The case the TDA lost

Yesterday, I revealed to TDA members that Executive Director Mary Kay Linn was responsible for causing the TDA to be brought before the National Labor Relations Board.

Here are the facts in the case according to testimony found in the court document. TDA members, regardless what you think of me, you should read this. In the name of Hippocrates, is this the best we can do in representation of our patients’ interests in the state? Our leaders make us look like fools for hiring them.

http://www.nlrb.gov/shared_files/alj%20decisions/2008/jd-atl-12-08.pdf

“Although employees of the Association had various complaints, prior to 2006 those complaints had not resulted in any protected concerted activity. On February 28, Katherine Simms, Director of Ethics, a supervisor as defined in the Act, was discharged by Executive Director Linn. Simms’ discharge followed her breaking off a relationship with a coworker who was also a supervisor. Simms took issue with the discharge decision, hired an attorney, and spoke with Dr. Jay Baxley, who at that time was chairman of the Ethics and Judicial Committee of the Association and had regularly dealt with Director of Ethics Simms. Dr. Baxley raised his concerns that Simms had been unfairly treated with the members of the Ethics and Judicial Committee. The committee agreed. Dr. Baxley sought to raise the matter with the Board of Directors but was informed that “it was outside your committee’s scope of duty.” Dr Baxley concluded that the Board of Directors and Executive Director “were going to sweep this under the rug the best they could.” In an effort “to bring up the issue,” Dr Baxley, on March 21, sent an e-mail to various members of the Association as well as to staff employees of the Association to which he attached an arrest record pertaining to the coworker with whom Simms had broken off the relationship. The e-mail, as confirmed by the arrest record that was attached, stated that the coworker had been “caught on TDA [Texas Dental Association] premises using/possession [sic] of marijuana and other drug paraphernalia.” The e-mail also stated that the coworker had recently “allegedly inappropriately touched another TDA employee.” The e-mail concludes by asking whether the Association “want[ed] people like this represent us.”

On March 21, Dr. Herbert Wade, Chairman the Internal Affairs Committee of the Association, wrote Dr. Baxley directing that he cease any involvement in “these pending legal

issues.” Dr. Baxley ignored the directive.

Among the responses to his e-mail, Dr. Baxley received anonymous communications from staff members noting that this “was typical,” that when issues came up that Executive Director Linn did not like, she would “squelch” them either by making the life of the complaining employees “difficult or by terminating them.” The e-mails that Dr. Baxley received made him aware of various complaints of staff members including complaints relating to the facility, alleged financial improprieties, and unfair treatment.

Following the receipt of Dr. Baxley’s March 21 e-mail, staff employees began speaking with each other regarding various issues. There were two meetings at a local restaurant. The first was after work in late March. It was attended by about seven employees as well as two unidentified “directors,” i.e. supervisors. Various concerns were discussed in addition to the termination of Director of Ethics Simms. The concerns included the December 2005 termination of employee Victor Sanchez, a Hispanic maintenance employee. Employee Clark spoke about what he considered to be financial improprieties and problems relating to the building at which the employees worked including the pooling of water in the parking lot, suspected mold on a wall, and a nonfunctioning light in the south stairwell, problems that had been raised but which in March 2006 still existed. Clark recalled that one employee complained that she had been requested to take certain hours off of her time card, and another complained of alleged sexual harassment. Employee Patricia St. Germain stated her opinion that the employees needed to “stand as one.” Although she anticipated that this would involve meeting with Executive Director Linn, other employees were “frightened to go to her or didn't trust going to her.” The idea of a petition was discussed. The employees were uncertain whether they could petition the Board of Directors, and it was decided that a petition would be submitted to the House of Delegates.

Following that meeting, Clark went home and drafted a petition on his personal computer. Thereafter, the employees again met at the local restaurant. On this occasion, about five or six employees and one director, Barbara Lockerman, were present. Lockerman arrived after the meeting began and left before it ended. The employees were concerned about retaliation, and, in view of that concern, the employees used aliases when signifying their support of the petition. St. Germain and employee Teresa Kim gave up their anonymity at the hearing herein and identified their particular alias, thus confirming that the petition was supported by more than one employee. Clark testified that all 11 aliases that appear on the petition are employees of the Association, and I credit that testimony.

