Family Healthcare, Inc.

National Labor Relations Board - Board Decisions

Jun 4, 2009

354 N.L.R.B. 254 (N.L.R.B. 2009)

354 NLRB No. 29
NOTICE: This opinion is subject to formal revision before publication in the bound
volumes of NLRB decisions. Readers are requested to notify the Executive Sec-
retary, National Labor Relations Board, Washington, D.C. 20570, of any ty-
pographical or other formal errors so that corrections can be included in the
bound volumes..
Family Healthcare, Inc. and Kristine McCallum.
Case 9–CA–44539
June 4, 2009
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER
On February 5, 2009, Administrative Law Judge Ar-
thur J. Amchan issued the attached decision. The Re-
spondent filed exceptions, a supporting brief, and a reply
brief; the General Counsel and the Charging Party filed
answering briefs. The General Counsel also filed a lim-
ited cross-exception and a supporting brief, and the Re-
spondent filed an answering brief.
The National Labor Relations Board1 has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,2 and conclusions and to adopt the recommended
Order.3

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Liebman and Member Schaumber constitute a quorum of the
three-member group. As a quorum, they have the authority to issue deci-
sions and orders in unfair labor practice and representation cases. See
Sec. 3(b) of the Act. See New Process Steel v. NLRB, 564 F.3d 840 (7th
Cir. 2009), petition for cert. filed __ U.S.L.W. __ (U.S. May 27, 2009)
(No. 08–1457); Northeastern Land Services v. NLRB, 560 F.3d 36 (1st
Cir. 2009), rehearing denied No. 08–1878 (May 20, 2009). But see Lau-
rel Baye Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d 469 (D.C.
Cir. 2009), petition for rehearing filed Nos. 08–1162, 08–1214 (May 27,
2009)
2 The Respondent has excepted to the judge’s credibility findings. The
Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant
evidence convinces us that they are incorrect. Standard Dry Wall Prod-
ucts, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing the findings.
In agreeing with the judge’s finding that Dr. Kristine McCallum is not
a supervisor within the meaning of Sec. 2(11) of the Act, Member
Schaumber disavows, as inconsistent with Board precedent, the com-
ments in fn. 10 of the judge’s decision. Further, in adopting the judge’s
finding that Dr. McCallum did not have the authority to reward other
employees for purposes of Sec. 2(11), Member Schaumber disavows any
implication by the judge that Dr. McCallum’s failure to recommend a
specific pay increase amount would preclude a finding of supervisory
status.
3 The General Counsel seeks compound interest computed on a quar-
terly basis for any backpay awarded. Having duly considered the matter,
we are not prepared at this time to deviate from our current practice of
assessing simple interest. See, e.g., Glen Rock Ham, 352 NLRB 516, 516
fn. 1 (2008), citing Rogers Corp., 344 NLRB 504 (2005).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Family Healthcare, Inc.,
Chillicothe, Ohio, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.
Dated, Washington, D.C. June 4, 2009
Wilma B. Liebman, Chairman
Peter C. Schaumber, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
Eric V. Oliver, Esq., for the General Counsel.
Russell E. Carnahan and Catherine J. Harshman, Esqs.
(Hunter, Carnahan, Shoub & Byard), of Columbus, Ohio,
for the Respondent.
Spencer M. Youell, Esq. (Mowery, Youell & Galeano, Ltd.), of
Dublin, Ohio, for the Charging Party.
DECISION
STATEMENT OF THE CASE
ARTHUR J. AMCHAN, Administrative Law Judge. This case
was tried in Chillicothe, Ohio, on December 15–16, 2008. The
charge was filed August 11, 2008, and the complaint was is-
sued on October 28, 2008.
The issues in this case are: (1) whether Respondent, Family
Healthcare, Inc. (FHI) violated Section 8(a)(1) in discharging
the Charging Party, Dr. Kristine McCallum, on July 28, 2008 in
retaliation for protected concerted activity; (2) whether Re-
spondent is an statutory employer; and (3) whether Dr.
McCallum is a statutory employee, pursuant to Section 2(3) of
the Act or, on the other hand, a “supervisor” under Section
2(11), who is excluded from the protections afforded employ-
ees by the Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, Family Healthcare, Inc., a corporation, operates
medical clinics at several sites in southern Ohio, including its
main office in Chillicothe, where the Charging Party worked as
a physician. Respondent derived gross revenues in excess of
$250,000 in the 12 months prior to the issuance of the Com-
plaint and during that period purchased and received at its Chil-
licothe facility goods valued in excess of $5000 from outside
the State of Ohio. For reasons set forth below, I find that Re-
spondent is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
Respondent contends that it is not an employer within the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
meaning of Section 2(2) on the grounds that it is an exempt
political subdivision, but failed to cite a single case in support
of this contention in its brief. FHI makes this argument based
on three factors, none of which satisfy any of the criteria for an
exempt political subdivision under existing case law: that most
of its funding (over 80 percent) comes from Federal and State
grants and Medicare and Medicaid reimbursement; that the
Federal Government requires that 51 percent of its directors
have used FHI facilities in the past year; and that its physicians
are covered by the Federal Tort Claims Act.
In NLRB v. Natural Gas Utility District of Hawkins County,
402 U.S. 600 (1971), the Supreme Court held that an exempt
political subdivision under the Act is an entity that is either (1)
created directly by the State, so as to constitute an administra-
tive arm of the Government or (2) administered by individuals
who are responsible to public officials or to the general elector-
ate.1 Even if an employer is an entity that is created directly by
a State or county, an issue remains as to whether it was created
“so as to constitute an administrative arm of government.”
Hinds County Human Resource Agency, 331 NLRB 1404
(2000).
Respondent meets none of the criteria for an exempt political
subdivision, see, e.g., Regional Medical Center at Memphis,
343 NLRB 346, 358–360 (2004). Respondent was not created
by the State of Ohio; it is a nonprofit corporation. FHI is not an
administrative arm of a state or county government.
Mark Bridenbaugh, the executive director, is in charge of
Respondent’s day to day operations. Dr. Dawn Murray, the
medical director, Melissa Walls, the chief operating officer, and
Wanda Justice, the Chillicothe site manager, report to Bri-
denbaugh. Bridenbaugh reports to a board of directors, which
is not responsible to public officials or the general electorate.
The Board consists of 9–15 individuals, who are selected by
existing board members.
II. ALLEGED UNFAIR LABOR PRACTICES
Protected Concerted Activity
Section 8(a)(1) of the National Labor Relations Act 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. Section 7 provides that “employees shall have the
right to self-organization, to form, join, or assist labor organiza-
tions, 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.)
In Myers Industries, 268 NLRB 493 (1984) (Myers I), and in
Myers Industries, 281 NLRB 882 (1986) (Myers II), 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.” How-
ever, the activities of a single employee in enlisting the support

