Anthony & Associates, Inc.

National Labor Relations Board - Administrative Judge Opinions

Aug 18, 2017

05-CA-153220 (N.L.R.B. Aug. 18, 2017)

JD−66−17
Washington, D.C.
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ANTHONY & ASSOCIATES, INC.
and Case 5-CA-153220
PHYLLIS A. HEMPHILL
An Individual
Paul Veneziano, Esq., for the General Counsel
Mark L. Keenan, Esq. (Nelson Mullins Riley &
Scarborough LLP), Atlanta, GA, for the Respondent
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
MICHAEL A. ROSAS, Administrative Law Judge. This compliance case, tried in
Washington, D.C. on May 16-17 and June 7-9, 2017, follows the unlawful termination of Phyllis
Hemphill in violation of Section 8(a)(1) of the National Labor Relations Act (the Act)1 by
Anthony & Associates, Inc. (the Respondent) on February 18, 2015. In his Decision, dated April
13, 2016, adopted by the National Labor Relations Board (the Board) on June 30, 2016, and
enforced by the United States Court of Appeals for the Fourth Circuit, Administrative Law Judge
Arthur Amchan determined that the Respondent unlawfully terminated Hemphill in retaliation
for complaints relating to her job reclassification and hourly pay at Walter Reed National
Military Medical Center (Walter Reed). As a remedy, he ordered the Respondent to reinstate
Hemphill to her former position and make her whole for her consequential financial losses.
The second compliance specification alleges that the Respondent failed to reinstate
Hemphill and make her whole for any loss or earnings and other benefits resulting from her
unlawful discharge. The specification recognizes, however, that reinstatement is no longer
possible because the Respondent’s Walter Reed contract expired on May 31, 20152 and it no
longer operates any work sites in the Washington, D.C. metropolitan area to which Hemphill
could be reinstated. Accordingly, the relief sought is solely limited to backpay.
The Respondent denies that backpay is owed on several grounds. The first defense is
premised on the assertion that Hemphill’s misconduct during her removal from the workplace on
February 18 disqualified her from the right to reinstatement, as well as the right to backpay. The
second defense contends that the Respondent’s backpay liability ended on May 31, the day that
the Respondent’s Walter Reed contract work ended. Lastly, the Respondent alleges that

1 29 USC §§ 151–169.
2 All dates refer to 2015 unless otherwise specified.
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Hemphill willfully failed to mitigate her damages on August 10, when she accepted and then
declined suitable interim employment.
On the entire record,3 including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and the Respondent, I make the 5
following
FINDINGS OF FACT
I. THE UNFAIR LABOR PRACTICE DECISION10
In his Decision, Judge Amchan concluded that Hemphill engaged in protected concerted
activity by “protesting the Respondent’s reclassification of her job and others and lowering the
wage rate she and others had received from prior contractors. Her protest was clearly concerted,
as it was done in conjunction with Joel Chung and others. Hemphill’s February 9 email was part 15
of the protest she initiated in October 2013.” He further concluded that the Respondent
unlawfully discharged Hemphill because she engaged in such conduct and rejected the
“Respondent’s reliance [on] Hemphill’s alleged misuse of her government computer [as]
pretextual, and as . . . further evidence of discriminatory motive. . . . conjured up by Respondent
between February 11 and 18.” Judge Amchan also found that the Respondent decided to 20
terminate Hemphill on February 10, “before any of Respondent’s agents discussed removal with
any government official.” Finally, he rejected the contention that any “government employee
requested that Hemphill either be terminated or removed from the Walter Reed contract.”4
Judge Amchan’s Order required the Respondent, in pertinent part, to offer Hemphill full 25
reinstatement to her former job as a credentialing assistant at Walter Reed National Military
Medical Center (Walter Reed) or a substantially equivalent position and to make her whole for
any loss of earnings and other benefits suffered as a result of her unlawful discharge.
