THE MARTIN LAW GROUP, LLC

National Labor Relations Board - Administrative Judge Opinions

May 6, 2013

10-CA-078395 (N.L.R.B. May. 6, 2013)

JD(ATL)–10–13
Tuscaloosa, AL
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA OFFICE
THE MARTIN LAW GROUP, LLC
and Case 10–CA–078395
SHERI T. ROUSE, an Individual
Shelly C. Skinner, Esq., and Katherine Chahrouri, Esq.
for the General Counsel.
Brett Adair, Esq., and David P. Martin, Esq.
for the Respondent.
DECISION
STATEMENT OF THE CASE
MICHAEL A. MARCIONESE, Administrative Law Judge. I heard this case in Tuscaloosa,
Alabama on September 10–12 and October 1, 2012. Sheri T. Rouse, an Individual, filed the
charge on April 9, 2012, and amended it on May 4 and June 18, 2012.1 The Acting General
Counsel issued the complaint on June 27 alleging that the Respondent, the Martin Law Group,
LLC, violated Section 8(a)(1) of the Act by, inter alia, terminating Rouse on March 14. The
complaint alleges specifically that Respondent terminated Rouse for violating a rule that
prohibited employees from discussing their wages and benefits with other employees and that
the maintenance of this rule violated Section 8(a)(1) as well.
On July 10, the Respondent filed its answer to the complaint denying the alleged
unfair labor practices and raising several affirmative defenses, including, inter alia, that
Rouse’s termination did not violate the Act because she was a statutory supervisor, and that
even if Rouse was an employee, the termination was not unlawful because she engaged in no
protected concerted activity and would have been discharged for a pattern of misconduct even
if she had engaged in such activity.2

1 All dates are in 2012 unless otherwise indicated.
2 On July 11, the Respondent filed with the Board a motion to dismiss, which it later asked to be
converted to a motion for summary judgment. By order dated August 15, the Board denied the
Respondent’s motion.
JD(ATL)–10–13
2
On the entire record3, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the Acting General Counsel and the Respondent, I make
the following
FINDINGS OF FACT5
I. JURISDICTION
The Respondent, a limited liability corporation, operates a law firm in Tuscaloosa,
Alabama providing legal services to clients in and outside the State of Alabama. The 10
Respondent annually receives gross revenues from its operations in excess of $250,000, and
provides services valued in excess of $50,000 to clients located outside the State of Alabama.
The Respondent admits, and I find, that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.4
15
II. ALLEGED UNFAIR LABOR PRACTICES
The Respondent is a law firm in Tuscaloosa, Alabama specializing in ERISA law.
David P. Martin, an attorney with more than 20 years experience, founded the firm in 2007.
He is the firm’s owner and an admitted supervisor and agent within the meaning of the Act. 20
During the relevant period, the Respondent employed four attorneys in addition to Martin.
Jason Burgett and Ariel Blocker were hired in 2007 and 2008, respectively, and held the title
of senior associate. The Charging Party and Guy Martin (no relation to David Martin) were
hired in 2011 as associates. Although David Martin, Burgett, Blocker and Guy Martin all
testified that they were on a partnership track and identified a document setting forth the goals 25
for achieving that status, Rouse claimed ignorance of such a procedure and of the document
itself. In addition to the attorneys, the Respondent employed a support staff consisting of four
case managers, who worked as paralegals, and a receptionist.5

