Speaking Out on the Job

Four years ago, Laurence Malin held no grudges against McLean Hospital. All he wanted to do was to write down a few of his co-workers' suggestions for improving working conditions at the Children's Center. In return for his initiative, the hospital suspended him. Since then, Malin has been fighting a complicated legal battle against McLean to assert his rights to speech inside the workplace.

Laurence Malin never expected to spend years of his life fighting a complicated legal battle with McLean Hospital. Malin settled in the Boston area eight years ago--after living and traveling in 40 countries throughout Europe, African and the Middle East--intending to continue his studies into various topics of interest to him.

A self-taught man, Malin is well-read and at one time expected to study at Oxford. His apartment reveals his nature: over 2000 neatly arranged books line the walls, while organized files contain his many manuscripts.

In 1974, Malin started work at McLean, an affiliate of the Massachusetts General Hospital (MGH), one of the largest employers in Massachusetts. For two years, his night shift at the Children's Center allowed him to read several hundred books a year while caring for the nine children in the center's blue unit.

Malin soon learned that many of his co-workers on the day and night shifts were dissatisfied with working conditions at the Children's Center of the mental hospital. Employees were leaving in droves each year--amounting to a complete turnover of the direct care staff about every eight months.

Problems at McLean generating employee discontent formed a long laundry list--

* Inadequate in-service education on handling emotionally disturbed children, which the nurses and child care worker felt was needed;

* No activities program for the children, who consequently found less desirable ways of releasing their pent-up energies, such as attacking the staff with chairs; and,

* No air conditioning in the building, which was originally designed with the expectation that air conditioning would be installed.

So in 1976, Malin suggested that the workers write their ideas down, and he began to prepare a report to the hospital delineating employee grievances and providing constructive suggestions for improving working conditions at the Children's Center.

On one of his days off--a few days after distributing a questionnaire to his co-workers to elicit their responses--the hospital informed Malin that he was indefinitely suspended without pay for initiating the report. Certain that the hospital had no right to take such action, he filed his first charge with the National Labor Relations Board (NLRB) protesting his suspension. Four years, 11 NLRB cases and nine feet of documents and miscellaneous papers later, Malin is still battling McLean.

Malin's 11 NLRB cases epitomize a growing number of instances in which workers use provisions of the National Labor Relations Act (NLRA) to attempt to guarantee employee rights.

David Ewing, executive editor of the Harvard Business Review, wrote one of the few texts on workers' rights, called Freedom Inside the Organization. Ewing observes that in a society which proclaims substantial freedom for its citizens, the denial of important rights by corporations and even governmental agencies is an anomalous and gaping "black hole."

Ewing documents how such fundamental rights as freedom of speech, the ability to object to immoral, unethical or illegal orders from superiors, security and privacy, choice of outside activities and associations and due process are constantly abridged in the work-place. Malin's long legal battle with McLean is a model example of this broadening concept of workers' rights and reveals the limitations of the current system in guaranteeing these rights.

After Malin filed his first charges with the NLRB, the hospital felt moved to reinstate him. He withdrew the charges against McLean in return for regaining employment and receiving back pay for the five weeks he was suspended. Evidently fearing Malin's ability to rally support among the workers in his unit, the hospital reassigned him to the adult section, which is separate from the Children's Center. By now, Malin had immersed himself in an independent study of labor law; he knew he had the legal right to seek reinstatement in his original job. More charges were filed with the NLRB.

The next few years were a blur of endless legal battles between Malin, McLean and MGH. Malin spent many long hours preparing never-ending charges against the hospital and supporting them with documentary evidence, affidavits from other employees, and legal briefs. Backed by lawyers from the large Boston firm of Herrick & Smith, the hospital continued to violate Section 7 of the NLRA, which is the only statute that comes close to serving as a workers' bill of rights. Malin used other avenues as well to voice his and his co-workers' grievances about hospital working conditions; in 1977, he wrote a 100-page report to the hospital accreditation commission detailing inadequacies in working conditions. A month after submitting this report, Malin was placed on warning by the hospital, which threatened him with dismissal for failing to report a broken fire extinguisher. In response, Malin filed his third NLRB charge, and the NLRB issued a complaint against the hospital. Before the case came to trial, McLean settled with the government, withdrawing the warning from Malin's record.