II. THE SECOND AMENDED COMPLIANCE SPECIFICATION30
The second amended compliance specification’s calculations of Heather Keough, the
Region’s compliance officer, cover the period of February 18 through September 13, 2016, the
date Hemphill obtained new employment. The calculations include $74,971.68 in backpay,
$13,056.96 in fringe benefits, $1,016.40 for paid time off due, $151.21 for job search expenses, 35
and $6,175 for excess tax liability due to a lump sum payment. The total net backpay claimed is
$95,371.25. The calculations are based on the following: Hemphill’s hours of work based on a
full-time schedule; an hourly wage rate of $18.15 and health and welfare benefits of $4.02 while
employed by the Respondent; the hourly wage rates paid for Hemphill’s medical credentialing
position by the Respondent’s first successor contractor – $25.29 per hour in wages and $4.02 in 40

3 The General Counsel’s unopposed motion to correct the transcript, dated August 7, 2017, is granted
and received in evidence as GC Exh. 104.
4 Judge Amchan gave no weight to a purported email from Walter Reed employee Ariel Lingat
stating that “We will terminate Ms. Hemphill today” as vague, unclear and of dubious authenticity
because it was an email chain that was out of chronological order and introduced by the Respondent only
after Lingat testified and, thus, not subjected to examination about the document. (R. Exh. 38.)
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health and welfare benefits; the hourly wage rates paid for Hemphill’s medical credentialing
position by the second successor contractor – $20.18 in wages and $7.43 in fringe benefits; the
additional payroll taxes payable due a lump sum award; and 56 hours of unpaid time off after
Hemphill’s termination.5
5
III. THE SUCCESSOR CONTRACTS
The Respondent’s Walter Reed contract expired on May 31. On June 1, its medical
credentialing operations were assumed by LLM Placements (LLM). Consistent with the
requirement in Executive Order 13495, “Nondisplacement of Qualified Workers Under Service 10
Contracts,”6 that LLM, as successor contractor, afford the right of first refusal to its
predecessor’s employees, LLM offered employment to all of the Respondent’s employees. With
the exception of Carolyn Howard, who was out on medical leave, LLM offered employment to
all of the Respondent’s employees and most accepted employment. Rehired credentials
coordinators were paid $25.29 per hour, plus $4.02 per hour in health and welfare payments.715
On May 31, 2016, LLM’s Walter Reed contract expired. On June 1, 2016, LLM’s
credentialing operations were assumed by Paramount Solutions and Global Services
(Paramount). Once again, all employees on LLM’s payroll were offered continued employment
at Walter Reed. Most of LLM’s credentialing employees accepted Paramount’s offers of 20
employment and were paid $20.18 per hour, plus fringe benefits of $7.43.8
IV. HEMPHILL’S CONDUCT AFTER SHE WAS DISCHARGED
In preparation for Hemphill’s discharge and removal from Walter Reed on February 18,25
Nicole Young, the Respondent’s Director of Human Resources, emailed Jeffrey Fennewald, the
manager overseeing the credentialing department, and James Walker, the contracting
representative. They were informed that the Respondent planned to remove Hemphill that day.
At Fennewald’s request, Kafi Odu, the Respondent’s project manager, arranged for security
officers to be present in case of an outburst by Hemphill. Upon arriving at Walter Reed that 30

5 The compliance officer’s methodology was largely undisputed and her analysis was credible.
However, it is evident that the Region instructed her to calculate backpay for the entire period subsequent
to Hemphill’s discharge, including instances where she failed to mitigate her damages.
6 EO 13495 was signed by President Barak Obama on January 30, 2009 and effectively applied to all
new federal contract solicitations on or after January 18, 2013.
7 The testimony of Linda Malloy, LLM’s chief operating officer was credible, undisputed and
corroborated by personnel rosters (Tr. 81, 101-102, 109; GC Exh. 9-10, 80-81, 83-84, 100-102.) Walter
Reed employees James Walker and Jeffrey Fennewald testified that they could input as to whether a
contractor should retain a particular employee of its predecessor, but there is no credible evidence that
they made recommendations relating to employees hired by LLM or its successor, Paramount.
Fennewald emailed Nicole Young a few days before the contract expired to request that the Respondent
remove Howard, then out on medical leave, from the employee roster that was being forwarded to LLM
due to Howard’s deficient performance. In contrast, the law of the case, as determined by Judge Amchan,
established that Walter Reed officials never requested Hemphill’s termination.