1 In order to meet the standard of being administered by individuals
who are responsible to the general electorate, these individuals must be
responsible to the same electorate as those running for office in general
political elections. Enrichment Services Program, 325 NLRB 818, 820
fn. 13 (1998).
of fellow employees in mutual aid and protection is as much
concerted activity as is ordinary group activity. Individual
action is concerted so long as it is engaged in with the object of
initiating or inducing group action. Whittaker Corp., 289
NLRB 933 (1988); Mushroom Transportation Co., 330 F.2d
683, 685 (3d Cir. 1964).
Additionally, the Board held in Amelio’s, 301 NLRB 182
(1991), that in order to present a prima facie case that an em-
ployer has discharged an employee in violation of Section
8(a)(1), the General Counsel must establish that the employer
knew of the concerted nature of the activity.
Dr. Kristine McCallum, a board-certified family physician,
was one of seven physicians working at FHI’s Chillicothe,
Ohio clinic when she was terminated on July 28, 2008. FHI
physicians worked pursuant to contracts with Respondent, gen-
erally of 2-year duration. Dr. McCallum had worked at FHI
since 1999.
Respondent began plans for a new contract with its physi-
cians sometime in the fall of 2007, or earlier. Respondent
formed a contract committee in 2007 which consisted of physi-
cians, including Dr. McCallum, and Mark Bridenbaugh, Re-
spondent’s executive director.
On April 17, 2008, Respondent held a meeting with physi-
cians from several of its sites. Prior to that meeting, it had pro-
vided its physicians with a draft of a new employment contract.
Several of the doctors at the Chillicothe site were unhappy with
the new draft contract and with the fact, in their view, that they
had not been sufficiently consulted about it.
The primary issue between Respondent and several of the
Chillicothe physicians was how their time was to be calculated
for purposes of their compensation.2 A physician’s compensa-
tion depends on whether the doctor was a full-time employee or
a part-time employee. Part-time employees’ compensation
depends on their percentage of full time (par. 7) (70 percent)
for example, as opposed to (par. 8). Under the new draft con-
tract, only patient contact hours spent at the Chillicothe facility
would be considered in this calculation, not hours spent treating
patients at the Adena Hospital in Chillicothe. This was a
change in the terms and conditions of the employment of FHI
physicians. Under prior contracts a physician’s time spent at
Adena was included in the determination of the percentage of
their full-time employment.
Several doctors believed this change would either force them
to accept less compensation or work longer hours. Respondent
was aware that the new contract terms would likely force its
doctors to make such a choice (Tr. 550), and was not opposed
to at least some of its physicians terminating their hospital
work. At the April 17 meeting, Dr. McCallum and others com-
plained to Respondent’s management that they were not con-
sulted adequately about this change in policy.

