Human Resource Institute

National Labor Relations Board - Board Decisions

Feb 9, 1984

268 N.L.R.B. 790 (N.L.R.B. 1984)

DECISION OF NATIONAL LABOR RELATIONS BOARD
National Medical Care, Inc. and Qualicare of New
England, Inc. d/b/a Human Resource Institute
and Health Care Division, Local 285, Service
Employees International Union, AFL-CIO.
Case l-CA-19685
9 February 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 14 March 1983 Administrative Law Judge
Thomas A. Ricci issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, and both the Respondents filed answering
briefs.
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, l and
conclusions2 and to adopt the recommendation.
ORDER
The recommendation of the administrative law
judge is adopted and the complaint is dismissed.
I The General Counsel has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect. Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing the findings.
In sec. II1, par. 14, of his decision, the judge used the term "girl" to
refer to a woman. We find the term "girl" inappropriate and hereby cor-
rect the judge's reference.
a We do not rely on the judge's statement that "[s]ix months is too
long a time to look back for a hidden motive in the absence of any other
substantive proof of illegal intent."
DECISION
STATEMENT OF THE CASE
THOMAS A. RlCcl, Administrative Law Judge: A hear-
ing in this proceeding was held at Boston, Massachusetts,
on November 17, 18, and 19, 1982, upon complaint of
the General Counsel against National Medical Care, Inc.
and Qualicare of New England, Inc., herein called the
Respondents or the Companies. The complaint issued on
September 14, 1982, upon a charge filed on March 16,
1982, by Health Care Division, Local 285, Service Em-
ployees International Union, AFL-CIO, herein called
the Union or the Charging Party. The principal issue of
the case is whether an employee of these two Respond-
ents was discharged in violation of Section 8(a)(3) of the
Act. Briefs were filed after the close of the hearing by
all parties.
Upon the entire record and from my observation of
the witnesses I make the following
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENTS
Respondent National, with its principal office and
place of business in Boston, Massachusetts, operated an
out-patient psychiatric clinic at Lowell, Massachusetts,
until January I, 1982. In the course of its business it
caused large quantities of oil, gas, and office supplies and
other goods used by it in its operations to be purchased
and transported in interstate commerce from other States
of the United States. Its gross annual revenue is in excess
of $250,000. It annually receives goods and materials
valued in excess of $5,000 directly from out-of-state
sources.
Respondent Qualicare, which took over the Lowell,
Massachusetts, clinic on January 1, 1982, also is engaged
in the operation of out-patient psychiatric clinics. In the
course of its business it also causes large quantities of oil,
gas, and office supplies and other goods used by it to be
purchased and transported in interstate commerce and
through various States of the United States to its place of
business. Its annual gross revenue is in excess of
$250,000, and annually it receives goods and materials
valued in excess of $5,000 directly from out-of-state
sources.
I find that both Respondents are engaged in commerce
within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
I find that Health Care Division, Local 285, Service
Employees International Union, AFL-CIO, is a labor or-
ganization within the meaning of Section 2(5) of the Act.
ull. THE ALLEGED UNFAIR LABOR PRACTICE
This proceeding presents essentially a single issue in
the discharge of a man. Was he released because he en-
gaged in union activity, or did he lose his job for per-
fectly proper and legal cause? Put more precisely, in
terms of Board law, has the General Counsel carried the
affirmative burden, always resting on him, of proving the
complaint allegation so as to at least place a burden on
the Respondents which dismissed the man to come forth
with convincing evidence in support of its contrary as-
sertion that it released him for legitimate reasons? Wright
Line, 251 NLRB 1083 (1980). The question is a very
simple one here, both as to credibility and as to the infer-
ence suggested.
Russell Harris, the man involved, is a mental therapist.
His art is to talk privately with disturbed people and to
try to straighten them out so they, like everybody else,
can tolerate the vicissitudes of life. As one of about 30
such therapists, Russell worked for National Medical
Care in a clinic at Lowell, Massachusetts. There were su-
pervisors in the place, and like all supervisors they
checked on what the underlings did and how they did it.
