Apollo Health, Inc.

National Labor Relations Board - Administrative Judge Opinions

Jul 26, 2017

13-CA-189486 (N.L.R.B. Jul. 26, 2017)

JD–53–17
Chicago, IL
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
APOLLO HEALTH, INC.
and Case 13-CA-189486
ONDREA SNYNER, an Individual
Lisa Friedheim-Weis, Esq., for the General Counsel.
Frederick E. Bernardo, Esq. (Jurisprudence Health Law Group, Naperville, Illinois)
for the Respondent.
DECISION
STATEMENT OF THE CASE
Arthur J. Amchan, Administrative Law Judge. This case was tried in Chicago,
Illinois on June 7, 2017. Ondrea Snyder filed the initial charge in this matter on December 7,
2016. The General Counsel issued a complaint on February 27, 2017 and then an Order
consolidating the unfair labor practice case and compliance specification on May 17, 2017.
The General Counsel alleges that Respondent discharged Ondrea Snyder in retaliation
for protected concerted activity. He also alleges that the net backpay and interim expenses
owed to Ms. Snyder as the result of this discharge is $43,530.00. The General Counsel also
alleges that she is due $70 for excess tax liability for a total of $43,600.
Additionally, the General Counsel alleges that Respondent violated the Act by
prohibiting employees from forwarding emails to coworkers regarding Respondent’s standards
for productivity, maintaining a covenant of non-disclosure, which prohibited employees from
disclosing confidential information, defined in part as compensation data, educational and
training materials, employee data or lists, and labor relations strategies and maintaining a
covenant of non-disparagement.1

1 I denied the General Counsel’s motion to amend the complaint alleging that Respondent violated
the Act in its subpoena to the Charging Party.
JD–53–17
2
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and Respondent, I make the following
5
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, operated a home health care business in Chicago, Illinois 10
from 2013 until March 2017, when it ceased operations. During calendar year 2016, Respondent
derived gross revenue in excess of $100,000. During 2016, Respondent performed services
valued in excess of $5,000 in states other than Illinois. Respondent admits, and I find, that it is,
or was at all material times, an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act. 15
II. ALLEGED UNFAIR LABOR PRACTICES
On February 19, 2016, the Charging Party, Ondrea Snyder, RN, an Advanced Practical
Nurse (APN),2 signed an employment contract with Respondent. She was hired at a salary of 20
$90,000 per year. The employment contract contained a covenant of nondisclosure by which the
employee agreed not to divulge, among other things, compensation data, educational and training
materials, employee data or lists and labor relations strategies, G.C. Exh. 2, pg. 3.
The contract also contained a covenant of non-disparagement which prohibited 25
employees from making any statements calculated to have the effect of undermining or
disparaging Respondent. It stated that employees may give truthful and non-malicious testimony
if lawfully compelled to do so by legal process, G.C. Exh. 2 pg. 4.
Ms. Snyder’s tasks consisted of visiting and treating home bound patients, all, or many of 30
whom are insured by Medicare. Snyder’s APN license lapsed for 2 or 3 days in June 2016
because payment for the license was late. Respondent did not discipline her or chastise her for
this lapse.
On July 1, 2016, Snyder called Brian Weinstein, the CEO and owner of Apollo. She 35
complained that some patients would not see her, some because they wanted to be seen by the
same provider who they saw previously and some because they were accusing Respondent of
Medicare fraud. Weinstein became angry at Snyder and told her that she had to see the patients
she was told to see.