3 At the hearing, I rejected Respondent’s proffer of a tape recording of the meeting at which
David Martin terminated Rouse and a transcript of that recording prepared by the Respondent.
The Respondent, in its brief, requested that I reverse my ruling and admit the tape and
transcript into evidence. Counsel for the Acting General Counsel, in her brief, opposes this
request. After careful consideration, I have decided to adhere to my ruling and exclude this
evidence based on issues related to the chain of custody of the recording and the
circumstances surrounding the recoding itself and the preparation of the transcript. Counsel for
the Acting General Counsel requested in her brief that I revisit my rulings with respect to the
Respondent’s compliance with her subpoena duces tecum. After careful consideration, I have
decided to adhere to my rulings made at the hearing and find no basis for imposing any
sanctions on the Respondent for noncompliance.
4 In its answer, the Respondent denied that the Board had jurisdiction over this matter based on
its assertion that Rouse was a statutory supervisor who was not protected by the Act.
5 The case managers were Pamela Daniel, Amanda McDonald, Jennifer Saltzman, who also
served as the firm’s office manager, and Katherine Walton. Another case manager, Marlena
Rice, was employed through most of the relevant period but resigned shortly before Rouse’s
termination. Melissa Saltzman was the firm’s receptionist.
JD(ATL)–10–13
3
Rouse was first hired by David Martin on February 14, 2011, while still in law school.
She worked as a law clerk until she passed the Mississippi bar on September 15, 2011. Rouse
was the only attorney in the firm to be admitted in Mississippi. About the time she passed the
bar, Rouse requested and was granted a part-time schedule based on the recommendation of
her doctor that she not work full time. As a result, Rouse worked 4 days a week and was the 5
only attorney in the firm with a part-time schedule. Rouse was also the only attorney to be
paid on an hourly basis. Rouse worked for the Respondent on this schedule until her
termination on April 14. Shortly before her termination, Rouse began working at home. The
circumstances surrounding her termination are in much dispute but the threshold issue in this
case is whether Rouse was a statutory supervisor or an employee covered by Section 7 of the 10
Act. A great deal of evidence was proffered by both sides on this question, with much of the
testimony in conflict. Before reaching this issue, I will address the complaint allegation that
the Respondent maintained an unlawful rule prohibiting the discussion of wages and benefits
among the employees. Resolution of this issue is not dependent on the status of Rouse
inasmuch as the Respondent has admitted the rule applied to the attorneys and support staff.15
A. The Allegedly Unlawful Rule
There is no dispute that David Martin prohibited the attorneys at the firm from
discussing their compensation with one another and with the staff. Rouse testified that she 20
was told when hired as a law clerk and when she became an attorney that she was not to tell
anyone other than her husband what she was paid. David Martin reminded the attorneys of
this rule at various Monday morning attorney meetings. The other attorneys who testified also
acknowledged the existence of the rule. David Martin admitted the existence of this rule in his
testimony. 25
There is also no dispute that a similar rule applied to the support staff. David Martin
admitted telling the staff not to discuss their wages “on the job” because it causes disruption.
Martin claimed that the rule did not prohibit the staff from discussing their wages on their
own time or away from work, testifying that he could not control what they talk about outside 30
work. David Martin’s nuanced description of the rule contrasts with the blanket prohibition he
laid out in the Respondent’s written response to Rouse’s claim for unemployment
compensation. There he wrote that the rule had existed since the firm was established and that
all “employees” are made aware that discussion of wages is grounds for termination. In this
submission, Martin did not distinguish between attorneys and staff or between worktime and 35
nonworktime discussions.
It is well established that employees have the right under Section 7 of the Act to
discuss their wages, rates of pay and related topics because such matters are a “vital term and
condition of employment.” Such discussions often lead to protected concerted activity and are 40
considered at the “core of Section 7 rights.” Taylor Made Transportation Services, Inc. 358
NLRB No. 53 (June 7, 2012) and cases cited there. See also Koronis Parts, Inc., 324 NLRB
675, 694 (1997). As a result, the Board has historically held that rules prohibiting employees
from discussing their wages are unlawful, absent proof of a legitimate and substantial
business justification for the rule. Waco, Inc., 273 NLRB 746, 748 (1984). Here, the 45
Respondent offered no proof of such a justification for the rule, merely stating its belief that
employee wage discussions are “disruptive.”
JD(ATL)–10–13
4
Based on the undisputed evidence of the existence of such a rule, and based on well-
established precedent, I find that the Respondent violated Section 8(a)(1) of the Act, as
alleged, by maintaining a rule prohibiting its employees from discussing their wages with
other employees.5
B. The Termination of Rouse
Rouse’s supervisory status
10
A supervisor is defined in Section 2(11) of the Act as:
An individual having the authority, in the interest of the employer, to hire,
transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline
other employees, or responsibly to direct them, or to adjust their grievances, or 15
effectively to recommend such action, if in connection with the foregoing the
exercise of such authority is not of a merely routine or clerical nature, but requires
the use of independent judgment.
Because the statutory indicia of supervisory authority are stated in the disjunctive, an 20
individual will be found to be a supervisor if he or she is found to possess or exercise at least
one of the enumerated functions. Oakwood Healthcare, Inc., 348 NLRB 686, 688 ((2006);
Albany Medical Center Hospital, 273 NLRB 485, 486 (1984).
The issue of supervisory status, particularly when it involves professional employees, 25
has generated a great deal of litigation over the years. In 2001, the Supreme Court addressed
the issue in NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706, 712–713,
reiterating the three part test established in NLRB v. Health Care & Retirement Corp. of
America, 511 U.S. 571, 573–574 (1994). The Court held that a party asserting supervisory
status has the burden of proving three factors necessary to determine whether an individual is 30
a supervisor:
1. whether the individual has the authority to engage in any of the twelve
functions listed in Section 2(11) of the Act;
35
2. whether their exercise of such authority requires the use of independent
judgment; and
3. whether the individual holds the authority in the interest of the employer.
40
As counsel for the Acting General Counsel points out in her brief, the Board has historically
exercised caution in construing the language of the Act so as not to apply the definition too
broadly because an individual found to be a supervisor loses the protection of the Act. Avante
at Wilson, Inc., 348 NLRB 1056 (2006).
45
While there are many cases in which the Board and the courts have addressed the
supervisory status of nurses and other professional employees, the only cases cited by counsel
JD(ATL)–10–13
5
for the Acting General Counsel in which the attorneys were found to be employees involved
staff attorneys at legal service agencies. See North Carolina Prisoner Legal Services, Inc.,
351 NLRB 464 (2007); Louisville-Jefferson County Public Defender Corp., 330 NLRB No.
105 (2000); Legal Aid Bureau, Inc., 319 NLRB 159 (1995); Neighborhood Legal Services,
236 NLRB 1269 (1978). No cases have been cited or found similar to this case involving the 5
status of attorneys in a small law firm.6
In this case, the Respondent relies primarily on Rouse’s interaction with and oversight
of the case manager assigned to her to prove that she has the authority to assign work and
responsibly direct employees. The Respondent also offered evidence to show that Rouse was 10
involved in the hiring, firing and discipline of support staff. In addition, the Respondent
presented evidence regarding the authority of its other attorneys in order to show that all the
attorneys at the firm were similarly situated with respect to the possession and exercise of
supervisory authority. Finally, both parties offered evidence regarding the “secondary indicia”
of supervisory authority, such as supervisor to employee ratio, and differences in 15
compensation and benefits. However, as noted, such secondary indicia, by itself, are not
sufficient to establish supervisory status. Ken-Crest Services, 335 NLRB 777, 779 (2001).
The evidence shows that David Martin is the sole owner of the law firm and has
ultimate responsibility for all decisions related to the employment of the attorneys and support 20
staff. He is also the firm’s chief financial officer. Although the firm’s attorneys have the
potential to become partners and share in the profits of the firm, at the time of the hearing and
the events at issue, none had reached that level. The evidence also shows that David Martin
does not act alone in exercising his authority to make decisions for the firm. It is undisputed
that all the attorneys, including Rouse, met every Monday morning for a mandatory attorney 25
meeting. At this meeting, in addition to discussing cases, the attorneys discussed issues
regarding the hiring of staff, compensation for themselves and the staff and other matters
affecting their and the other employees terms and conditions of employment. The discussions
regarding the attorneys’ bonuses, which Rouse admittedly participated in, is illustrative of the
manner in which attorneys made recommendations which were then followed by Martin in 30
crafting the bonus plan.
In addition to managing the firm, David Martin served as lead counsel on his own
cases and was supported by one of the case managers. This was the same arrangement the
other four attorneys had. Each attorney had one case manager assigned to work as a team on 35
their cases. Under this arrangement, the attorney had full responsibility for the case manager
in terms of complying with the rules of professional conduct and ethical obligations of the
attorney. At the time of Rouse’s discharge, Katherine Walton was the case manager assigned
to her. Rouse was unique in the firm as the only attorney licensed to practice in Mississippi.
She thus was responsible for all of the clients with cases in that state. At one point, there were 40
as many as 300 Mississippi cases assigned to her. By the time of the discharge, that number
had been culled to somewhere between100 and 150. Because of the sheer number of cases,