This reality is an important element of the case, because
while the General Counsel contends Harris was a plain
employee, the Respondent argues he was an independent
268 NLRB No. 118
790
HUMAN RESOURCE INSTITUTE
contractor. But an independent businessman, or even a
professional one, is not hampered by supervision. Some-
what inconsistently the Respondent nevertheless says
Harris refused to heed the critical voice of his supervi-
sors, in fact that this is why he was fired. In any event,
with the General Counsel insisting the man was super-
vised by people with authority over him, it follows that
when they found fault with his performance they had a
perfectly legitimate right to do so.
In the spring of 1981 Harris conceived the notion of
establishing the Union as bargaining agent at the Lowell
clinic. He was already represented by the Union at a
clinic located in Brookline, also in Massachusetts, and
also owned and operated by National which ran the
Lowell clinic. The two supervisors stationed at Lowell
at the time were Marilyn Russell, director, and Ruth
McCarthy, assistant director. Director Russell learned of
the union activity by Harris, and reported it to Joseph
Nolan, the higher official whose office was at Brookline.
Russell left the Respondent on October 31, and opened
her own clinic, exactly like that of the Respondent, two
or three blocks away, operating in some form of compe-
tition for the same business. McCarthy went with her, as
co-owner of the new business. Russell testified that,
when she told Nolan what Harris was doing, Nolan
became very angry and in no uncertain terms voiced his
determination to get rid of him. As a witness for the Re-
spondent, Nolan denied any such threats. Be that as it
may, work continued right on and the union movement
soon died off. In fact, by the end of October, before
leaving the place for good, Russell told Nolan there was
no union activity going on at Lowell at all.
On December 31, the Company called National Medi-
cal Care which had been operating a group of six clinics
in the general area including Brookline and Lowell, left
the business completely, and a company named Qualicare
took over all those locations. At Lowell, with Russell
and McCarthy having left, a new director was hired on
November 1, Nancy Langman Dorwart. In the higher
echelon of supervision Nolan and Paul Gorman, sta-
tioned at Brookline, were retained in the same positions
of authority.' On December 15, Dorwart, together with
her superior, placed Harris on probation for 30 days, the
contemporaneous documents stating the reason as rules'
violations, both clinical and administrative. On January
22, Harris was discharged. By this time National was no
longer in the picture at all and Qualicare was in com-
plete control of all things.
The basic sequence of events tells a revealing story.
Two men, Harris and Noonan, both therapists, obtained
union authorization cards sometime in June 1981 and
started soliciting signatures. Harris told Director Russell,
then the top management official at the Lowell clinic, of
his such activities. Russell then reported the activity to
Nolan, her superior, whose office was at Brookline. She
A third organization, I thinkl, Human Resource Institute, is also
named in the pleadings, in connection with both National and Qualicare.
Exactly what that phrase denotes was not made clear on the record. Is it
a holding company, a parent organization? Does it only mean each of
these successive companies which owned and operated the clinic at
Lowell used the words HRT to indicate the kind of business they do? I
do not know, but that question is of little moment, given the answers dic-
tated by the clear evidence to the basic questions to be decided.
testified Nolan became "enraged," "furious," saying "I'm
going to get rid of him." Nolan even told her then, as
Russell continued to testify, to do a "utilization review"
on Harris. Nolan, still with the Respondent, denied
having voiced any such threats. The union activity died
an unexplained death. When Harris talked to Director
Russell about it, she advised him to file an election peti-
tion and "get it over with," but no action was taken.
And the Union's executive director, Nancy Mills, testi-
fied she was not in favor of organizing only the Lowell
clinic as a separate bargaining unit. Russell even told
Nolan, when she left the Company at the end of Octo-
ber, that the union activities were all over.
Six months later, in December, the Respondent put
Harris on probation, listing, in writing, a number of
faults of his in the course of his employment. By that
time there was the new director at the Lowell clinic,
Dorwart. There is nothing significant indicating she
knew, or was informed of Harris' union activities of any
kind. Harris ignored the written probation letter, not
even bothering to read it, as will appear. A few weeks
later another incident came to the director's attention,
also involving his work performance, in which he was
reported as having again violated a working rule. With
this, the Company discharged him on January 22.