8 The testimony of Jacqueline Wilson, Paramount’s president, was also credible, undisputed and
corroborated by the personnel rosters (Tr. 242-247, 251-253, 262; GC Exh. 85, 90-91.)
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morning, Young met with Fennewald, Odu and base security in preparation for Hemphill’s
removal from her workplace on the 3rd floor of the facility.
Hemphill was leaving her office at lunch time with Howard and Rachel Brackett, a
Walter Reed employee, when she was intercepted by Odu. He asked her to accompany him to a 5
brief meeting, Hemphill complied and they proceeded to a conference room where Young was
waiting. The room was located next to the elevators outside of the main work areas. Brackett
and Howard remained in the hallway waiting for Hemphill.
After Hemphill was brought to the conference room, Young asked her to take a seat. 10
Hemphill replied that she did not have to speak with Young. After informing Hemphill she was
being terminated, including the basis for the action, Young attempted to hand her a termination
letter. Hemphill refused to accept it. Young then directed Hemphill to gather her belongings
from her desk and refrain from speaking with anyone as she left the building. Hemphill became
indignant, replying that Young could not tell her who she could speak with. 15
Base security was present at the time Hemphill left the conference room. Ignoring
warnings by the security officers to be quiet, Hemphill announced loudly that she was terminated
as she proceeded into the work area that preceded the medical credentialing work area. The
security officers told her to wait for them, but she ignored their warnings as she arrived at her 20
work area and attempted to speak with coworkers. As coworkers and Walter Reed personnel
looked on from their cubicles and offices, the security officers caught up to Hemphill and
handcuffed her. Hemphill began to cry, accused the officers of police brutality and yelled out to
Fennewald, who was standing outside his office, to help her.
25
Hemphill continued yelling as Young and Odu collected her belongings. Still
handcuffed, she was then escorted by Young and the security officers onto the elevator. As the
elevator descended, Hemphill remained indignant, telling Young not to touch her coat. She
added that she had contacted the federal government about the Respondent. Once outside the
building, the security officers instructed Hemphill to hand over her facility access card. Since 30
Hemphill was handcuffed, however, one of the officers reached into her pocket and pulled out
the access card. An officer then removed the handcuffs and handed over her belongings. In all,
it took approximately one to two minutes to remove Hemphill from the facility.9
Shortly after the incident, James Walker, the supervisory management analyst for Walter 35
Reed’s Healthcare Service Contracts Division, requested a report of the incident, which Young
and Odu provided. Walker had no further involvement with Hemphill until the Respondent,
facing unlawful labor practices, sent him the following request:
Good afternoon, Mr. Walker,40
I am sending this query to you as the Supervisory Management Analyst/COR for the
contract AAI was performing at WRNMMC to provide administrative support services.

9 As explained in greater detail at fn. 12, infra, Hemphill was not a very credible witness. As such, I
credit the divergent testimony of Nicole Young and Fennewald over that of Hemphill and her close friend
Brackett.
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5
As you well know, AAI is no longer the contractor on-site at WRNMMC. Our contract
for services expired May 30, 2015. During our contract performance, there was a
termination of a contract employee by the name of Phyllis Hemphill, that worked in
Medical Credentialing at the time. Ms. Hemphill was terminated on February 19, 2015 by 5
AAI.
AAI is trying to find solutions to resolve a complaint Ms. Hemphill has filed and would
like to know if your office would be willing to voluntarily participate in our attempt to
find solutions to resolve her complaint. The hospital’s participation would be strictly 10
voluntary as there is no legal basis requiring participation by your office in a resolution of
this complaint. AAI is making this attempt to resolve this complaint in order to bring this
matter to closure without the need of further legal proceedings requiring participation by
AAI and/or your office.
15
Without being the current contractor of record, AAI is unable to reinstate or re-hire Ms.
