Family Medical Center of Georgetown

National Labor Relations Board - Administrative Judge Opinions

Oct 20, 2003

16-CA-022865 (N.L.R.B. Oct. 20, 2003)

JD(ATL)—70—03
Georgetown, TX

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UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE

MURRAY A. SNOOK, M.D., P.A.,
d/b/a FAMILY MEDICAL CENTER
OF GEORGETOWN

and CASE 16-CA-22865

SHERYL HARRIS, an Individual

Jamal M. Allen, Esq., for the Government.1
Regina C. Williams, Esq., for the Medical
Center.2
David Van Os, Esq., for the Charging Party.3

DECISION

Statement of the Case

WILLIAM N. CATES, Administrative Law Judge. The Government alleges
the Medical Center discharged Charging Party Harris because she discussed wages with
her coworkers in violation of the Medical Center’s written policy prohibiting such
discussions. The Government also alleges the Medical Center’s written prohibition on
the discussion of wages, as well as Harris’ discharge, violates Section 8(a)(1) of the
National Labor Relations Act.4

On the entire record, including my observation of the demeanor of the witnesses,5
and after considering the briefs filed by Government, Charging Party and Medical Center
counsel, I make the following:

1 I shall refer to Counsel for the General Counsel as Government Counsel and the position he
advocates as the Government’s position.
2 I shall refer to the Respondent as the Medical Center.
3 I shall refer to Charging Party Harris as the Charging Party or Harris.
4 Harris filed the original charge on June 10, and amended her charge on June 11, 2003. The
Regional Director for Region 16 of the National Labor Relations Board (Board), on behalf of the
General Counsel of the Board, issued a Complaint and Notice of Hearing on July 31, 2003. This
case was tried in Austin, Texas on August 28 and 29, 2003.
5 Credibility resolutions have been made upon the entire record including all exhibits in the
proceeding. Witness demeanor and inherent probability of the testimony have been utilized to
assess credibility. Testimony contrary to my findings has been discredited, on some occasions
because it was in conflict with credited testimony or documents or because it was inherently
incredible and unworthy of belief.

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Findings of Fact

I. Jurisdiction

The Medical Center is a sole proprietorship, owned by Doctor Murray A. Snook,
with an office and place of business in Georgetown, Texas,6 where it operates a medical
clinic providing medical services to the public. During the 12 months preceding July 31,
2003, the Medical Center derived gross revenues in excess of $1,000,000 and purchased
and received goods and services valued in excess of $50,000 directly from enterprises
outside the State of Texas. The Medical Center admits and I find it has been, at all
material times herein, an employer within the meaning of Section 2(2), (6) and (7) of the
Act.

II. Management Officials

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As noted Doctor Snook is the owner of the Medical Center. Rhonda Morrison is
the Billing Office Manager and Tracy Yardley is one of its Certified Medical Assistants.

III. Alleged Unfair Labor Practices

A. The Rule on Salary and Bonuses

The Medical Center operates two facilities, one in Georgetown, Texas and the
other in Bertram, Texas. The Medical Center employs approximately 16 employees at its
Georgetown facility and approximately 3 employees at its Bertram, Texas, facility. The
Medical Center was established in approximately 1998.

It is undisputed that since December 11, 2002, and at all times material herein, the
Medical Center maintained the following rule in its employee Handbook at “General
Personnel Policies:”

Salary figures are confidential and should not be discussed
with others.
The physicians and office manager will evaluate your
performance at regular intervals.
Should you receive a bonus, the amount is confidential and
should not be discussed with others. Discussion of bonus amounts
with others is grounds for dismissal.

It appears the Medical Center does not defend the above rule but asserts it was not
enforced and is no longer in effect. The Medical Center seemed, at trial, to suggest it
would cause conflict or resentment between or among its employees if the employees
discussed their wages or bonuses.