Prior to going to the meeting, Lockerman called Dr. David May, with whom she worked on a regular basis because he was, at that time, President of TDA Financial Services. Dr. May is currently President of the Association. Lockerman informed May that she had no idea what was being discussed and questioned “whether a meeting could take place,” noting that she wanted some guidance. She recalls that Dr. May told her, “Barbara, they’ll be fired.” Although Dr. May did not recall saying “all employees,” he did recall that he cautioned Lockerman about becoming involved, stating that, if she did so, “there’s a chance you could lose your job.” I credit Lockerman’s testimony that Dr. May spontaneously stated, “Barbara, they’ll be fired,” upon learning of the employee activity. Although Lockerman attended a portion of the meeting, she heeded the advice of Dr. May and did not sign the petition. About a week after the meeting, Director of Finance Laura Haufler, who is the direct supervisor of both Clark and St. Germain, spoke with Lockerman and asked her to talk Clark “out of these activities, because … he would be fired.” Lockerman explained that she could not do so, that “Nathan is his own person.”

Following the second meeting at the restaurant, Clark drafted a resolution that called for an independent investigation of the management of the staff of the Association. He sent the draft of the resolution anonymously to Dr. Baxley, and stated that he would be sending a petition in support of the resolution which Clark understood Dr. Baxley would present at the Annual Session. Shortly after receiving that letter, Dr. Baxley received the petition bearing the 11 aliases.

The petition, titled A Petition from Concerned Staff of the Texas Dental Association, in pertinent part, states:

“In order to better serve the membership of an organization for which we have gained great respect and affection … [we] are humbly requesting your assistance. In recent years, we have watched and been saddened as poor management, a dwindling morale, and a declining work ethic … has pervaded your central office in Austin. Many of us have tried on numerous attempts to correct these problems by bringing them to the attention of current management through use of the ‘proper channels.’ Unfortunately, our concerns have gone unanswered and we are now compelled to ask for your help. … We seek not to point a finger at any individual member of the staff, but to voice our concern to an impartial outside source, free from any retaliation or repercussion. You will be surprised when you begin to hear specific examples of poor management, negligence, and unfair treatment that have occurred. … We sign anonymously for fear of retaliation and not because we do not truly believe in this cause. … Please help us make your Texas Dental Association what it needs to be—a better, fairer, and more ethical place to work,--so that it can work better for you.”

Dr. Baxley was a delegate at the Annual Session. Near the end of the first day, when the floor was opened for new business, he asked to read the employee petition. The speaker requested to see the petition, and Dr. Baxley complied. Dr. Baxley was told that he could not read the petition. He was allowed to read his resolution calling for an independent investigation, but, as soon as he finished reading it, he was informed that it was “totally outside the scope of this meeting.” He called the question, and the resolution was defeated.

Clark sent the petition, anonymously, to the Board of Directors. Within a few days, Dr. Baxley learned from staff members that what was described as a “witch hunt” had begun in an effort “to find out exactly who these people were, how they were in communication with me.”

The witch hunt to which Dr. Baxley referred began on Wednesday, May 17, when Executive Director Linn held a staff meeting in which she directed anyone who had participated in any way in “these anonymous communications” to contact her as a condition of their employment. Linn had learned that the petition, which Dr. Baxley had not been allowed to read, had been sent anonymously to the Board of Directors. As the employees were leaving the meeting, employee St. Germain noted that several employees “were making zipper motions across their mouth.” On the same date, Linn sent an e-mail to the staff stating:

“Just to reiterate what I said at today’s staff meeting regarding the anonymous communications--

By now I am sure that each of you knows what took place on the House Floor on Thursday with Dr. Baxley and the reaction of the House of Delegates regarding the anonymous communication. We have now had another anonymous communication that was sent to the Board of Directors.

In order to allow one more opportunity to discuss any concerns within appropriate channels, I expect that anyone who has participated in anyway [sic] in these anonymous communications to call or e-mail me by the end of this week to schedule an appointment with me on an individual basis. I will be traveling over the next few days so call me … or e-mail … me ….

This is a requirement of your employment & this is a matter we intend to resolve.”

[Emphasis in the original.]

