Midwest Psychological Center

National Labor Relations Board - Board Decisions

Dec 9, 2005

346 N.L.R.B. 1 (N.L.R.B. 2005)

MIDWEST PSYCHOLOGICAL CENTER
346 NLRB No. 5
1
Midwest Psychological Center, Inc. and Yaina Wil-
liams and Hyun Kim. Cases 25–CA–29381 and
25–CA–29405
December 9, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On August 19, 2005, Administrative Law Judge John
H. West issued the attached decision. The Respondent
filed exceptions, and the General Counsel filed an an-
swering brief.
The National Labor Relations Board has considered
the judge’s decision and the record in light of the excep-
tions1 and briefs and has decided to affirm the judge’s
rulings, findings,2 and conclusions and to adopt the rec-
ommended Order.

1 The Respondent has excepted to the judge’s finding that it is an
employer subject to the Board’s jurisdiction. The Respondent admits in
its answer that it is an Indiana corporation with an office and a place of
business located in Indianapolis, Indiana, and that it has been engaged
in the business of providing mental health and social services to in-
mates at correctional facilities. The Respondent (a health care institu-
tion) also admits that, during the 12 months preceding issuance of the
complaint, it derived gross revenues in excess of $250,000 in the con-
duct of its business operations and that it provided services in excess of
$5000 to Corrections Corporation of America, a firm whose operations
satisfy the Board’s jurisdictional standards. The evidence further estab-
lishes that, during the 12 months preceding the hearing, the Respondent
furnished services valued in excess of $50,000 to Corrections Corpora-
tion of America. In its exceptions, the Respondent contends that the
Board’s jurisdiction must be established prior to the date that the unfair
labor practice charges were filed by the discriminatees and that the
evidence fails to establish such jurisdiction as of that date. There is no
requirement that jurisdiction be established as of a date prior to the
filing of the charges. As the Board has stated, “its jurisdictional criteria
. . . do not literally require evidentiary data respecting any certain 12-
month period. . . .” See J & S Drywall, 303 NLRB 24, 29 (1991), enf.
denied on other grounds sub nom. NLRB v. Jerry Durham Drywall, 974
F.2d 1000 (8th Cir. 1992). Based on the evidence and admissions of
jurisdictional facts by the Respondent, we find that the Respondent is
an employer engaged in commerce within the meaning of Sec. 2(2), (6),
and (7) of the Act and a health care institution within the meaning of
Sec. 2(14) of the Act.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
Some of the Respondent’s exceptions imply that the judge’s rulings,
findings, and conclusions demonstrate bias and prejudice. On careful
examination of the judge’s decision and the entire record, we are satis-
fied that the Respondent’s contentions are without merit. We do not,
however, rely upon the judge’s finding that witnesses called by the
Respondent lied under oath.
Chairman Battista notes that, at the hearing, the judge denied the Re-
spondent’s motion for a continuance because of a death in the family of
the Respondent’s president. The Respondent did not specifically ex-
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Midwest Psychological Cen-
ter, Inc., Indianapolis, Indiana, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in the
Order.
Belinda J. Brown, Esq., for the General Counsel.
William M. Hawkins, Esq., of Indianapolis, Indiana, for the
Respondent.
DECISION
STATEMENT OF THE CASE
JOHN H. WEST, Administrative Law Judge. This case was
tried in Indianapolis, Indiana, on June 20 and 21, 2005.1 The
charge in Case 25–CA–29381 was filed by Yaina Williams
against Midwest Psychological Center, Inc. (Respondent or
Midwest) on October 26, 2004.2 The charge in Case 25–CA–
29405 was filed by Hyun (Adrian) Kim against Respondent on
November 26. The complaint was issued on January 27, 2005,
alleging that Respondent violated Section 8(a)(1) of the Na-
tional Labor Relations Act (the Act), by discharging Williams
and Kim because they concertedly complained to Respondent
regarding the wages, hours, and working conditions of Respon-
dent’s employees, by requesting that employees be paid for
attending mandatory meetings and that employees be compen-
sated for actual hours worked. Respondent denies violating the
Act as alleged.

cept to the judge’s denial of its motion and, therefore, the judge’s deci-
sion to deny that motion is not before the Board. The Respondent’s
exception asserts only that the judge’s denial of its motion is evidence
of the judge’s bias. Chairman Battista agrees that the Respondent’s
contention concerning bias is without merit.
The Respondent’s allegation that the judge was biased was based in
part on his questioning of the Respondent’s witnesses. Chairman Bat-
tista notes that it is the duty of the judge to inquire fully into the facts
and that the judge has the authority to call, examine, and cross-examine
witnesses. See Sec. 102.35 of the Board’s Rules. The judge, however,
may not do anything which gives the appearance of partiality. Thus,
the judge may not take over the role of prosecutor, which is the General
Counsel’s function in unfair labor practice proceedings. Teamsters
Local 722 (Kasper Trucking), 314 NLRB 1016, 1017 (1994), enfd. 57
F.3d 1073 (7th Cir. 1995). While the judge here on occasion engaged
in extensive questioning of witnesses, viewing the proceedings as a
whole, his questioning did not give the appearance of partiality or con-
stitute an attempt to take over the General Counsel’s prosecutorial role.
Thus, Chairman Battista agrees that the Respondent’s contention is
without merit.
1 Counsel for the General Counsel’s motion for separation of the wit-
nesses was granted. Counsel for Respondent requested that he be al-
lowed to have both Shelvy Keglar, the president and part owner of the
Respondent, and Kellee Blanchard, Respondent’s program coordinator,
remain at counsel’s table throughout the trial. Counsel for the General
Counsel objected and Respondent had Shelvy Keglar at counsel’s table
throughout the trial.
2 All dates are in 2004, unless otherwise indicated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent , I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, with an office and place of
business on Washington Boulevard in Indianapolis, Indiana,
has been engaged in the provision of mental health and social
services. In its answer to the complaint Respondent admitted
that during the past 12 months, in conducting its business op-
erations, it derived gross revenues in excess of $250,000, and it
provided services valued in excess of $5000 for Corrections
Corporation of America (CCA). Respondent never amended
this portion of its answer. Also, in its answer to the complaint,
Respondent alleges that it is without sufficient knowledge to
admit or deny (1) that at all material times it has been an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and has been a health care institu-
tion within the meaning of Section 2(14) of the Act; (2) that at
all material times CCA, a corporation, with a main office in the
State of Tennessee, has been engaged in the management of the
Marion County Jail II corrections facility in Indianapolis, Indi-
ana; and (3) during the past 12 months CCA in the course of
conducting its business operations, has provided services val-
ued in excess of $50,000 in States other than the State of Ten-
nessee. (Par. 2(e) of the complaint.) At the outset of the trial
herein counsel for the General Counsel was allowed to amend
paragraph 2(e) of the complaint, over the objection of Respon-
dent, to allege that during the past 12 months CCA, in conduct-
ing its business operations, has purchased and received, at its
Indianapolis, Indiana facility, goods valued in excess of
$50,000 directly from points outside the State of Indiana.
Karen McConnell, who is the business manager of CCA at
its Indianapolis correctional facility, testified that she makes
sure that all of the invoices which come for CCA at Marion
County Jail II in Indianapolis are coded for budgetary pur-
posed, and sent to CCA’s corporate office in Nashville, Ten-
nessee; that CCA’s correctional facility in Indianapolis takes
the overflow of inmates from Marion County, Indiana; that
Respondent supplies the mental health services for CCA’s Indi-
anapolis facility; that in the course of managing the Marion
County Jail II, CCA purchases goods such as inmate clothing,
hygiene items, and law enforcement equipment, among other
things; that goods come from outside of Indiana; that General
Counsel’s Exhibit 2 includes an invoice, with a due date of
“01/26/2005,” she received at CCA Marion County Jail II from
Bob Barker Company, Inc., which is located in North Carolina,
for inmate clothing and hygiene items for $3,046.36 which
were received at CCA’s Marin County Jail II; that the last page
of General Counsel’s Exhibit 2 is a copy of the CCA check that
was used to pay for the goods covered in the above-described
January 26, 2005 invoice,3 that General Counsel’s Exhibit 3

3 Respondent’s attorney objected to receiving this exhibit in evi-
dence arguing, “I object . . . to these invoices . . . [to] the Company she
works for. . . . It has nothing to do with us whatsoever. We are an
includes an invoice, with a due date of “02/08/2005,” she re-
ceived at CCA Marion County Jail II from Bob Barker Com-
pany, Inc. in North Carolina, for inmate clothing and hygiene
items for $2,945.71 which were shipped to CCA’s Marin
County Jail II,4 that the last page of General Counsel’s Exhibit
3 is a copy of the CCA check that was used to pay for the goods
covered in the above-described February 28, 2005 invoice; that
General Counsel’s Exhibit 4 includes an invoice, with a due
date of “03/14/2005,” she received at CCA Marion County Jail
II from Bob Barker Company, Inc. in North Carolina, for in-
mate clothing and hygiene items for $4,289.48 which were
received at CCA’s Marin County Jail II,5 that the last page of
General Counsel’s Exhibit 4 is a copy of the CCA check that
was used to pay for the goods covered in the above-described
March 14, 2005 invoice; that General Counsel’s Exhibits 5, 6,
and 7 are invoices from RJ Young Company in Nashville, Ten-
nessee, for copiers that CCA purchased and received at its
Marion County Jail II facility in Indianapolis, with each invoice
totaling $11,914.70;6 that she receives and keeps a copy of the
involved invoices (The original is forwarded by her to CCA’s
corporate office after she codes it.), and CCA’s corporate office
sent her the copies of the checks and the list of the invoices
included in the payment; that if CCA’s corporate office did not
pay the invoices, she would have received a past due invoice
and this did not occur with any of the involved invoices;7 that
General Counsel’s Exhibits 8, 9, 10, and 11 are invoices from
Respondent to CCA for mental health services provided to
inmates housed at Marion County Jail II dated October 1, De-
cember 1, February 1, 2005, and March 1, 2005, respectively,
and copies of the checks for the payments of $24,753.09,8
$20,595.42,9 $13,113.24 (dated “04/08/05”), and $12,396.07
(dated “05/27/05”), respectively, from CCA to Respondent; and