6 The Medical Center also operates a small branch facility in Bertram, Texas.
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Section 7 of the Act guarantees employees the right to engage in concerted
activity for the purpose of mutual aid and protection. It is essential for the full exercise of
those rights that employees be able to discuss wages. The Board has consistently held
that rules prohibiting employees from discussing their wages with each other is unlawful
in the absence of a business justification for the rule. Waco, Inc., 273 NLRB 746, 748
(1984); Corporate Express Delivery Systems, 332 NLRB 1522, 1530 (2000). The mere
maintenance of such a rule even without evidence of enforcement violates the Act.
Fredericksburg Glass & Mirror, 323 NLRB 165, 174 (1997). The Board in Medione of
Greater Florida, Inc., 340 NLRB No. 39 sl. op. p. 3 (Sept. 19, 2003) recognized the
principle that “discussion of wages is part of organizational activity and employers may
not prohibit employees from discussing their wages or attempting to determine what
other employees are paid [footnote omitted].” The Board noted in Waco, Inc. at 748:

There can be little question that the Respondent’s rule prohibiting
employees from discussing their wages constitutes a clear restraint
on employees’ Section 7 right to engage in concerted activities for
mutual aid and protection concerning an undeniably significant
term of employment. Since the Respondent has failed to establish
any business justification for this restraint, it follows that its rule is
unlawful.

The Medical Center’s rule herein, without exception, prohibited employees from
discussing their salary and/or bonuses with each other and noted that to do so was
“grounds for dismissal.” It is difficult to imagine what kind of business justification
could be advanced that would warrant such a complete prohibition against employees
discussing their wages and bonuses. It is clear the only justification for the rule
suggested by the Medical Center, that such discussions might cause resentment among it
employees, is not a sufficient justification that outweighs employees interest in freely
discussing wages and bonuses. Stated differently, the possibility or even probability of
friction or conflict between employees should salary and/or bonus differences be
disclosed, is insufficient to outweigh employees’ Section 7 rights concerning wages,
probably the most critical element in employment. See Scientific-Atlanta, Inc., 278
NLRB 622, 625 (1986).

I find the Medical Center violated Section 8(a)(1) of the Act by maintaining its
rule prohibiting employees from discussing salary and/or bonuses which has a chilling
effect on the exercise of Section 7 rights.

B. The Discharge of Harris

1. The Government’s Factual Account

Charging Party Harris worked for the Medical Center from July 2001, until April
2003,7 in the Billing Department collecting overdue payments and doing patient

7 Harris resigned her employment with the Medical Center on April 10, 2003, but shortly thereafter
changed her mind and was reemployed by Doctor Snook. Harris also previously worked for
Doctor Snook before her most recent employment with the Medical Center.
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insurance verifications. Harris resides in Bertram, Texas, but works in the Medical
Center’s Georgetown, Texas, facility. As a result of Harris living in Bertram, Texas, she
was often called upon to deliver supplies and payroll checks to the Bertram facility from
the Georgetown facility. Harris’ immediate supervisor was her friend of 20 years, Billing
Office Manager Rhonda Morrison.

On April 25, 2003, Harris delivered payroll checks to the three Bertram, Texas,
facility employees. The payroll checks are in sealed envelops with each employees’
name thereon. Harris personally delivered checks to Certified Medical Assistant Trish
Voight and Receptionist Beatrice Daniel.8 While the three of them visited, Voight
opened her payroll envelope and discovered an unexplained increase in the amount of her
pay check. Harris suggested Voight telephone Georgetown facility Physician Assistant
Tony Ganntt for an explanation of the increase.9 Voight did so and reported she had
“cool” news that the employees had been given a pay raise. According to Harris, Daniel
looked at her pay check and stated she also had received a wage increase. Harris had not,
at that point, examined her pay envelope but did so and discovered she had not received a
wage increase. Harris telephoned her cubical and co-worker at Georgetown, Debra Dry,
and told Dry she thought the employees had gotten a pay raise and asked Dry to look at
her pay check to see if she had received a raise. Dry told Harris her pay envelope was out
in her truck unopened and she could not go to her truck at that time.

Harris then telephoned Billing Office Manager Morrison to ascertain if employees
had gotten a pay raise. According to Harris, Morrison wanted to know how she knew and
asked who told her about the raises. Harris told Morrison it did not matter but later told
Morrison, Voight had brought the raise to her attention. Morrison told Harris, she and
Dry had not received raises because they had received raises in August. Harris testified
Morrison told her not to call anyone about the raises and specifically directed that she not
speak with her co-worker Dry. Harris agreed not to telephone Dry but failed to mention
to Morrison she had earlier telephone Dry about the raise.