6 Counsel for the Respondent, in his brief, did note the Board’s initial reluctance to assert
jurisdiction over law firms. See Foley, Hoag, and Elliott, 229 NLRB 456 (1977); Kleinberg,
Kaplan, Wolff, Cullen and Burrows, P.C., 253 NLRB 450 (1980). Those cases involved union
representation of support staff, not attorneys.
JD(ATL)–10–13
6
David Martin had to rely on the attorneys to make decisions regarding how the cases assigned
to them should be handled. As a result, the attorneys at the firm, including Rouse, had a great
deal of responsibility, as attorneys, for ethically and effectively representing the firm’s clients.
How Rouse and the firm’s attorneys interacted with the case managers to fulfill their case
handling responsibilities is at the heart of the supervisory issue here.5
The evidence shows that there was a well-established chain of command, with David
Martin at the top, then Burgett, Blocker, Guy Martin and, finally, Rouse on the bottom. All
employees had been advised that, in Martin’s absence, Burgett would be in charge and, if he
and Martin were both absent, Blocker would be in charge, and so on and so forth. Under this 10
scheme, Rouse would only be “in charge” of the firm if she were the only attorney in the
office. There is no evidence that this ever occurred. Of course, even in that event, David
Martin or one of the more senior attorneys would be just a phone call away. The evidence also
shows that because the firm was organized into teams of an attorney and case manager, case
managers were expected to bring matters such as vacation requests or other time-off requests 15
to the attorney to whom they were assigned first. Once clearing their request for time off with
their attorney, it would go to Martin for final approval.
There is no dispute that David Martin hired all of the attorneys and support staff and
determined their rate and method of compensation, their hours of work and made the 20
assignment of case manger to attorney. The Respondent offered evidence to show that Rouse
effectively recommended the hiring of case manger Katherine Walton and legal intern Ben
Gaines.7 The Respondent also offered the testimony of David Martin to show that Rouse
directly hired an individual to accompany her on a trip to meet with a large number of clients
in Mississippi, testimony which was directly contradicted by Rouse.25
Katherine Walton began work at the firm in about mid-October 2011 as a temporary
employee. Respondent had retained Walton through an agency called Key Staff Source.
Walton had never worked in a law firm before. On her first day of employment, she was met
by Rouse and David Martin. Martin told her she would be working for Rouse on the 30
Mississippi cases. Martin’s decision to hire a temporary employee came after a request from
Rouse for help with these cases, which, as previously noted, numbered in the hundreds.
Walton worked as a temporary for 12 weeks. During that time, she worked exclusively for
Rouse on these cases. Rouse was the only attorney in the firm to sign her weekly timesheets.
Martin did not review the timesheets which were the basis for determining her pay by the 35
temporary agency.
Walton was converted to an employee of the firm in early January 2012. According to
David Martin, this was after several requests by Rouse that he hire Walton because Walton
was getting other job offers and Rouse did not want to lose her. Although Rouse denied such 40
conversations, she acknowledged a desire to retain Walton because of the time it would take

