding Driver s complaints about the layoff of employees and the failure to lay off administrators (Tr 75-76) In these conversations Driver suggested laying off vice presi dents and not employees (Tr 76) Notwithstanding these conversations Siepman did not tell Marx on the morn ing of November 17 who he suspected of sending the break message 6 As a result of Marx s direction Siepman went to the pharmacy to look for the supervisor (Patricia Prins) By 9 o clock when she arrived Siepman showed her the copy of the break message and asked her to trace the source in her department Within a half hour she tele phoned to say that she believed that Driver was the author She told him that she had spoken to Driver He told her to have Driver come to his office and he did so within a half hour When Driver came to his office Siepman asked him whether he was the author Driver first asked him what 9 Stepman admitted that there were no other activists in the hospital like Dnver who would mouth off about working conditions from time to time (Tr 82) WASHINGTON ADVENTIST HOSPITAL 99 the implications would be if he admitted sending the message and Siepman told him that there had been no formal decision at fl-at time regarding discipline (Tr 91) 7 Dnver then admitted that he had been the author of the message (Tr 95) Siepman told Driver that the content was inappropri ate (Tr 96) Driver said that his message was an expression of his frustration at the administrations handling of the staff re ductions and a way of indicating his displeasure (Tr 96) He told Siepman that he thought the hospital should not have reduced staff without reducing the number of vice presidents that the employees needed the income and that the Respondents actions were totally heartless After discussing the action of the hospital Siepman told Driver that not a single member of the administration had a vacation home but that President Marx and a new vice president (Birmingham) both drove Mercedes Benzes (Tr 98) Driver did not tell Siepman that he was expressing the concern of himself and other employees rather he was expressing his own dismay and concern (Tr 99-100) Siepman did admit however that Driver complained that because of the layoffs all the employees would be working a little harder (Tr 101) and that he knew that other employees at the hospital were concerned about the layoffs (Tr 101) Although it may have been Dnv er s intent Driver did not tell Siepman that in sending the message it was his aim to reach a great many em ployees (Tr 103-104) rather Driver said that he was angry and frustrated with the decisions that the adminis tration made and that his sending of the message was a method of expressing his dissatisfaction and unhappiness (Tr 103) Furthermore Driver told Siepman that employees had used the system to send personal messages back and forth from one terminal to another within the depart ment (Tr 114) 8 Siepman told him that he did not know about it but that there was a vast difference between a terminal to terminal message and a break message and in any event the use of such messages when the comput er was being used at its peak time for hospital purposes (Tr 115) Neither in this discussion with Siepman nor in any of the discussions that followed did Driver tell Siep man that he intended merely to send a terminal to terms nal message and did not intend to send a break message and that he had merely pressed the wrong button He testified that it was his intent to communicate with all the terminals but merely to show that there was a message waiting for them by virtue of the blinking light It was his intent that employees call up the message when they had a chance to do so and not to interrupt their r As a matter of hospital practice Marx s direction to fire the author was not a formal disciplinary decision (Tr 91) rather employees are not discharged without first consulting the vice president of personnel Marx s direction to fire the author according to Siepman was not a final decision to fire Dnver (Tr 91-93) 8 General Counsel s witness Denise McNamara an employee in the pharmacy department testified that these personal messages were only sent during the August training period as far as she knew (Tr 219-220) There is credible evidence however to show that supervisors suspected or knew that employees continued to send personal messages on a terms nal to-terminal basis work He conceded however that employees busy at the terminals on seeing the blinking message light might stop their work He also testified that even after the computer had gone on line there were terminal to termi nal jokes sent between the terminals at least once or twice a week He conceded however that there was no supervisor knowledge of this practice Driver admits telling Siepman that he acted on the spur of the moment and pretty much impulsively that he really had not thought through the matter and had not thought of the consequences of the act and that per haps the break