independent contractor. We did not pay one penny for it.” (Tr. 17.)
Respondent’s objection was overruled and the exhibit was received.
4 GC Exh. 3 also includes an invoice with a due date of
“02/10/2005” for $405 for inmate uniforms.
5 GC Exh. 4 also includes an invoice with a due date of
“03/16/2005” for $15,764.30 for inmate clothing and blankets pur-
chased from Bob Barker in North Carolina and shipped to CCA in
Indianapolis.
6 GC Exh. 5 has an invoice date of “10/26/04,” GC Exh. 6 has an in-
voice date of “01/21/05,” and GC Exh. 7 has an invoice date of
“02/23/05,” the last page of each of these three exhibits has a copy of a
check which, according to other pages in the exhibits, pays for these
charges. The other pages of these exhibits list the invoice number, the
invoice date, and the invoice amount that is being paid, along with
other invoices, by the check.
7 Respondent’s attorney argued that McConnell was not the “keeper
of the records” with respect to the checks and the list of invoices which
were covered by the payments, and, therefore, they were not admissi-
ble. Respondent’s objections were overruled and GC Exhs. 3 through 7
were received.
8 The CCA check, dated February 11, 2005, pays for invoices from
the Respondent for $12,977.34 (dated November 1) and $11,755.75
(dated October 1).
9 The CCA check, dated March 18, 2005, pays for invoices from the
Respondent for $10,328.43 (dated January 31, 2005) and $10,266.99
(dated December 1).
MIDWEST PSYCHOLOGICAL CENTER 3
that she receives and codes the above-described invoices from
Respondent to CCA.10
When called by the Respondent, Shelvy Keglar gave the fol-
lowing testimony in response to questions of Respondent’s
attorney:
Q. Did you do $250,000.00 worth of business in the
year of 2004 with this Contract [with CCA] you had?
A. No.
Q. Did you make any purchase during that period of
time?
A. No. [Tr. 409.]
On cross-examination by counsel for the General Counsel,
Shelvy Keglar testified that CCA is not the only company with
which Midwest has a contract to provide mental health services
in Indiana; that Midwest also has a contract with Correctional
Medical Services (CMS) of St. Louis; that the contract with
CMS has been in effect since September 2004, and it was still
in effect when he testified at the trial herein; that Respondent
bills $50,000 to $60,000 a month on that contract; and that in
the 12 months before he testified at the trial herein Midwest
received more than $250,000 total from its contracts with CCA
and CMS.
The evidence of record demonstrates that (a) at all material
times CCA, a corporation, with a main office in Tennessee, has
been engaged in the management of the Marion County Jail II
correction facility in Indianapolis; (b) during the pertinent 12-
month period CCA, in the course of conducting its business
operations, purchased and received, at its Indianapolis facility,
goods valued in excess of $50,000 directly from points outside
the State of Indiana; (c) during the pertinent 12-month period
Respondent, in conducting its business operations derived gross
revenues in excess of $250,000; and (d) during the pertinent 12-
month period Respondent, in conducting its business opera-
tions, provided services valued in excess of $5000 for CCA. In
C. P. Associates, Inc., 336 NLRB 167, 167 (2001), the Board
indicated
As the Board recently reiterated, an admission is in effect a
confessory pleading, and it is conclusive upon the party mak-
ing it. Boydston Electric, Inc., 331 NLRB 1450 (2000) (quot-
ing Academy of Art College, 241 NLRB 454, 455 (1979)
enfd. 620 F.2d 720 (9th Cir. 1980). The administrative law
judges, the Board, and the parties rely on the complaints and
the answers to determine contested issues. Id. Nor do we
find that the introduction of potentially conflicting evidence
negates the binding effect of the admission. Both the Board
and the courts have held that admissions contained in plead-
ings are binding even where the admitting party later pro-
duces contrary evidence. Id.
Section 102.23 of the Board’s Rules and Regulations provides
that
The respondent may amend his answer at any time prior to the
hearing. During the hearing or subsequent thereto, he may

10 Respondent’s attorney objected, apparently claiming that the
Board was limited to 2004 since that is when the charge was filed. GC
Exhs. 8 through 11 were received in evidence.
amend his answer in any case where the complaint has been
amended, within such period as may be fixed by the adminis-
trative law judge or the Board. Whether or not the complaint
has been amended, the answer may, in the discretion of the
administrative law judge or the Board, upon motion, be
amended upon such terms and within such periods as may be
fixed by the administrative law judge or the Board.
While at the trial herein the Respondent attempted to change its
position regarding its admission with respect to its gross reve-
nues, Respondent failed to move to amend its answer. Under
such circumstances, such defense—in addition to having no
merit here—is waived. Harco Trucking, LLC, 344 NLRB 478
(2005). I find that Respondent is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act, and it has been a health care institution within the
meaning of Section 2(14) of the Act. Correctional Medical
Services, 325 NLRB No. 84 (1998) (not reported in Board vol-
umes).
II. SERVICE OF THE CHARGES
In its answer to the complaint, General Counsel’s Exhibit
1(m), Respondent indicated as here pertinent as follows:
1. (a) The respondent Midwest Psychological Center,
Inc. is without sufficient knowledge to admit or deny the
allegations contained in case 25–CA–29381 filed by Yaina
Williams.
(b) The respondent Midwest Psychological Center,
Inc. is without sufficient knowledge to admit or deny the
allegations contained in case 25–CA–29405 filed by Hyun
Kim.
The consolidated complaint alleges, as here pertinent, as fol-
lows:
1. (a) The charge in Case 25–CA–29381 was filed by
Yaina Williams on October 26, 2004, and a copy was
served by mail upon Respondent on October 26, 2004.
(b) The charge in Case 25–CA–29405 was filed by
Hyun Kim on November 16, 2004, and a copy was served
by mail upon Respondent on November 17, 2004.
When called by counsel for the General Counsel, Shelvy
Keglar testified as follows:
Q. BY MS. BROWN: Dr. Keglar, you received copies
of the Charges filed by Yaina Williams and Adrian Kim.
Is that true?
A. I received notice that they had filed a Complaint.
Q. Did you receive copies of the Charges that they ac-
tually filed?
A. I do not know if that is any different than what I
received. I received a letter the Complaint had been filed.
[Tr. 114–116.]
Lori Ratti, who is a litigation support assistant with Region
25 of the National Labor Relations Board (the Board), testified
that one of her job duties is to mail out charges; that General
Counsel’s Exhibit 1(a) is a charge against Midwest Psychologi-
cal Center filed by Williams in Case 25–CA–29381 on October
26; that General Counsel’s Exhibit 1(b) is an Affidavit of Ser-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
vice she signed which indicates that the initial charge letter
with enclosures in Case 25–CA–29381 was served on Midwest
and Williams on October 26 by United States mail prepaid
postage; that she never received any returned mail regarding
Williams’ charge; that General Counsel’s Exhibit 1(c) is a
charge against Midwest filed by Kim in Case 25–CA–29405 on
November 16; that General Counsel’s Exhibit 1(d) is an Affi-
davit of Service she signed which indicates that the initial
charge letter with enclosures in Case 25–CA–29405 was served
on Midwest and Kim on November 17 by United States mail
prepaid postage; and that she never received any returned mail
regarding Kim’s charge.
Section 102.20 of the Board’s Rules and Regulations, as here
pertinent, specifies that
All allegations in the complaint, if no answer is filed, or any
allegation in the complaint not specifically denied or ex-
plained in an answer filed, unless respondent shall state in the
answer that he is without knowledge, shall be deemed to be
admitted to be true and shall be so found by the Board, unless
good cause to the contrary is shown.
Respondent’s assertion that it is without sufficient knowledge
to admit or deny the allegations contained in Case 25–CA–
29381 filed by Williams and Case 25–CA–29405 filed by Kim
is not responsive to the allegations in paragraphs 1(a) and (b) of
the complaint. Each of these two paragraphs of the complaint
contains two allegations, namely (1) a charge was filed, and (2)
the charge was served by mail on the Respondent. While a
respondent could assert that it is without sufficient knowledge
to know when a charge is filed, such a response does not suffice
with respect to whether the charge was served on the respon-
dent. If a respondent does not specifically deny that a charge
was served on it, then that allegation is admitted to be true.
Also, a Board agent’s signed and sworn affidavit, as to which
there is no evidence disputing its authenticity, is sufficient by
itself to establish service of the charge. United States Service
Industries, 324 NLRB 834 (1997).
And finally, the following testimony was elicited by Re-
spondent’s attorney:
Q. DR. KEGLAR . . . Were you served two Charges
against you by Ms. Kim and Ms. Williams?
A. Yes. [Tr. 403.]
In these circumstances, it has been shown that a copy of both of
the involved charges was served upon the Respondent in a
timely manner.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Witnesses Questioned by Counsel for the General Counsel
Pursuant to Federal Rule of Evidence 611(c)
Respondent has been in business since 1978. It provides
mental health services, as here pertinent, at the Marion County
Jail II and the Arrestee Processing Center (APC) pursuant to a
contract with CCA. Shelvy Keglar, who is a psychologist,
testified that he owns Respondent with his wife; that Respon-
dent’s contract with CCA covering the Marion County Jail II
has been in effect since about May 2004, and its contract with
CCA covering the APC has been in effect since September
2004; that he runs the day-to-day operations of Respondent,
and is responsible for the discipline of employees, including the
discharge of employees; and that Respondent has about 17
employees, including forensic case managers who interview
(conduct mental health screenings) inmates who come into the
involved facilities. In response to questions of Respondent’s
attorney, Shelvy Keglar testified that he is also the personnel
director of Respondent.
Shelvy Keglar testified that although he did not interview
her, he hired Williams after discussing the matter with Blanch-
ard.
Shelvy Keglar testified as follows regarding Kim:
She initially applied, for a full-time position with our
Company, in another Department, and I discovered that
she had fraudulently misrepresented herself for the posi-
tion she applied for.
So, I told the person who had interviewed her when I
discovered that she did not have a Degree that she applied
for the position, [sic] I looked at her resume and realized
that she did not have the—she had applied for. It was an
advertised position, for a Master’s level person. She had
gone through initial interview [sic] and a second interview.
It is our procedure in that Department and no one had
caught the fact that she did not have a Master’s Degree.
I took her resume home and I was reviewing her re-
sume. I discovered that night, prior to her being made an
offer, that she did not have a Master’s Degree and I called
my Coordinator of the Event Program at home and said,
are you aware that this person cannot be hired because this
position require[s] a Master’s Degree. She said, oops, I
had not seen that. . . . [Tr. 79 and 80, and emphasis
added.]
Shelvy Keglar testified that subsequently he hired Kim as a
forensic case manager, which is a bachelor’s level position.
Shelvy Keglar testified that Williams was discharged in Oc-
tober 2004, because “we did not feel that she was a satisfactory
employee” (Tr. 70); that she was not satisfactory “primarily,
she could not handle the job” (Tr. 71) in that Williams told her
supervisor, Blanchard, that the job was too stressful; that an-
other reason Williams was discharged was that she did not
come to a staff meeting; that there was a suicide at the APC,
and Williams could not handle the incident, her reaction
showed him that she was not the person for the job; that he did
not speak with Williams about what happened regarding this
suicide; that Williams had been employed by the Respondent
about 2 to 3 weeks at the time of the suicide; that Williams was
not disciplined as a result of what happened or for her reaction
to the suicide; that Williams indicated in a document which she
submitted to Blanchard, which document he saw, that she was
too stressed and she was not able to come to work for her regu-
lar work shift; that Williams did not see the inmate who com-
mitted suicide because it did not happen on her shift; that Wil-
liams was not disciplined prior to her discharge; that he learned
of Williams’ reaction to the suicide from Blanchard; that no
one else complained about Williams’ reaction to the suicide;
that he did not recall Blanchard ever complaining about the
quantity or quality of Williams’ work; that he did not think that
MIDWEST PSYCHOLOGICAL CENTER 5
when he decided to discharge Williams he was aware that she
had complained about not being paid for attendance at manda-
tory staff meetings; that he did not recall Blanchard ever calling
him and telling him that Williams was not being paid for atten-
dance at staff meetings; that it looks like he gave an affidavit to
the Board on November 29 and December 6, in which he indi-
cated that both Williams and Kim had raised the issue of not
being paid for going to staff meetings prior to their termination;
that Respondent has a progressive discipline policy but no pro-
gressive discipline is needed before termination if someone is
not satisfactory and they are jeopardizing Respondent’s con-
tract which is what Williams and Kim were doing; and that
“[w]e are not going to let anyone jeopardize our business, them
or no one else, and that is exactly what happened.” (Tr. 98 and
99).
In response to questions of Respondent’s attorney, Shelvy
Keglar testified that Blanchard recommended that Williams be
terminated; that Blanchard told him about Williams’ statements
about the suicide and Williams had “a lot of audacity to just tell
us . . . [she was] not going to a meeting because she was too
stressed. . . .” (Tr. 105); that no one ever filed a complaint with
him about not getting paid; that Blanchard asked him if the staff
was paid to come to a staff meeting that he set up, she was
asked this question by employees, she told them that she did
not know and she was going to check with him; that Blanchard
had been with Respondent for about a month or 6 weeks at the
time; that he was not sure if both Williams and Kim asked
about being paid to attend mandatory staff meetings;11 that
Blanchard transferred the employees’ hours onto a standard
form, she faxed that form to him, he reviewed it, and the hours
were transferred onto a payroll sheet by Respondent’s payroll
service; and that he paid Williams for what was on the time-
sheet sent to him by Blanchard.
Subsequently Shelvy Keglar testified that normally when he
received timesheets with respect to the hours that Williams and
Kim worked he expected them to reflect a total of 16 hours a
week for each one; that he required the staff meetings and he
discussed with Blanchard that the meetings would be held dur-
ing the week, between Monday and Friday; that he knew Wil-
liams and Kim were weekend employees; that looking at the
timesheets of Williams and Kim it would not have been obvi-
ous that they were not being paid for attending the mandatory
staff meetings because people do not always work the times
they are supposed to work; that the staff meetings were held
once a week, every week; that the contract between Respondent
and CCA called for two 8 hour part-time employees on the
weekend (both working 8 hours on Saturday and 8 hours on
Sunday); that if the Respondent paid Williams and Kim for
attending the mandatory meetings it would have exceeded the
agreed-upon number of part-time hours in Respondent’s con-
tract with CCA but this would not have been a problem because
hours could be shifted from a vacant position; and that at the
outset of the contract he projected giving the two part-time
employees each 16 hours a week.