Harris was not scheduled for and did not work on Saturday, April 26 or Sunday,
April 27, 2003. Harris reported, as usual, for work at her regular time on Monday April
28, 2003. Billing Office Manager Morrison came to Harris’ and Dry’s work area but only
spoke with Dry. Harris found that unusual and went later that morning to Morrison’s
office and asked if everything was okay. Morrison told Harris she was very upset and
asked Harris why she had not told her earlier that she had already spoken with co-worker
Dry about the pay raise. Morrison accused Harris of lying to her and stated she would
never be able to trust Harris again. Morrison informed Harris she had already notified
Doctor Snook and Certified Medical Assistant Tracy Yardley about the situation and if
Harris did not like it to leave her office. Harris testified she did not raise her voice nor
did she accuse Morrison or the office of being unprofessional.

8 The third Bertram employee, Physician’s Assistant Lanny Stone was not in his office. Harris left
his check on his desk.
9 Physician Assistant Ganntt’s duties included administrating payroll for all Medical Center
employees.
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Harris returned to her duty station at which time co-worker Dry told Harris that
Billing Office Manager Morrison had telephoned her over the weekend to talk about the
pay raise. Dry informed Harris, she told Morrison that Harris had already spoken with
her about the pay raise. Later that morning Harris observed Morrison and Certified
Medical Assistant Yardley talking in Morrison’s office. Harris asked if they were talking
about her and that if they were she wanted to be included. Harris said both managers
agreed they were discussing her and both began to speak to her at the same time. Harris
stated both were upset she had telephoned co-worked Dry about the pay raise. At that
time Doctor Snook walked up and Harris complained they were “ganging up” on her.
Doctor Snook excused the others and spoke with Harris alone. Doctor Snook explained
he was very upset because of the telephone calls he had received from both Morrison and
Yardley that Harris had telephoned co-worker Dry about the pay raise. Doctor Snook
told Harris he had done some research over the weekend and what he was about to do
was legal. He then told Harris he was letting her go. Doctor Snook told Harris he was
letting her go because she was in direct violation of the Medical Center’s policy against
talking about wages with a co-worker. Harris was shocked and in disbelief that she was
being fired. Harris asked Doctor Snook for a letter of termination and said she would
return the next day for it. Harris turned in her office keys, retrieved personal items and
left.

Harris testified she received a telephone call later that afternoon, April 28, 2003,
from Certified Medical Assistant Yardley who told her she wanted to tell her why she
was terminated. Harris protested that Yardley was not her “boss.” Yardley told Harris
she was speaking on Doctor Snook’s behalf and told Harris she was being fired for being
in direct violation of the Medical Center’s policy against discussing wages. Yardley also
informed Harris she would not be getting a termination letter from Doctor Snook. Harris
told Yardley she would not “kiss ass” or “suck dick” to keep a job. Yardley asked if
Harris was referring to Billing Office Manager Morrison. Harris responded that
Morrison could “go to hell.”

Harris received a performance appraisal from Doctor Snook on June 3, 2002, in
which she was given the second highest overall appraisal rating of “very good.” Doctor
Snook specifically rated Harris as “very good” in productivity, reliability, attendance,
creativity, and initiative. Doctor Snook specifically noted in a hand written comment that
Harris was “always suggesting new ideas” for finding new and better ways of doing
things at the Medical Center. Harris testified her immediate supervisor, Billing Office
Manager Morrison, never mentioned to her any patient or employee complaints or
problems and never at any time disciplined her.

2. The Medical Center’s Factual Account

Medical Center Billing Office Manager Morrison testified she received a
telephone call on her cell telephone from Harris on Friday April 25, 2003 at around 5
p.m. as she arrived at home. According to Morrison, Harris had learned some pay raises
had been given and asked Morrison if she, Morrison, had gotten a raise. Morrison asked
how Harris knew about the raise. Harris, first reluctant to say, told Morrison employee
Voight had opened her pay envelope in Harris’ presence and stated there was extra
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money on her payroll check. Harris told Morrison, Voight checked with payroll and
learned the extra money was a pay raise. According to Morrison, Harris told her she
asked Bertram employee Daniel if she had received a raise but that Daniel did not
respond. Harris then decided to contact Morrison. Morrison told Harris that Harris had
not received a raise because she had received one in August. Morrison told Harris she
did not want Harris talking to her co-worker Dry about the raise. Morrison testified she
asked Harris to allow her, Morrison, to be the one to talk with Dry about the pay raise.
Harris assured Morrison she would not talk to Dry about the raise.

