Southside Medical Center, Inc.

National Labor Relations Board - Board Decisions

Dec 23, 2010

356 N.L.R.B. 295 (N.L.R.B. 2010)

SOUTHSIDE MEDICAL CENTER, INC. 295
Southside Medical Center, Inc. and American Federa-
tion of State, County and Municipal Employees,
Local 1644. Case 10–CA–37919
December 23, 2010
DECISION AND ORDER
BY MEMBERS BECKER, PEARCE, AND HAYES
On April 22, 2010, Administrative Law Judge Keltner
W. Locke issued the attached decision. The Respondent
filed exceptions and a supporting brief, the Acting Gen-
eral Counsel filed an answering brief, and the Respond-
ent filed a reply brief.
The National Labor Relations Board has delegated 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,1 to
modify his remedy,2 and to adopt the recommended Or-
der as modified and set forth in full below.3
1 In addition to contending on exceptions that Amelia Kemp was a
supervisor while employed as “Clinical Manager (Floater),” the Re-
spondent excepted to the judge’s further conclusion that Kemp was not
a managerial employee. As the Respondent did not proffer any argu-
ment or articulate any grounds for reversing the judge’s conclusion,
however, we find that it has effectively waived this exception. See
Board’s Rules and Regulations Sec. 102.46(b)(1)–(2); Gaetano &
Associates, 344 NLRB 531, 531 fn. 6 (2005), enfd. mem. 183 Fed.
Appx. 17 (2d Cir. 2006). In any event, we agree with the judge that the
Respondent has presented no evidence that Kemp ever “formulate[d]
and effectuate[d] management policies by expressing and making oper-
ative the decisions of [her] employer.” See NLRB v. Bell Aerospace
Co., 416 U.S. 267, 288 (1974).
In the absence of exceptions, we adopt, pro forma, the judge’s find-
ing that, because he concluded that Kemp’s protected attendance at a
union meeting was the sole reason for her discharge, the mixed-motive
analysis in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), “would be neither
helpful nor appropriate” in determining the legality of the discharge. In
any event, even if Kemp’s alleged “lack of candor” when subsequently
questioned about the meeting were considered as a separate motiva-
tional factor under Wright Line, it would not be legitimate grounds for
her discharge in the circumstances of this case.
2 Backpay shall be computed in accordance with F. W. Woolworth,
90 NLRB 289 (1950), with interest at the rate prescribed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987), compounded daily as
prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010).
3 We shall modify the judge’s recommended Order and substitute a
new notice in accordance with our decisions in Indian Hills Care Cen-
ter, 321 NLRB 144 (1996), and Ferguson Electric Co., 335 NLRB 142
(2001), and to conform to the Board’s standard remedial language. In
addition, we shall modify the judge’s recommended Order to provide
for the posting of the notice in accord with J. Picini Flooring, 356
NLRB 11 (2010). For the reasons stated in his dissenting opinion in J.
Picini Flooring, Member Hayes would not require electronic distribu-
tion of the notice.

ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below, and orders that the
Respondent, Southside Medical Center, Inc., Atlanta,
Georgia, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Coercively interrogating any employee about union
support or protected activities, including attendance at
union meetings and discussions concerning salaries or
other compensation.
(b) Discharging or otherwise discriminating against
any employee for supporting the American Federation of
State, County and Municipal Employees, Local 1644, or
any other labor organization by, inter alia, attending un-
ion meetings.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Amelia Kemp full reinstatement to her former job or, if
that job no longer exists, to a substantially equivalent
position, without prejudice to her seniority or any other
rights or privileges previously enjoyed.
(b) Make Amelia Kemp whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against her. Backpay shall be computed in accord-
ance with F. W. Woolworth Co., 90 NLRB 289 (1950),
plus daily compound interest as prescribed in Kentucky
River Medical Center, 356 NLRB 6 (2010).
(c) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(d) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge of
Amelia Kemp and, within 3 days thereafter, notify her in
writing that this has been done and that the discharge will
not be used against her in any way.
(e) Within 14 days after service by the Region, post at
its Atlanta, Georgia facilities copies of the attached no-
356 NLRB No. 58

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 296
tice marked “Appendix.”4 Copies of the notice, on forms
provided by the Regional Director for Region 10, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. In addition to physical posting of paper notices,
notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily
communicates with its employees by such means. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material. In the event that, during the penden-
cy of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceed-
ings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees
and former employees employed by the Respondent at
any time since May 4, 2009.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Regional
Director attesting to the steps that the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT coercively question you about your union
support or protected activities, including your attendance
at union meetings and discussions concerning salaries or
other compensation.
4 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
WE WILL NOT discharge or otherwise discriminate
against any of you for supporting the American Federa-
tion of State, County and Municipal Employees, Local
1644, or any other labor organization by attending union
meetings or otherwise engaging in activity protected by
the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Amelia Kemp full reinstatement to her for-
mer job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to her seniority or
any other rights or privileges previously enjoyed.
WE WILL make Amelia Kemp whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against her, less any net interim earnings,
plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharge of Amelia Kemp, and WE WILL, within 3
days thereafter, notify her in writing that this has been
done and that the discharge will not be used against her
in any way.
SOUTHSIDE MEDICAL CENTER, INC.

Lisa Y. Henderson, Esq. and Carla L. Wiley, Esq., for the Gen-
eral Counsel.
Donald R. Lee, Esq., for the Respondent.
James D. Fagan Jr., Esq. (Stanford Fagan LLC), for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
KELTNER W. LOCKE, Administrative Law Judge. This case
turns on whether a person discharged for attending a union
meeting was a supervisor, and therefore unprotected by the
National Labor Relations Act (the Act). Because Respondent
has not carried its burden of establishing that person’s supervi-
sory status, I conclude that it violated Section 8(a)(3) and (1) of
the Act.
Procedural History
This case began on June 8, 2009, when the American Fed-
eration of State, County, and Municipal Employees, Local 1644
(the Union or the Charging Party) filed an unfair labor practice
charge against Southside Medical Center, Inc. (Respondent).
After an investigation, the Regional Director for Region 10 of
the Board issued a complaint and notice of hearing (the com-
plaint) on August 3, 2009. In doing so, the Regional Director
acted for the Board’s General Counsel (the General Counsel or
the Government). Respondent filed a timely answer to the
complaint.
On September 24 and 29, 2009, I conducted a hearing in At-
lanta, Georgia. At the beginning of the hearing, the General