As I view this sequence of events, I cannot see a prima
facie case in support of the allegation of unlawful dis-
charge for union activity. When told he was being put
on probation, Harris told Dorwart he wanted a union
representative present. This was the first time Dorwart
heard of his prounion penchant. But by then the decision
to put him on probation had already been made. And
even were I to believe, which I do not, that Nolan said,
back in July, he intended to fire the man to put a stop to
his union activity, why did he not do it then and there,
or at least within a reasonable time thereafter? He did
nothing for 6 months. By this time the union activity had
died, and he had no reason to carry out the threat. Six
months is too long a time to look back for a hidden
motive in the absence of any other substantive proof of
illegal intent.
Besides this, many things happened in the interval be-
tween the threat said to have been expressed by Nolan
and the discharge date that bear a direct relationship to
the final action taken. Even were I to believe Nolan
made the alleged antiunion statements, I would still find
the Respondent has come forth with convincing evi-
dence it had good cause to dismiss the man, and in fact
would have discharged him entirely apart from any con-
sideration of his union activity.
The unduly extended transcript of testimony is ridden
with repetitive statements about how Harris went about
the business of dealing with patients of the clinic and
about the correct way he should have done it instead.
Much of the talking appears in professional jargon in-
comprehensible to the layman, including myself. Was it
right of him to insist that a family with seven children
should be considered separately, or was the director cor-
rect in arguing otherwise? Are vitamins good for a dis-
turbed person, or should a therapist refrain from recom-
mending any medications? I cannot answer these ques-
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions, but what I do know, because the record clearly
shows it, is that Harris again and again disagreed with
his supervisors, both as to how or when the meetings
with patients should be held, and as to how the record
should be kept. It is this fact of disagreement between
subordinate and superiors that has meaning in this case.
There is another aspect of this record that is under-
standable to me, as to anyone having experience in the
field of Board proceedings. A man discharged assertedly
for misbehaving on the job can be expected to deny all
guilt, to explain away each and every so-called incident
of misconduct as no more than the imaginings of a hate-
ful employer. Harris tried hard to do this. To hear him
say it, there was nothing wrong with anything he ever
did on the job. But the shoe fits the other foot as well.
Called upon to defend its action in a Board proceeding
long after a discharge, it is not surprising that the compa-
ny witnesses would emphasize and belabor every jot and
tittle of the employees' errors to build up a picture of ab-
solute horror. Neither story can be taken at face value.
But decision here does not rest on any generalization
about how litigants behave at a trial. While it is true that
Director Dorwart, over more than 100 pages of testimo-
ny, strained to make Harris look bad, it is also true that,
despite his efforts to clear himself, Harris did admit he
was told a number of times that he had done things
wrong, that he quarreled in disagreement with the way
his superiors kept telling him he should discharge his
duties. Moreover, his denials of the many criticisms
voiced to him throughout the year 1981-by both Rus-
sell, the first director, and by Dorwart, the November
replacement-also suffer from the fact that, in total, he
was not a very convincing or credible witness. Repeated-
ly he answered direct questions evasively, tried to dou-
bletalk his way out of clear replies, and admitted past
errors but only obliquely, in the continuing effort to
avoid plain statements. But what more than anything else
clouds his total testimony is his story about the probation
letter he knew on December 17 had been mailed to him.
On December 15 Dorwart told him, formally, he was
to come to the office on the morning of December 17 for
a meeting with Gorman, who was coming from Brook-
line for that purpose. Harris chose not to come that day,
sending a letter saying he was too busy. With the em-
ployee thus ignoring the request to come to the office,
the Company wrote him a letter telling him he was on
probation for 30 days and listing the areas where his per-
formance had been remiss. Harris came to the office on
the afternoon of December 17, after Gorman had left.
Dorwart said she was too busy to talk to him then, that a
letter putting him on probation had been mailed to him.
In his direct testimony Harris tried to make it appear
that, in refusing to discuss with him what the problems
of the moment were, the director was concealing an im-
proper objective. But the truth is it was his own too
great a sense of independence that had made the critical
meeting impossible. If there was any disrespect or arro-
gance displayed by anyone that day, it was on his part,
not that of the director.
The probation letter was mailed with a return receipt
requested. By December 31 Harris had not received it.