message was not the best way to express himself He never told Siepman that any other employee authorized him to do it joined him in doing it or that he was the spokesman for any other employees The Decision to Discipline Dnver Sometime after this 9 30 a m meeting between Siep man and Driver which Driver admitted being the author of the message Siepman reported this back to President Marx About 10 30 a m Marx called a meeting of Gen eral Vice President Birmingham Vice President Northam (data processing) and Vice President Siepman In a 15 to 30-minute meeting the four chief officers of the hospital discussed the discipline to be meted out to Dnver Although Siepman mentioned suspension as a remedy the consensus was for termination No decision was made Consistent with a practice that Respondent follows in other than routine (absenteeism intoxication) discharges the decision was made to clear with the hos pital s attorney the question of any legal implications in volved in the discharge At this point about 11 30 am Vice Presidents Birmingham and Siepman called the at torneys By about 1 to 2 p m a further meeting was had of Vice Presidents Northam Siepman and Birmingham and President Marx They told him of the conversation with the attorney and their consultation with the hospi tal s director of personnel (Andrew Sidell) A decision was made at this time to terminate Driver because of his personal attack on Marx and because he had used the computer in an unauthorized manner Although Driver had been sent back to work after his first meeting with Siepman the period between about 2 and 5 p m was utilized to make entries in Driver s per sonnel file and draw his remaining paycheck About 5 p m Driver was called into Siepman s office again (Tr 323) He was handed an envelope and told that it contained his termination notice Siepman told him that he was sorry but that he had to let hun go and told him that he was a good worker and a good pharma cist He said that what Driver had done that day how ever was unacceptable and that they had to terminate his employment Driver admitted that in the first conver sation with Siepman Siepman told him that his actions had caused trouble in the computer system and that it had taken an hour and a half to clean up (erase) the break message from the computer memory system In the second meeting I credit Driver s testimony that Siepman admitted that the hospital discovered employees using terminal to terminal messages for dating purposes 100 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and had merely warned them not to do it again but I also credit Driver s testimony that Siepman told him that there was a difference between what those employees had done (merely terminal to terminal messages) com pared to the break message Driver had sent that day In this conversation concerning interruption of work and the use of the break message Siepman did not mention the content of the break message (Tr 325-326) He gave Driver the,above quoted discharge letter and paycheck Driver s Explanations Driver testified that regarding the content of his mes sage the words that he typed into the computer in the break message were not his intended message He said that his intention was symbolic not literal (Tr 340) that what he actually said in the break message was not what he meant (Tr 340) He denied an intent to make a personal attack on the hospital administration or to ndi cule them (Tr 340) Indeed he intended to communicate not with the administrators but with his coworkers (Tr 341) He admitted that he knew that there were restrictions on the use of the computer by employees (Tr 348) and he admitted personally signing the security agreement re garding the use of the computer (G C Exh 5 Tr 348) As noted above he admitted agreeing to be bound by the provisions in the security agreement that he knew that it contained the restriction in paragraph 4 that he would not attempt to access any unauthorized informa tion by the computer system (Tr 349) and that he knew that if he violated that provision he would be sub ,sect to discipline (Tr 349) He testified (but never told Siepman) that although it was his intention in sending the November 17 1986 mes sage to reach all the computer terminals in the hospital (Tr 349) it was only to reach them in the form of a blinking message waiting communication (Tr 349) It was his further intent that the employees on seeing the blinking light cease their work and call the message up on the screen (Tr 350) only at their convenience (Tr 350) In this regard he admitted that some employees would stop their work to find out what the message was regarding the blinking light (Tr 350-351) Driver further admitted that he typed the message by himself that no one helped him to type it that no one helped compose the message that no other person au thonzed him to type the message on their behalf that no one else suggested to him that he type such a message into the system (Tr 351) and