11 Subsequently, in response to a leading question of Respondent’s
attorney, he testified that Williams was the only one who inquired
about getting paid.
Blanchard testified that Williams was assigned to work at the
APC; that she supervised this employee, who was a forensic
case manager; that Williams assessed inmates, did followups
with inmates and was a cofacilitator with support groups; that
she never gave a counseling or issued any written discipline to
Williams; that she participated in the decision to discharge
Williams; that she decided to discharge Williams because Wil-
liams became very upset, distraught about a suicide in the APC;
that Williams telephoned her about the suicide, she was crying,
extremely distressed, and she had to console Williams; that
Williams wrote a letter indicating that she needed time off to
deal with the matter; that when Williams was initially hired, she
indicated during orientation that she was not sure that she could
handle dealing with inmates; that she just told Williams to give
herself some time; that Williams was upset that the involved
arrestee was not referred to her before he committed suicide,
telling her, “I do not understand why they did not look for me”
(Tr. 153); that she did not testify that Williams was upset be-
cause they, the nurse and correctional officers, did not come
and get her but Williams was upset about the suicide; that Wil-
liams was concerned because they did not come and get her to
assess the arrestee for the risk of suicide; that it is normal pro-
tocol for the nurse or correctional officer to refer the arrestee to
Williams for risk assessment; that it was not inappropriate for
Williams to telephone her with respect to the suicide; that when
Williams telephoned her Williams said that there was a suicide
at the APC and she did not know why they did not come and
get her; that Williams started crying during the telephone con-
versation and she asked Williams if she wanted her to come to
the APC to support her and help out; that Williams answered,
“no” (Tr. 158); that the suicide occurred during the night, the
arrestee was discovered after hours, and Williams came in the
next day and found out somebody had committed suicide; that
she allowed Williams to keep seeing inmates after the suicide;
that subsequently Williams submitted a written request to miss
the next staff meeting; that Williams verbally advised her that
she would probably want to take that whole week off to recu-
perate from all of that; that Williams saw inmates the weekend
after the suicide; that the suicide occurred on October 9, and
Williams worked on Sunday, October 10; that Williams worked
the following weekend; that she counseled Williams about the
incident subsequent to the day of the incident when Williams
telephoned her to make sure that she had received William’s
message about missing the staff meeting on Tuesday, October
12; that she counseled Williams on Tuesday by telephone; that
she could not recall who contacted whom but she told Williams
that it was very important that she receive the documentation;
that the counseling consisted of her telling Williams that she
hoped that Williams did not blame herself for the occurrence
since she did not participate; that she asked Williams to write
up what happened at APC regarding the suicide and show that
she was excluded so Respondent would not be liable for what
occurred since she was not included in the process; that she did
not discipline Williams as a result of the suicide, Williams pro-
vided the documentation, and she told Williams that she had
done a good job with the documentation; that the two reasons
for Williams’ discharge are her reaction to the suicide and what
Williams said during orientation, as described above; that there
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
was no other reason for the discharge; that shortly before she
was terminated Williams contacted her by telephone and asked
if she gets paid for staff meetings; that she told Williams that
she did not know, she would have to ask, she would call Wil-
liams back, and she asked Williams for the telephone number
so that she could call her back immediately; that she telephoned
Shelvy Keglar who told her, “yes,” and then she telephoned
Williams back and left a message on her voicemail saying that
she would be paid for her staff meetings; that this occurred
about 2 days before Williams was terminated; that the only
other employee who was not being paid to attend mandatory
staff meetings was Kim; that the fact that Williams’ “took time
off” (Tr. 184) was not one of the reasons that Williams was
discharged; that she talked to Shelvy Keglar prior to discharg-
ing Williams in that they were discussing other matters regard-
ing the jail and Williams’ performance came up “and we had
been discussing that, previously” (Tr. 172); that she had pre-
pared written documentation about three times and gave it to
Shelvy Keglar about her concerns regarding Williams’ per-
formance;12 that Shelvy Keglar would have her typewritten
notes; that she did not remember on what dates she made the
notes; that she gave an affidavit to the Board, which she signed
on December 15, in which she indicated that she did not keep
her notes, and she did not mention the notes she allegedly gave
to Shelvy Keglar; that in the affidavit she indicated that after
she talked to Dr. Keglar about the issues, . . . she throws her
notes away; that shortly before she was terminated Williams
telephoned her to make an inquiry about not being paid for
attending the mandatory staff meetings but Williams did not
complain; that Williams and Kim were not paid for attending
mandatory staff meetings; that she told Williams that she did
not know about whether Williams should be paid for the staff
meetings but she would get back to her; that Shelvy Keglar told
her that Williams and Kim do get paid for staff meetings; that
she left a voice message for Williams indicating that she does
get paid for staff meetings; and that she changed the number of
staff meetings Williams and Kim had to attend to two a month
instead of the original four a month since they were part time;13

12 No attempt was made by Respondent to introduce such docu-
ments.
13 Williams and Kim were part-time from day one of their employ-
ment with Respondent. Nothing changed in this regard. The change in
the number of staff meetings they had to attend disclosed Respondent’s
true intention in that while Respondent was not paying Williams and
Kim to attend mandatory staff meetings, they were required to attend
one every week. Once Respondent realized that it could no longer get
away with not paying Williams and Kim for attending the mandatory
staff meetings, it was decided that it was only necessary for Williams
and Kim to attend two mandatory staff meetings a month. Respondent
did not indicate that the cost for the two part-time employees attending
four staff meetings a month was considered in the contract terms for the
two part-time employees. Indeed it appears that under the involved
contract each of the two part-time employees was to work 16 hours a
week. Shelvy Keglar knew that Respondent was not paying Williams
and Kim each for more than the 16 hours every week. He also knew
that (a) they were required to attend a staff meeting once a week and
unless they took time off on the weekends this would result in their
hours exceeding 16 hours a week or 32 hours during the pay period,
and (b) that it would be easier to make up the difference in cost if, once
that Williams inquired but she did not complain about not get-
ting paid for staff meetings; and that in her affidavit to the
Board she indicated that Williams telephoned her “to complain
about not being paid for staff meetings.” (Tr. 192 and 193.)
By letter dated October 18, General Counsel’s Exhibit 16,
Williams advised Blanchard as follows:
I just received your message. I assumed that these de-
cisions regarding compensation are not your responsibil-
ity, and this is the reason for the confusion and miscom-
munication. I made this assumption because I have been
submitting my time sheets to you for staff meetings for the
past few weeks, and you never told me that I would not be
compensated for those hours. Therefore, I figured Shelvy,
Jr. was probably making this determination, and I should
contact him to complain.
You stated that I will be paid for staff meetings, and
now I am required to attend only two per month. I am as-
suming this means that I will be compensated retroactive
for the three meetings I’ve already attended: two last
month (9/20/04 & 9/28/04) and one this month (10/4/04).
I will fax copies of the T3 forms previously submitted to
you. If paying me for past meetings is a problem, please
let me know so that I can contact the Department of Labor
for collection. Since I have already attended one meeting
this month, I will not be there today. [It has] been a rough
week, and I need a break. I will attend next week’s meet-
ing, and I will present on November 9th if that’s okay with
you.
Thank you for getting back to me, and I appreciate
your apology (it’s more than what I got from Shelvy, Jr.).
By the way, I will not need Thanksgiving weekend off.
My travel plans have been canceled. [Emphasis added.]
Blanchard testified that she received William’s letter on Octo-
ber 19, she faxed it to Shelvy Keglar, and they discussed the
letter after he received the fax; that later that day, after she and
Shelvy Keglar discussed Williams’ letter to Blanchard, the