SOUTHSIDE MEDICAL CENTER, INC. 297
Counsel amended the complaint by adding a new paragraph
alleging certain 8(a)(1) violations. Respondent denied these
allegations.
The parties filed posthearing briefs, which I have read and
considered.
Admitted Allegations
Based on admissions in the Respondent’s answer, I find that
the General Counsel has proven the allegations set forth in
complaint paragraphs 1, 2, 3, 4, 5, 6, 7, and 8.
Specifically, I find that the Union filed and served the unfair
labor practice charge as alleged, and that it is a labor organiza-
tion within the meaning of Section 2(5) of the Act. Moreover,
based upon undisputed evidence in the record, I find that since
March 1986, the Union has been the certified bargaining repre-
sentative of a unit of Respondent’s employees, that Respondent
has recognized the Union as exclusive representative, and that
such recognition has been embodied in collective-bargaining
agreements, including an agreement in effect between July 7,
2006, and July 7, 2009.
Additionally, based upon the Respondent’s answer, I find
that Respondent meets both the statutory and the Board’s dis-
cretionary standards for assertion of jurisdiction and that it is an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
Further, I find that the following individuals are Respond-
ent’s supervisors and agents within the meaning of Section
2(11) and (13) of the Act: Interim Director of Nursing Jewel-
lene McCrary; Chief Medical Officer Barbara McMillan-
Persaud; Director of Human Resources Ann Williams; and
Chief Executive Officer David Williams.
Moreover, Respondent has admitted and I find that on about
May 8, 2009, it discharged its employee Amelia Kemp. How-
ever, it has denied that Kemp’s discharge violated the Act.
Contested Issues
The General Counsel asserts that Kemp was not a supervisor
within the meaning of the Act and that, accordingly, her attend-
ing a union meeting constituted activity protected by the Act.
Therefore, the General Counsel asserts, Respondent’s discharge
of Kemp for attending the union meeting violated Section
8(a)(3) and (1) of the Act.
Respondent argues that Kemp was, in fact, a statutory super-
visor and, therefore, her presence at a union meeting fell out-
side the Act’s protection.
The General Counsel’s amendment to the complaint at hear-
ing adds the allegations that on about May 4, 2009, Respond-
ent, by Human Resources Director Ann Williams, interrogated
employees about attendance at union meetings and about dis-
cussing their salaries. The Government asserts that Respondent
thereby violated Section 8(a)(1) of the Act.
Facts
Respondent employed Amelia Kemp as a certified medical
assistant (CMA), a position within the bargaining unit repre-
sented by the Union. Respondent also employed two individu-
als with the job title “clinical manager.” These positions were
outside the bargaining unit.
At some point during 2008, Respondent created a new posi-
tion titled “clinical manager (floater).” Human Resources Di-
rector Ann Williams then invited Kemp to apply for it. Initial-
ly, in the fall of 2008, Kemp declined to apply.
In January 2009, Williams again invited Kemp to apply for
the new and as yet unfilled position. Although it appears that
Kemp remained reluctant to apply for the position, ultimately
she did. By letter dated March 23, 2009, Williams informed
Kemp that she had been selected, effective the next day. The
letter informed Kemp that her annual salary would be $30,000,
but it did not describe the job duties associated with this posi-
tion.
The “Clinical Manager (Floater)” Position
This case turns on whether Kemp met the statutory definition
of “supervisor” in her position as “clinical manager (floater).”
Because that question involves a legal conclusion, it will be
addressed under the “Legal Analysis” section, below. Howev-
er, the conclusion depends, in part, on whether Kemp possessed
any of the supervisory powers listed in Section 2(11) of the
Act. Whether or not she possessed any of these powers is a
question of fact which will be discussed here.
To satisfy one part of the statutory test for supervisor, the in-
dividual must possess the power to do at least one of the fol-
lowing: Hire, transfer, suspend, lay off, recall, promote, dis-
charge, assign, reward, or discipline other employees, or re-
sponsibly to direct them, or to adjust their grievances, or effec-
tively to recommend such action. 29 U.S.C. § 152(11). The
analysis begins by examining whether the individual possessed
one or more of these powers. If she did not, the analysis stops
by concluding that the person did not meet the statutory defini-
tion of supervisor. If she did have the authority to take one of
the specified actions, then the analysis must proceed to further
steps. However, the first question to be answered is whether
the putative supervisor possessed one of the listed powers.
On March 24, 2009, Kemp signed an acknowledgement that
she had read and understood the job description for “clinical
manager.” (The record does not include a separate job descrip-
tion for “clinical manager (floater)” and I infer that such a sepa-
rate job description does not exist.) The job description for
“clinical manager” states in part, as follows:

GENERAL DESCRIPTION OF POSITION

Report[s] Directly to the Chief Medical Officer. Su-
pervises and coordinates administrative management func-
tions of Southside’s satellite locations.

DETAILED DESCRIPTION OF POSITION

1. Coordinates the implementation and organizational
policies and procedures designed to improve operational
efficiency.
2. Has a thorough knowledge of patient health care de-
livery systems.
3. Ensures compliance with clinical patient care stand-
ards, regulatory requirements[,] established policies and
procedures.
4. Responsible for the supervision of all administrative
functions and clinical services in conjunction with provid-
er.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 298
5. Monitors and oversees the operation of the satellites.
6. Attends scheduled administrative staff meetings.
7. Provides monthly administrative reports to the Chief
Medical Officer.
8. Facilitates resolution of customer service issues.
9. Serves as administrative liaison to medical and nurs-
ing staff.
10. Performs other job related duties as assigned.

KNOWLEDGE, SKILLS AND ABILITIES

1. Ability to plan, organize and prioritize.
2. Ability to communicate effectively with patients and
staff.
3. Supervisory skills.
4. Has the ability to use independent sound judgment
in daily decision-making.

MINIMUM QUALIFICATIONS

Degree preferred with a good understanding of medi-
cal terminology. Some leadership experience preferred.
Must have reliable transportation. Must be computer lit-
erate. Bilingual a plus.