7 Although testimony was offered at the hearing regarding the hiring of case manager Pamela
Daniel, Respondent, in its brief, does not rely on this as proof of supervisory status. In fact,
there is no evidence that Rouse did any more than introduce Daniel, a woman she had met at
church, to Martin after he told the attorneys at a Monday attorney meeting in spring 2011 that
he wanted to hire another case manager. Rouse was only a law clerk at the time.
JD(ATL)–10–13
7
to train a new case manager on the Mississippi cases. Martin testified that he hired Walton in
January based on Rouse’s recommendation because he had very little opportunity to review
Walton’s work during the time she worked as a temporary employee. Martin also claims that
he hired Walton because of Rouse’s strong recommendation that he hire her even though the
firm was experiencing a “financial crunch” at the time. There is no dispute that he did meet 5
with Walton privately before making the decision to hire her. During this meeting, Martin and
Walton discussed her compensation and Martin inquired about her experience as an LPN and
whether she could do nurse reviews for the firm when the work on the Mississippi cases
slowed. This meeting occurred on January 6, 2 days before she started as an employee. Martin
testified, without contradiction, that he had already announced, at the firm’s Christmas party, 10
that Walton would be joining the firm as an employee.
While admitting that David Martin asked her on several occasions whether Walton
should be hired, Rouse claims that he also asked all the other attorneys at a weekly attorney
meeting what they thought of Walton. However, none of the other attorneys had any 15
opportunity to work with Walton during her time as a temporary employee.
Having considered the evidence as to Walton’s hiring, I find that Rouse did make an
effective recommendation to hire her. I found Rouse’s attempt to minimize her input into the
decision disingenuous. Based on her own testimony regarding the volume of work on the 20
Mississippi cases and her desire to retain Walton rather than have to train someone new, I find
that David Martin’s version of events is the more likely scenario. There is no dispute that
Walton had been working exclusively for Rouse for 12 weeks and that Rouse was the only
attorney in the firm in any position to evaluate Walton’s work performance. The fact that
Martin also interviewed Walton before she was hired is not dispositive as that interview 25
explored compensation issues and what other skills Walton could bring to the firm. I credit
Martin that he had already made the decision to hire Walton based on Rouse’s
recommendation. Legal Aid Society of Alameda County, 324 NLRB 796 (1997).
There is no dispute that Martin hired a law student, Ben Gaines, to work as a law clerk 30
and that he too was assigned to assist Rouse on the Mississippi cases. Gaines was hired in
November 2011. The testimony regarding the circumstances of his hiring is in direct conflict.
According to David Martin, he hired Gaines after Rouse requested, during a weekly attorney
meeting, that the firm hire a law clerk to help her with the Mississippi cases. Martin claims
that Rouse brought him Gaines’ resume and that the two of them interviewed him before 35
hiring him. Rouse did not specifically deny requesting the assistance of a law clerk but she did
deny bringing Gaines’ resume to Martin. According to Rouse, she recommended someone
else for the position, a law school classmate, “John”, with whom she had worked previously.
Further contradicting Martin, Rouse testified that she actually recommended against hiring
Gaines, after reviewing his resume, based on potential political and religious conflicts with 40
David Martin and others in the firm.
I found the testimony of Rouse in this regard suspicious. She did not mention the other
individual, “John”, until rebuttal and never disclosed his full name or other identifying
information. Moreover, she backtracked with regard to whether she solicited Gaines’ resume 45
or whether Martin obtained it on his own. And her testimony whether she made a “primary”
or “secondary” recommendation to hire “John” is contradictory. In any event, it is clear that
JD(ATL)–10–13
8
Martin would not even be considering hiring a law clerk if Rouse had not requested that one
be hired to work with her on her cases. Even assuming Rouse did not recommend that Gaines
be hired, her recommendation that a law clerk be hired was effective and is enough to
establish the existence of supervisory authority.8
5
The testimony with respect to the hiring of an individual to accompany Rouse on a trip
to Mississippi is also in direct conflict. David Martin testified that Rouse approached him in
December about a meeting she had scheduled in Mississippi with a large number of ERISA
clients. She was concerned that she might need “security” if the meeting got out of hand. She
also wanted someone who could assist with heavy lifting. David Martin testified it was Rouse 10
who selected the individual for this one-time job, a man named Perry Harbin, and that she
made all the arrangements. The firm merely paid him with a check for $100.
In contrast, Rouse testified that it was Martin who instructed her to “find a man” to
take with her to the client meeting in Mississippi to assist with carrying heavy equipment and 15
crowd control. According to Rouse, Martin is the one who told her what to pay the man and
where to find him, i.e. by calling their Sunday School teacher.9 Rouse testified that the
Sunday School teacher recommended Harbin, who was a church missionary. After discussing
the job and the terms with Harbin, Rouse went back to Martin and got his okay before
advising Harbin that he was hired for the job. According to Rouse, Martin even specified the 20
time and place where she should meet Harbin on the day of the trip. The only point of
agreement in the testimony is that Rouse and Martin both testified that Martin signed the $100
check.
I find it unnecessary to resolve this conflict in testimony. Even assuming that Rouse 25
directly hired Harbin for this one-time job, this would not be sufficient by itself to establish
her supervisory authority because Harbin was never an “employee” of the firm. At most he
was an independent contractor or temporary employee with no expectation of continued
employment.
30
The Respondent offered evidence that Rouse fired, or effectively recommended the
firing of, the law clerk, Gaines.10 As noted above, Gaines was hired specifically to work as a
law clerk on Rouse’s Mississippi cases after Rouse had requested such help. There is no
dispute that Gaines did not last long, working only 1–2 weeks before being let go and that he
only worked for Rouse during this brief tenure. The basis for his termination is also without 35
dispute, i.e. Rouse had complained that Gaines was often tardy, that he came into work one
day hung over, and that he had been overheard on the phone promising money to potential
clients, who would be Rouse’s clients. It is clear that David Martin had no firsthand
knowledge of these facts. According to Rouse, when she reported her dissatisfaction with
Gaines, Martin told her to fire him. She testified that Martin wanted her to fire Gaines because 40