he started to have to pay them for attending staff meetings, they only
attended two staff meetings a month. It appears that Blanchard appre-
ciated the situation in that after she testified about leaving a voice mes-
sage for Williams telling her that she would be paid for the staff meet-
ings, in response to questions of counsel for the General Counsel,
Blanchard testified as follows:
Q. Did you change the number of staff meetings she was re-
quired to attend?
A. Since she [Williams] is part-time, she only has to attend
two staff meetings a month.
Q. Prior to that [when Blanchard left the above-described
voice message for Williams], how many was she required to at-
tend?
A. She—I think she attended only three staff meetings prior
to that.
Q. Yes, but that was not my question. Prior to that how
many staff meetings was she required to attend?
A. She—supposed to come to every staff meeting.
Q. Okay and how often do those happen.
A. Once a week.
As noted above, the witnesses were separated and Blanchard did not
hear Shelvy Keglar’s testimony.
MIDWEST PSYCHOLOGICAL CENTER 7
decision was made to discharge Williams; and that prior to
Williams’ discharge, she never told Williams that she consid-
ered Williams’ work unsatisfactory.
General Counsel’s Exhibit 12 is a letter dated October 19,
from Blanchard to Williams which reads as follows:
As of October 19, 2004, Midwest Psychological Center no
longer will need your services. You will be paid for the pre-
vious 3 staff meeting[s] you had attended. Your APC elec-
tronic key, CMS swipe card, Marion County Sheriff Dept.
badge, Conseco parking garage badge and any additional job-
related items should be immediately returned to Midwest
Psychological Center’s office located at the above address.
Shelvy Keglar gave the following testimony:
Q. Do you—did you—what part did you play, in it
[William’s termination letter] being prepared?
A. I was carbon copied.
Q. Did you instruct anyone to prepare this document,
sir?
A. I okayed it. I okayed her termination.
Q. Okay and who did you instruct to—who did you
okay the termination with, sir?
A. Dr. Blanchard.
. . . .
Q. Okay, and you received a copy of this letter, sir?
A. Right. [Tr. 77 and 78.]
Blanchard testified that she prepared Williams’ discharge letter,
General Counsel’s Exhibit 12, and copied it to Shelvy Keglar;
and that she did not speak to Williams about her discharge prior
to sending her discharge letter.
Subsequently Blanchard gave the following testimony:
JUDGE WEST: With respect to General Counsel’s Ex-
hibits 12 and 13, I note that both documents indicate that
Dr. Keglar was carbon copied.
THE WITNESS: Was carbon copied?
JUDGE WEST: cc, at the bottom.
. . . .
THE WITNESS: That is correct.
JUDGE WEST: All right. Did you show Dr. Keglar
both of these letters, before you mailed them?
THE WITNESS: Yes, I did.
JUDGE WEST: Okay. Did you discuss with Dr. Keglar
the content of both of these letters?
THE WITNESS: Before it was written.
JUDGE WEST: Before it was written.
THE WITNESS: Yes.
JUDGE WEST: So, did he help, in drafting the letters?
THE WITNESS: Basically, he told me what should be
included and that is what I did. Then, I faxed it to me
[sic], before mailing it.
. . . .
And got his okay. [Tr. 211 and 212.]
Shelvy Keglar testified that Kim was discharged because
“[h]er work was unsatisfactory” (Tr. 81); that Kim could not
get the evaluations of the inmates done, she could not do
enough work on the weekend, and there were a lot of com-
plaints about her productivity and her not getting the work
done; that Kim did not meet the standard of how many inmates
to see during the day and she was referring inmates, who she
should have seen, to other employees; that he did not know
what the standard was; that Kim’s writeups were not written
well in that she had information in the reports that did not need
to be there; that it was not his role to counsel Kim with respect
to the amount of work she was doing and he did not speak to
her personally about the quality of her documentation; that Kim
was discharged on the quantity and quality of her work; that he
did not recall ever instructing that Kim be disciplined; that the
first discipline Kim received was her discharge; that when he
decided to discharge Kim he did not know that she had made
complaints about having to attend weekly staff meetings; that
he was not aware of any complaints about attending staff meet-
ings; that he did not recall Blanchard ever calling him and tell-
ing him that Kim was not being paid for attendance at staff
meetings; that, as indicated above, it looks like that he gave an
affidavit to the Board on November 29 and December 6, 2004,
in which he indicated that both Williams and Kim had raised
the issue of not being paid for going to staff meetings prior to
their termination; that, as indicated above, Respondent has a
progressive discipline policy but no progressive discipline is
needed before termination if someone is not satisfactory and
they are jeopardizing Respondent’s contract which is what
Williams and Kim were doing; and that, as indicated above,
“We are not going to let anyone jeopardize our business, them
or no one else, and that is exactly what happened.” (Tr. 98 and
99.)
In response to questions of Respondent’s attorney, Shelvy
Keglar testified that Blanchard recommended that Kim be ter-
minated; that it came to his attention that Kim was having a
problem getting her work done on the weekends because she
was writing excessively and taking too long; that “Blanchard
had talked with . . . [Kim] about it several times, about her not
getting it done, and that she needed to get it done” (Tr. 107);
that, as indicated above, he was not sure if both Williams and
Kim asked about being paid to attend mandatory staff meetings;
that Blanchard spoke to him about Kim asking about flextime
instead of pay; that flextime was for full-time employees (40
hours a week), and Kim was a part-time employee (16 hours a
week) who worked only on weekends; and that he paid Kim for
what was on the timesheet sent to him by Blanchard.
On redirect by counsel for the General Counsel, Shelvy Ke-
glar testified that he did not recall Blanchard telling him that
anyone but Williams raised the issue of not being paid for staff
meetings, and Kim asked about flextime; and that in his affida-
vit to the Board he indicated
Prior to her discharge, Yaina [Williams] had mistak-
enly—Yaina had been mistakenly told, by Dr. Blanchard,
that staff meetings were not paid. I do not know when this
conversation took place . . . but I [sic] was, before we de-
cided to terminate both Yaina and Adrian. Dr. Blanchard
told me that Yaina and Kim had raised the issue of not be-
ing paid for staffings with her. Dr. Blanchard told me she
had told them both that they were not to be paid, for the
time in staffing.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
I do not know for sure but my indication, from what
Dr. Blanchard told me, was that both Adrian (Kim) and
Yaina raised the issue at relatively the same time. I do not
know it they raised this issue together with Dr. Blanchard
or they discussed it separately with her. I told Dr. Blanch-
ard that she was mistaken in what she told . . . them, that
the staffings were supposed to be paid. I think that Dr.
Blanchard’s conversation with Yaina occurred, about a
week or so prior to her discharge but I am not certain since
I was not present for the conversation.
I think that Dr. Blanchard told me, about this conversa-
tion the day—of her discussion with Yaina and Dr.
Blanchard told me that she told them that staffings were
not paid. I told Dr. Blanchard to pay Adrian and Yaina
retroactively, for the staffings they had attended and to re-
port their time spent, in staffings, in the future, so they
could be paid.
Yaina and Kim were only part-time employees and
only week-end employees. So, they were the only people
that had to come into the Jail, on off hours, for the staff-
ings. These meetings occurred on all the other employees’
normal work hours and they were paid, for their time in
these meetings.
Yaina’s complaint, about not being paid for staffing
was not a reason for her discharge. I did not consider how
Yaina or Adrian’s complaint about payments for staff-
ing—I did not consider complaints about payment for
staffings when I decided to terminate either of them. If
they made the complaint about staffing jointly, I do not
consider the fact they were complaining jointly when I de-
cided to terminate Yaina or Adrian.
We paid both Yaina and Adrian for . . . any staffings
that they attended but were not initially paid for. [Tr. 131–
133, and emphasis added.]
Blanchard testified that Kim was assigned to work at Marion
County Jail I; that she supervised this employee; that she par-
ticipated in the decision to discharge Kim; that the only other
employee, other than Williams, who was not being paid to at-
tend mandatory staff meetings was Kim; that Kim was a foren-
sic case manager who worked, like Williams, from 8 a.m. to 5
p.m. on Saturday and Sunday, working 16 hours a week; that
Kim was discharged for poor performance in that she did not
complete her work in a timely fashion, she worked over 8 hours
a day to attempt to complete her work “due to lengthy write-ups
or progress notes and third, she was not completing her work
and—refer[red] it, to other workers to complete, which the
other workers complained about” (Tr. 194); that Kim was not
given formal discipline for not completing her work in a timely
fashion, there were no written disciplines; that Kim did not
receive a written discipline for working more than 8 hours or
leaving work for others but Kim received verbals; that every
time Kim worked she would work over 8 hours; that she told
Kim that she could work beyond the 8 hours but she would not
get comptime for it; and that Kim was never given any written
discipline or suspended for her poor work performance.
In response to questions of Respondent’s attorney, Blanchard
testified that Kim never mentioned anything to her about com-
pensation for attending staff meetings; that Kim only men-
tioned comptime (referred to by Blanchard as flextime) and she
asked about it more than once.
General Counsel’s Exhibit 13 is a letter dated October 21,
from Blanchard to Kim which reads as follows:
As of October 21, 2004, Midwest Psychological Center no
longer will need your services. Your paycheck and a check
for the 3 staff meetings you had attended are enclosed. Your
APC electronic key, CMS swipe card, Marion County Sheriff
Dept. badge, Conseco parking garage badge and any addi-
tional job-related items should be immediately returned to
Midwest Psychological Center’s office located at the above
address.
Shelvy Keglar gave the following testimony:
Q. Did you instruct that, that notice of termination
(Kim’s) be prepared, sir?
A. I agreed with it.
Q. Can Dr. Blanchard discharge an employee without
your permission?
A. No.
Q. Okay. So, my question to you again is, did you in-
struct that this letter of termination be prepared?
A. I concurred with it.
JUDGE WEST: I am sorry. For the record, you con-
curred with it. Did you see the letter before it was mailed?
THE WITNESS: Yes. [Tr. 87 and 88.]
With respect to Kim’s discharge letter, Blanchard testified that
she made the decision to discharge Kim on October 21, 2004,
the date of the discharge letter; and that she did not speak to
Kim about her discharge prior to sending the discharge letter.
As noted above, subsequently Blanchard gave the following
testimony:
JUDGE WEST: With respect to General Counsel’s Ex-
hibits 12 and 13, I note that both documents indicate that
Dr. Keglar was carbon copied.
THE WITNESS: Was carbon copied?
JUDGE WEST: cc, at the bottom.
. . . .
THE WITNESS: That is correct.
JUDGE WEST: All right. Did you show Dr. Keglar
both of these letters, before you mailed them?
THE WITNESS: Yes, I did.
JUDGE WEST: Okay. Did you discuss with Dr. Keglar
the content of both of these letters?
THE WITNESS: Before it was written.
JUDGE WEST: Before it was written.
THE WITNESS: Yes.
JUDGE WEST: So, did he help, in drafting the letters?
THE WITNESS: Basically, he told me what should be
included and that is what I did. Then, I faxed it to me
[sic], before mailing it.
. . . .
And got his okay. [Tr. 211 and 212.]
MIDWEST PSYCHOLOGICAL CENTER 9
B. General Counsel’s Witnesses14
Kim testified that she worked for the Respondent as a foren-
sic case manager from 8 a.m. to 5 p.m. on Saturdays and Sun-
days; that she reported her time by writing her hours on a time
sheet; that in addition to the 8 hours she worked on both Satur-
day and Sunday, she was required to work every Tuesday in
that she attended Respondent’s staff meeting at the Marion
County Jail; that as a forensic case manager she performed
initial evaluations, took care of medical requests from inmates,
and provided mental health service; that during the initial
evaluation she asked the inmates why they requested to see a
mental health professional; that she was assigned to see 12 to
13 inmates during a shift; that she entered the information she
obtained during the interviews into a computer program; that
she was paid biweekly for 32 hours (or 8 hours on two Satur-
days and 8 hours on two Sundays); that she worked more than
32 hours twice during the entire time she worked for Respon-
dent; and that the first time occurred after she had worked for
Respondent 6 weeks and it involved her working a total of 5
hours more than her 32 hours during the biweekly period.
On cross-examination, Kim testified that she found out about
Respondent when she saw an ad in the Sunday newspaper for a
case manager position at Marion County Jail; that the ad stated
what was required for being a case manager; that she applied
for the position but she did not get it; that she received a tele-
phone call from Leesa Franklin, who was with Respondent, to
see if she was interested in a home-based counselor position;
that Franklin told her that she did not get the home-based coun-
seling position because she did not have a master’s degree in
hand; that she did not ask what education the home-based
counselor position called for and Franklin did not tell her; that
she did not tell Franklin or anyone else at Respondent that she
had a master’s degree, and her resume showed everything about
her educational credentials and her experience; that her resume
indicated that she took master’s degree courses and she had
finished 33 credit hours out of 40 required for graduation but no
where in her resume did she indicate that she had finished her
master’s program and got that degree; that no one at Respon-
dent ever asked her what type of degree she had; that no one at
Respondent described what the qualifications were for the
home-based counselor position; that she was interviewed for
the home-based counselor position but she was not offered the
position; that Franklin told her that (a) Shelvy Keglar received
her resume that she faxed to Respondent when she applied for
the case manager position and sent it to Franklin who was hir-
ing a home-based counselor; (b) when Franklin received the
resume from Shelvy Keglar she assumed that Kim was quali-
fied for the position; and (c) after she interviewed Kim she
telephoned Shelvy Keglar who asked her if Kim had a Master’s
degree in hand; that Franklin telephoned her that night and
asked her if she had a Master’s degree in hand, and she told
Franklin that as indicated on her resume, she had finished all of
her course work but she had not done her thesis; that Franklin
told her that Shelvy Keglar was willing to wait until she re-
ceived her Master’s degree and Franklin offered her a part-time