2 APN is a more advanced category than RN.
JD–53–17
Chicago, IL
3
Weinstein testified that he wrote and placed a disciplinary memo in Snyder’s personnel
file on July 1. However, he never told Snyder that he did so. On July 2, he sent her a
conciliatory text message, “We will talk more Tuesday. I see your side of the matter. Have a
good weekend,” G.C. Exh. 10.5
On July 15, Snyder met with Linelle Allred, a consultant hired by Respondent, and
Keeshia Eguia, Respondent’s office manager. Snyder presented them with a list of complaints
(or suggestions) regarding how Respondent was operating.
10
Between August 9 and August 26, 2016, Snyder’s Medicare certification lapsed. I need
not determine the conflicting testimony as to who was at fault. Weinstein testified that placed
another disciplinary memo in Snyder’s file as a result, but he never gave her a copy or told her
that she was being disciplined.
15
Snyder and Weinstein had a telephone conversation on August 19, in which they argued
about whether she should be paid for certain days. Weinstein agreed to pay her for August 19,
but not for several other days. Respondent also locked Snyder out of its email system on August
19. Snyder discussed this with an attorney representing Apollo and she was put back into the
system.20
On October 4, 2016, Weinstein sent Snyder an email, G.C. Exh. – 3:
We have started to track productivity on a daily basis and I am sending you your screen
shot of the month of September.25
This is based on our base of productivity of 10 visits a day. Your percentage average to
69.5%
You had 4 days at 50%. We need to eliminate these days as it drags your average down.30
Our goal for October is to hit 80-85% average. I need you to continue to work with
Vanessa3 to find add on when appropriate. We can not operate at 69% all of the time all
year long. We need to have average in the 80% range in order to generate enough
revenue to keep everyone going.35
Snyder responded:
In response to productivity this is the first mention or notification of this monitoring or
screen shot since my hire. Productivity monitoring was not even addressed at the most 40
recent provider meeting in last month. How is this productivity monitoring configuration
achieved and does it account for the high patient cancellation rates at Apollo. I have
email or texted you, Keesha and Vanessa on almost daily basis regarding issues that
affect productivity.
45

3 Vanessa was Respondent’s route manager in October 2016.
JD–53–17
Chicago, IL
4
Many of my patients are not confirmed by the scheduler so myself and many of the other
providers continue to experience high patient cancellations daily/weekly. I have
documented this to the office almost daily. It is always my goal to see as many patients
as possible, but if patients are put on the schedule but not confirmed and I continue to
having almost 50% cancellation daily through no fault of my own. It is impossible to 5
meet said productivity goal.
Scheduling and high cancellations rates have been problem for Apollo since my hire and
I have documented these factors with the Apollo office frequently (almost via email or
text). Additionally, I have notified the route manager that there have been days when we 10
did not even have gas or finances to purchase gas so we would have been able to see all
the assigned patients. Gas/Vehicle Scheduling issues continue to profoundly affect
myself and all other providers’ productivity at Apollo. How can productivity even be
addressed if the providers do not know how the productivity is measure/achieved and the
aforementioned issues have not been remedied so that providers can achieve good 15
productivity at Apollo.
I am forwarding this to the other providers at Apollo to see what there thoughts are on
this matter of Productivity at Apollo.
20
Weinstein responded to Snyder on October 6, at 5:15 a.m. as follows:
I have already shared the other providers productivity. It would be inappropriate to
forward any emails to the rest of the providers. We all need to be productive so do not
email other providers.25
We are simply starting to track it. I understand that there are cancellations. That is why
we have Vanessa look for add Ons.
The gas issue to my knowledge only happened this week one time.430
After receiving Weinstein’s 5:15 a.m. email, Snyder sent a text to other Apollo providers
and Keeshia Eguia, Respondent’s office manager, at 9:05 a.m the same morning:
Good morning group I just want to place a question out there about productivity does 35
anybody know how it’s being measured and additionally we’re having high patient
cancellation of rates because scheduling is not confirmed or there’s issues with
scheduling is anybody else have the same concerns please let me know.
Other providers responded to this text. One stated that he or she had 5 cancellations on 40
the previous day. Prema David, another APN, texted: “Do not worry. They are talking garbage
with Vanessa. I will call you.” Alberta Reynolds responded with a text stating that she had the
same issue the previous day with four cancellations.
45