On May 18, employee St. Germain, identifying herself as “[a] concerned TDA staff member,” wrote the then current president of the Association, Dr. Harrison, and the president elect, Dr. May, expressing dismay that the Executive Director had directed that all who had “participated in the petition” make an appointment with her as a “condition of our employment.” The letter points out that the termination of Simms “was only one among many issues.” In that regard, St. Germain noted that the “best receptionist” that the Association ever had resigned after “being given way too many duties.” The receptionist had protested and employees “felt that a case was being built against her that was not based in truth.” Although the request in the petition for an independent investigation had not been granted, St. Germain’s letter states that the staff looked forward to “a day when we need not be in fear for our jobs” and requests appointment of a personnel committee that “can respond to directors and staff impartially.”

Executive Director Linn, after consulting with the Board of Directors, hired Andrew Rosen, a forensic scientist who specializes in computer storage devices and file systems. On May 19, legal counsel to the Board of Directors forwarded the petition to Rosen. Linn identified five “suspects” whose computer hard drives were examined. The five were employees Clark and St. Germain and three directors, including Lockerman. The examination revealed a “fragment of the text” of the petition on Clark’s computer. Clark, at the hearing herein, acknowledged that, although he drafted the petition on his personal computer at home, he may have opened it at the office.

On June 27, Director of TDA Financial Services Lockerman heard rumors that Director of Public Affairs Jenny Young was saying that she, Lockerman, was the “ringleader” regarding what had happened at the Annual Session in San Antonio. Lockerman confronted her and denied any involvement. Young denied to Lockerman that she had made any statements relating to Lockerman’s alleged involvement. On June 28, Young sent a memorandum to Executive Director Linn reporting the conversation and stating that Lockerman had said that she had tried to advise the employees to “take a different route.” Young did not testify.

In July, Director of Annual Session and Meeting Services Sandy Blum reported to Linn that Lockerman, referring to Young’s description of her as the “ringleader,” had denied any involvement but acknowledged trying “to discourage some of the other staff not to continue this activity.” Although directed to reduce her statement to writing, Blum did not do so until August 15. Blum did not testify.

Linn mentioned Lockerman’s conversations with Young and Blum to Lockerman at the time of her termination. Lockerman protested that she did not think it was fair, that they were not present, thus she was in no position to defend herself regarding what they had reported that she had said. Linn cut Lockerman off stating, “This is no time for discussion.” As already noted, Director of Finance Haufler had asked Lockerman to talk Clark “out of these activities, because… he would be fired,” but Lockerman pointed out that Clark “was his own person.” There is no probative evidence that Lockerman had any involvement in the activities of the employees following her attendance at the second meeting at the restaurant. Linn admitted on cross examination that she believed that Haufler “knows more than I think she knows.” Nevertheless, Linn took no action against Haufler, who did not testify, for withholding information. Although Haufler is a director, i.e. supervisor, Linn’s inaction with regard to Haufler confirms the perception of employees stated in the petition relating to unfairness.

Linn received the report of forensic scientist Rosen in early August. Only Clark was implicated as a result of the search of the computer hard drives. On August 17, Linn discharged Clark and Lockerman. On the same day she informed St. Germain that Clark had been discharged and spoke with her regarding a conversation that St. Germain and Clark had with auditor Patti Schmidt in late April or May following a settlement that the Association made with Simms on April 19.

On August 17, Executive Director Linn called Clark to her office. Director Haufler, his supervisor, was present. Linn read from a prepared document and informed Clark that he was being discharged for “participating in this anonymous e-mail scheme and ignoring my request” of May 17 to meet with her on an individual basis. She stated that Clark has also inappropriately used “the Association’s computer and e-mail system” in violation of the Electronic Communications Policy and had acted “outside the scope of his responsibilities” by making “inappropriate enquiries into Katherine Simms’ settlement in a discussion with the auditor.”

The discussion with auditor Schmidt occurred in a telephone conversation following the settlement that the Association made with Simms. Clark and St. Germain had questioned Schmidt as to whether it was proper to code the legal settlement with Simms as salary, which they had been told to do. Linn admitted that it was not improper for them to call the auditor regarding how to code something. She acknowledged that, since Clark paid the bills, he would have known the amount of the settlement but would “guess” that they were seeking “more information regarding the settlement.” She cited no basis for her “guess.” Schmidt did not testify. Although Linn claimed that their conversation regarding the coding was “very inappropriate,” she spoke with neither of them at the time. She did not inform St. Germain that

the conversation was inappropriate until after she had cited it when discharging Clark.