Employee Dry testified she and Harris were co-workers who shared the same
“cubbyhole” space at the Medical Center in Georgetown. Dry testified Harris telephoned
her on Friday, August 25, 2003, and asked if she had reviewed her pay check. Dry
explained to Harris she had not, that her wages were deposited directly into her bank
account and the paperwork for her check was in her gym bag in her truck. Dry wanted to
know why Harris was asking. Harris told Dry she thought pay raises may have been
given. Harris told Dry not to worry about it that she would contact their supervisor,
Morrison.

Morrison testified she telephoned Dry on Saturday, April 26, 2003. Morrison was
concerned that Harris would call Dry about the pay raise. Morrison wanted to be the one
to speak with Dry about the raise and explain to her why some employees, who received
a raise in August, did not get a raise this time. Morrison was not certain whether Dry had
received the current raise.10 Dry told Morrison Harris had already spoken with her about
the raise.

Morrison testified she spoke via telephone with Doctor Snook on Saturday, April
26, 2003. Morrison informed Doctor Snook that Harris had spoken with certain of the
Bertram, Texas, facility employees, namely, Trish Voight and Beatrice Daniel, about the
wage increase and had also spoken with employee Dry, as well as Morrison, about the
raise. Morrison informed Doctor Snook that Harris had either lied to, or at least misled,
her about not speaking with employee Dry in that Harris had assured her she would not
speak with Dry but had in fact done so.

Morrison said she told Doctor Snook of other “irrational behavior” by Harris as
well as patient and co-worker complaints against Harris. Morrison explained that Harris’
irrational behavior for a period of time consisted of “yelling loudly in the office” “yelling
loudly on the telephone” and “snapping at other employees.” Morrison told Doctor
Snook she was “tired of messing” with Harris especially “after finding out that [Harris]
had lied to [her] about talking with co-worker Dry concerning wage increases for the
employees.” Doctor Snook indicated he would look into the matter on Monday, April 28,
2003, that he wanted to hear from the others involved in the wage discussions.

Doctor Snook testified that what Morrison told him on Saturday, April 26, 2003,
about Harris having talked to other employees about their raise “bothered” him because
he not only thought it was wrong but the Medical Center had a written policy that

10 Dry in fact received a raise.
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employees could not discuss wages, bonuses or raises with each other. Doctor Snook
was also concerned because Morrison was bothered and upset with Harris for lying to her
and Morrison wanted to know what Doctor Snook was going to do about it. Doctor
Snook described Morrison as at her “wits end and could not handle … Harris anymore
and didn’t know what to do.”

On Monday, April 28, 2003, when Doctor Snook arrived at work he first spoke
with Certified Medical Assistant Yardley,11 who had already heard of the events
surrounding Harris. Yardley wanted to know what Doctor Snook was going to do about
Harris.12 Doctor Snook had no idea but told Yardley he needed to speak with employees
Beatrice Daniel, Trish Voight, Debra Dry and Harris that day.

Doctor Snook spoke first with Bertram employee Beatrice Daniel who told
Doctor Snook that Harris dropped off the Bertram employees’ paychecks on Friday,
April 25, 2003, and asked if she had received a raise. Daniel told Doctor Snook she felt
uncomfortable about Harris’ questioning and added Harris looked over her shoulder and
said she made more than Daniel.

Doctor Snook thereafter spoke with Debra Dry who told him Harris had asked her
on Friday if she received a raise. Dry said she told Harris it was not her place to ask or
for Dry to respond to such a question.