4 This email is alleged to have violated Section 8(a)(1) in paragraph IV (a) of the complaint.
JD–53–17
Chicago, IL
5
G.C. Exh. – 4.
Prema David called Snyder after receiving the text to discuss scheduling issues.
5
On October 10, Snyder noticed that she had not been assigned any patients for that day.
She called Respondent’s office and at some point received a call back from office manager
Keeshia Eguia. Eguia then handed the phone to Frederick Bernardo, Respondent’s attorney.
Bernardo informed Snyder that she had been terminated for insubordination.
10
Snyder filed for unemployment compensation. Her claim was denied. The reason given
for the denial was that:
The claimant was discharged from APOLLO HEALTH, INC. because she communicated
with her coworkers about productivity rates after being told not to.15
G.C. Exh. 6.
This record is absolutely clear that, regardless of whatever issues Respondent had with
Snyder, it would not have fired her but for the fact that she texted other employees about her 20
concerns. Brian Weinstein admitted to as much, Tr. 152, 154, 158. He testified that he did not
want other providers complaining about the things raised in Snyder’s text, Tr. 152. He did not
want Snyder causing him problems with other providers, Tr. 167.
Analysis25
Section 8(a)(1) provides that it is an unfair labor practice to interfere with, restrain or
coerce employees in the exercise of the rights guaranteed in Section 7. Discharging an employee
because they engaged in activity protected by Section 7 is a violation of Section 8(a)(1).
30
Section 7 provides that, "employees shall have the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purpose of collective bargaining or
other mutual aid or protection ... (Emphasis added)"
35
In Myers Industries (Myers 1), 268 NLRB 493 (1984), and in Myers Industries (Myers
11) 281 NLRB 882 (1986), the Board held that "concerted activities" protected by Section 7 are
those "engaged in with or on the authority of other employees, and not solely by and on behalf of
the employee himself." However, the activities of a single employee in enlisting the support of
fellow employees in mutual aid and protection is as much concerted activity as is ordinary group 40
activity.
Ondrea Snyder’s text to her coworkers clearly constitutes protected concerted activity
under Board law. There is also no question that Respondent fired Snyder because of her
protected activity. Moreover, Respondent knew of the concerted nature of Snyder’s texts when it 45
discharged her, Amelio's, 301 NLRB 182 (1991).
JD–53–17
Chicago, IL
6
To establish an 8(a)(1) violation based on an adverse employment action where the
motive for the action is disputed, the General Counsel has the initial burden of showing that
protected activity was a motivating factor for the action, Wright Line, 251 NLRB 1083 (1980).
The General Counsel satisfies that burden by proving the existence of protected activity, the
employer’s knowledge of the activity, and animus against the activity. If the General Counsel 5
meets his burden, the burden shifts to the employer to demonstrate that the same action would
have taken place even in the absence of the protected conduct.
Where the adverse action is taken in response to protected activity, the Board applies the
analysis set for the in Atlantic Steel Co., 245 NLRB 814 (1979). In making this determination 10
the Board balances four factors: 1) the place of discussion; 2) the subject matter of the
discussion; 3) the nature of the employee’s outburst and 4) whether the outburst was provoked
by an employer’s unfair labor practice; Also see Overnite Transportation Co., 343 NLRB 1431,
1437 (2004) .
15
I find that the General Counsel has established that Respondent violated the Act in
discharging Ondrea Snyder under either standard. However, if forced to choose, I would
conclude that Atlantic Steel is the more appropriate analytical vehicle in this case. Whether Ms.
Snyder’s text message was “the straw that broke the camel’s back or the bullet between the
eyes,” her discharge is enough to come with the proscription of the Act. Her text was casually 20
related to her discharge, Wright Line, supra, at 1089 fn. 14; Bronco Wine Co., 256 NLRB 53, 54
FN. 8 (1981). It is clear she would not have been discharged on October 10 but for her protected
text message. It is also clear that there is nothing about her protected conduct that would have
forfeited the protections of the Act.
25
Respondent’s October 6, 2016 email violated Section 8(a)(1)
Employees have a right to discuss with other employees the terms and conditions of their
employment, including such matters as productivity standards. A rule, or statement by an
employer restricting this right violates Section 8(a)(1) absent a sufficient business justification,30
Cintas Corp., 344 NLRB 943, 946 (2005) enfd. 482 F.3d 463 (D.C. Cir. 2007). It makes no
difference whether employees are merely asked, or ordered not to discuss the terms and
conditions of their employment. Either way such a statement or rule violates the Act, Franklin
Iron and Metal Corp., 315 NLRB 819, 820 (1994). Respondent’s October 6, 2016 email to
Snyder, advising her that it would be inappropriate for her to forward emails regarding 35
Respondent’s productivity standards to other employees, and instructing her not to do so,
violated the NLRA. Respondent has not established any sufficient business justification for this
statement or rule.
Respondent’s Covenant of Non-Disclosure40
Respondent’s employment contract contained a covenant of nondisclosure by which the
employee agreed not to divulge, among other things, compensation data, educational and training
materials, employee data or lists and labor relations strategies. This violates the Act because in
requiring employees not to divulge compensation data, it could be reasonably construed to 45
prohibit discussion of wages and other terms and conditions of employment with their coworkers
and third parties, MCPC, Inc., 360 NLRB 216 (2014).
JD–53–17
Chicago, IL
7
Respondent’s Covenant of Non-Disparagement
A rule prohibiting disparaging an employer, such as that in Respondent’s Covenant of
Non-Disparagement, violates Section 8(a)(1) because it would reasonably be construed to 5
prohibit expression of concerns over working conditions, William Beaumont Hospital, 363
NLRB No. 162 (2016); Southern Maryland, Hospital, 293 NLRB 1209, 1222 (1989).
Compliance Specification
10
The finding of an unfair labor practice is presumptive proof that some backpay is owed.
The sole burden of the General Counsel is to show the gross amount of backpay due, i.e., what
the employee would have received but for the employer’s illegal conduct. Once that has been
established the burden is on the employer to establish facts that would mitigate that liability,
Food and Commercial Workers Local 1357, 301 NLRB 617, 619 (1991). Respondent has failed 15
to do so.
Specifically, I conclude that Respondent failed to sustain its burden of showing that
Ondrea Snyder failed to make diligent effort to find suitable employment. Snyder was required
to make a good faith effort to find employment. Snyder testified that she went to job fairs and 20
spent 100 hours seeking employment, Tr. 76. Respondent did not meet its obligation to satisfy
its affirmative defense that Snyder unjustifiably refused to take desirable new employment, Id.
Brian Weinstein testified that APNs are much in demand. However, the existence of job
opportunities does not compel an inference that Snyder would have been hired, Lundy Packing
Co., 286 NLRB 141, 142 (1987). As she surmised, prospective employers may well have shied 25
away from hiring her in light of the fact that she had been discharged by Respondent.
In conclusion, I find that Respondent owes Ondrea Snyder $43,600 as testified to by
compliance officer Christina Ortega. The amount consists of $1,730.77 per week from October
10, 2016 until March 20, 1977 ($39,809), the income she would have received pursuant to her 30
employment contract if she had not been terminated. It also includes out of pocket expenses of
$100 for her job search, $731 for maintaining her professional license, $2,890 for out-of-pocket
medical expenses and $70 for her excess tax liability.
REMEDY35
The Respondent, having discriminatorily discharged an employee, must make her whole
for any loss of earnings and other benefits. Backpay shall be computed in accordance with F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest at the rate prescribed in New Horizons, 283
NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 40
NLRB No.8 (2010). Respondent shall compensate her for her search-for-work and interim
employment expenses regardless of whether those expenses exceed her interim earnings,
computed as described above and as set forth in the compliance specification.5