TYPICAL PHYSICAL DEMANDS

Requires sitting for long periods of time. Requires
eye-hand coordination and manual dexterity sufficient to
operate a keyboard, photocopier, telephone, calculator and
other office equipment. Requires normal range of hearing
and eye sight to record, prepare and communicate appro-
priate reports.

TYPICAL WORKING CONDITIONS

Normal office environment. Occasional evening or
weekend work.

The actual duties assigned to Kemp when she assumed the
position of “clinical manager (floater)” bore little resemblance
to the duties listed in the “clinical manager” job description
quoted above. Kemp’s actual duties involved checking medical
logs at different facilities operated by Respondent.
The testimony of two management officials establishes that
the perceived need to keep the medical logs current was a moti-
vating factor in the decision to create the “clinical manager
(floater)” position. Thus, Respondent’s chief medical officer,
Barbara McMillan-Persaud testified, in part, as follows:

Q. Dr. Persaud I’m going to hand you it’s already been
marked and entered into evidence as General Counsel Ex-
hibit 5. This is a letter to Ms. Kemp notifying her of her
promotion. It’s got clinical manager (floater). Could you
explain that term clinical manager (floater)?
A. The clinical manager (floater) is that we would
need Ms. Kemp, the idea was to have Ms. Kemp go to the
satellite location, in addition to working at the main center,
go the satellite locations to update the logs, to keep the log
books in order after she got them taken care of. So on oc-
casion she would have to go out there to do that.
Q. I understand. When you say got them taken care,
what does that mean exactly?
A. Basically, what we wanted her to do, they weren’t
in order. Log books should be maintained on a regular ba-
sis and the people that were responsible for maintaining
those log books hadn’t been doing what they were sup-
posed to be doing, so we knew Ms. Kemp had very good
skills in order to get that taken care of, cause she was do-
ing that at Thomasville so that’s what we wanted her to
do. Does that answer the question?
Q. Yes. So these log books were not maintained at the
time Ms. Kemp was promoted?
A. Right.

Correcting and updating the medical log books consumed most
of Kemp’s worktime in her position of “clinical manager (float-
er).” Interim Director of Nursing Jewellene McCrary testified
as follows:

Q. During Ms. Kemp’s tenure as clinical manager,
what did she spend the majority of her time doing?
A. Assessing, correcting the logs.

McCrary explained that Respondent uses logs to record vari-
ous types of medical test results, but that the entries in the vari-
ous logbooks were not up to date. McCrary particularly was
concerned that the abnormal lab results logbook and the pap
smear logbook were not current. Therefore, she assigned Kemp
to visit each of Respondent’s facilities, inspect the logbooks,
and bring them up to date.
In performing these functions, Kemp also sometimes in-
structed employees on the correct way to keep the logbooks.
Essentially, Kemp provided employees with the same infor-
mation printed on instruction sheets for the logbooks.
Kemp’s duties also included examining an emergency medi-
cal supply kit called the “Banyon Kit,” to make sure that it
contained the specified medicines and other items which would
be needed quickly when an emergency occurred.
The testimony of the chief medical officer and the interim di-
rector of nursing leaves no doubt that during her service as
“clinical manager (floater),” Kemp performed few if any duties
other than conducting these inspections and inventories. Her
work differed markedly from that of the two “clinical manag-
ers,” Eldry Cannada and Lissette Pizarro.
This difference is significant because Respondent offered, as
proof of Kemp’s supervisory status, evidence concerning the
duties and authority of Cannada and Pizarro. The relevance of
such information depends on how closely Kemp’s job resem-
bled those of Cannada and Pizarro. If Respondent had expected
Kemp to carry out the same functions, Respondent logically
would have given Kemp the same authority. However, a simi-
larity in authority cannot be inferred if Kemp’s responsibilities
differed from those of Cannada and Pizarro and if she per-
formed a different function within the organization.
Respondent presented evidence that Cannada and Pizarro ex-
ercised some of the supervisory powers listed in Section 2(11)
of the Act, including assigning employees to work at particular
locations, approving leave requests, and awarding “star points”
to employees under an incentive program. The two clinical
managers also provided administrative reports to the chief med-
ical officer. However, the testimony of Respondent’s chief
medical officer, Dr. McMillan-Persaud, leaves no doubt that,
SOUTHSIDE MEDICAL CENTER, INC. 299
notwithstanding the similarity in job titles, Kemp did not per-
form the same tasks or have the same responsibilities as Can-
nada and Pizarro:

Q. During the period between her promotion in March
and her discharge in May did Ms. Kemp communicate
with you in any way concerning patient flow?
A. No.
Q. Did Ms. Kemp take any actions to grow the clinic?
A. No.
Q. Did Ms. Kemp take any action to supervise any
staff?
A. The only thing I think she had to do with the staff
was when she found some sort of inconsistency or some-
thing that was not done with the log books she would dis-
cuss it with that particular staff member.
Q. Did she discipline anyone?
A. Not that I know of.
Q. Did she reward anyone?
A. Not that I know of.
Q. During the period after Ms. Kemp’s promotion did
she provide you with any monthly administrative reports?
A. No.
Q. Did she provide you with any reports at all?
A. Not me directly, no.
Q. Are you aware of the facilitation of any resolution
of any customer service issues that Ms. Kemp handled?
A. No.
Q. Are you aware of any occasions that Ms. Kemp
served as an administrative liaison to the medical and
nursing staff?
A. No.
Q. Are you aware of employees that Ms. Kemp trans-
ferred from one satellite to another?
A. No.
Q. Are you aware of any star points that Ms. Kemp
awarded to anyone?
A. No.
Q. Are you aware of any leave that Ms. Kemp granted
upon request by an employee?
A. No.
Q. Now you testified that these are things that she, Ms.
Kemp, would have been doing?
A. Yes.
Q. But the fact is that Ms. Kemp didn’t do any of
them, is that correct?
A. Right.
Q. You testified that you saw Ms. Pizarro and Ms.
Cannada three or four times a month, is that correct?
A. Yes.
Q. And you talked to them perhaps two to three times
a week, is that correct?
A. Yes.
Q. But you didn’t see Ms. Kemp three to four times a
month, did you Dr. Persaud?
A. No.
Q. Nor did you speak with her over the phone two to
three times a week, did you?
A. No.