Hemphill at WRNMMC. We fully understand that a contract would have to be in place
with a contractor in order to legally provide administrative support services and/or
obligate the government to pay for such services. To be clear, AAI is not requesting any
such deviation from government rules, policies or regulations. We are simply examining 20
all realms of possibilities in order to resolve and bring closure to this matter. We are not
requesting to be re-issued a contract award to perform any services.
Having said that, AAI would like to know whether your office would be willing to
voluntarily reinstate Ms. Hemphill’s employment as of the date of her original 25
termination, February 18, 2015?
Yes or No?
If your response is yes, would your office be willing to remove any and all negative 30
documentation on record regarding her prior employment, including the events
surrounding her termination requiring the presence of base security by your office and the
subsequent removal of Ms. Hemphill from the installation by base security?
Yes or no?35
Based upon the actions that occurred during the termination involving base security,
would your office be willing to ensure that Ms. Hemphill could regain unescorted
security on and off the military installation in order to return to work as either a contract
or government employee?40
Yes or no?
Would your office be willing to re-hire Ms. Hemphill as a contract or government
employee?45
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6
Yes or no?
If your response is yes, how soon would your office be willing to offer Ms. Hemphill re-
employment?
5
Thank you for your attention to this matter.
Michelle Anthony10
On June 1, 2016, Walker replied to Anthony’s email and corrected the notion that Walter 10
Reed had any employer relationship with Hemphill at the time of her discharge. However, he
omitted any discussion of the incident relating to Hemphill’s removal from the facility on
February 18, 2015 and the consequences thereof:
Good Morning Ms. Anthony,15
WRNMMC’s contacted your firm in February 2015 regarding Ms. Hemphill, was not a
“firing” or “termination”, but simply a directive to your firm that she not return to
WRNMMC.
20
WRNMMC’s association with Ms. Hemphill ended at that time, and we have no further
comment regarding her tenure at WRNMMC.11
V. HEMPHILL’S SEARCH FOR WORK AFTER SHE WAS TERMINATED
25
Hemphill has a high school degree and earned 71 college credits. Prior to her
employment by the Respondent in 2012, Hemphill had experience in clerical, secretarial and
computer work. She does not possess a driver’s license due to sight impairment, but is able to
commute by public transportation from her home in Suitland, Maryland to locations within the
District of Columbia metropolitan area. During her employment with the Respondent, Hemphill 30
worked as a personnel assistant in Walter Reed’s Medical Credentialing office. She was paid
$18.16 per hour, plus $4.02 per hour in fringe benefits paid directly to her.

10 Anthony’s email, posing several hypothetical questions based on her version of the facts, was
obviously calculated to elicit responses favorable to her defense to the unfair labor practices. She prefaced
her interrogatories with a remark that Walker’s response was voluntary, but then proceeded to insinuate
that Walter Reed might face legal exposure requiring it to rehire Hemphill when it never had such a
relationship with her.
11 As previously noted, however, Judge Amchan rejected the Respondent’s contention that Hemphill’s
discharge was based on a request by Walter Reed officials that she be terminated or otherwise removed
from the facility prior to February 18, 2015. (R. Exh. 1; Tr. 570-73.) Similarly, the assertion in Walker’s
November 3, 2016 email to Heather Keough, the Region’s compliance officer – that Walter Reed officials
requested Hemphill’s removal on February 10, 2015 due to “[i]nappropriate outburst, reported by the
government POC’s” and “Sending personal email using government computer” – has already been
rejected under the law of the case. (R. Exh. 2.)