that he acted on his own (Tr 352) He also admitted telling Dr Siepman that he acted on the spur of the moment in sending the message (Tr 352) that he had not thought through the conse quences of his action (Tr 353) and that it was fair to say that Siepman had no reason to believe that Driver had been appointed a spokesman by any fellow employees (Tr 355) Furthermore Driver admitted that in his con versation with Siepman he told him that he [Driver] knew there would be some price to pay for [my] ac tions (Tr 356) Although he did not admit that he knew that he violated hospital policy in sending the message he knew that people would be unhappy because of what I was doing He admitted however that he knew that he was using the computer for a purpose other than that for which the hospital placed it in the pharmacy (Tr 357) He said that in his using the computer for a different purpose he did not know whether he was breaking a particular rule (Tr 357) In short he admitted that he knew he was using the computer for an irregular purpose but was not aware of a particular rule that he was breaking in so doing (Tr 358) Discussion and Conclusions A The Existence of a Prima Facie Case The parties appear to agree that in measuring the law fulness of the discharge the standard to be followed ap pears in Myers Industries 268 NLRB 493 (1984) (Meyers 1) remanded sub nom Prill v NLRB 755 F 2d 941 (D C Cir 1985) cert denied 474 U S 948 (1985) reaf firmed 281 NLRB 882 (1986) (Meyers II) enfd 835 F 2d 1481 (D C Cir 1987) Among other things however the parties dispute whether in applying the Myers Industries standard Driver was engaged in concerted activities whether the concerted activities were protected activities and whether in any case Driver was discharged because he on behalf of others complained of the layoffs be cause he held the Respondents administration up to rids cule and abuse or because he violated Respondent s rules concerning the use of computers or whether latter reasons advanced by Respondent were in any case mere pretext or insufficient in law to constitute a basis for lawful discharge What is clear is that to prove a prima facie case of a violation of Section 8(a)(1) the General Counsel must prove not only that Driver s actions were concerted but also protected within the meaning of Section 7 of the Act To determine whether the Board would find that Driver was engaged in concerted activities and ulti mately in concerted activities protected by Section 7 of the Act as amended I note that the Board has deter mined in its Meyers Industries I above and not thereafter altered in Meyers Industries II that In general to find that an employees activity to be concerted we shall require that it be engaged in with or on the authority of other employees and not solely by and on behalf of the employee him self Once the activity is found to be concerted an 8(a)(1) violation will be found if in addition the employer knew of the concerted nature of the em ployee s activity the concerted activity was protect ed by the Act and the adverse employment action at issue (e g discharge) was motivated by the em ployee s protected concerted activity [Meyers 1 268 NLRB at 497 ] The evidence shows on Siepman s credited testimony that Respondent discharged Driver on November 17 for two reasons (a) because of his alleged disparagement and insult directed to the hospital administration in general and President Marx in particular and also (b) because as the discharge letter showed (G C Exh 4) of the gross misconduct in Driver s having entered into the computer system and displayed on every terminal an WASHINGTON ADVENTIST HOSPITAL 101 unauthorized break message The discharge letter how ever fails to mention any insult to hospital administra tors One naturally speculates whether this latter reason appearing alone in the discharge letter was the adminis trators reason or the [subsequent] lawyer s reason As will be seen the parties also are in disagreement whether under NLRB v Electrical Workers IBEW Local 1229 (Jefferson Standard) 346 U S 464 (1953) the break message contained language that oversteps the Act s pro tection whether it was so profane defamatory or insult mg as to no longer be covered by the mantle of lawful concerted activity American Hospital Association 230 NLRB 54 56 (1977) Although I need not decide the Jef ferson Standard issue in order to dispose of this case I think it sufficient to note that the message not addressed to or seen by nonhospital personnel did not openly insult the administration or disparage the hospital or its services That President Marx and Siepman and perhaps others became angry at the message is not exceptional in labor management cases since as was noted in American Hospital Assn supra any time a manager is criticized by employees he must to some extent feel insulted Indeed as in the same case the only evidence that the break message language was insulting or outrageous was the subjective