8 Although Rouse may claim that it was Martin’s idea to hire a law clerk, she slipped in her
testimony when she testified that she made the recommendation to hire John “upon the first
time that David [Martin] agreed that a law clerk could be hired…” (Emphasis added).
9 There is no dispute that Martin and Rouse and their respective families at one point attended
the same church.
10 This appears to be the only instance of employee termination before Rouse was discharged in
April.
JD(ATL)–10–13
9
he had never fired anyone in his life and didn’t want to have to do it. Rouse testified that she
then told Gaines that Martin told her that it “was not working out.” According to Rouse,
Gaines expressed concern about how a termination might look on his record and how it might
affect his admission to the bar and future career. She testified that he asked if he could be
classified as a volunteer and be allowed to resign. Rouse told Gaines she would have to check 5
with Martin. Rouse claims she reported Gaines’ request to Martin and that Martin agreed to
let him resign as a volunteer, which he did. It is undisputed that Gaines never completed any
employment paperwork, such as a W-4 or I-9 form, and received no pay for the time he
worked at the firm.
10
Martin disputed Rouse’s characterization of these events. According to Martin, when
Rouse reported the problems she was having with Gaines, he merely told her to do what she
thought best. Martin testified that Rouse returned later that day and told him she had fired
Gaines but that he had expressed concern about how a termination would look on his bar
application. She reported that he wanted to resign and not be paid for his time at the firm. He 15
denied instructing her to have Gaines resign as a volunteer.
Again, I find that the more credible version of events is that described by Martin. As
noted above, Martin had no independent basis for firing Gaines. He only knew what Rouse
reported to him. There is no evidence that he even investigated her claims as to Gaines’ 20
misconduct. He simply relied on her judgment to do what was best. Since Gaines had been
hired at Rouse’s request to work on her cases, it is reasonable that she would be the one to
decide whether it was “working out.” Even assuming, as Rouse claims, that Martin told her to
fire Gaines when she reported her concerns, her report was effective in recommending
Gaines’ termination because Martin relied upon it without any independent investigation.25
Counsel for the Acting General Counsel attempts to avoid the consequences of an
adverse finding with respect to Gaines’ termination by arguing that Gaines was not an
employee and that an individual is not a supervisor unless he or she exerts authority over
“employees” of their employer. See Crenulated Co., 308 NLRB 1216 (1992). While it is true 30
that unpaid volunteers are not employees within the meaning of the Act,11 and that Gaines
ultimately ended up becoming an unpaid volunteer, he was hired as an employee to be paid $9
per hour, as documented in the notes of the interview at which Rouse was present. It is not
disputed that Gaines was given the forms to fill out to become an employee. Only after his
termination did Gaines request a change to volunteer status to protect his professional 35
reputation, a fact conceded by Rouse. Thus, at the time he was terminated, Gaines was still an
employee of the firm even though he had not yet been paid for his time worked.
The Respondent, in support of its assertion that Rouse was a supervisor, also relies on
evidence that she had the authority to assign work. The Board, in Oakwood Healthcare, Inc., 40
348 NLRB 686 (2006), clarified the statutory definition of “assign” as follows:
The ordinary meaning of the term “assign” is “to appoint to a post or duty.”
Webster’s Third New International Dictionary 132 (1981). Because this function
shares with other 2(11) functions–i.e., hire, transfer, suspension, layoff, recall, 45