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7
After her termination on February 18, 2015, Hemphill filed for unemployment
compensation benefits with the Maryland Division of Unemployment Insurance. Maryland
requires those filing for unemployment insurance keep a record of their job search efforts. She
was also instructed by Heather Keough, the Region’s compliance officer, to record her job
searches after filing charges. Hemphill’s job search efforts were minimal. Utilizing job search 5
websites, she submitted approximately 2 employment applications per week and recorded them
on Board Form 5224.12
Hemphill’s search efforts resulted in several interviews. On July 16, she received a
conditional offer from Tai Pedro and Associates for a human resources assistant position at the 10
United States Department of Justice, Tax Division. Hemphill signed the online form accepting
the position, but Tai Pedro and Associates did not contact her thereafter.13 She failed, however,
to record this offer to either the Board or the State of Maryland.14
On July 16, Hemphill received another job opportunity in the form of an email from 15
Kelly Services, Inc. (Kelly) scheduling an interview with for with another contractor, CGI
Federal (CGI), for an administrative staff position at the Department of State’s Passport Agency
in Washington, D.C. She attended the interview on July 24, 2015, which resulted in an offer of
employment on August 3. The wage rate offered was $16.50 per hour, plus a $4.02 fringe
benefit payable by Kelly into a 401(k) savings account. The email also included Kelly’s 20
onboarding information. Hemphill electronically signed the employment agreement and the
attached arbitration agreement.15 She immediately received a welcome letter and completed the
onboarding process. Hemphill subsequently changed her mind, however, and did not report to
work for Kelly on August 10.16

12 Hemphill was evasive when asked why she failed to document all of her employment searches.
Hemphill was also vague about how often and with whom she networked in trying to find employment.
She “understood” that the Maryland unemployment office required her to search for two jobs per week
and was “not under the impression” by the Board that she needed to search for every job. As such, I did
not credit any of her testimony relating to alleged job searches beyond those listed on her NLRB and State
of Maryland reporting forms. (GC Exh. 2-8; 282-291, 296-297, 300-302, 311-313, 410-415, 422, 431-
437, 443, 451-458, 492.)
13 Hemphill signed the offer; however the offer was contingent on Tai Pedro & Associates being
awarded the contract and Hemphill passing a pre-employment evaluation. (Tra.750-754;R. Exh. 53)
14 While there is insufficient evidence to refute Hemphill’s testimony that she never heard back from
Tai Pedro and Associates, her failure to report this offer diminished her credibility. (Tr. 752, 506-509,
753; R. Exh. 53.)
15 The form, entitled, “Dispute Resolution and Mutual Agreement to Binding Arbitration,” essentially
bound Hemphill to arbitrate any employment and labor related claims against Kelly, excluding charges
before the Board, the Department of Labor and the Equal Employment Opportunity Commission.
However, the agreement precluded Hemphill from recovering monetary judgments from such charges and
restricted the avenue for monetary relief to the arbitration process. (GC Exh. 18.)
16 Hemphill also neglected to report the Kelly offer to the Board or the State of Maryland.
Accordingly, I did not find credible her uncorroborated testimony that she (1) was initially offered a
higher amount, (2) had a problem with the binding arbitration agreement, and (3) attempted
unsuccessfully to retract her acceptance. (Tr. 195-196, 305-313, 425-429, 431-437, 440-441, 450, 453-
454; GC Exh. 17-22; R. Exh. 3-4, 6, 18-22, 40.) In addition, I concur with the Respondent’s contention
that Hemphill’s interpretation regarding the arbitration agreement suspiciously echoes the Region’s
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8
Hemphill pursued other job opportunities in September, with two of them resulting in job
offers. On September 8, notwithstanding her abandonment of the job opportunity with CGI,
Hemphill submitted an application directly to CGI for a secretarial position at the Department of
Justice. CGI contacted her on September 24 and sent her applicable forms. Hemphill completed 5
and returned the forms the same day. On or about September 28, she was interviewed for the
position and was offered the position on October 1.17 However, Hemphill failed to complete the
applicable employee online processing, including signing the offer letter, and essentially
abandoned the job opportunity as well. She also failed to report the CGI offer of employment to
the Board or the State of Maryland.10
Around the same the time, Hemphill was also in the process of applying to Aerotek for a
financial analyst with the Department of Defense. She interviewed for the opening on
September 28, but was never offered the position.18
15
On October 10, Hemphill applied to MacAuley-Brown Associates for a project
acquisition analyst position with the Department of Homeland Security. She was offered the
position on November 23, pending award of the contract to MacAuley. The contract award was
delayed for several months, however, due to the resolution of a bid protest. By March 8, 2016,
Hemphill completed the security clearance paperwork. She attended security interviews in June 20
2016 and received security clearance in September 2016. Hemphill began work on September
13, 2016.