Through all of these episodes, Malin managed to hold on to his job. But on Feb. 1, 1979 --20 days after submitting to the MGH trustees a notice of intent to unionize--the hospital suspended him for alleged insubordination. Malin filed his 11th charge against McLean and MGH.

McLean took issue with Malin's refusal to answer questions--without first consulting a lawyer--about his visit to McLean with an NLRB attorney 54 days earlier. He had brought the Labor Board representative to see the physical set-up of the hospital in preparation for an upcoming trial. This trial was based on NLRB charges Malin had filed from September 1977 to January 1978 against the hospital. According to labor law, a worker has a right to have a witness at an interview with an employer when he has a reasonable apprehension that disciplinary action may follow. On Feb. 2, 1979, Malin was fired.

Now Malin was on his own, unemployed but determined to see through his charges against McLean. In a coup de grace, McLean filed a notice with the state Division of Employment Security, preventing Malin from collecting unemployment insurance. In such a situation, governmental action to secure immediate reinstatement is, by its nature, the most effective remedy to protect violation. Without such action, the victimized worker faces financial hardship in pursuing the case. Furthermore, the co-workers in these circumstances are naturally reluctant to speak out about their working conditions for fear they will lose their jobs. But according to Howard M. Kowal '35, who prosecuted many labor cases as Boston's former New England Regional Attorney for the NLRB, the court injunctions providing reinstatement are almost impossible to obtain. Only in a "tremendous case" when workers' rights are blatantly violated and a large group dismissed, is there hope. Without an injunction, the reinstatement process usually takes more than two years.

For a person in Malin's position, the system is clearly stacked against him. The process of gathering evidence and building a legal case to support an NLRB charges takes a great deal of effort; Malin spent more than two months without any income, working full time to put together evidence and legal arguments for the Labor Board.

When Malin's discharge case finally came to trial last December, all witnesses received compensatory fees and travel allowances--except the charging party, Malin, whose months of preparation and attendance at the trial effectively precluded him from holding any employment. Malin has heard of cases where the charging party chose not to proceed with the trial because he couldn't afford to costs.

Malin won't get a decision at the trial's end, either. The parties involved have 35 days, plus possible extensions, after the trial finishes to file briefs supporting their positions. The administrative law judge then takes the case under advisement, and usually issues his decision within a year or two. The decision then goes to the five members of the NLRB in Washington, D.C., who can either affirm, amend, or send the decision back for reconsideration and further proceedings. The NLRB decision can then be appealed, adding further delays. It is not self-enforcing; the NLRB must file for an enforcement order--in Malin's case in the First U.S. Court of Appeals in Boston. This order can be appealed to the U.S. Supreme Court, which hears four or five NLRB cases a year. Since Malin's case involves some fairly novel aspects of the NLRA and its application to workers' rights, it may well go the whole route.

If Malin should get an enforced decision, the maximum possible remedy would be reinstatement and full back pay plus about 12 per cent interest. There are no punitive damages. But any income Malin receives in the interim is deducted from the settlement.

To the average worker, facing a possible loss of income and the need to expend large amounts of time and effort gathering evidence, the benefits of exercising theoretically guaranteed rights are miniscule compared with the potential costs of potential dismissal. Such a system cannot help but diminish the number of persons seeking to engage in activities protected by the NLRA. It will also discourage workers fired for participating in these activities from filing charges with the NLRB and following them through.

An employer who realizes that prohibitive costs may well prevent his employees from taking action is less reluctant to fire a few employees because the chance of reaching court is so small. An employer is also prompted to violate these rights if he feels the worker's challenge threatens his absolute authority.

For those who eventually regain their employment through the NLRB and the courts, whatever justice the system has provided--already eclipsed by the sheer length of the process--scarcely compensates for the economic, psychological and social damage the employee suffers.

Why, then, does someone like Laurence Malin--who could have done other things with his time--spend several years struggling with McLean? Malin, who is working on a book on world human rights based partially on his extensive travels, finds it "an unacceptable anomaly that while we condemn the authoritarian countries of the world for their repression of speech--Sakharov and the others--we allow a similar repression of speech in America's workplaces."

Malin speculates that it may "add a bit of freedom and cause some people to think more about how at least one workplace can be improved." He also hopes to expose the ineffectiveness of the NLRB bureaucracy in protecting workers' statutory rights.

But Malin wastes little time speculating on the long-range implications of his work. This week, he began another case--this time against the NLRB.