Medical Center Billing Office Manager Morrison testified Harris came to her
office on Monday morning April 28, 2003, and asked if Morrison had a problem.
Morrison told Harris she did and asked why Harris had lied to her about talking to Dry
about the raise after she had promised not do so. Instead of responding Harris accused
Morrison of having lied to her in the past. Morrison asked Harris three times to lower her
voice that she was afraid patients could hear them. Morrison described Harris as
“basically she was very loud and didn’t want to answer my question in regard to [Dry].”
Morrison testified Harris told her she was not professional nor was the office
professional, and said she thought they had everything settled back on Friday. According
to Morrison, Certified Medical Assistant Yardley came to Morrison’s office door and
stated the loud discussion would have to stop. Harris left Morrison’s office.

After Harris left, Certified Medical Assistant Yardley and Morrison talked a few
minutes in Morrison’s office and Harris came back. Harris asked if they were discussing
her. Yardley explained they could not have a loud “commotion” going on in the office as
Doctor Snook would be upset. Doctor Snook then came to the office. Harris asked if
they were “ganging” up on her. Doctor Snook asked Morrison and Yardley to leave and
spoke with Harris alone. Doctor Snook told Harris he could not have her yelling in his
office and told Harris to “punch out and go home.” Doctor Snook told Harris her conduct
over the past weekend “bothered” him, that she had discussed wages with other
employees in “a threatening manner.” Doctor Snook was specifically upset because she
had bothered Bertram employees Daniel and Voight and Georgetown employee Dry as

11 Doctor Snook stated Yardley, who is an admitted supervisor and agent of the Medical Center,
acted as office manager without actually having the title.
12 Morrison also asked Doctor Snook early that morning what he was going to do about Harris.
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well as Morrison. Doctor Snook told Harris she had lied to, as well as upset, Morrison.
Doctor Snook said Harris was “shocked” at being fired and “asked … for a letter stating
the reasons why she was being let go.” Doctor Snook was “taken aback” by Harris’
request for a letter of dismissal because “[n]o one … ever asked me for a letter … why
they were let go.” Doctor Snook collected Harris’ office key and she left slamming the
door behind her.

Doctor Snook testified he discussed with Certified Medical Assistant Yardley,
Harris’ request for a dismissal letter. The two of them concluded he did not need to
provide a dismissal letter. Yardley, at Doctor Snook’s direction, telephoned Harris at
home and told her she would not be getting a dismissal letter and told her not to come
back to the office. Doctor Snook learned, as a result of Yardley’s call, that Harris said
she would not “kiss and suck” to keep a job so he decided “[t]here was no way in hell”
she could ever return to the Medical Center.

Certified Medical Assistant Yardley testified that when she informed Harris she
would not be getting a dismissal letter they discussed her discharge. Yardley told Harris
she had violated the Medical Center’s rule against discussing wages. According to
Yardley, Harris insisted the rule did not call for dismissal. Yardley said she directed
Harris to the second part of the rule where it stated one could be dismissed for violating
the rule. It was at this point Harris told Yardley she did not “suck dick or kiss ass to keep
a job.” An angry Yardley ask if Harris was insinuating Yardley would. Harris told
Yardley, not her, to which Yardley responded if she meant Morrison. Harris told Yardley
that Morrison could “go to hell.”

On Monday morning April 28, 2003, before Doctor Snook terminated Harris he
had Billing Office Manager Morrison seek advice from the Texas Medical Association
regarding his options as well as what repercussions he might expect by terminating
Harris. Morrison was told Doctor Snook could fire Harris “with little or no reason.”

Doctor Snook testified he discharged Harris basically because of “her temper
tantrum in [his] office” on Monday morning April 28, 2003. Doctor Snook
acknowledged her violation of the Medical Center’s policy against discussing wages and
bonuses started the discussions about terminating Harris and was part of his reason for
terminating her. Doctor Snook acknowledged that after his conversation with Billing
Office Manager Morrison on Saturday morning April 26, 2003, but before Harris’
“outburst” in his office on Monday morning April 28, 2003, he had already decided he
was going to discipline her and that it “was a good probability” he was going to discharge
her.