In the testimony quoted above, Dr. McMillan-Persaud some-
times answered, “Not that I know of.” It may be observed that
as chief medical officer, and as Kemp’s immediate supervisor,
Dr. McMillan-Persaud likely possessed more information about
Kemp’s job duties than any other manager. If Kemp had disci-
plined or rewarded an employee on any occasion, Dr. McMil-
lan-Persaud very likely knew about it.
Moreover, testimony given by Interim Director of Nursing
Jewellene McCrary paints a consistent picture. McCrary testi-
fied, in part, as follows:

Q. Okay. Now you also testified, I believe, that Ms.
Kemp spent the majority of her time after her promotion
assessing and correcting the log books, is that correct?
A. Yes.
Q. What did she do with the minority of her time, what
did she do with the rest of the time?
A. Well, the plan was to get it all done and leave it ini-
tially and once everything was correct and complete then it
would just be a little time where she would go back and
just spot check.
Q. But the time that she actually was doing this.
A. That was all she was doing.
Q. That was all she was doing, correct?
A. Yes.

Based on the testimony of Interim Director of Nursing
McCrary and Chief Medical Officer McMillan-Persaud, which
I credit, I conclude that the recently-created position of “clini-
cal manager (floater)” differed markedly from the “clinical
manager” positions created earlier. During Kemp’s service as
the “clinical manager (floater),” her duties consisted only of
checking and correcting the medical logbooks and making sure
that the “Banyon kit” contained a current and complete invento-
ry of medical supplies. Therefore, the testimony of the two
“clinical managers” concerning their own duties sheds no light
on Kemp’s authority in the “clinical manager (floater)” posi-
tion.
No employees reported to Kemp. She did not assign or di-
rect any employee’s work. She did not hire, discharge, or dis-
cipline any employee and never recommended that manage-
ment take such action. Rather, her work involved duties—
inspecting logbooks and correcting them, conducting an inven-
tory of emergency supplies— that were essentially clerical in
nature.
Respondent may contend that it expected Kemp to perform
other duties once she had finished her initial assignment of
bringing the logbooks up to date. That argument might be
more persuasive if the first 6 weeks on the job amounted to a
training period, at the end of which Kemp would be given more
responsibilities. However, credible evidence does not support
the conclusion that Kemp was a “trainee.”
Nothing in either the job announcement or the job descrip-
tion for clinical manager suggests that the position was that of
management trainee. Nothing in the record suggests that man-
agement told Kemp she would be a trainee and no management
representative testified that Kemp was a trainee.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 300
Indeed, Respondent stated in its posthearing brief that “any
training analogy is not apt because she was not promoted to a
‘Clinical Manager Trainee’ position.” The brief further noted
that Kemp’s pay was the same as that of another clinical man-
ager, which would be unlikely if Kemp merely were a trainee.
In theory, the narrow nature of Kemp’s job duties might be
explainable this way: For reasons including compliance with
government regulations, it had become imperative for Re-
spondent to correct logbook deficiencies just as quickly as pos-
sible. Therefore, when Kemp assumed the position of “clinical
manager (floater),” Respondent directed her to give highest
priority to this task, even at the expense of other duties.
Under this theory, Kemp possessed supervisory authority
from the beginning of her service as “clinical manager (float-
er),” but had neither the time nor the opportunity to exercise it.
Nonetheless, it was there, in her pocket so to speak, and ready
if she needed it.
This theory presents a serious argument which must be con-
sidered carefully. However, my evaluation of the facts leads
me to reject it.
The argument would be more persuasive if the record
showed a gradual expansion of Kemp’s responsibilities. Such
an expansion would indicate that Respondent indeed had ex-
pected Kemp to exercise supervisory authority once the press-
ing logbook work had been completed. However, credible
evidence does not prove that Kemp’s duties and responsibilities
increased over time. To the contrary, Kemp appears to have
been doing the same work the entire time she served as “clini-
cal manager (floater).”
To be sure, Kemp only held this position for about 1-1/2
months from March 24, to May 8, 2009. However, the record
does not suggest any significant expansion of Kemp’s duties
during this period.
It seems reasonable that if Respondent really did have plans
to expand Kemp’s job duties, management would have told
Kemp. However, the credited evidence indicates to the contra-
ry.
Kemp testified that she was working as a medical assistant at
one of Respondent’s facilities when she received a call from the
secretary to the human resources director, asking her to come to
the main facility. There, Kemp met with Interim Director of
Nursing Jewellene McCrary and Human Resources Director
Ann Williams, who offered her the job of “clinical manager
(floater).” Kemp testified that when she inquired about her job
duties, Williams “stated that I would just be maintaining the log
books.” Kemp further testified as follows:

Q. You testified that Ms. Williams told you what your
duties would be as this Clinical Manager, did she, to the
best of your recollection, were you told that your duties as
Clinical Manager would change at any time?
A. No.
Q. Were you told that anything about a temporary as-
signment that you were doing?
A. No.
Q. Were you told anything about a special project that
you would be doing?
A. No.