11 WBAI Pacifica Foundation, 328 NLRB 1273 (1999).
JD(ATL)–10–13
10
promotion, discharge, reward, or discipline–the common trait of affecting a term
or condition of employment, we construe the term “assign” to refer to the act of
designating an employee to a place (such as a location, department, or wing),
appointing an employee to a time (such as a shift or overtime period), or giving
significant overall duties, i.e., tasks, to an employee. That is, the place, time, and 5
work of an employee are part of his/her terms and conditions of employment.
Id. at 689.
There is no dispute that Rouse did not designate the place any employee worked. Only 10
Martin made such assignments, i.e., determining which case manager would work for each
attorney, and selecting the particular office for each attorney or support staff. Nor did Rouse
appoint any employee to a particular time of work. Again, it was Martin who established the
employees’ work schedules, including whether they would work full or, as in Rouse’s case,
part time. The only basis in the record here for a finding that Rouse had statutory authority to 15
“assign” employees is if she had the authority to give “significant overall duties . . . to an
employee.” Id. As the Board noted in Oakwood Healthcare, Inc., assigning “significant
overall duties” requires more than choosing the order in which an employee performs a
discreet task.12 It is more in the nature of deciding whether an employee will get a “plum” or a
“bum” assignment. Oakwood Healthcare, Inc., 348 NLRB supra, at 690.20
The Respondent utilizes a case management software called “Needles”. This software
generates a list each day that shows what tasks need to be performed on each case that day
and identifies the attorney or staff person who is responsible for completing that task. This
software works seamlessly for most of the cases handled by the law firm. However, it was not 25
designed for a mass plaintiff case such as the Mississippi pension cases assigned to Rouse. As
previously noted, at one point there had been as many as 300 such cases. It became necessary
to modify the Needles software to accommodate the Mississippi cases. There is no dispute
that Rouse was responsible for making suggestions for these modifications that were then
applied by Amanda McDonald, the case manager who also handled information technology 30
duties. However, Martin ultimately made any decision with respect to modifying the Needles
software. It is undisputed that the Respondent was still working on adapting Needles to handle
the Mississippi cases when Rouse was terminated.
The evidence also shows that Rouse, as the lead attorney on cases assigned to her, 35
could alter the priority of tasks on Walton’s Needles list during the course of the day. In
addition, pursuant to a firm policy established by Martin, that prioritized dictation over other
tasks performed by the case managers, it was not unusual for Rouse to redirect Walton when
she needed to dictate a letter or other document. I agree with counsel for the Acting General
Counsel that, for the most part, the tasks assigned by Rouse to Walton during the course of the 40
day that deviated from the Needles checklist, were routine clerical duties that do not fit the
Oakwood Healthcare definition of “assigning significant overall duties.”