14 As noted above, counsel for the General Counsel also called Ratti
regarding the service of the involved charges.
position at the jail; that the following morning she received a
telephone call from Shelvy Keglar Jr. who wanted to proceed
with the paperwork; and that she asked for a job description and
accepted the position.
Williams started working for Midwest on September 13 as a
case manager in the Marion County Jail, APC on Market Street
in Indianapolis. Williams testified that she did mental status
evaluations of the arrestees to determine if they were suicidal or
would do harm to themselves and if they had a history of men-
tal illness; that she filled out progress notes and she entered the
information into the computer; that she worked on Saturdays
and Sundays, and she was required to attend a staff meeting
every Tuesday at the Marion County Jail; that she was not paid
for attending the meetings; that Blanchard was her immediate
supervisor; that Shelvy Keglar Jr., who hired her, is a manager
with Midwest; that during her training, Blanchard asked her
how she felt about working in this environment and she told
Blanchard that she has never worked in this environment and it
would probably be an adjustment; and that on a couple of occa-
sions Blanchard told her that she was very good at what she
did.
On September 20, after a staff meeting Kim showed her
timesheet to Blanchard and explained that she went over the 32
hours by 5 hours because of some suicide cases, and Blanchard
said it was okay. Kim testified that she initiated the conversa-
tion and prior to this Blanchard never talked to her about work-
ing more than 8 hours in a day; and that Blanchard told that in
the future if she had to go over the 8 hours, she should keep it
within 30 minutes or leave the paperwork behind for the week-
day staff, and leave the job at 5 p.m.
On cross-examination, Kim testified that she did not get au-
thorization to work overtime; that Blanchard had told her that
her shift was 8 hours, and she should leave the job at 5 p.m.;
that on September 20, for the first time Blanchard told her that
if she had to stay late to keep it within 30 minutes; that she did
not get paid for the 37 hours and when she asked Blanchard
about it Blanchard told her that she was going to be paid by
comptime; that Blanchard explained that comptime is some-
thing she could use when she had to take a few hours or a day
off; that Blanchard said comptime was the same thing as flex-
time; that at a staff meeting on September 28, Blanchard said
that everybody was eligible for comptime and “everybody was
supposed to write down every single day of work hours” (Tr.
264); and that Blanchard never specified that part-time employ-
ees were not eligible for flextime.15
According to Kim’s testimony on cross-examination, on Oc-
tober 7, she spoke with Shelvy Jr. about her pay and he told her
that he would speak with Blanchard; and that subsequently
Shelvy Jr. left her a message indicating that her verified hours
were 26.5 for a particular pay period, it was verified by Blanch-
ard and if she had any further questions, she should speak with
Blanchard. When Respondent’s attorney asked Kim why she
was not paid for 32 hours, she told him that she took Sunday,
October 3, off because her baby had a birthday party.

15 As indicated below, in an October 21 fax to Shelvy Keglar Jr.,
Kim indicated that on October 16, she was advised that nonsalary em-
ployees are not eligible for comptime.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
On October 9, Kim saw Williams’ timesheet on which Wil-
liams included her staff meeting time. Kim testified that she did
not include her staff meeting time on her timesheet because the
employee who trained her, Jordan Graves, told her she would
not get paid for attending staff meetings;16 and that prior to her
discharge she was never paid for attending staff meetings.
Williams testified that on October 9 or 10, an inmate com-
mitted suicide around 3 or 4 p.m. while she was working; that
at the time she was in the office at APC; that the inmate hung
himself in a cell in the APC; that she saw CPR being adminis-
tered to the inmate who committed suicide; that she telephoned
Blanchard from her office at APC; that she had been instructed
to telephone Blanchard in such a situation; that she told
Blanchard that the arrestee who had committed suicide was not
on her list of people to see; that the nurses did not include his
name on the list of arrestees who needed mental status evalua-
tion; that since he was not on the list, suicide precautions were
not taken for him; that she asked the nurses why the arrestee
was not placed on her list; that she was upset because a man
had died on her watch, and she was not able to do her job be-
cause the nurses had not placed his name on her list; that she
gave a memorandum to the nurses from their chief which ex-
plained the new procedure that they were supposed to refer
anybody that they thought has suicidal tendencies to the Mid-
west case manager; that Blanchard told her that it was not her
fault and she handled it well; that Blanchard told her to write a
progress report, get everyone’s name she talked to, and give all
the particulars, including those of the suicide victim; that she
wrote up the progress report; that Blanchard acknowledged
receiving the progress report and said everything is fine; and
that she did not cry during her conversation with Blanchard but
her voice was quivering.
On October 12, after a staff meeting, according to the testi-
mony of Kim, she told Blanchard that she accidentally saw
another employee’s timesheet and that new employee was in-
cluding the staff meeting time on her timesheet. Kim testified
that she asked Blanchard if she should be including her staff
meeting hours on her timesheet and Blanchard told her that she
“was right not to track down . . . [her] staff meeting hours be-
cause nobody gets paid for it.” (Tr. 229.)
On cross-examination, Kim testified that on October 12, she
discussed with Blanchard getting paid for staff meetings.
On Saturday, October 16, Kim telephoned Williams and
asked her if she was being paid for attending mandatory staff
meetings. Kim testified that Williams checked her records
while Kim was on the telephone and told Kim that “wait a min-
ute, I am not getting paid for staff meetings that I was claim-
ing” (Tr. 230); that she explained to Williams why she was not
entering her staff meeting hours on her timesheet, namely
Graves told her that she would not get paid for them; that Wil-
liams said that they had to get paid for the staff meetings and