5 Respondent may also be liable for additional interest which may have accrued or will accrue.
JD–53–17
Chicago, IL
8
Respondent shall reimburse the discriminatee in amounts equal to the difference in taxes
owed upon receipt of a lump-sum backpay award and taxes that would have been owed had there
been no discrimination. Thus, Respondent shall compensate Ondrea Snyder in the amount of
$43,600, as calculated by the compliance officer. Respondent shall also take whatever steps are
necessary to insure that the Social Security Administration credits the discriminatee’s backpay to 5
the proper quarters on her Social Security earnings record.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended6
10
ORDER
Respondent, Apollo Health, Inc., Chicago, Illinois, its officers, agents, successors, and
assigns, shall
15
1. Cease and desist from
(a) Discharging or otherwise discriminating against any of its employees for
engaging in and/or planning to engage in protected concerted activities, such as
texting their coworkers to enlist their support regarding wages, hours or other terms 20
and conditions of employment.
(b) Maintaining a Covenant of Non-Disclosure, prohibiting employees from
disclosing confidential information, defined in part as compensation data, educational
and training materials, employee data or lists, and labor relations strategies. 25
(c) Maintaining a Covenant of Non-Disparagement that prohibits employees
from making any statements calculated to have the effect of undermining or
disparaging Respondent.
30
(d) Interfering with employees’ rights to communicate with other employees
and/or third parties regarding the terms and conditions of their employment.
(e) In any like or related manner interfering with, restraining, or coercing its
employees in the exercise of their rights under Section 7 of the Act. 35
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Make Ondrea Snyder whole for any loss of earnings and other benefits suffered as a
result of the discrimination against her, in the manner set forth in the remedy section of this40
decision. Respondent shall compensate her for her search-for-work and interim employment