Harris filed a claim for unemployment compensation with the Texas Workforce
Commission on or about April 29, 2003. On June 1, 2003, Doctor Snook signed the
Medical Center’s Response in Opposition to Harris’ claim. In the response Doctor Snook
set forth Harris was “fired for violation of company policy, see attached page from
employee handbook, questioned four employees regarding their pay raise 2 on the job 2
were called @ home.” The attachment to Doctor Snook’s response was the Medical
Center’s rule prohibiting employees from discussing wages or bonuses. Doctor Snook,
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Billing Office Manager Morrison and Certified Medical Assistant Yardley discussed the
Medical Center’s response before submitting it to the Texas Workforce Commission.
Doctor Snook explained that although he signed the response he thought he only needed
to provide “a” reason for Harris’ termination, not all reasons. Morrison and Yardley held
the same view.

Doctor Snook and Billing Office Manager Morrison both testified in the Texas
Workforce Commission hearing. Morrison did not say anything in that hearing about
Harris having complaints from front office personnel about insurance verifications or
complaints against Harris by employees, patients or managers or that Harris’ problems
had exhausted her. Morrison acknowledged saying at the hearing the reason for Harris’
discharge was that she violated Medical Center policies prohibiting employees from
discussing wages and/or bonuses with each other. Doctor Snook acknowledged he
testified at the Texas Workforce Commission hearing about giving Harris a salary bonus
in August 2002 because she was a satisfactory employee.

3. Credibility

I listened to and carefully observed Harris as she testified and I am persuaded she
did so truthfully. I credit her testimony and observe certain undisputed facts. It is
undisputed Harris delivered payroll checks to the Bertram facility where Voight noticed
an increase in her pay check. It was at that point Harris first learned a pay raise might
have been given. Harris sought to ascertain from employees Daniel and Dry, as well as,
from her supervisor Morrison, if pay raises actually had been given. It is likewise
undisputed Harris’ inquires about wages caused concern for her supervisor, Morrison,
and her co-worker, Dry. It is also undisputed Morrison perceived Harris either lied to or
misled her regarding whether Harris had violated Morrison’s instructions not to talk
about the wage increase with her co-workers. It is undisputed Medical Center Billing
Office Manager Morrison reported Harris’ actions to Doctor Snook. With this backdrop
of undisputed facts I credit Harris’ testimony that Doctor Snook told her on Monday,
following her discussions with employees about wages on Friday and Saturday, that he
was upset with her because she had done so. I specifically credit Harris’ testimony that
Doctor Snook told her he was terminating her because she was in direct violation of
Medical Center policies prohibiting employees from talking about wages. I note Doctor
Snook and his management staff sought advice from the Texas Medical Association
before terminating Harris. I credit Harris’ testimony that Doctor Snook told her at the
time he terminated her he had done some research over the weekend and had concluded
he was on sound legal ground terminating her.

It is acknowledged that Certified Medical Assistant Yardley, at Doctor Snook’s
direction, telephoned Harris and, as testified to by Harris, told her she was terminated
because she violated the Medical Center’s rule against discussing wages. Yardley even
pointed out to Harris, after Harris contended otherwise, that a violation of the rule
specifically called for dismissal. I note Harris’ testimony that she was specifically told
she was being terminated for violating the Medical Center’s rule against discussing
wages, is consistent with the position taken by the Medical Center before the Texas
Workforce Commission. Doctor Snook informed the Texas Workforce Commission that
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Harris was discharged because she violated the Medical Center’s rule against discussing
wages even pointing out that Harris’ offense was she had spoken with “four employees
regarding their pay raise.” I specifically reject and discredit Doctor Snook’s testimony he
terminated Harris because of a “temper tantrum” in his office just before he terminated
her. Doctor Snook acknowledged he had already decided, prior to his office meeting
with Harris, that he was going to discipline her and there was a good probability he
would discharge her. Doctor Snook acknowledged Harris’ conversations with her co-
workers concerning wages set in motion the discussions and triggered the decision to
discipline Harris. I note, in crediting Harris and discrediting Doctor Snook regarding her
termination, that Doctor Snook acknowledged “part” of his reason for discharging Harris
was her speaking with her co-workers about wage increases.

4. Discussion, Analysis and Conclusions

I find the sole reason for Harris’ discharge was she discussed wage rates and pay
raises with her co-workers in violation of the Medical Center’s published policy
prohibiting such discussions. I find other reasons advanced by the Medical Center for her
termination were simply post hoc rationalizations. I concluded earlier in this decision
that the Medical Center’s published rule prohibiting employees from discussing wages
and bonuses violated the Act. As it has been established Harris was discharged as a
direct consequence of her discussing wages, I find her discharge violated Section 8(a)(1)
of the Act.