LEGAL ANALYSIS
25
Judge Amchan’s Order required the Respondent to offer Hemphill reinstatement to her
position at Walter Reed or, if that position no longer existed, to a substantially equivalent
position, as well as backpay for the period after she was unlawfully discharged on February 18,
2015. The Respondent, however, is unable to reinstate Hemphill to the Walter Reed or any other

position in other cases regarding the legality of such agreements. (Tr. 312-313.) It is one thing for an
employee to challenge a coercive term or condition of employment. It is not credible, however, for one to
forego a job opportunity when she could challenge the legality of the provision any time after she is hired.
17 I do not credit Hemphill’s explanation that she abandoned this job opportunity because she thought
that she had a job offer from Aerotek. (Tr. 460-463, 534-535; R. Exh. 51.) In her job search report to the
State of Maryland on October 4, Hemphill misstated that the CGI position was “pending” when in fact it
was offered to her on October 1. (GC Exh. 29 at 2.)
18 Hemphill’s testimony regarding Aerotek’s alleged employment offer, as well as her vague
explanation as to why the position did not materialize, was not credible. Curiously, she listed the CGI
position as pending on her Maryland reporting form, when it had actually been offered to her. Yet, she
listed the Aerotek position, for which there was no email confirmation of an offer of employment, as
“hired.” (GC Exhs. 4-5, 19A, and 29; Tr. 319-320, 462-463, 532, 536, 540-541, 548-549, 462-463, 532.)
It begs credulity to suggest that Hemphill would be offered a position with a federal government
contractor, scheduled for orientation and security clearance, and then have the job disappear because the
process was going to take too long. First, there is no documentation from Aerotek to corroborate that
claim. Second, there is an absence of explanation as to why Aerotek, in contrast to CGI, would not hire
Hemphill pending completion of the security clearance process.
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position since it no longer does business in the Washington, D.C. metropolitan area, leaving only
the issue of the amount of appropriate backpay.
The burden is on the General Counsel to show the gross backpay due, that is, the amount
of wages the discriminatee would have received but for the employer’s illegal conduct.” J. H. 5
Rutter Rex Mfg. Co. v. NLRB, 473 F.2d 223, 230–231 (5th Cir. 1973), cert. denied 414 U.S. 822
(1973); La Favorita, Inc., 313 NLRB 902 (1994). The General Counsel has discretion in
selecting a formula that will closely approximate backpay and need only establish that the gross
backpay amounts specified are reasonable and not an arbitrary approximation. Performance
Friction Corp., 335 NLRB 1117 (2001); Mastell Trailer Corp., 273 NLRB 1190, 1190 (1984). 10
Once established, it is the employer’s burden to establish defenses to mitigate its backpay
liability by demonstrating the willful loss of interim earnings to be deducted from gross backpay.
Basin Frozen Foods, Inc., 320 NLRB 1072 (1996).
The compliance specification is calculated based on Hemphill’s hourly wage rate and 15
health and welfare benefits with the Respondent. The compliance officer’s calculations in the
amended compliance specification are reasonable and not arbitrary. Midwestern Personnel
Services, 346 NLRB 624, 631 (2006), enfd. 508 F.3d 418 (7th Cir. 2007).19 The General
Counsel having met this burden, the burden shifted to the Respondent to establish affirmative
defenses mitigating its liability, including willful loss of earnings. Millennium Maintenance & 20
Electrical Contracting, 344 NLRB 516, 517 (2004).
The Respondent contends that that Hemphill failed to mitigate damages on three possible
occasions. The first is February 18 and is based on Hemphill’s misconduct while being removed
from the facility after she was unlawfully discharged. The second alleged cutoff date is May 3125
when the Respondent lost the Walter Reed contract and terminated all of its employees. The
third alleged cutoff date is August 10, when Hemphill turned down substantially equivalent
employment from Kelly.
I. HEMPHILL’S CONDUCT ON FEBRUARY 18, 201530
The Respondent claims that Hemphill forfeited her right to reinstatement due to her
misconduct while being removed from Walter Reed on February 18. Relying on the testimony
of two Walter Reed officials, Fennewald and Walker, that they could recommend that a
contractor not hire or retain a certain employee, the Respondent contends that Hemphill would 35
have been barred from returning to Walter Reed.