The Association has two policies relating to employee use of equipment of the Association. The Information Technology provision at page 18 of the Association’s Personnel Policy Manual permits employees to use software and business equipment for reasonable personal purposes so long as they reimburse the Association for such use including specifically long distance calls and copies of documents. It cautions that such use is “at their own risk,” including specifically “loss of privacy.” In addition, the Association promulgated an Electronic Communications Policy that states that electronic communications are provided “as communications tools for conducting Association business. No other use of Association electronic communications is authorized. In addition, the electronic communications tools provided by the TDA may not be used to solicit or proselytize for commercial ventures, religious or political causes, outside organizations, or other non-job-related solicitations.”

Executive Director Linn, in her testimony, did not harmonize the inherent contradictions between the Information Technology and Electronic Communications Policy. Documentary evidence, including multiple personal e-mails from and to various employees and supervisors at the Austin office, the forwarding of jokes, and solicitation for the sale of Girl Scout cookies, establishes that the official use only requirement of the Electronic Communications Policy was not adhered to. Executive Director Linn acknowledged that prior to the discharge of Clark no employee had been disciplined for violation of that policy. Following my receipt of several documents demonstrating the absence of adherence to the new policy, Counsel for the Respondent stated that there was no question that “we [the Association] allow personal e-mails from the employees,” the practice permitted by the Information Technology provision of the Personnel Policy Manual. Counsel further stated that the Association did not allow “employees

to take the membership list and e-mail addresses of the members of the Association and use it for their personal business,” but Executive Director Linn admitted that the Association publishes a membership directory that can be purchased by members of the general public. Regarding email addresses, Linn testified that if an employee had sent out an e-mail to the delegates selling Girl Scout cookies that “[t]hey would not have been fired,” that she would have “sat down and talked to them and put something in their personnel file.”

On September 14, when responding to the claim of Clark for unemployment benefits, Linn stated that he was discharged for insubordination, violation of the Electronic Communications Policy, and acting outside the scope of his responsibilities.

When testifying pursuant to Section 611(c) of the Federal Rules of Evidence, Linn confirmed to Counsel for the General Counsel that the foregoing three reasons were the basis for Clark’s discharge. When called by the Respondent, Linn agreed with Counsel for the

Respondent that part of the reason for Clark’s discharge was bringing “confidential personnel issues to the attention of people outside the board of directors.” The confidential personnel issues were not delineated. The petition reveals no confidential personnel issues. No individual, specifically Simms, is named. Insofar as the petition was not read, its concerns were not brought to the attention of people outside the Board of Directors. Clark sent the petition to the Board of Directors, not the delegates.

In the prepared statement that Linn read to Clark when discharging him, she informed him that “one of the documents” had been found on the hard drive of his computer. Clark was not questioned nor given an opportunity to explain how this might have occurred. Although Linn denied that she would have “fired someone” who came forward pursuant to her directive and asserted that she would have “listened to them and counseled them on how to appropriately go through the complaint process,” the foregoing denial and assertion were not given specifically with regard to Clark. Insofar as there be any contention that the foregoing testimony related to Clark, I do not credit it.

On August 17, Director Lockerman was also discharged. Linn, citing her conversations with Young and Blum, stated that it was evident that Lockerman “had information of events leading up to the Annual Session petition and the anonymous e-mails and failed to discuss your knowledge with me. This is insubordination on two levels—as a manager and an employee.” Linn also cited Lockerman for “undermining my authority,” a reference to an event in 2005 regarding a paid time off policy. Lockerman had been counseled regarding that matter shortly after it had occurred. Linn also referred to “hosting employee grievances in your office.” This alleged dereliction that purportedly contributed to her discharge was the fact that Lockerman “always was willing to listen to people and their concerns.” Linn admitted that she discharged Lockerman “mainly for not coming to me … as I requested” on May 17 regarding her knowledge relating to the petition submitted by the employees.”

Be proud of freedom of speech. It’s the only thing between us and tyranny.

D. Kellus Pruitt DDS