testimony from ego bruised supervisors In ad dition as noted the message was not addressed to third persons or seen by third persons much less the general public and did not hold up the hospital its personnel or its services to ridicule or disparagement In short were it necessary to decide the issue I would conclude that the message itself was not so insulting or disparaging to the hospital or to the administration or to the hospitals offs cers as to come within the Jefferson Standard rule and render conduct which was otherwise concerted and pro tected outside the pale of statutory protection Compare Dandridge Textile 279 NLRB 89 (1986) with Caterpillar Tractor Co 276 NLRB 1323 (1985) 1 Concerted activity The fine briefs submitted by counsel demonstrate the apparent difficulty in deciding whether the activity en gaged in by Driver was concerted within the meaning of Section 7 of the Act 9 Of little value in deciding whether the conduct was concerted is the substantial tes timony elicited without objection from Driver as to what his intent was in sending the message on November 17 There is no question however that the message itself is addressed on its face to Driver s fellow employees The message however does not request any action by fellow employees It somewhat innocently (on its face) directs the employees to support payments for the ad ministrators vacation homes and Mercedes Benzes it then follows with the statement perhaps in the form of 9 Counsel appear to be in agreement that in the instant case the appli cable legal standard under which Driver s concerted conduct should be analyzed is whether noted in Meyers Industries 281 NLRB 882 (Meyers fl) Driver s conduct (including premessage conversations) is properly within an individual seeking to initiate or to induce or to pre pare for group action Alternatively whether Drivers actions came within the speaker and listener rubric-the indispensable preliminary step to actual concerted activity Meyers II citing Root Carlin Inc 92 NLRB 1313 1314 (1951) an imperative declaration send your co workers out the door without a job The message ends by thanking the employees for their cooperation It appears to me that the message does not request action rather it is a decla ration by the unnamed author of unhappiness over sup port for the vacation homes and Mercedes Benzes of the administrators Whether this can be reasonably construed as an appeal for action of any kind much less an appeal (as Driver testified) for employees to put pressure on their supervisors to protest the layoff of low paid em ployees is open for argument Thus I would conclude although the message on its face may well be subject to the interpretation urged by the Charging Party and the General Counsel-that it is an attempt to communicate with coemployees to take action against the employer- that this is not necessarily the only interpretation that the language itself permits It would appear to me that the message is susceptible to construction as an admonition to the employer or to the employees or as an expression of disappointment ad dressed through the employees to the employer or per haps a call to action as the General Counsel and Charg ing Party assert If it is a call to action what action What is clear on this record is that as Driver admitted he had received no authority or even encouragement from any other employee to send the message nor did any other employee know that he was sending such a message The matter becomes even more murky concerning the concerted nature of the November 17 break message when one considers Driver s testimony of conversations concerning the message he posted in the pharmacy window Although it is true as the General Counsel points out that as late as November 13 in an employee meeting he had expressed himself to Supervisor Prins as being unhappy with the layoffs (urging Prins that the ad ministrators should be laid off rather than employees) this however does not necessarily bear on the face of the message as received printed out on the morning of November 17 What appears in the record preliminary to dispatch of the break message is Driver s conversation with nurses who saw the 4 x 6 card in the pharmacy window and the nurses comments on it What we have of the conversa tion is that Driver told the nurse that there was a top heavy bureaucracy that was not administering the funds of the hospital correctly resulting in employees being laid off There is no record of what the nurse answered particularly regarding whether there was any agreement much less encouragement in any answer Even in his conversations with Dr Siepman before being discharged especially the conversation about 9 15 a in on November 17 the most that could be said is that Driver told Siepman of Driver s unhappiness with the topheavy bureaucracy and the layoff of the employees and that Driver was not the only one concerned with the layoff and that lots of employees were concerned with it and with