Washington Adventist Hospital, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1988

291 N.L.R.B. 95 (N.L.R.B. 1988)

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