Based on my observations of the witnesses, I credit this tes-
timony. Therefore, I find that Human Resources Director Wil-
liams did not tell Kemp that her duties would be changing, or
that they were a temporary assignment or special project. Cred-
ited evidence does not indicate that anyone in management
made such representations to Kemp.
Moreover, Kemp credibly testified that she did not consult
with either of the clinical managers about how to perform their
job. There would be no need for such a discussion unless
Kemp’s duties were to be expanded.
To summarize, Respondent assigned to Kemp only the cleri-
cal functions of keeping the medical logs up to date and making
sure that Banyon kits were stocked with the specified emergen-
cy medical supplies. Respondent did not tell Kemp that her
duties would increase later. In fact, Kemp’s duties did not ex-
pand over time. In these circumstances, it appears doubtful that
Respondent intended to enlarge Kemp’s duties later to make
them equal to those of Cannada and Pizarro.
Respondent bears the burden of proving, by a preponderance
of the evidence, that Kemp possessed at least one of the super-
visory powers listed in Section 2(11) of the Act. Under the
“preponderance of the evidence” standard, the proponent of a
claimed fact must prove that the “fact” is more likely than not
to be true. However, based on the present record, I cannot con-
clude that it is more likely true than not true that Respondent
ever assigned Kemp duties requiring the exercise of any super-
visory power. In the absence of such duties, it seems very un-
likely that Respondent would confer on Kemp any supervisory
authority. I conclude that Kemp did not possess such authority
at any time.
This conclusion does not depend on any “secondary indicia”
of supervisory status, but it is consistent with those indicia. For
example, although the two clinical managers wore street
clothes, Kemp continued to wear the same color scrubs she had
worn as a medical assistant.
To borrow Mark Twain’s memorable simile, I conclude that
the duties of the two clinical managers were no more like
Kemp’s duties than lightning resembles a lightning bug. Cer-
tainly, Kemp’s position had a similar-sounding name, but a
similarity of title does need not mean a similarity of responsi-
bility and authority.
No evidence indicates that Respondent ever assigned Kemp
to “pinch hit” for either of the clinical managers. Kemp simply
performed the same essentially clerical functions. For all the
reasons discussed above, I find that Kemp never possessed any
of the supervisory powers listed in Section 2(11) at any time.
Kemp’s Union Activity
In early May 2009, someone placed an unsigned, scurrilous
letter in McCrary’s mailbox. The text of letter, verbatim and
with errors uncorrected, is as follows:

Ms McCrory

you gave kemp a new job, you such a low down dirty coward
that you did tell any one. Your shit has hit the fan. No one
trust you, you lie , and stab everyone in the back. I bet kemp
didn’t tell you that she went to the union meeting and voted ,
did she that going to get your ass. Kemp just like you will sell
SOUTHSIDE MEDICAL CENTER, INC. 301
her soul to the devil. Everyone from the top floor to ground
floor know what a big liar you are. You sit in that stinking of-
fice of yours and don’t do anything but tell lies about what
you do. I just want to let you know your time is at hand. You
are about to get it. Your time is at hand. Playing sick when-
ever something has to be done. You don’t do anything but lie
that’s have caught up with you. Nursing meeting going to be
what ? what fool will you have up their doing your job. There
is only one person in nursing that half way beloved in you.
But I don, know after I tell her what you and Kelly said about
her. So read this and watch faces Friday.

Notwithstanding that the anonymous writer repeatedly called
McCrary a liar and made veiled threats (“Your time is at hand”
and “You are about to get it”), and notwithstanding that the
agitated and incoherent tone of the letter added to the apparent
seriousness of the threats, McCrary did not conduct an investi-
gation to identify the letter writer. On cross-examination,
McCrary acknowledged that such threats violated Respondent’s
rules. However, the record does not establish that Respondent
made an effort to trace the unsigned letter or take action against
its author.
The Alleged 8(a)(1) Violations
Respondent’s management did become concerned about one
phrase in the letter: “I bet kemp didn’t tell you that she went to
the union meeting and voted. . . .” Human Resources Director
Williams began an investigation. Williams credibly testified
that she spoke with Kemp on May 4, 2009, about her attend-
ance at this meeting:

[O]n May 4th, I met with Ms. Kemp in my office in reference
to her attendance at the bargaining unit meeting, she began to
tell me that one of her coworkers did not have a way to go to
the meeting and she had volunteered to take her and as she
started telling me everything that had happened. I asked her if
she would have any problems in writing it because I couldn’t
remember and she said that she didn’t have any problems in
doing that. She wrote down that she had attended the meeting
on April 20th, she indicated at first that she didn’t go into the
meeting.

Two days later, Williams again met with Kemp. According
to Williams, Kemp changed her story, now saying that the un-
ion meeting she attended was on March 20 rather than April 20.
On that earlier date, Kemp had been a medical assistant and a
member of the bargaining unit and clearly had the right to at-
tend a union meeting.
Based on Williams’ credited testimony, quoted above, I find
that Respondent, by its human resources director, did question
Kemp concerning her union activities. The lawfulness or un-
lawfulness of this conduct will be discussed in the “Legal
Analysis” section below.
As Williams’ testimony, quoted above, indicates, she re-
quested that Kemp write out a statement. Kemp did so, and
gave it to Williams. During Williams’ testimony, she respond-
ed as follows to questions about Kemp’s statement:

Q. Ms. Williams, further down it states that she, Ms.
Kemp did not discuss her salary with anyone, why did,
based on your conversations with her, why did she speak
to that issue, about salary?
A. Probably because I asked her if she had discussed
her salary with anyone and she responded no.
Q. Why did you care whether or not she discussed her
salary with anyone?
A. Well, I thought that as a manager, it was not profes-
sional or it should not, her salary should not be discussed
with anyone else, sometimes, for certain positions, we ne-
gotiate salaries, so the salaries may be different and then
sometimes individuals will try to compare salaries accord-
ing to what one manager is doing versus another manager
to say that okay, if she’s doing this job, then she’s making
‘x’ number of dollars because Ms. So and so is making ‘x’
number of dollars.

Based on this testimony, which I credit, I find that Human
Resources Director Williams did ask Kemp whether she had
discussed her salary with anyone. The lawfulness or unlawful-
ness of this inquiry will be discussed under the “Legal Analy-
sis” section below.
As discussed above, Williams was concerned that Kemp had
changed her story about when she attended the union meeting.
She decided to investigate to ascertain whether the meeting had
been in March or April.
On May 8, 2009, Williams called the union hall and spoke
with someone named Joyce, who told her that there had not
been a union meeting on March 20. Williams testified that she
called Joyce more than once because, during the first telephone
conversation, she only asked about a union meeting on March
20 but did not ask Joyce whether there had been a meeting a
month later, on April 20.
Williams’ testimony suggests that she had some difficulty
reaching the union hall the second time she called, and that she
suspected that Joyce was not answering the phone. Interim
Director of Nursing McCrary lent her cell phone to Williams so
that the number showing up on Joyce’s caller ID would not be
identified with Respondent. Williams testified that Joyce then
answered, and verified that there had been a union meeting on
April 20.
Discharge of Kemp

According to Human Resources Director Williams, she and
Respondent’s chief executive officer, David Williams, made
the decision to discharge Kemp. During her testimony, the
human resources director identified three reasons for the deci-
sion to terminate Kemp’s employment:

Q. Again, I’m sorry again to interrupt you, I hear the
narrative you’re giving me, but again what reason, what is
it that happened?
A. Well, she was untruthful about the dates and she did
attend a union meeting as a manager of a corporation,
which means at that time, she was representing the com-
pany because she was management.
Q. So, again, the two basis that I have heard are that
number one, she was not truthful in an investigation, in
your estimation?
A. Yes.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 302
Q. And number two, she was a manager and she at-
tended a union meeting?
A. Yes.
Q. Other than those two items, was there any other
conclusion that you drew from your investigation that
caused you to discharge Ms. Kemp?
A. She violated company policy.
Q. Okay and what is the company policy?
A. About the integrity of the corporation.
Q. Is that written somewhere?
A. Yes, it is.
Q. Do you know---?
A. It’s under Major Violations.
Q. Okay.
A. And Major Violations warrant termination.
Q. And the specific major violation of the company
policy was what?
A. The integrity of the corporation to put that at risk.
Q. What was putting the integrity of the corporation at
risk?
A. Her actions.
Q. And the actions being attending the union meeting?
A. Yes.
Q. And, so, was there any other reason, other than not
being truthful, attending a union meeting as a manager and
committing a major violation of company policy, was
there any other reason that Ms. Kemp was discharged?
A. No.

Respondent has admitted that Human Resources Director
Williams is its supervisor within the meaning of Section 2(11)
of the Act and its agent within the meaning of Section 2(13) of
the Act. Therefore, Williams’ testimony, quoted above, consti-
tutes an admission imputable to Respondent.
Moreover, both Human Resources Director Williams and In-
terim Director of Nursing McCrary signed a May 14, 2009
memo informing Kemp of her discharge. The memo, titled
“Termination/Major Violation of Company Policy,” stated as
follows:

On March 24, 2009, you were promoted to Clinical Manager.
At that time, you were advised that with this new manage-
ment position, you are no longer a member of the Union. On
Monday, April 20, 2009 you were in attendance at a Union
meeting. You admitted attending the Union meeting. This
conduct endangers the integrity and reputation of Southside
Medical Center, Inc. This is a major violation of company
policy.

Therefore, your services are hereby terminated with Southside
Medical Center, Inc., effective today, May 14, 2009.