the topheavy bureaucracy of administra tors In all of this Driver activity and conduct there ap pears to me no indication that group action of any kind was intended contemplated or even referred to Absent 102 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD such message content the activity is not concerted See Daly Park Nursing Home 287 NLRB 710 (1987) It is unnecessary however to further analyze whether Driver s activity was concerted within the meaning of Section 7 of the Act because for purposes of this deci sion I will assume arguendo that though he was acting essentially alone it was concerted although I am not at all convinced of this conclusion I would assume further because of Driver s conversa tion with Vice President Siepman on the morning of No vember 17 after the message was sent but before there was a decision to discharge him that Respondent had knowledge that the activity in which Driver was en gaged a preliminary to possible group action was ar guendo concerted and for the mutual aid of coem ployees within the meaning of Section 7 of the Act But see Frill v NLRB 835 F 2d 1481 1483 (D C Cir 1987) io 2 Protected activity Rather than decide the case on the question under Meyers Industries (I) supra of Respondents knowledge or the question whether the activity was concerted I con clude that in any event the conduct in which Driver was engaged was not protected within the meaning of Section 7 of the Act and that the General Counsel therefore failed to prove a prima facie case under Meyers I I need thus not reach or decide the prior question of whether it was concerted within the meaning of the Act or even further whether Respondent supported its burden of proof on the question of the actual reason was for the discharge whether Respondent was principally motivated by the content of the message as the Charging Party and the General Counsel urge or whether he was discharged as Respondent urges in any event for the unprotected activity of the unauthorized use of the coin puter communication system In other words I need not decide whether the facts support Respondents defense to a prima facie case whether under the allocation of burden of proof in NLRB v Transportation Management Corp 462 U S 393 (1983) and Wright Line 251 NLRB 1083 (1980) enfd 662 F 2d 899 (1st Cir 1981) cert denied 455 U S 989 (1982) Respondent would have dis charged Driver in any event because of his break mes sage or whether it seized on that activity as a mere pre text to cover his discharge for protected concerted ac tivities (as the General Counsel and the Charging Party urge) Not all concerted activity is protected Protection re quires inter alia that the activity not be improper Shelly & Anderson Furniture Mfg Co v NLRB 497 F 2d 1200 1202-1203 (9th Cir 1974) including activities that disrupt the employers operations and production not withstanding an intent to bring attention to grievances concerning vacations and pay scales Compare Can Tex 10 A worker no longer takes concerted action by himself [rejecting Alleluia Cushion Co 221 NLRB 999 (1975)] unless he acts on the author ity of his fellow workers [The] Boards new position is that the concerted activity prong and the mutual benefit or protection prong of Section 7 are two distinct factual inquiries that are to be analyzed sepa rately Concerted action cannot be imputed from the object of the action (Emphasis added) Industries v NLRB 683 F 2d 1183 (8th Cir 1982) with NLRB v Washington Aluminum Co 370 U S 9 (1962) (protected work stoppage because of injurious working condition) Here there is not the remotest suggestion that Driver s expropriation of the computer communica tion system could be supported because of unsafe work ing conditions that necessitated his action Mal Landfill Corp 210 NLRB 167 (1974) The evidence is uncontradicted that Driver s intent in terms of dispatching the break message was to use the hospitals computer-communication system to send the message to as broad a group of employees as he could He was dissatisifed with the narrow impact of the mes sage in the pharmacy window The evidence is clear that in the first place Driver made a conscious personal decision to arrogate to himself the decision to take over the hospitals computer system as a communications device to reach his coemployees This he did There is some lack of clarity in the evidence whether he intended to use the break message system of communication or whether he intended to merely inform all the terminal re ceivers in the hospital that a message was waiting for them (which they could call up at their convenience) I assume arguendo that Driver did not intend to break into the work of all operating terminals when he sent his message but rather inadvertently hit the wrong button 11 Nevertheless this does not bear on the ques tion whether he intended to and did decide to take over the hospital communications system for his message There is no doubt on that point I will further assume