16 Graves was not shown to be a supervisor. The testimony was
taken over the objection of Respondent’s counsel because (a) the fact
that Williams was not paid for her stafftime even though she included
the stafftime on her timesheet was already a matter of record, and (b) it
explained why Kim would not do that which is reasonable under the
circumstances, namely enter all of the time she worked on her time-
sheet, including staff meeting time on Tuesdays.
she was going to talk to Shelvy Keglar Jr.; that she told Wil-
liams that she, Kim, had a few extra hours that she worked, she
spoke to Blanchard about it a couple of times and she, Kim,
was afraid that if she kept pushing to get paid for the extra
hours she would be fired; that she told Williams that she did not
like confrontation and Williams said that she was comfortable
with confrontation and Kim should let her handle it; and that
Williams said that she was going to telephone Shelvy Jr. on
Monday and also she was going to fax a letter to Shelvy Jr. to
demand to get paid for the staff meeting hours.
Williams testified that she received a telephone call from
Kim on October 16; that she was working when Kim tele-
phoned her; that Kim told her that she was not being paid for
some of her hours, for staff meetings and flextime; that she told
Kim that they were being paid for staff meetings and she
looked at her pay stub and discovered that she was not being
paid for staff meetings; that she had been recording her staff
meetings on her timesheet; that Kim told her that Blanchard
said Kim would not be paid for staff meetings and Kim indi-
cated to her that she had been trying to contact Shelvy Jr. but he
was not returning her calls; that Kim told her that according to
her husband, who is an attorney, it was illegal not to pay them
for staff meeting hours; that she was directed to the Department
of Labor website, she printed out the information, and she told
Kim that she was going to relay the information to Shelvy Jr.;
that later on October 16, she saw Blanchard and Kim at the
Marion County Jail when she went there for a group therapy
session; that Blanchard told her and Kim that they were not
eligible for flextime as part-time workers; that she had never
discussed flextime with Blanchard; that later that day she con-
tacted Shelvy Jr. by telephone, and he told her that he could not
hear her in that he was at a football game and he would call her
back; and that he did not call her back.
After speaking with Williams, Kim began entering the time
she spent at the staff meetings on her timesheet. On cross-
examination, Kim testified that she wrote down the time she
spent at a staff meeting after October 16 on her timesheet but
she was not paid for the time.
On Sunday, October 17, Kim spoke with Williams about not
being paid for staff meetings. Kim testified that she told Wil-
liams that her husband was an attorney and he told her that
under the State labor law part-time employees were supposed to
be paid for every hour that they worked; that later that day, in
the evening, Williams spoke with Kim’s husband; and that she
heard her husband’s side of the conversation, and he told Wil-
liams which Web site to go to collect relevant information
about part-time employees and not getting paid for staff meet-
ings.
On October 17, Williams faxed the following letter, General
Counsel’s Exhibit 18, to Shelvy Keglar Jr. at Midwest Psycho-
logical Center:
I would have liked to discuss this in person; but as you
know, we have been unable to meet, and you do not return
my calls in a timely manner. It is probably better to put
this in writing anyway, and I would prefer that you re-
spond in writing. I need you to clarify something for me.
Somehow I failed to notice that I have not been paid for
MIDWEST PSYCHOLOGICAL CENTER 11
the weekly staff meetings that I am required to attend on
my day off. It was brought to my attention Saturday that
not only am I not to be compensated for that time, but also
there is no flex time available to part-time staff members.
Correct me if I am wrong, but since the staff meetings are
held on Tuesdays, isn’t this hour considered flex time? I
asked Dr. Blanchard to clarify the meaning of flex time,
and she stated that it was any time beyond my weekly
(weekend) 16 hours. Therefore, these staff meetings fall
into the category of flex time if I follow this logic. With
this logic, I can further presume that any staff meeting
held outside my normal weekend hours is not required.
But, I have been told that these meetings are mandatory.
Needless to say, I am very upset about this mater. First
of all, you never informed me about this. I have been
submitting my time sheets for these staff meetings, and no
one has bothered to say anything to me for weeks. I find
this to be extremely unprofessional. Second, I have no
problem with attending staff meetings, as I understand this
is part of my duties, and I take pride in performing my du-
ties in a professional and irreproachable manner. I also
enjoy meeting with the other workers. However, I do not
like feeling as if you are taking advantage of me; and
when you expect me to perform my duties for free on my
day off, then that is totally unacceptable.
I would like to resolve this matter amicably. I enjoy
my job because I am gaining valuable experience that will
help me finish my degree, and I like and respect my co-
workers. I do not intend to quit. But, I also do not intend
to continue attending staff meetings or performing any
other duties on my days off for free. You cannot require
me to do flex time and forbid it at the same time. You
cannot fairly have it both ways. It would be fair to choose
one; either pay me for the hour on Tuesdays or excuse me
from these weekly staff meetings without penalty. This
seems to be a simple and fair solution in my mind. I hope
that you will agree, or perhaps there is some way you can
clarify this matter to make it make sense for me because I
am confident that it is not your intention to be unfair or to
violate any labor laws.
The following is a quote from the Department of Labor Web
site regarding compensatory work hours:
Lectures, Meetings, and Training Programs: Attendance at
lectures, meetings, training programs and similar activities
need not be counted as working time only if four criteria are
met, namely: it is outside normal hours, it is voluntary, not job
related, and no other work is concurrently performed.
I acquired this statement from the Department of Labor Web
site:
Our staff meetings do not meet the four criteria listed in the
above statement because we are required to attend, they are
not outside normal business hours, and they are obviously job
related. Therefore, according to the law, you either have to
pay me for those hours or make the meetings voluntary. Until
I hear from you, or I receive a check compensating me for the
past four staff meetings, I will not attend any more staff meet-
ings on my day off. Just a thought: perhaps another solution
would be to encourage Dr. Blanchard to schedule our meet-
ings on the weekends during my shift. That way you can pay
the full time workers who are eligible for flex time compensa-
tion.
General Counsel’s Exhibit 19, which reads as follows, was
faxed by Williams to Shelvy Keglar Jr. immediately after Gen-
eral Counsel’s Exhibit 18:
Listed under “Frequently Asked Questions,” here is
another direct quote form [sic] the Indiana [D]epartment
of Labor website for reference:
. . . .
Does my employer have to pay me for mandatory
meetings?
Yes. An employer must compensate employees for
time spent on the job when the employee is subject to the
employer’s control and direction.
On October 18, Shelvy Keglar Jr. telephoned Williams, left a
message, and she called him back. Williams testified that she
asked Shelvy Keglar Jr. if he had received her letter and laugh-
ing she asked if she was fired; that Shelvy Keglar Jr. did not
laugh, his tone changed, his voice lowered, and the timber in
his voice lowered, he sounded very serious and angry; that
Shelvy Keglar Jr. said, “I do not know why you sent me this
letter. You should have called. We should have talked about
this face-to-face. Why did you send me this letter” (Tr. 323);
that she told him that he did not return her calls and when they
tried to meet he did not show up; that he told her she should
have talked with Blanchard and she would have talked to him;
that he said, “Adrian’s issue is different from yours” (Tr. 323)
and she said, “I do not know how because neither one of us are
being paid for staff meetings, but that is beside the point be-
cause I am not concerned about flex hours . . . . I do not even
really understand what that means” (id.); that she told him that
she was just concerned with getting paid for staff meetings; that
he told her that she was right as far as being paid for staff meet-
ings and she should call Blanchard; that she called Blanchard
and asked her why she was not being paid for staff meetings;
that Blanchard told her that no one is paid for staff meetings;
that she told Blanchard that Shelvy Keglar Jr. just told her that
she should be paid for staff meetings; that Blanchard told her to
call Shelvy Keglar Jr. and she told Blanchard that she should
call him and get back to her; and that later that afternoon
Blanchard called her back and left a message indicating that she
would be paid for staff meetings and from now on she only had
to attend two a month and it was up to her which two she would
attend. On cross-examination, Williams testified that Blanch-
ard had all of her telephone numbers and she just told Blanch-
ard to call her back.
On Monday, October 18, Kim spoke with Williams by tele-
phone. Kim testified that Williams telephoned her at home;
that Williams said that she faxed a letter to Shelvy Keglar Jr. to
demand to get paid for staff meeting hours, and Shelvy Jr. tele-
phoned her and they discussed Williams not getting paid for
staff meeting hours; and that during Williams’ telephone con-
versation with Shelvy Jr. he told Williams that Kim’s issues are
totally different and Williams told Shelvy Jr.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
she did not know what was going on with Adrian. Anything
about Adrian’s issue, you will have to directly talk to her. I
do not know what is going on with her. So do not mention
her name to me. I just want to talk, about my staff meeting
hours that I did not get paid (Tr. 236 and 237).
Kim further testified that later that night she received another
telephone call from Williams who told her that she received a
voicemail message from Blanchard; and that Blanchard advised
Williams in the message that she would be paid for staff meet-
ings, and from now on she would only have to attend two staff
meetings a month instead of attending every week.
On October 18, Williams sent Blanchard a letter, General
Counsel’s Exhibit 16, after she received Blanchard’s message.
The letter, which is set forth above, bares repeating here. It
reads as follows:
I just received your message. I assumed that these de-
cisions regarding compensation are not your responsibil-
ity, and this is the reason for the confusion and miscom-
munication. I made this assumption because I have been
submitting my time sheets to you for staff meetings for the
past few weeks, and you never told me that I wound not be
compensated for those hours. Therefore, I figured Shelvy,
Jr. was probably making this determination, and I should
contact him to complain.
You stated that I will be paid for staff meetings, and
now I am required to attend only two per month. I am as-
suming this means that I will be compensated retroactive
for the three meetings I’ve already attended: two last
month (9/20/04 & 9/28/04) and one this month (10/4/04).
I will fax copies of the T3 forms previously submitted to
you. If paying me for past meetings is a problem, please
let me know so that I can contact the Department of Labor
for collection. Since I have already attended one meeting
this month, I will not be there today. [It has] . . . been a
rough week, and I need a break. I will attend next week’s
meeting, and I will present on November 9th if that’s okay
with you.
Thank you for getting back to me, and I appreciate
your apology (it’s more that what I got from Shelvy, Jr.).
By the way, I will not need Thanksgiving weekend off.
My travel plans have been canceled. [Emphasis added.]
Williams testified that she never received a reply to this letter.
And as noted above, Blanchard testified that the decision was
made to discharge Williams that day after she and Shelvy Ke-
glar discussed this letter from Williams.
On Tuesday, October 19, Kim spoke with Blanchard and
Williams. Kim testified that she telephoned Blanchard before
the staff meeting and told her that she could not attend the staff
meeting because her baby was sick; that Blanchard, who had a
young child, said that she understood and she gave her some
advice on what to do about Kim’s baby running a fever after
receiving a vaccine; that Blanchard told her that “from now on
you are going to get paid for your staff meeting hours but you
do not have to attend it every week. As long as you attend a
staff meeting twice a month you will be alright” (Tr. 238); and
that Blanchard told her not to worry about the staff meeting
today, she already attended last week’s staff meeting, she
should not worry and Blanchard would see her next week.
Later Kim received a telephone call at home from Williams.
Kim testified that Williams told her that she just got fired; that
Williams telephoned her again later that day and told her that
she had talked with (1) Shelby Jr. who told her that he did not
fire her, Blanchard did, and (2) Blanchard, who told Williams
that she did not have to give a reason why Williams was dis-
charged; and that she told Williams that she would be next to
be fired because she was going to fax a letter to Shelvy Jr. to
demand to get paid for staff meetings and she was going to
push getting paid for the extra hours she worked.
Williams testified that on October 21, she telephoned Keith
Boyd, an employee at Midwest who worked at the APC, to find
out if he wanted to have lunch after the staff meeting on Octo-
ber 26; that Boyd told her that during the staff meeting on Oc-
tober 19, Blanchard stated that Williams was no longer working
at Midwest; that she telephoned Shelvy Jr. and asked him if she
was fired; that Shelvy Jr. would not answer her but rather said
he did not know; that Shelvy Jr. started reading a letter he said
Blanchard showed him and the letter was her, Williams’, termi-
nation letter; that he told her to call Blanchard; that when
Blanchard returned her call she asked her why she was fired;
that Blanchard referred to the letter and she told Blanchard that
she did not get the letter; that Blanchard asked her how she
knew that she was fired and when she told Blanchard that
someone told her Blanchard wanted to know who; that she
asked Blanchard if she was fired because she demanded to be
paid for the staff meetings and Blanchard said something about
her probationary period; that she told Blanchard that if she was
not going to answer her question then there was nothing more
to say and she ended the conversation; that she received a ter-
mination letter later that day; that she was never given a reason
for her discharge; that she was never disciplined while she
worked for Midwest; that the only thing she received from
Blanchard was encouraging feedback; that she never took a
Saturday or Sunday off while she worked at Midwest; that she
never told Blanchard that she was too stressed to come to work;
and that she did not attend a staff meeting. On cross-
examination, Williams testified that Blanchard told her to co-
facilitate group therapy sessions and she was concerned be-
cause she was not prepared for that and she needed more train-
ing.
On Thursday, October 21, at 10 a.m., Kim faxed, as here per-
tinent, the following letter, General Counsel’s Exhibit 17, to
Shelvy Keglar Jr.
. . . .
I request your assistance . . . in clarifying and resolving
some outstanding Human Resource and Payroll issues.
Enclosed please find a copy of the Time Sheets that reflect
the paycheck periods that are referred to in this letter. . . .
When I asked my supervisor Dr. Blanchard if I may
exceed eight (8) hours in a day when the workload re-
quired additional effort, she stated “Yes, but try to stay no
more than an extra thirty (30) minutes per day—and only
when necessary.” She continued that I would not be paid
at an overtime rate or automatically receive payment for
MIDWEST PSYCHOLOGICAL CENTER 13
these additional periods on the next paycheck, but that I
would accrue, in essence, Comp’ Time, and be able to take
that Comp’ Time when I need to take time off for personal
matters. Later, when I took a personal day, and my next
check did not include credit for my accrued Comp’ Time, I
asked Dr. Blanchard about this, and she stated that Comp’
Time is not automatically applied. Then, at the following
week’s staff meeting, I was told that the appropriate form
for Comp’ Time was not yet available. Then, on October
16, 2004, I was told that nonsalary employees are not eli-
gible for Comp’ Time.
. . . .
On October 19, 2004, I was told that nonsalary em-
ployees would be paid for time spent attending staff meet-
ings. I applaud you for coming into compliance with both
Indiana and Federal law on this issue. Now, I ask you to
come into compliance with both Indiana and Federal law
regarding remuneration of nonsalary employees for hours
worked. . . .
. . . .
My records indicate that I have not been paid for the
following periods spent on the job, subject to my em-
ployer’s control and direction:
1. For the pay period ending September 19, 2004,
I worked thirty-seven (37) hours, but was only paid for
thirty-two (32) hours.
2. For the pay period ending September 26, 2004,
I worked twenty-six and one-half (26.5) hours, but was
only paid for twenty-four (24) hours.
3. I have not been paid for time spent attending staff
meetings on: 9/20/04, 9/28/04, and [1]0/12/04.
If Midwest is unable or unwilling to pay me for these
periods within fourteen (14) days of receiving this letter,
then please respond to me in writing with an explanation
as to why.
Again, I truly appreciate the opportunity to work at
Midwest Psychological Center and find the service side of
the business deeply rewarding. I know that you are a rea-
sonable man and, as such, I believe that you would be un-
happy if you were not paid for hours that you had worked
. . . . [Emphasis added.]
Kim testified that she sent the letter because she wanted to get
paid for the hours that she actually worked and for the staff
meetings she attended but did not get paid for attending.
On cross-examination, Kim testified that she was not paid
for all the hours she worked in the September 6–19 pay period,
and the pay period including October 2.
On Friday, October 22, Kim received a letter of termination.
The letter, which is set forth above, is dated October 21. Kim
testified that she had two discussions with Blanchard about the
number of patients she was seeing in a day; that she initiated
both of these discussions; that the first occurred on September
20, after a staff meeting, and she told Blanchard that she was
trying hard to finish her interviewing of patients and doing the
paperwork; that Blanchard told her not to worry about it, she
understood, and she told her to write it down on the paper chart
as concisely as she could or it would be tons of paperwork; that
she also initiated the second conversation, which took place on
the Saturday they started group therapy for inmates at the jail;
that she explained to Blanchard that there would be 10 people
present for group therapy and after the group therapy session
she would have to do the paperwork for these 10 plus the pa-
perwork for 12 to 14 inmates she saw on a Saturday; that she
told Blanchard that she did not know how she would handle all
this paperwork; that Blanchard told her that if she could not
finish everything by 5 p.m., just leave it for the weekday staff
to take care of; that she and Williams facilitated the group ther-
apy sessions and Blanchard was present that Saturday to super-
vise the first session and give her and Williams instructions on
how to run the group; that more than once she asked Blanchard
in a memorandum if she should change anything in her pro-
gress notes and Blanchard did not reply to the memorandums;
and that she was never disciplined while she worked for Re-
spondent, she was never told that Respondent was dissatisfied
with the number of patients she saw, and she was never told
that Respondent was unhappy with her notes on patient inter-
views.
On cross-examination, Kim testified that she did not have a
problem performing her duties in an 8-hour shift; that she did
work beyond 8 hours on occasion when around 5 p.m. she was
getting ready to leave and a suicide case was reported; that she
had to call and page Dr. Gashaw, the psychiatrist or Dr.
Blanchard right away and she was at the jail until almost 7
p.m.; that she had to do this a couple of times; that suicide cases
do not need authorization to work overtime in that it is an emer-
gency and a determination has to be made as to whether the
inmate should be transferred to a suicide cellblock; that she
only worked beyond 5 p.m. two times; that once she took a day
off for her baby’s first birthday; and that Blanchard never spoke
to her about her performance or leaving work for other employ-
ees.
On redirect Kim testified that she had instructions to follow
regarding a suicidal inmate; that she telephoned Blanchard first
and then Gashaw; that the first suicidal situation came up in her
second week with Respondent; that when she telephoned
Blanchard about the first suicidal inmate Blanchard told her to
have the person transferred to the suicidal block and Blanchard
faxed the paperwork for the transfer; that it was understood that
she was to stay until the transfer was completed; that Blanchard
gave her permission to take a day off, saying, “[I]t is your
baby’s first birthday. It is important. You got to be there” (Tr.
293); and that Blanchard did not discipline her for taking the
day off.
C. Respondent’s Witnesses
Blanchard testified that the only conversation she had with
Williams about her duties occurred the day Williams reported
the suicide; that she told Williams that she would come to APC
and support her and assist her on the job; that Williams refused
her offer; that Williams was very distraught, and very emo-
tional; that as a mental health professional you have to deal
with those kinds of issues and be able to handle it in a profes-
sional manner and it was overwhelming to her; that she dis-
cussed this situation with Shelvy Keglar on two or three occa-
sions; that Williams sent her a fax requesting possible time off
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
because of this incident and additional events that have oc-
curred, namely Williams had a brother who was in the hospital
during this time; that as a supervisor she is required to give an
evaluation to a probationary employee like Williams after 6
months; that she could do an evaluation prior to the end of the
6-month period; that she not did think Williams had the ability
or the competency to handle the position; that she brought this
to Shelvy Keglar’s attention at the time; that Williams never
told her that she was not supposed to be a cofacilitator at group
therapy sessions; and that on October 18 Williams gave her a
telephone number where she could be reached.
On cross-examination, Blanchard testified that Williams re-
questing some possible time off had nothing to do with her
decision to discharge Williams; that Williams was fired be-
cause of (1) her competency, namely her reaction to the suicide;
(2) her comment when she first began working at APC; and (3)
Williams telling her that she had only done a support group
once during her training; that with respect to the support group,
she told Williams that it was part of her job requirement and
she would always have a master’s level person to assist her
with the group; that she did not testify earlier, in response to a
question of Respondent’s attorney, that Williams did not talk to
her about the group meeting; and that when she testified in
response to counsel for the General Counsel’s Rule 611(c)
questions she testified that Williams was terminated because of
(1) her reaction to the suicide; and (2) the comment she made
about inmates.
Subsequently Blanchard testified that it would not be un-
common for someone who had never been in a situation like it
to express concern when they first were in the APC; and that
she did not recall seeing on Williams’ timesheets which were
submitted to her the 1 hour (2 hours a pay period) for attending
a mandatory staff meeting.17
Regarding Kim, Blanchard testified that Kim never brought
to her attention the fact that she did not get paid for a staff
meeting; that Kim complained to her about flextime and on
several occasions she told Kim that she was not eligible; and
that she recommended Kim be terminated for poor job per-
formance.
Leesa Elaine Carter-Franklin, who is a program coordinator
for home-based counseling and also a family therapist at Mid-
west, testified that she interviewed Kim for a family therapist
position Kim applied for; that “[r]eviewing her resume and
speaking with her on the phone, she had indicated and led me to
believe that she had her masters, which is why we granted the