At the outset, it must be noted that the issue of Hemphill’s conduct on February 18
should have been litigated before Judge Amchan. The Respondent was charged in the
underlying unfair labor practice proceeding with discriminatorily discharging Hemphill because 40
she complained about wages and the complaint sought reinstatement and a make whole backpay
remedy. The Respondent’s defense denying such a claim also required it to demonstrate, among
other factors, that Hemphill, by her conduct, forfeited her right to reinstatement. Such a defense
would have reasonably included a claim that Walter Reed officials did not want Hemphill back.

19 The General Counsel’s motion to conform the pleadings to the proof, specifically Exhibit 2 to the
second amended compliance specification, is granted.
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Based on the Respondent’s proffer that the evidence would show that Hemphill’s misconduct
would fall outside the sphere of relevance to the underlying proceeding, I denied the General
Counsel’s motion to preclude such proof.
Having considered the evidence as a whole, it is clear that Hemphill’s conduct did not 5
occur during the backpay period, but rather, during her last day of work for the Respondent. As
such, it was part of the res gestae of the unlawful discharge and, as such, within the ambit of the
controversy presented to Judge Amchan, whose decision provides the law of the case on the
issue of Hemphill’s right to reinstatement. Fluor Daniel, Inc., 353 NLRB 133, 134 (2008)
(Board precedent bars relitigation of issues in a compliance proceeding previously decided in 10
underlying unfair labor practice proceeding), citing Great Lakes Chemical Corp., 300 NLRB
1024, 1025 fn. 3 (1990), enfd. 967 F.2d 624 (D.C. Cir. 1992) (factual finding necessary to
support judgment in a prior proceeding bars relitigation of issue in a subsequent proceeding
involving the same parties).20
15
In any event, I did not find Walker’s email response to Anthony’s interrogatories,
containing misleading statements implying legal exposure to Walter Reed as a result of
Hemphill’s unlawful discharge, as reliable evidence of the ability of the Respondent or the
successor contractors to reinstate her to work at Walter Reed. His response also referred to
Hemphill’s conduct on February10, 2015, which is part and parcel of the proof presented to and 20
rejected by Judge Amchan. Moreover, the two successor contractors during the backpay period
confirmed the likelihood that Hemphill would have received offers of continued employment.
Their assertions were corroborated by an Executive Order requiring successor contractors to
offer the right of first refusal to displaced contract employees.
25
A popular refrain in business suggests that “the customer is always right.”21 However,
even if a successor contractor placated a request by Walter Reed officials to bar Hemphill from
the facility because of her conduct on February 18, such a scenario would not have freed the
Respondent from its backpay obligations. Otherwise, the Respondent would benefit from its
discriminatory discharge of Hemphill and heavy handed approach in forcibly removing her from 30
the workplace. Accordingly, the Respondent failed to sustain this affirmative defense by a
preponderance of the evidence.
II. THE RESPONDENT’S LOSS OF THE WALTER REED CONTRACT ON MAY 31
35
The Respondent contends that it is unlikely that Hemphill would have been hired by the
successor contractors after its Walter Reed contract expired on May 31. It contends that the

20 Assuming, arguendo, that evidence of Hemphill’s at the time of her discharge is not deemed to
have been fully and fairly litigated in the prior proceeding, it is clear that she became hostile and
disruptive in the workplace while being removed from the Walter Reed on February 18, 2015. The
protection of the Act, however, extends to brief emotional outbursts in the face of an unlawful discharge.
See Severance Tool Industries, 301 NLRB 1166, 1170 (1991), enfd. 953 F.2d 1384 (6t h Cir. 1992)
(employee did not lose protection of the Act by “disrespectful, rude, and defiant demeanor,” including
raised voice and vulgar language).
21 The slogan was popularized by legendary retailer Harry Gordon Selfridge in 1909 and exhorted
employees to highly prioritize customer satisfaction.