12 As with all of the statutory indicia of supervisory status, the assignment of work must be done
with the exercise of independent judgment in the interest of the employer. NLRB v. Kentucky
River Community Care, Inc., supra.
JD(ATL)–10–13
11
The Respondent also offered evidence that, toward the end of her tenure at the firm,
Rouse was involved in a project to divide the Mississippi cases among other attorneys at the
firm. This project started as a result of difficulty Rouse and Walton were having keeping up
with the volume of cases being generated in Mississippi. As the only attorney at the firm
admitted in Mississippi, Rouse was ultimately responsible for these cases. The other attorneys 5
in the firm who took on some of the cases would have to report to Rouse on these cases. Such
a reassignment of cases would meet the definition of “assign” as the “giving of significant
overall duties” to an employee that is set forth in Oakwood Healthcare. The Respondent
introduced a document in evidence purporting to show Rouse’s plan for reassigning the cases
and sharing the workload. However, it is unclear how much of the document was the work of 10
Rouse and how much was done by Martin. There is no dispute that Rouse’s initial draft was
reviewed by Martin and that it went through several revisions. Neither Martin nor Rouse
testified clearly or consistently as to how much of this document was the product of each.
While it is clear that Rouse had significant input into the creation of the document and the
decisions regarding how the cases would be reassigned, it is also clear that Martin, as the 15
firm’s principal who was most familiar with the skills, experience and current workload of the
firm’s attorneys, did not need to follow Rouse’s recommendations. In addition, the
reassignment of cases had not been completed by the time Rouse was terminated. Under these
circumstances, and due to the lack of clarity in the testimony and evidence, I must conclude
that the Respondent did not prove that Rouse, in her work on this project, exercised 20
independent judgment in making or recommending case assignments to other attorneys and
case managers in the office.
In Oakwood Healthcare, supra, the Board also sought to clarify the definition of the
authority “responsibly to direct” employees that is listed in Section 2(11) of the Act. The 25
Board referred to the legislative history showing that this phrase was added to “encompass
those individuals who exercised basic supervision, but lacked the authority or opportunity to
carry out any of the other statutory functions (e.g., where promotional, disciplinary and
similar functions are handled by a centralized Human Resources Department).” 348 NLRB
supra, at 690–691. The Board held that, “for direction to be ‘responsible’, the person directing 30
and performing the oversight of the employee must be accountable for the performance of the
task by the other, such that some adverse consequence may befall the one providing the
oversight if the tasks performed by the employee are not performed properly.” Id. at 691. The
Board further explained that, “to establish accountability…, it must be shown that the
employer delegated to the putative supervisor the authority to direct the work and the 35
authority to take corrective action, if necessary. It also must be shown that there is a prospect
of adverse consequences for the putative supervisor if he/she does not take these steps.” Id. at
692.
As noted previously, the Respondent’s firm is organized into teams of an attorney and 40
case manager with each team responsible for the cases assigned. The Respondent’s attorneys,
as are all attorneys, have ethical and professional responsibilities to their clients and are
subject to sanctions for noncompliance with these obligations. An attorney’s delegation of
client-related tasks to a paralegal or clerical does not absolve the attorney from responsibility
if a mistake is made and a client’s interests are jeopardized. Thus, all of the Respondent’s 45
attorneys are subject to adverse consequences if the case manager on their team does not
properly perform a task assigned.
JD(ATL)–10–13
12
In addition, because Rouse was the only attorney in the firm with a Mississippi
license, she was solely responsible for ensuring that the Mississippi cases were handled
properly, whether she performed a given task herself or delegated it to Walton, Rouse’s case
manager for the bulk of her time at the firm. In addition to Walton, Rouse briefly utilized the 5
service of law clerk Gaines, who was hired solely because Rouse recommended that Martin
hire a law clerk to assist her on these cases. Thus, unlike the other attorneys in the firm, Rouse
had two employees working under her direction, even if this was for a brief time.13 Although
Rouse may not have “assigned” these employees as that term has been defined by the Board,
she certainly was responsible for directing their work. The only question is whether this 10
direction met the Board’s definition of responsible direction.
When Walton first came to the firm as a temporary employee and was assigned to
work as Rouse’s case manager, she had no experience working in a law office, nor any
knowledge or experience regarding ERISA law. There is no evidence or contention that David 15
Martin trained Walton or directed her work on Rouse’s cases. Whatever training Walton
required to perform the tasks assigned had to come from Rouse. In fact, Rouse testified that
she had expressed concern over the loss of Walton, shortly before Walton became a regular
employee, because of how long it had taken Rouse to get Walton up to speed on the
Mississippi cases and she did not want to have to train someone else. There is no question 20
that, as an attorney, Rouse was accountable for Walton performing her job on these cases
properly.
The Respondent cites one instance which is particularly telling as to Rouse’s
accountability for employees’ performance of their duties. The evidence shows that many of 25
Rouse’s clients in the Mississippi cases had their retirement checks deposited into the
Respondent’s trust accounts pursuant to a power of attorney signed by the client. At one point,
a check was received for an individual who was no longer represented by the firm and who
had revoked the power of attorney. When Rouse became aware of this, she reported it to
Martin. Martin testified that he reprimanded Rouse for failing to properly supervise the 30
handling of clients’ money and reminded Rouse that she was responsible for the actions of the
staff on her cases. Although Rouse denied being reprimanded for this mistake, she admitted
that Martin spoke to her about it. Whether this conversation amounted to a formal reprimand
or not, clearly it demonstrates that the Respondent held Rouse accountable for the actions of
staff assigned to work on her cases.35
There is no dispute, as noted above, that the Needles software and the list of daily
tasks it generated did not work for the Mississippi cases. Rouse had to modify the list and
reorganize Walton’s tasks on a daily basis to ensure that the Mississippi cases were handled
properly. Although these actions did not amount to the statutory definition of “assigning 40
employees”, it did amount to responsible direction. In determining each day what Walton
should do on her cases, Rouse had to use her judgment as an attorney to make sure that all of

13 When Gaines was initially hired to work as a law clerk for $9 per hour, assisting Rouse with
the Mississippi cases, it was with the expectation that he would continue to be employed in
that capacity. The short duration of his employment was the result of his actions and does not
negate the fact that Rouse was expected to oversee the work of two people.
JD(ATL)–10–13
13
the Mississippi clients were properly represented. If not, and a deadline were missed, for
example, Rouse as the lead attorney, would suffer the consequences, whether it be potential
malpractice or sanctions from the Bar. In the context of a law firm, I find that such
consequences meet the Board’s definition of accountability in determining whether Rouse had
the authority to “responsibly direct” employees.5
Counsel for the General Counsel seeks to minimize Rouse’s authority to direct Walton
by arguing that most of Walton’s tasks were routine or clerical in nature, such as typing
dictation and mailing letters. This argument ignores the fact that Walton also handled client’s
funds, kept track of deadlines to avoid the statue of limitations, reviewed case files for 10
completeness and communicated with clients on Rouse’s behalf regarding case matters. These
tasks, delegated from an attorney to support staff are not routine or merely clerical because
failure to perform such tasks properly can have severe consequences for the attorney and the
client. Accordingly, I find that the Respondent has satisfied its burden of proving that Rouse
had the authority to responsibly direct employees of the Respondent and that she used 15
independent judgment in exercising this authority in the Respondent’s interest.
Counsel for the Acting General Counsel, in her brief, addressed other claims which the
Respondent appeared to raise at the hearing to suggest that Rouse had the authority to
discipline or effectively recommend discipline, to evaluate employees, or to schedule 20
employees. The Respondent, in its brief, does not cite any of this evidence in support of its
assertion that Rouse was a supervisor.14 Having already found sufficient evidence that Rouse
had the authority to effectively recommend hiring of employees, to fire or effectively
recommend that an employee be fired, and to responsibly direct employees, it is not necessary
for me to address these other potential bases for finding supervisory status. 25
Counsel for the Acting General Counsel also cites secondary indicia as tending to
show that Rouse was not a supervisor, i.e., the ratio of supervisors to employees if Rouse and
the other attorneys were found to be supervisors and the fact that Rouse was paid on an hourly
basis. These secondary indicia are not determinative and cannot outweigh evidence showing 30
that in fact Rouse possessed and exercised several of the statutory indicia of supervisory
authority. In any event, I note that Rouse requested to be paid on an hourly basis and that her
pay was equivalent to what the other attorneys received as a salary. Moreover, just prior to her
termination, she had discussed with Martin changing her method of compensation to a
contingent fee basis and had informed him that she preferred to remain an hourly employee on 35
some cases and contingent on others. Although the ratio of supervisor to employee would be
1:1 if all of the Respondent’s attorneys were found to be supervisor, this does not require a
different result. The nature of the attorneys’ work and the importance of supervision of
support staff to effective representation of clients make for the unusual ratio. I note that the
Respondent here operates a small law firm where each attorney is lead counsel on his or her 40
cases with independent authority to make decisions regarding how those cases are to be
handled. This is quite different from the context of a legal services agency employing a large
number of staff attorneys who work under multiple layers of supervision. See Legal Aid