17 The reason that Blanchard refused to concede that she saw the en-
tries on Williams’ timesheets submitted to Blanchard for the staff meet-
ings is that this would raise the question of why didn’t she tell Williams
that Respondent did not pay her and Kim for staff meetings. Her ex-
planation to Williams and Kim that nobody gets paid for staff meetings
was not true. Since the meetings were held during the week and not on
weekends, full-time employees were paid for attending them since they
occurred during those employees’ workday. Blanchard appreciated that
fact that Williams and Kim were to be paid for a maximum of 32 hours
each for each pay period. From the outset, both Blanchard and Shelvy
Keglar knew that Williams and Kim were not being paid for attending
mandatory staff meetings. When these two employees took a stand on
this issue, they were terminated.
interview” (Tr. 400); and that she did share Kim’s resume with
Shelvy Keglar for his review and a possible position he had
available in another program. On cross-examination, Franklin
testified that Kim told her “I am really close to a Masters, I will
have it soon” (Tr. 401); that Kim made this statement during
her interview with her; that over the telephone before the inter-
view Kim told her that she did have her masters; and that what
occurred did not disqualify Kim from being considered for
another position. On redirect Franklin gave the following testi-
mony:
Q. BY MR. HAWKINS: Okay. She told a falsehood
then. She stated she had a Masters and she did not.
A. Correct, sir.
Q. You only found out after the interview. Is that cor-
rect?
A. Correct, sir. [Tr. 402, and emphasis added.]
Shelvy Keglar testified that Blanchard brought to his atten-
tion that Kim had a concern about flextime but not about pay
for attending staff meetings; that Williams never filed a com-
plaint with him prior to filing a charge with the Board; and that
I took her [Kim’s] resume home. I was looking over
her resume, as I do all . . . candidates.
I called Leesa Franklin and said are you aware that she
does not have a Master’s Degree and Leesa said no I am
not. She [Kim] had presented herself all the way through
the interviews as having a Master’s and told Leesa she did.
I deciphered, in looking at her resume, that she did not
have a Master’s and told Leesa, you cannot hire her for
that position. So that is how she [Kim] came to our Com-
pany.
She [Kim] did not apply for the jail position. She ap-
plied for a Family Therapist position. It was advertised as
a Master’s level position and she [sic] Leesa she had a
Master’s and came to the interview, as Leesa testified.
[Tr. 416 and 417.]
Shelvy Keglar further testified that Blanchard repeatedly talked
to him about Kim not getting her work done on weekends; that
he looked at Kim’s work and she was writing excessively and
that is why she was not getting her work done; that he told
Blanchard that Kim had to get her work done in accordance
with what the expectations were; that Kim “did not change her
way of doing it. It consistently kept going over” (Tr. 417); and
that Blanchard sent him informal notes and when it continued
to happen he decided not to keep Kim on.
Subsequently Shelvy Keglar testified that some people
would not be able to conclude that Kim did not have her mas-
ter’s degree just by looking at her resume but he was able to
reach this conclusion based on looking at her resume alone; and
that Kim indicated on her resume that she had not completed
her thesis and this indicated to him that she did not have her
master’s degree.
On redirect Shelvy Keglar testified that it was inexcusable
that Kim took a day off for her baby’s first birthday; and that
I do not tolerate anybody, especially working the first month
of a Contract, taking off excessively, not doing the job and not
changing when you ask them, to do the job, and that is with
MIDWEST PSYCHOLOGICAL CENTER 15
Kim. She did not change after we asked her to change and—
another person who is not suitable [sic] job. [Tr. 428.]
On further recross Shelvy Keglar testified that he did not say
anything about Kim asking for a day off as a reason for his
deciding to discharge her when he first testified as a 611(c)
witness; that he “did not mention it, that is true, and because I
did not think about and it came to me later. That was an issue
with her” (Tr. 429); that no one approved Kim taking a day off;
that Respondent has a vacation form; that he did not know if
Kim made a request to take the day off; and that when Williams
indicated that she was stressed and might have to take some
time off it would be a workday.
Analysis
Paragraph 5 of the complaint alleges that Respondent dis-
charged Williams and Kim because they concertedly com-
plained to Respondent regarding the wages, hours, and working
conditions of Respondent’s employees, by requesting that em-
ployees be paid for attending mandatory meetings and that
employees be compensated for the actual hours worked.
Blanchard knew from the outset that Midwest was going to
try getting around paying Williams and Kim for attending man-
datory staff meetings on their day off. The contract Midwest
had with CCA called for each of two part-time employees to
work 8 hours on Saturday and 8 hours on Sunday. When Wil-
liams and Kim asked Blanchard about not being paid for the
staff meetings, Blanchard told both of them the same lie,
namely that nobody gets paid for attending staff meetings.
Blanchard admitted when she testified as a 611(c) witness that
the only two employees who were not paid for attending man-
datory staff meetings were Kim and Williams. As noted above,
when Respondent could no longer get away with not paying
Williams and Kim for attending these weekly meetings, Re-
spondent informed them that they only had to attend two a
month. Shelvy Keglar knew exactly what was going on from
the outset. He unwittingly disclosed his true intention when he
reduced the hours immediately upon realizing that he was going
to have to pay Williams and Kim. If he intended to pay them
from the outset, they would not have been attending weekly (as
opposed to two a month) staff meetings from the outset.
The timing of the discharges is also revealing. The various
justifications asserted by Respondent, from a chronological
standpoint, must be viewed in terms of the fact that nothing was
done about these alleged shortcomings until Williams and Kim
spoke to supervisors, and submitted documentation to Respon-
dent demanding to be paid for the hours they worked. Wil-
liams’ above-described letter indicating that she was willing to
contact the Department of Labor to collect the money owed her
was received by the Respondent on October 19, it was dis-
cussed by Blanchard and Shelvy Keglar, and later that same
day the decision was made to discharge Williams. At 10 a.m.
on October 21, Kim faxed her demand to be paid for the hours
worked letter to Respondent, and by letter dated October 21,
Kim was discharged. Action was taken by Respondent on the
same day both demanded to be paid for the hours worked letters
were received. Both employees were discharged the same day
Respondent received their demand letters. There is no subtlety
here.
Under Section 7 of the Act “[e]mployees shall have the right
to . . . engage in . . . concerted activities for . . . mutual aid or
protection. . . .” Here the involved activity was undertaken by
Kim and Williams. They discussed not being paid for hours
worked. They discussed their course of action. Both asked to
be paid for the hours they worked. Both communicated their
demand to Respondent’s supervisors, and Respondent was
aware of their demands before it terminated them. Kim and
Williams were involved in concerted protected activity, and the
Respondent discharged them for their activities.
Respondent did not even attempt to introduce a single ex-
hibit. And none of its three witnesses were credible.18 They
contradicted each other, some of Blanchard’s and Shelvy Ke-
glar’s testimony was contradicted by their affidavits, and
Blanchard and Shelvy Keglar changed their testimony as they
saw fit.
Shelvy Keglar is not a credible witness. He lied under oath
about Kim’s credentials. Shelvy Keglar testified that Kim
fraudulently misrepresented herself when she applied for a
position with Respondent, and that he was the one who discov-
ered the misrepresentation. It is not quite clear why, if he be-
lieved that she fraudulently misrepresented herself when she
applied for a position with Respondent, he hired her after mak-
ing this discovery. His testimony is contradicted by Franklin
who testified at one point that Kim told her during her inter-
view that she did not have her master’s. In response to a lead-
ing questions from Respondent’s attorney, Franklin later testi-
fied “[c]orrect . . . [c]orrect” that Kim told a falsehood, she
stated that she had a master’s and she did not . . . [and Franklin]
only found out after the interview.” (Emphasis added.) It is
also not clear why, if Kim lied about having her master’s to
Franklin over the telephone to get the interview, according to
Franklin, Kim was not disqualified from being considered for
another position.19 Shelvy Keglar testified that after the afore-
mentioned suicide, Williams was not able to work her regular
shift. Blanchard testified that Williams requested to miss a
staff meeting not her regular shift. Williams was able to work
her regular shift. Shelvy Keglar testified that one of the reasons
Williams was discharged was because she did not come to a
staff meeting. Blanchard, who allegedly participated in the
decision to discharge Williams, testified that the fact that Wil-
liams took time off was not one of the reasons for her dis-
charge. Shelvy Keglar never explained why, if Williams’ reac-
tion to the October 9 suicide was so inappropriate, Respondent
let her work October 10, and Saturday and Sunday of the fol-
lowing weekend, and only discharged Williams after Respon-
dent received her demand to be paid for the hours worked let-
ter. Shelvy Keglar was not candid about the role he played in
the preparation of the two discharge letters. Blanchard testified