First he said the holiday season made it difficult to get to
his mailbox. Then he said he did go to the box, but
found only the notice telling him to call for the letter at
the post office where he would sign the requested re-
ceipt. He did not do that either; he just ignored the
entire business. Is this the way an employee who honest-
ly believes, as Harris insisted was the case, that he was
unjustly being put on probation behaves? Or does it indi-
cate, as I am convinced it does, that he well knew he de-
served to be put on probation, and matters were not
going to be helped by his reading the letter. Probation
means the employee is given a chance to change his
ways, to improve his performance. Harris' indifference,
therefore, also indicates he had no intention of doing
anything on this job differently from what he had always
done. This attitude was in keeping with his constant dis-
agreement-over the past several months-with the di-
rectors telling him to do this or do that differently from
the way he was doing it.
Not getting back the return receipt, Dorwart sent a
girl to the post office and learned the letter had not been
accepted by Harris. With that, she called him in and
gave him another copy of the letter. That same day
Harris gave notice he was going on vacation for 2
weeks, and left on January 1. The letter, received in evi-
dence, lists a number of the work rules Harris had violat-
ed and told him he would have to do something about
them. At the hearing, Harris argued that, if he did not
change any of his work methods during the 30-day pro-
bation period imposed on him, he could not be faulted
because, after all, during the first 2 weeks of the
period-December 17 to 31-he had not seen the letter,
and during the next 2 weeks he was on vacation! In the
light of his obvious indifference to criticism of any kind,
that argument will not do in this case. Certainly, it can
hardly resurrect the old statement of 6 months earlier
that Nolan was going to fire him because of his union ac-
tivity.
No useful purpose would be served by detailing all the
testimony about what the Company blames were errors
in work and recordkeeping by Harris for many months
before he was put on probation. It will be enough to
speak about those things Harris admitted he was criti-
cized for. Whether he was right or wrong, as I said, I do
not intend to sit in judgment. Management had a right to
run the business the way it, and not the employee, chose.
The first item in the probation letter says all corre-
spondence relating to the therapist's work must be ap-
proved by the appropriate clinical director. Harris admit-
ted "Nancy [Dorwart]" and he had a "disagreement"
about that matter. The second item calls attention to the
rule against seeing patients after 8 p.m. weekdays or after
2 p.m. on Saturdays. As to this Harris also said Dowart
had called him down for violating that rule, and that he
thought it had been necessary, but that he was told not
to do it again. The third item said there must be no un-
authorized meeting with patients outside the clinic.
Harris said he had done this "six, seven, eight, ten
times," including after Dorwart had come on the scene,
but "not on a regular basis."
On December 11 Harris found a notice in his box tell-
ing him he had incorrectly diagnosed, and reported, the
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HUMAN RESOURCE INSTITUTE
psychic condition of a patient, and telling him to correct
his report. Harris admitted this criticism too. This was
the second time Dorwart had told Harris to make the
correction. All that matters in this case-an NLRB pro-
ceeding-is that the superior had to tell the claimant to
change his ways. (This item is a perfect example of what
I mean when I say I cannot judge-between Dorwart
and Harris-which of them is correct in the use of words
like "the intra psychic dynamics" of a client.)
A physician psychiatrist named Allan Cohen testified
for the Respondent. He said that in April 1981 he
learned that a patient of his had been advised by a thera-
pist at the Lowell clinic to stop taking vitamins and to
take a medication called antibuse instead. Since this was
contrary to his instructions to the patient, the doctor re-
ported it to the clinic. On checking it developed Harris
had given that advice. Harris admitted this, and added
the matter was discussed and that he disagreed with the
director about it. That a therapist is not authorized to
prescribe medications-contrary to the advice of the
physician on a case-was admitted by all parties.
Another on-the-job dereliction by Harris was referred
to as "billing irregularities," i.e., billing for a full hour
therapy treatment when in fact less time was devoted to
it, or billing the wrong person, as, for example, billing
the parents who are covered by insurance instead of the
child who is not. Harris admitted Russell and McCarthy,
the former supervisors, had talked to him in criticism
about that "in the fall" of 1981.