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successor contractors were not required to rehire the predecessor’s employees and relies on
payroll records indicating that not all of the Respondent’s employees were rehired after its
contract expired. The Respondent also refers to testimony by Fennewald and Walker that they
would not have recommended Hemphill for rehire based on her conduct while at the facility.
5
The credited evidence established, however, that the successor contractors offered
employment to all of their predecessors’ employees. Moreover, neither Fennewald nor Walker
testified credibly that they have the authority to refrain from employing a particular individual,
especially in light of an Executive Order requiring offers of first refusal to displaced federal
contract employees. In Hemphill’s case, she worked at Walter Reed under two previous 10
contracts and was rehired each time.
Under the circumstances, the Respondent failed to establish by a preponderance of the
evidence the unlikelihood that the successor contractors, in the absence of Hemphill’s discharge,
would not have hired her to continue working in the Medical Credentialing Department at Walter 15
Reed beyond May 31. Accordingly, the backpay period does not end simply because the
Respondent’s Walter Reed contract concluded on that date.
III. HEMPHILL’S SEARCH FOR WORK
20
The Respondent’s final defense asserts that Hemphill’s backpay should be cutoff on
several dates, including August 10, the date that she was supposed to start employment through
Kelly with CGI at the Department of State, but failed to show up for work. The General Counsel
offered numerous explanations for Hemphill’s failure to accept that employment as well as
several other positions offered to her or never materialized.25
There is an abundance of evidence that interim employment was available in Hemphill’s
geographic area and that she undertook minimally acceptable efforts to find work – applying to
approximately two employers per week. D. L. Baker, Inc., 351 NLRB 515, 535 (2007)
(discriminatee not required to spend 40 hours per week looking for employment). Nevertheless, 30
that was enough to produce at least two job offers from CGI. Hemphill accepted the first one
through Kelly for employment at the Department of State. The position was comparable to
Hemphill’s Walter Reed position, paying an hourly wage of $16.24 per hour, plus $4.02 in fringe
benefits into a 401(k) savings account. Hemphill was supposed to start on August 10, but never
reported to work. Nearly two months later, on October 1, Hemphill received an employment 35
offer for another suitable administrative position directly with CGI at the Department of Justice.
Inexplicably, she failed to complete the onboarding process and bypassed that position too. Her
contrived excuses in attributing her rejection of the first opportunity for employment at an hourly
rate of $1.91 less per hour and a binding arbitration agreement hardly reflected a reasonable
response by a person unemployed for nearly 6 months at the time. See The Lorge School, 355 40
NLRB 558, 560 (2010) (requiring “a good faith effort consistent with an inclination to work and
be self-supporting.”) Accordingly, both instances reflect a willful refusal by Hemphill to
mitigate her backpay liability by accepting suitable interim employment. St. George Warehouse,
351 NLRB 961, 964 (2007).
45
JD−66−17
12
Since Hemphill declined her initial opportunity to mitigate on August 10, backpay is
tolled for the remainder of the backpay period. Id. at 963. Accordingly, I have reduced her gross
backpay from $74,971.68 to $21,366.60, reduced fringe benefits from $13,056.96 to $4,068.24,
leave intact the calculation of $1,016.40 for paid time off due, and exclude job search expenses
accrued during the tolled period. The gross backpay and fringe benefits awarded are based on 5
the amounts listed for 2015 calendar quarters 1 and 2, and half of 2015 calendar quarter 3 (July 1
through approximately mid-August).
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended2210
SUPPLEMENTAL ORDER
The Respondent, Anthony & Associates, Inc., Marietta, Georgia, its officers, agents,
successors, and assigns, shall, consistent with the compliance specification as modified by the 15
foregoing findings, satisfy its obligation to make whole Phyllis A. Hemphill by paying her
backpay in the amount of $26,451.24, plus compensation for the adverse tax consequences, if
any, of receiving a lump-sum backpay award, with interest at the rate prescribed in New
Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical
Center, 356 NLRB 6 (2010), minus tax withholdings required by Federal and State laws.20
Dated, Washington, D.C. August 18, 2017
__________________________________25
Michael A. Rosas
Administrative Law Judge
30

22 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.
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