18 It should be noted that as pointed out by Chief Judge Hand in
NLRB v. Universal Camera Corp., 179 F.2d 749, 751 (2d Cir. 1950);
“[i]t is no reason for refusing to accept everything that a witness says,
because you do not believe all of it; nothing is more common in all
kinds of judicial decisions than to believe some and not all.”
19 Kim is a credible witness. Her testimony regarding what hap-
pened during her interview process in seeking employment with Re-
spondent is credited. Franklin’s account was a poorly assembled fabri-
cation. Franklin was not a credible witness.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
that basically Shelvy Keglar told her what should be included
in the letters and that is what she did. Shelvy Keglar when
called by Respondent added as a reason for Kim’s discharge the
fact that she took her baby’s first birthday off from work.
Blanchard, who supposedly participated in the decision to ter-
minate Kim, did not deny that she approved Kim taking time
off from work to celebrate her baby’s first birthday. Shelvy
Keglar initially testified that that he did not think that when he
decided to discharge Williams he was aware that she had com-
plained about not being paid for attendance at mandatory staff
meetings; that he did not recall Blanchard ever calling him and
telling him that Williams was not being paid for attendance at
staff meetings; and that when he discharged Kim he did not
know that she had made complaints about having to attend
weekly staff meetings. Subsequently he testified that it looks
like he gave an affidavit to the Board on November 29 and
December 6, in which he indicated that both Williams and Kim
had raised the issue of not being paid for going to staff meet-
ings prior to their termination.
Blanchard is not a credible witness. In addition to the credi-
bility issues described above, Blanchard added a reason for
Williams’ discharge when she was called by Respondent. This
required not only that she change the testimony she gave when
she was initially called as a 611(c) witness but it required that
she deny that she testified earlier on direct when called by Re-
spondent that Williams never told her that she was not sup-
posed to be a cofacilitator at group therapy sessions. Blanchard
testified that Williams inquired but she did not complain about
not getting paid for staff meetings. In her affidavit to the
Board, however, Blanchard indicated that Williams complained
about not being paid for staff meetings. Blanchard refused to
admit the obvious with respect to William’s time sheet, namely
that she saw that Williams was including 2 hours per pay period
for attending staff meetings. For the involved pay periods
Blanchard took Williams’ hours off the timesheet Williams
filled out and Blanchard entered those hours on a timesheet she
forwarded to Respondent’s main office. For the involved pay
periods Blanchard did not include the hours for staff meetings
on the timesheet she forwarded to Respondent’s main office.
For the involved pay periods Blanchard did not tell Williams
that she was wasting her time entering her staff hours because
Blanchard was not going to include them on the timesheet she
forwarded to Respondent’s main office, and Respondent was
not going to pay her for that time. Blanchard lied when she
told Williams and Kim that no one was paid for attending staff
meetings. Blanchard lied under oath when she would not admit
that she saw the hours for staff meetings on Williams’ time-
sheet. Blanchard’s testimony that Kim never brought to her
attention the fact that she did not get paid for staff meetings is
not credited. Kim’s testimony in this regard is credited.
With respect to Respondent’s alleged justifications for the
discharges of Kim and Williams, Respondent relies on no docu-
mentation whatsoever and calls two witnesses who are not
credible.20 The credible evidence of record demonstrates that

20 Kim was hired after Franklin interviewed her. Franklin’s testi-
mony does not credibly refer to Kim’s discharge.
the alleged justifications asserted by Respondent are nothing
more than afterthought fabrications.
Williams and Kim are credible witnesses. Their testimony is
credited. Respondent violated the Act as alleged in paragraph 5
of the complaint.
CONCLUSION OF LAW
By discharging Yaina Williams and Hyun Kim because they
concertedly complained to Respondent regarding the wages,
hours, and working conditions of Respondent’s employees, by
requesting that employees be paid for attending mandatory
meetings and that employees be compensated for the actual
hours worked, the Respondent has engaged in unfair labor prac-
tices affecting commerce within the meaning of Section 8(a)(1)
of the Act and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily discharged employ-
ees, it must offer them reinstatement and make them whole for
any loss of earnings and other benefits, computed on a quarterly
basis from date of discharge to date of proper offer of rein-
statement, less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).
The Respondent will be required to expunge from its records
any reference to the unlawful discharges of Yaina Williams and
Hyun Kim.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended21
ORDER
The Respondent, Midwest Psychological Center, Inc., of In-
dianapolis, Indiana, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Discharging its employees because they concertedly com-
plained to Respondent regarding the wages, hours, and working
conditions of Respondent’s employees, by requesting that em-
ployees be paid for attending mandatory meetings and that
employees be compensated for the actual hours worked.
(b) In any like or related manner interfering with, restraining,
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 effec-
tuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer
Yaina Williams and Hyun Kim full reinstatement to their for-
mer jobs or, if those jobs no longer exist, to substantially

21 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
MIDWEST PSYCHOLOGICAL CENTER 17
equivalent positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
(b) Make Yaina Williams and Hyun Kim whole for any loss
of earnings and other benefits suffered as a result of the dis-
crimination against them, in the manner set forth in the remedy
section of the decision.
(c) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful discharges,
and within 3 days thereafter notify the employees in writing
that this has been done and that the discharges will not be used
against them in any way.
(d) Preserve and, within 14 days of a request, or such addi-
tional 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 re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its fa-
cility in Indianapolis, Indiana, copies of the attached notice
marked “Appendix.”22 Copies of the notice, on forms provided
by the Regional Director for Region 25, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. Reasonable 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
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since October 19,
2004.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.

22 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.”
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 violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT discharge or otherwise discriminate against
any of you for concertedly complaining to us regarding your
wages, hours, and working conditions, by requesting that you
be paid for attending mandatory meetings and that you be com-
pensated for the actual hours worked.
WE WILL NOT in any like or related manner interfere with, re-
strain, 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 this Order, offer
Yaina Williams and Hyun Kim full reinstatement to their for-
mer jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
WE WILL make Yaina Williams and Hyun Kim whole for any
loss of earnings and other benefits resulting from their dis-
charges, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of this Order, remove
from our files any reference to the unlawful discharges of
Yaina Williams and Hyun Kim, and WE WILL, within 3 days
thereafter, notify each of them in writing that this has been
done and that the discharges will not be used against them in
any way.
MIDWEST PSYCHOLOGICAL CENTER, INC.