With all the foregoing admitted by Harris, there can
be no question the Respondent had ample cause for its
decision to put him on probation in December 1982. As
already stated, he ignored the letter calling to his atten-
tion his past failures. In January, while he was on vaca-
tion, still another disregard of the rules on his part came
to the Company's attention. A doctor named William
Kornfeld called the clinic to inform it that a patient of
his had been told by a therapist there to stop taking a
drug called Holdol, which the doctor had prescribed.
The patient told the doctor that he had for that reason
not taken the drug for some time. Again it developed, on
checking, that Harris had been the therapist on that case.
At the hearing the Respondent called this the straw that
broke the camel's back and decided to discharge Harris.
I do not know for a fact whether Harris told the pa-
tient what the patient told the doctor. In his cross-exami-
nation of the doctor the General Counsel kept stressing
the fact that a disturbed patient, an unbalanced person,
can make things up, can imagine things out of the blue.
He may be right; how do I know? But it is a fact that
the complaint came in, and that it involved Harris. If the
General Counsel is correct, the director should have ig-
nored it. But can a clinic ignore things of that kind, or
does it have a duty to play it safe?
Harris' entire testimony reflects a clear sense of superi-
ority, arguing he was always right when contradicted by
his colleagues or supervisors on the way he thought he
should practice his calling. His derogatory language
about all officials who disagreed with his methods makes
very convincing Dorwart's testimony that repeatedly he
quarreled with her, disputed her ideas of how the work
should be done, and spoke offensively to her. This con-
tinuing disagreement between him and Dorwart, as well
as with the earlier supervisors, had been going on for
some months. How long did the employer have to stand
for it.
I cannot credit Russell as to her conversations with
Nolan about Harris. For one thing, she was not clear as
to exactly when she reported one thing or another to
him. She said that in the summer of 1981 she told Nolan
about Harris' union activity. She also said, again refer-
ring to some time during the summer, that she learned
from an office manager that Harris had been billing the
customers wrongly, i.e., submitting bills for more time
than he was really spending with the client. She reported
this to Nolan, too, who then asked her to "monitor" him,
"we had to do something about it." At one point she also
said, directly, that in response to her information about
Harris' union activity, Nolan told her to do a "utilization
review" on him. This suggests retaliation. But in the next
breath Russell said she "was supposed to do one [utiliza-
tion review] on everyone all the time." When asked had
she been told to fire the man, it proved impossible to
draw a coherent response from her. Finally, her open an-
imosity against her former employer was obvious, to say
nothing of the fact that by the time of the hearing she
was competing for the Respondent's business. She
quoted the supervisors as using words that were "shock-
ing and glaring." In the light of her total demeanor on
the stand, I must credit Nolan's contrary testimony that
he did not threaten to discharge Harris, because of his
union activity.
Harris' attitude toward others in higher authority is di-
rectly proved also by the testimony of Russell, the earli-
er director. When testifying about the Cohen incident,
where Harris favored giving the patient antibuse con-
trary to the doctor's orders, she said that Harris "is very
assertive and he went on and said I think and you think
and I think and they discussed it and Allan [Dr. Cohen]
got very annoyed about it. The doctor's orders was fol-
lowed, buy it was a hassle." Elsewhere in her testimony
Russell described Harris as a "pest" and a "nudge." This
was from the General Counsel's own witness, and sup-
ports the testimony of the later director, Dorwart, that
Harris is very difficult to get along with and spoke offen-
sively to her.
At one of the conversations with Dorwart, Harris said
he was being harassed because of his union activity. But,
as the Respondent correctly quotes from Board prece-
dent: "An employee cannot insulate himself or herself
from a discharge for cause simply because he or she hap-
pens to engage in activity protected by the Act." Ben
Franklin Division, 251 NLRB 1512 (1980). See also Klate
Holt Co., 161 NLRB 1606 (1966).
The union activity had long gone and been forgotten
by the time Harris was discharged. To close the gap, the
General Counsel quotes the Sun King, Louie XIV. If he
can do that, I can quote a more respected philosopher.
"The relation between superiors and inferiors is like that
between the wind and the grass. The grass must bend
when the wind blows across it." The Confucian Ana-
lects, Book XII, 19.
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794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDATION 2
I hereby recommend that the complaint be, and it
hereby is, dismissed.
2 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 pur-
poses.