that his motivation in sending the message was in good faith and was prompted by his vast virtually uncontrollable personal irritation and dissatis faction concerning the limited number of employees he could reach with his important message in the pharmacy window Thus granting the benign intent of his decision there was no question that he intended to take over the hospital communication system Such a decision reached by Driver as he admitted as a matter of impulse and on the spur of the moment re suiting in such a result cannot be held protected On any objective basis taking over Respondents computer coin munication system during Driver s worktime and the worktime of other employees during the hospitals busi est worktime is a matter that should have been cause for the deepest consideration by Driver or any other em ployee This he did not do What he did was to arrogate to himself the decision whether the hospitals computer communication facility should cease being used for hos pital purposes and be used for his own purposes to coin municate his dissatisfaction with hospital policy as a goad to employee action against the hospital The General Counsel and the Charging Party urge that this was not in violation of any particular rule Such a conclusion loses sight of the Security Agreement signed by Driver as a condition of using the computer system which proscribed any attempt to access any un authorized information via the computer system (G C 1 i As I observed Driver I believe that his impetuosity made him indif ferent to the consequences of the transmission WASHINGTON ADVENTIST HOSPITAL 103 Exh 5) Even without such a hospital rule which Driver clearly broke the unauthorized takeover of a hospital s communication system it seems to me would be a most serious decision and could reasonably be fraught with the worst possible consequences to the giving and receiv ing of acute health care Thus while I would conclude that the sudden unauthorized taking over of an employ er s communications system for nonbusiness purposes in an industrial setting would be a matter of great conse quence and potential harm yet in an acute hospital set ting it is even worse Cf Beth Israel Hospital v NLRB 437 U S 483 (1978) One need not detail the seriousness of taking over the hospital s communication system during its busiest hours (between 7 and 10 a m) This is when physicians findings and orders pharmaceutical in structions patient treatment movements admissions and other serious medical elements are entered into and com municated by the computer system But I would reach the same conclusion even if Driver s message was sent during a period of computer tranquility I conclude in short that his sudden unauthorized taking over the computer communication system regard less of how concerted benign or worthy the motive might have been was not only a violation of his security agreement (G C Exh 5) which merited discipline pursu ant to the personnel policy manual but as a matter of the Act was not protected-wholly apart from Re spondent s private prohibition Regardless whether Driv er s action is within the prohibition causing a first offense discharge I conclude that Respondent did not violate Section 8(a)(1) of the Act in discharging Driver That Driver s otherwise unprotected activity occurred during the peak business period is merely an aggravating factor Quite apart from Driver s unauthorized taking over of the computer system I believe is the question of his actual interference with the work of hospital employees operating terminals in the computer system The evi dence shows that Driver s break message interrupted the work of employees using the terminals and caused a con siderable amount of consternation among employees because of the substance of the message and their confu sion regarding what it meant (Tr 154-156 408-409) If there is any doubt whether Driver s conduct in merely taking over the computer system presents sufficient ground under the statute the security agreement and personnel policy manual to support a lawful discharge then there could be little doubt when such conduct actu ally interferes with other employees work during the rush hour such work being the care of patients in an acute hospital setting Having concluded that the General Counsel has failed to prove that Driver s conduct of November 17 1986 was protected activity within the meaning of Section 7 and Section 8(a)(1) of the Act I conclude that the Gen eral Counsel failed to prove a prima facie case Meyers Industries 268 NLRB 493 (1984) 281 NLRB 882 (1986) enfd 835 F 2d 1481 (D C Cir 1987) I therefore make the following recommended 12 ORDER I The complaint is dismissed in its entirety 12 If no exceptions are filed as provided by Sec 102 46 of the Board s Rules and Regulations the findings conclusions and recommended Order shall as provided in Sec 102 48 of the Rules be adopted by the Board and all objections to them shall be deemed waived for all put poses