6 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–53–17
Chicago, IL
9
expenses regardless of whether those expenses exceed her interim earnings, as set forth in the
remedy section.
(b) Compensate Ondrea Snyder for the adverse tax consequences in the amount of $70
due to receiving a lump-sum backpay award, and file a report with the Social Security 5
Administration allocating the backpay award to the appropriate calendar quarters.
(c) Compensate Ondrea Snyder in the amount of $43,600 as calculated by the compliance
officer.
10
(d) Revise or Rescind the violative portions of the Non-Disclosure and Non-
Disparagement Covenants in its employment contracts.
(e) Within 14 days from the date of the Board's Order, remove from its files any reference
to the unlawful discharge and within 3 days thereafter notify Ondrea Snyder in writing that this 15
has been done and that the discharge will not be used against her in any way.
(f) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment records, timecards, personnel records 20
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.
(g) Within 14 days after service by the Region, the Respondent shall duplicate and mail,
at its own expense, a copy of the notice to all current employees and former employees 25
employed by the Respondent at any time since October 6, 2016.
(h) 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. 30
Dated, Washington, D.C. July 26, 2017
35

Arthur J. Amchan
Administrative Law Judge
40
C~~`'cv~ ~ ~~~~~~~'~--
JD–53–17
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 discharge or otherwise discriminate against any of you for engaging in or
planning to engage in protected concerted activity, such as texting your co-workers to enlist their
support regarding wages, hours or other terms and conditions of employment.
WE WILL NOT restrict your right to communicate with your co-workers or third parties in
enlisting the support of others in matters regarding wages, hours or other terms and conditions of
employment.
WE WILL NOT maintain a Covenant of Non-Disclosure, prohibiting employees from disclosing
confidential information, defined in part as compensation data, educational and training
materials, employee data or lists, and labor relations strategies.
WE WILL NOT maintain a Covenant that prohibits you from disparaging this company or its
officials.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL make Ondrea Snyder whole for any loss of earnings and other benefits resulting from
her discharge, less any net interim earnings, plus interest compounded daily.
WE WILL compensate Ondrea Snyder for her search-for-work and interim employment
expenses regardless of whether those expenses exceed her interim earnings, computed as
described above.
WE WILL compensate Ondrea Snyder for the adverse tax consequences, in the amount of $70,
due to receiving a lump-sum backpay award, and WE WILL file a report with the Social Security
Administration allocating the backpay award to the appropriate calendar quarters.
JD–53–17
WE WILL compensate Ondrea Snyder in the amount of $43,600 as calculated by the compliance
officer.
WE WILL, within 14 days from the date of this Order, remove from our files any reference to
the unlawful discharge of Ondrea Snyder, and WE WILL, within 3 days thereafter, notify her in
writing that this has been done and that the discharge will not be used against her in any way.
APOLLO HEALTH, INC.
(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.
Dirksen Federal Building, 219 South Dearborn Street, Suite 808, Chicago, IL 60604-1443
(312) 353-9158, Hours: 8:30 a.m. to 5 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/13-CA-189486 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations
Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.
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, (312) 353-7170.