I find Harris did not conduct herself in any manner that would result in a loss of
the Act’s protection. I note communications occurring during the course of other-wise
protected activity remains protected, unless found to be so violent or of such serious
character, as to render the employee unfit for further service. Neither the tone, volume or
content of Harris’ statements, made in response to being told she was terminated, caused
her to lose the protection of the Act. I specifically credit Harris’ denial she told Morrison
she was unprofessional or that the office was unprofessional. Harris telling Certified
Medical Assistant Yardley, when Yardley telephoned to tell her why she was terminated,
that she would not “kiss ass” or “suck dick” to keep her job, while crude, are not so
serious comments as to cause her to lose the protection of the Act. Harris’ telling
Yardley that Billing Office Manager Morrison could “go to hell” is not so egregious as to
remove the protection of the Act from Harris. Furthermore, even if Harris raised her
voice in Doctor Snook’s office when she was discharged, there is no showing it actually
disrupted medical care to patients or others in the facility.

Even if I concluded, which I do not, that this case required a “mixed motive”
analysis, I would conclude the Government established a prima facie case. I would also
conclude the Medical Center failed to meet its burden of establishing it would have
discharged Harris even in the absence of any protected conduct on her part. The
Government clearly established: Harris engaged in the protected conduct of discussing
wages with her co-workers; the Medical Center knew of the discussions; and, as
acknowledged by Doctor Snook, those discussions played a motivating role in her
discharge. The Medical Center’s other stated reasons for discharging Harris do not
withstand careful scrutiny. The Medical Center’s contention Harris was not a satisfactory
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employee is not borne out by the evidence. Doctor Snook concluded, in an employee
appraisal, on June 3, 2002, that Harris was a very good employee. No documentation
was presented of any discipline given Harris prior to her discharge. Harris credibily
denied receiving any discipline. Harris voluntarily resigned her employment with the
Medical Center but was rehired almost immediately thereafter by Doctor Snook. Her
rehiring took place just a few days before her termination at issue herein. If Harris was,
as contended by the Medical Center, such a disruptive, loud, counterproductive employee
with an attitude and attendance problem over an extended time, I am persuaded Doctor
Snook would not have rehired her. While some may have had concerns with Harris, such
as patient Dummer who did not like her, or employee Dry who had received complaints
about her, such concerns played no part in her termination. I would conclude, if a mixed
motive analysis was required, the Medical Center failed to meet its burden of establishing
it would have discharged Harris even in the absence of any protected conduct on her part.

REMEDY

Having found the Medical Center has engaged in certain unfair labor practices, I
find it must be ordered to cease and desist and to take certain affirmative action designed
to effectuate the policies of the Act. The Medical Center having discriminatorily
discharged its employee Sheryl Harris, I shall recommend she, within 14 days from the
date of the Board’s Order, be offered full reinstatement to her former job, or if her former
job no longer exists to a substantially equivalent position, without prejudice to her
seniority, or any other rights or privileges previously enjoyed, and make her whole for
any loss of earnings or other benefits suffered as a result of the discrimination against her
with interest. Backpay shall be computed in accordance with F.W. Woolworth Co., 90
NLRB 289 (1950), and interest shall be computed in accordance with New Horizons for
the Retarded, 283 NLRB 1173 (1987).

On these findings of fact and conclusions of law and on the entire record, I issue
the following recommended:13

ORDER

The Medical Center, Murray A. Snook, M.D., P.A., d/b/a Family Medical Center
of Georgetown, its officers, agents, successors and assigns shall:

1. Cease and desist from:

(a) Discharging employees because they engage in activities protected
by the Act including discussing wages with co-workers and in order to discourage
employees from engaging in such concerted protected activities.

(b) Maintaining a rule that prohibits employees from discussing wages
with their co-workers.

13 If no exceptions are filed as provided by Section 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Section 102.48 of the Rules,
be adopted by the Board and all objections to them shall be deemed waived for all purposes.
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(c) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of their rights guaranteed them by Section 7 of the
Act.