14 Some of this evidence was cited in support of the Respondent’s asserted lawful basis for
terminating Rouse.
JD(ATL)–10–13
14
Society of Alameda County, supra. The Board has never addressed the question of supervisory
status of attorneys in the context of a law firm like the Respondent.
Having found that Rouse exercised sufficient statutory authority to meet the Board’s
definition of a supervisor, it follows that she was not covered by Section 7 of the Act when 5
she allegedly violated the Respondent’s unlawful rule. It is therefore not necessary to
determine whether she was terminated for violation of the rule or for any of the myriad other
reasons asserted by the Respondent. Because she was a statutory supervisor when terminated,
her termination did not violate the Act. Accordingly, I shall recommend that the complaint be
dismissed as it relates to Rouse’s termination.10
CONCLUSIONS OF LAW
1. By maintaining a rule that prohibited employees from discussing their wages
and benefits with other employees, the Respondent has engaged in unfair labor practices 15
affecting commerce within the meaning of Section 8(a) (1) and Section 2(6) and (7) of the
Act.
2. The Respondent did not violate Section 8(a) (1) or any other provision of the
Act by terminating attorney Sheri T. Rouse on March 14, 2012.20
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I shall
order it to cease and desist therefrom and to take certain affirmative action designed to 25
effectuate the policies of the Act. Specifically, the Respondent shall be ordered to rescind the
unlawful rule and notify its employees that this has been done.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended1530
ORDER
The Respondent, The Martin Law Group, LLC, Tuscaloosa, Alabama, its officers,
agents, successors, and assigns, shall35
1. Cease and desist from
(a) Maintaining a rule that prohibits employees from discussing their
wages and benefits with one another.40

15 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations,
the findings, conclusions, and recommended 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.
JD(ATL)–10–13
15
(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 effectuate the policies of the
Act.5
(a) Rescind the rule that prohibits employees from discussing their wages
and benefits with one another.
(b) Within 14 days after service by the Region, post at its facility in 10
Tuscaloosa, Alabama copies of the attached notice marked “Appendix.”16 Copies of the
notice, on forms provided by the Regional Director for Region 10, after being signed by the
Respondent’s authorized representative, shall be posted by the Respondent and maintained for
60 consecutive days in conspicuous places including all places where notices to employees
are customarily posted. In addition to physical posting of paper notices, the notices shall be 15
distributed electronically, such as by email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily communicates with its employees by
such means. 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 20
in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of
the notice to all current employees and former employees employed by the Respondent at any
time since March 14, 2012.
(c) Within 21 days after service by the Region, file with the Regional 25
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.
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.30
Dated, Washington, D.C. May 6, 2013
35
Michael A. Marcionese
Administrative Law Judge

16 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 National Labor Relations Board” shall read “Posted
Pursuant to a Judgment 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 notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT maintain a rule that prohibits you from discussing your wages with other
employees.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
THE MARTIN LAW GROUP, LLC
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National
Labor Relations Act. It conducts secret-ballot elections to determine whether employees want union
representation and it investigates and remedies unfair labor practices by employers and unions. To find out more
about your rights under the Act and how to file a charge or election petition, you may speak confidentially to any
agent with the Board’s Regional Office set forth below. You may also obtain information from the Board’s website:
www.nlrb.gov.
233 Peachtree Street N.E., Harris Tower, Suite 1000, Atlanta, GA 30303-1531
(404) 331-2896, Hours: 8 a.m. to 4:30 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT
BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE
OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (404) 331-2870.