Significantly, this memo states only one reason for Kemp’s
termination, her attendance at the union meeting. It does not
make any reference to Kemp’s truthfulness. This memorandum
is contemporaneous with the discharge, and I accord it more
weight than Williams’ later testimony. The 4-month period
between Kemp’s discharge and Williams’ testimony provided
ample time to search for additional reasons to justify the dis-
charge. I conclude that the asserted concern about Kemp’s
truthfulness is such a makeweight reason added after the fact.
Respondent’s further assertion that Kemp broke company poli-
cy does not constitute a separate reason because the company
policy concerned attendance at union meetings.
For the purpose of analysis, I will assume that at some point,
management held a sincere and good-faith belief that Kemp had
lied about the date of the union meeting she attended, rather
than simply becoming confused about it. Even making that
assumption, I cannot conclude that management’s belief about
Kemp’s truthfulness affected the decision to discharge her. It
seems quite unlikely that management would say nothing in the
discharge memo about an employee’s lack of candor if man-
agement had, in fact, considered that matter during the deci-
sion-making process. Therefore, I conclude that Kemp’s truth-
fulness, or, more exactly, the perceived lack of truthfulness,
was not a substantial or motivating factor in the decision to
discharge her.
Respondent discharged Kemp for engaging in union activity.
Whether or not that discharge was lawful depends on whether
Kemp, in her new position, was outside the Act’s protection.
Although the Act protects employees, in most instances it does
not protect persons who meet the statutory definition of “super-
visor” or who are “managerial employees” as defined in the
case law.
Legal Analysis
The Act defines the term “employee” and protects the rights
of those who meet that definition to engage in certain activities,
including forming, joining, or assisting a labor organization.
The definition of employee excludes “any individual employed
as a supervisor” and in most instances, those who meet the
definition of “supervisor” do not enjoy the Act’s protection.
The present case turns on whether the person Respondent
discharged, Amelia Kemp, falls within the Act’s definition of
“employee,” 29 U.S.C. § 152(3), or “supervisor,” 29 U.S.C. §
152(11). Therefore, that question will be the first addressed in
this legal analysis.
Supervisory Status
The burden of proving supervisory status rests with the party
asserting such status. Barstow Community Hospital, 352
NLRB 1052 (2008); Oakwood Healthcare, Inc., 348 NLRB 686
(2006); Benchmark Mechanical Contractors, Inc., 327 NLRB
829 (1999); Alois Box Co., 326 NLRB 1177 (1998); Youville
Health Care Center, Inc., 326 NLRB 495, 496 (1998). In this
instance, Respondent bears the burden of proving, by a prepon-
derance of the evidence, that Kemp was a supervisor as defined
by the Act.
The Act defines “supervisor” to mean “any individual having
authority, in the interest of the employer, to hire, transfer, sus-
pend, lay off, recall, promote, discharge, assign, reward, or
discipline other employees, or responsibly to direct them, or to
adjust their grievances, or effectively to recommend such ac-
tion, if in connection with the foregoing the exercise of such
authority is not of a merely routine or clerical nature, but re-
quires the use of independent judgment.” See 29 U.S.C. §
152(11).
Thus, to warrant a conclusion that a particular person meets
the statutory definition of supervisor, the evidence must estab-
SOUTHSIDE MEDICAL CENTER, INC. 303
lish three elements: (1) that the individual had authority to
perform one of the functions listed in the statute; (2) that the
individual exercised this authority in the interest of the Em-
ployer; and (3) that the exercise of such authority is not of a
merely routine or clerical nature but requires the use of inde-
pendent judgment.
For the reasons discussed above, as a matter of fact I have
found that Kemp did not possess any of the powers listed in
Section 2(11). Because Respondent did not carry its burden of
proving this first necessary element, the analysis need not pro-
ceed to the second and third elements.
However, this analysis does need to address legal arguments
which Respondent raised to support its assertion that Kemp met
the statutory definition of “supervisor.” For example, Re-
spondent argues that the Government’s theory ignores the well-
established principle that the first element of the test is satisfied
if the putative supervisor merely possesses one of the powers
listed in Section 2(11). Respondent asserts, in effect, that the
General Counsel’s theory, if adopted, would change the test by
requiring proof that the person actually had exercised the pow-
er.
In evaluating the evidence, I have focused on whether Kemp
possessed one of the listed powers, not whether she had exer-
cised it. However, looking for the existence of an as-yet-
unexercised power presents something of a challenge—no
blood test can detect whether someone has been infected with
asymptomatic supervisory authority—so the method of search-
ing for it and the criteria applied warrant discussion.
Proving the possession of authority requires proving more
than the appearance of authority. The evidence must manifest a
real, even though as-yet-undrawn sword in the scabbard, and
not merely a handle glued to the top of the sheath.
In determining whether a person possesses supervisory au-
thority, the Board thus examines whether the authority is real or
simply illusory, the illusion created by some words on a piece
of paper. Mere “paper authority” is insufficient. Loyalhanna
Care Center, 352 NLRB 863 (2008); Training School of Vine-
land, 332 NLRB 1412, 1416, 1417 (2000). The evidence must
suffice to establish both that supervisory authority actually
existed and that its exercise required the use of independent
judgment. Barstow Community Hospital, above, citing Avante
at Wilson, 348 NLRB 1056, 1057 (2006).
An employer-created job description either may reflect an
authentic grant of authority or create the illusion of authority.
Determining which is the case requires evidence external to the
job description itself. Accordingly, Board precedent holds that
employer-prepared job descriptions, although relevant, are not
controlling. See, e.g., Loyalhanna Care Center, above, citing
Oakwood Healthcare, Inc., above at 690 fn. 24.
In the present case, other factors diminished the probative
value of the job description which Respondent presented to
prove Kemp’s supervisory authority. Credited evidence estab-
lished that this job description pertained to the position of “clin-
ical manager,” a position with different duties and responsibili-
ties from those of the “clinical manager (floater)” position held
by Kemp. Kemp’s duties, as a “clinical manager (floater)”
differed so markedly from those of the two “clinical managers”
that their job description had little relevance.
Moreover, because of the job description’s vagueness and
ambiguity, it provided little specific information even about the
duties of the two “clinical managers,” Cannada and Pizarro.
For example, the job description stated that the person “super-
vises and coordinates administrative management functions”
and that the person is “responsible for the supervision of all
administrative functions and clinical services in conjunction
with provider.” The words “supervises and coordinates admin-
istrative management functions,” taken literally, suggest that
this individual supervises management personnel rather than
bargaining unit employees. However, in light of other evi-
dence, such an interpretation certainly would appear to be erro-
neous.
Because the job description refers to supervising “functions”
rather than employees, it does not reveal what employees, if
any, reported to the clinical managers or performed work sub-
ject to their oversight. The job description also falls short of
stating what types of authority the clinical managers exercised.
Lacking such specific information, the “clinical manager”
job description must be considered conclusory at best. The
Board has held that conclusory statements without supporting
evidence do not establish supervisory authority. Chevron Ship-
ping Co., 317 NLRB 379, 381 fn. 6 (1995); Sears, Roebuck &
Co., 304 NLRB 193, 193 (1991).
Respondent presented considerable evidence concerning the
duties of Cannada and Pizarro, and argued that Kemp possessed
the same authority, even though she never exercised it. Cer-
tainly, Cannada and Pizarro held the title “clinical manager”
and Kemp was called a “clinical manager (floater),” but the
similarity ends with the job title. Based upon the limited nature
of Kemp’s duties, as compared to those of the other two clinical
managers, Kemp might warrant the apt but hard-to-pronounce
acronym CMINO: Clinical manager in name only.
Responsibility and authority typically go hand-in-hand. Be-
cause management did not direct Kemp to perform the func-
tions handled by the other two clinical managers, it seems un-
likely Respondent would have endowed her with similar au-
thority. For the reasons discussed above, I have concluded that
Respondent did not.
Managerial Status
Respondent further argues that even if Kemp was not a su-
pervisor, she was a “managerial employee” outside the Act’s
protection. Managerial employees are those who “formulate
and effectuate management policies by expressing and making
operative the decisions of their employer.” NLRB v. Bell Aero-
space Co., 416 U.S. 267, 288 (1974). These individuals, the
Supreme Court observed, were “much higher in the managerial
structure” than those explicitly mentioned by Congress, which
“regarded [them] as so clearly outside the Act that no specific
exclusionary provision was thought necessary.” NLRB v. Bell
Aerospace Co., above, 416 U.S at 283; see also NLRB v. Yeshi-
va University, 444 U.S. 672, 682 (1980).
A managerial’s “effectuation” of management policies en-
tails the exercise of independent discretion. However, Kemp
had no such discretion when she “effectuated” management
policy by performing the assigned clerical tasks as directed.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 304
Moreover, the record does not establish that Kemp formulated
management policy and I find that she did not.
Accordingly, I conclude that Kemp was not a managerial
employee excluded from the protection of the Act. To the con-
trary, I conclude that at all material times, Kemp was an em-
ployee within the meaning of Section 2(3) of the Act, and enti-
tled to its protection.
The 8(a)(1) Allegations
During the hearing, the General Counsel amended the com-
plaint to add allegations that on about May 4, 2009, Respond-
ent, by Human Resources Director Ann Williams, interrogated
employees about attendance at union meetings and about dis-
cussing their salaries. The Government asserts that Respondent
thereby violated Section 8(a)(1) of the Act.
For the reasons discussed above under the heading “The Al-
leged 8(a)(1) violations,” I find that Respondent’s human re-
sources director did ask Kemp if she had attended the union
meeting and also asked her whether she had discussed her sala-
ry with anyone. At all times, Kemp has been an employee fully
protected by the Act. Therefore, I will consider whether these
questions interfered with, restrained, or coerced her in the exer-
cise of rights guaranteed by Section 7 of the Act. If so, Re-
spondent thereby violated Section 8(a)(1) of the Act.
Determining whether the questioning was unlawful requires
that all the circumstances of the questioning be taken into ac-
count. In Smith & Johnson Construction Co., 324 NLRB 970
(1997), the Board affirmed the administrative law judge’s anal-
ysis of certain statements alleged to violate Section 8(a)(1) of
the Act. The judge had described the framework for that analy-
sis in these terms:

In deciding whether interrogation is unlawful, I am governed
by the Board’s decision in Rossmore House, 269 NLRB 1176
(1984). In that case, the Board held that the lawfulness of
questioning by employer agents about union sympathies and
activities turned on the question of whether “under all circum-
stances, the interrogation reasonably tends to restrain or inter-
fere with the employees in the exercise of rights guaranteed
by the Act.” The Board in Rossmore House noted the [test set
forth in Bourne Co. v. NLRB, 332 F.2d 47 (2d Cir. 1964)] was
helpful in making such an analysis. The Bourne test factors
are as follows:

1. The background, i.e. is there a history of employer
hostility and discrimination?
2. The nature of the information sought, e.g. did the in-
terrogator appear to be seeking information on which to
base taking action against individual employees?
3. The identity of the questioner, i.e. how high was he
in the Company hierarchy?
4. Place and method of interrogation, e.g. was employ-
ee called from work to the boss’s office? Was there an at-
mosphere of “unnatural formality”?
5. Truthfulness of the reply.

First, I will use this test to evaluate Williams’ questioning of
Kemp about her attendance at the union meeting. As to the first
factor, the record does not establish a history of employer hos-
tility and discrimination. Therefore, this factor weighs in favor
of finding the questioning noncoercive.
However, the second factor weighs heavily in favor of find-
ing the interrogation coercive. Not only did Williams seek
information about Kemp’s protected activity, but she used that
information as the basis for the decision to discharge her.
The interrogation was conducted by the Respondent’s human
resources manager, not by a firstline supervisor, and it was
conducted at the main office, not in the workplace. Moreover,
there was not one questioning session but two. Thus, the third
and fourth factors also indicate that the questioning was coer-
cive.
As to the fifth factor, truthfulness of the reply, Kemp
changed her statement on a material point, the date of the union
meeting she attended. The record suggests that Williams sus-
pected Kemp was not telling the truth, and Respondent now
asserts that one reason for discharging Kemp was her failing to
tell the truth. For reasons discussed above, however, I have
concluded that Respondent actually discharged Kemp for one
reason alone, her attendance at the union meeting.
The record does not convince me that Kemp intentionally
misrepresented the date of the union meeting she attended, even
though it does not rule out that possibility. Because of the un-
certainty on this point, I do not conclude that the fifth factor
weighs either for or against a conclusion that the questioning
was coercive.
Considering all the factors together, I conclude that Wil-
liams’ asking Kemp about her attendance at the union meeting
was coercive and violated Section 8(a)(1) of the Act.
Applying a similar analysis, I further conclude that Respond-
ent interfered with, restrained, and coerced employees in the
exercise of their Section 7 rights when Williams asked Kemp if
she had discussed her salary with anyone. Well-settled prece-
dent establishes that an employer may not prohibit its employ-
ees from discussing their wages. Double Eagle Hotel & Casi-
no, 341 NLRB 112 (2004); Phoenix Transit System, 337 NLRB
510 (2002); IRIS U.S.A., Inc., 336 NLRB 1013 (2001). Such a
rule violates the Act even if not phrased in mandatory terms.
Radisson Plaza Minneapolis, 307 NLRB 94 (1992).
An interrogation after the fact, under the coercive circum-
stances here, chills the exercise of employee rights in the same
way. Therefore, I find that Respondent violated Section 8(a)(1)
of the Act, as alleged.
Alleged 8(a)(3) Violation
In many cases, alleged discriminatory actions against em-
ployees should be analyzed using the framework established by
the Board in Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). In a
case involving mixed motives for management’s decision to
discipline or discharge an employee, the Wright Line frame-
work provides a means of determining whether the employer
would have made the same decision even in the absence of
protected activity.
However, in the present case, I have concluded that only one
reason, Kemp’s attending a union meeting, motivated Respond-
ent’s decision to discharge her. Accordingly, a Wright Line
mixed-motive analysis would be neither helpful nor appropri-
SOUTHSIDE MEDICAL CENTER, INC. 305
ate. Beverly Health & Rehabilitation Services, 346 NLRB
1319 (2006); Phoenix Transit System, above; Saia Motor
Freight Line, Inc., 333 NLRB 929 (2001).
In general, Section 8(a)(3) of the Act prohibits an employer
from encouraging or discouraging membership in any labor
organization by discrimination in regard to hire or tenure of
employment or any term or condition of employment. See 29
U.S.C. § 158(a)(3). Discharging an employee for attending a
union meeting inherently discourages membership in a labor
organization. It also interferes with, restrains, and coerces em-
ployees in the exercise of their Section 7 rights. Accordingly, I
conclude that Respondent’s discharge of Kemp violated both
Section 8(a)(3) and 8(a)(1) of the Act.
REMEDY
Respondent, having violated the Act, must take certain ac-
tions to remedy those violations, including posting the notice to
employees attached hereto as Appendix A. Before Respondent
unlawfully discharged Kemp, her work involved going to Re-
spondent’s various “satellite” facilities to check and correct the
medical logbooks and to make sure that the Banyon emergency
kit at each facility contained the specified supplies. Respond-
ent’s discharge of Kemp therefore could have a chilling effect
on the willingness of employees at the various facilities to en-
gage in activity protected by the Act. Therefore, Respondent
should be required to post a notice not only at its primary office
but also in each of its “satellite” facilities in the Atlanta area.
Respondent must also make Kemp whole, with interest, for
all losses she suffered because Respondent unlawfully dis-
charged her.
CONCLUSIONS OF LAW
1. Respondent, Southside Medical Center, Inc., is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Charging Party, American Federation of State, Coun-
ty and Municipal Employees, Local 1644, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. On or about May 4, 2009, Respondent Southside Medical
Center, Inc., violated Section 8(a)(1) of the Act by interrogating
an employee about her attendance at union meetings and about
discussing her salary with other employees.
4. On May 14, 2009, Respondent Southside Medical Center,
Inc. violated Section 8(a)(3) and (1) of the Act by discharging
its employee Amelia Kemp because she engaged in union activ-
ity protected by the Act.
5. The unfair labor practices described in paragraphs 3 and 4
above affect commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
[Recommended Order omitted from publication.]