2. Take the following affirmative action necessary to effectuate the policies
of the Act:

(a) Rescind its rule that prohibits employees from discussing wages
with their co-workers.

(b) Within 14 days of the date of the Board’s Order offer Sheryl Harris
reinstatement to her former position or if her former position no longer exists to a
substantially equivalent position without prejudice to her seniority or other rights or
privileges.

(c) Within 14 days of the Board’s Order remove from its files any
reference to Harris’ unlawful discharge and within 3 days thereafter notify her in writing
this has been done and that her discharge will not be used against her in any manner.

(d) 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
designated by the Board or its agents all payroll records, Social Security payment
records, time cards, personnel records and reports, and all other records, including an
electronic copy of the records if stored in electronic form, necessary to analyze the
amount of any back pay due under the terms of this Order.

(e) Within 14 days after service by the Regional Director of Region 16
of the National Labor Relations Board, post at its Georgetown, Texas, facility copies of
the attached notice marked “Appendix.”14 Copies of the Notice, on forms provided by the
Regional Director for Region 16 after being signed by the Medical Center’s authorized
representative shall be posted by the Medical Center and maintained for 60 consecutive
days in conspicuous places, including all places where notices are customarily posted.
Reasonable steps shall be taken to ensure that the notices are not altered, defaced or
covered by any other material. In the event that during the pendency of these
proceedings the Medical Center has gone out of business or closed the facility involved in
these proceedings, the Medical Center shall duplicate and mail, at its own expense, a
copy of the Notice to Employees, to all employees employed by the Medical Center on or
at any time since December 11, 2002.

(f) Within 21 days after service by the Region, file with the Regional
Director for Region 16 of the National Labor Relations Board sworn certification of a

14 If this order is enforced by a Judgement of the United States Court of Appeals, the words in the
notice reading, “POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD.”
shall read: POSTED PURSUANT TO A JUDGEMENT OF THE UNITED STATES COURT OF
APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.”
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responsible official on a form provided by the Region attesting to the steps that the
Medical Center has taken to comply.

Dated at Washington, DC

_________________________________
William N. Cates
Associate Chief Judge
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APPENDIX

NOTICE TO EMPLOYEES

Posted by the Order of the
National Labor Relations Board
An Agency of the United States Government

The National Labor Relations Board has found that we violated 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 benefit and protection
Choose not to engage in any of these protected activities.

WE WILL NOT maintain a rule prohibiting employees from discussing wages
with co-workers.

WE WILL NOT discharge employees because they have engaged in activities
protected by the Act, including discussing wages with co-workers.

WE WILL NOT in any like or related manner interfere with, restrain or coerce
employees in the exercise of the rights guaranteed them by Section 7 of the Act.

WE WILL rescind our work rule prohibiting employees from discussing wages
with co-workers.

WE WILL offer Sheryl Harris full reinstatement to her former job or if her
former job no longer exists to a substantially equivalent position without prejudice to her
seniority or other rights or privileges previously enjoyed; and, WE WILL make her
whole for any loss of earnings and other benefits resulting from her discharge less any net
interim earnings, plus interest.

WE WILL remove from our files any reference to our discharge of Sheryl Harris,
and WE WILL notify her in writing that her discharge will not be used against her in any
manner.

MURRAY A. SNOOK, M.D., P.A., d/b/a
FAMILY MEDICAL CENTER OF GEORGETOWN
(Employer)

Dated:_________________ By: ________________________________ 45
(Representative) (Title)

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The National Labor Relations Board is an independent Federal Agency created in 1935 to
enforce the National Labor Relations Act. It conducts secret-ballot elections to determine
whether employees want union representation and it investigates and remedies unfair
labor practices by employers and unions. To find out more about your rights under the
Act and how to file a charge or election petition, you may speak confidentially to any
agent with the Board’s Regional Office set forth below. You may also obtain
information from the Board’s website: www.nlrb.gov

819 Taylor Street, Room 8A24, Fort Worth, TX 76102-6178
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(817) 978-2921, Hours: 8:15 a.m. to 4:45 p.m.

THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM
THE DATE OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR
COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE
ABOVE REGION’S COMPLIANCE OFFICER, (817) 978-2925

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