2 The GC Exh. at 40 of its brief makes the curious statement that Dr.
McCallum’s conduct was protected even though she may not have been
personally affected by the issues she raised with Respondent. To the
contrary, the record establishes that several, if not all, the Chillicothe
physicians, including Dr. McCallum, were affected and concerned with
the issue of “how time is accounted, especially outside of the office,”
e.g., GC Exh. 14, Dr. Crawford’s June 7, 2008 e-mail to Dr. Murray.
FAMILY HEALTHCARE, INC. 3
Respondent held a second meeting on May 9, in Logan,
Ohio. The Chillicothe doctors carpooled to Logan and on the
way discussed strategy for the meeting with management.
Pursuant to this strategy, Dr. McCallum asked management to
leave the room at the start of the session so that the Chillicothe
doctors could discuss the proposed contract with providers
from other FHI facilities. Respondent’s management begrudg-
ing agreed to leave for 10 minutes. Respondent’s medical di-
rector, Dr. Dawn Murray, was very unhappy with Dr.
McCallum’s request.
When management left, Dr. McCallum discussed the manner
in which Respondent proposed to define “patient care hours”
for purposes of determining full-time employment and the per-
centage of part-time employment. Providers from other sites
were less concerned with this issue than were the Chillicothe
doctors.
After the May 19, meeting, Respondent made a number of
changes in the proposed new contract in response to requests
from its providers. For example, the number of patient contact
hours needed to constitute full-time employment was reduced
from 35 to 32 hours. Attendance at certain staff meetings was
no longer deemed mandatory and changes were made to provi-
sions regarding vacation time.
A third meeting was held regarding the new proposed con-
tract on June 9. Dr. McCallum and Dr. Ellis Frazier told man-
agement, including Dr. Murray, that the contract required them
to give up treating patients at Adena Hospital in Chillicothe.
Murray disputed this contention and said whether the physi-
cians gave up their hospital hours was a matter of personal
choice.
On June 13, Dr. Murray e-mailed the providers with a final
draft of the new contract which was to be implemented in Sep-
tember or October 2008. In late June or early July, Dr.
McCallum informed Respondent’s executive director, Mark
Bridenbaugh, that she and other doctors would withdraw their
hospital privileges at Adena on account of the terms of the new
contract. This meant that they would effectively stop treating
new patients at the Hospital. Several doctors apparently agreed
among themselves to continue treating their patients who had
already been admitted to Adena.
Bridenbaugh asked McCallum in late June if the doctors
would postpone their withdrawal of privileges.3 McCallum
responded by telling Bridenbaugh that she would talk to the
other doctors about such a postponement.
On June 26, Respondent’s board of directors approved the
new contract. A meeting between the physicians and manage-
ment scheduled for July 14 was postponed in late June or early
July.
On July 2, Wanda Justice, Respondent’s site director, in-
formed McCallum and other physicians that the July 14 meet-

3 R. Br. at 6 states that Mark Bridenbaugh “told” Dr. McCallum to
hold off on withdrawing her privileges. I credit Dr. McCallum’s testi-
mony (Tr. 100) that Bridenbaugh “asked” if the Doctors could wait to
withdraw their privileges. Bridenbaugh (Tr. 562–565) also testified
that he “asked” Dr. McCallum to hold off. Bridenbaugh also testified
to what he “believed” he discussed with McCallum and for that reason I
discredit his testimony where it contradicts McCallum’s testimony.
ing was being postponed. Justice testified that she told Dr.
McCallum that the reason for the postponement was that Dr.
Murray had to take her son to a medical appointment on July
14. Dr. McCallum testified Justice did not give her a reason for
the postponement. I credit Dr. McCallum in part because nei-
ther Dr. Frazier nor Dr. Crawford, both current employees of
FHI, failed to corroborate Justice’s testimony that FHI ex-
plained to the physicians why the July 14 meeting was being
postponed.4
Justice said the meeting would be rescheduled but did not
tell the physicians when it would be rescheduled. The post-
ponement prompted Dr. McCallum and others to withdaw their
Adena hospital privileges the same day. (Tr. 398–400, 404–
407.)
Dr. McCallum submitted her withdrawal of her hospital
privileges to Adena on July 2. She also submitted the with-
drawal papers of another Chillicothe physician to Adena. At
2:35 p.m. that day, Ty McBee, an employee of Adena, emailed
Mark Bridenbaugh, stating that an Adena staff physician had
informed him that McCallum stated that Respondent would
cease treating hospital patients effective September 2.5 McBee
stated the Hospital would not be sufficiently staffed by Sep-
tember 2, to replace the FHI physicians. He asked Bridenbaugh
“what discussions we may need to have.” (R Exh. 22.) A half-
hour later, Bridenbaugh forwarded this e-mail to FHI Medical
Director Dr. Dawn Murray, Site Director Wanda Justice, and
Chief Operations Officer Melissa Walls.
Dr. Murray e-mailed McBee late that afternoon. She wrote,

4 I regard Dr. Crawford, in particular, to be a neutral witness. He tes-
tified that the physicians were told on July 2, that the July 14 meeting
was being postponed. When asked if the reason was Dr. Murray’s
appointment, Dr. Crawford testified that “I don’t remember the issue, I
remember it was postponed.” Tr. 236. The fact several physicians
reacted to the news of the postponement by withdrawing their hospital
privileges indicates to me that they were not provided with a reasonable
explanation for the postponement.
5 I decline to find that Dr. McCallum made such a statement to any-
one. This evidence is the purest form of hearsay. Neither the unnamed
staff physician to whom the comment was allegedly made, nor McBee
testified in this proceeding. In June, Dr. McCallum told Dr. John Fort-
ney, the medical director at Adena Hospital, that the FHI physicians
were likely to withdraw their hospital privileges. Thus, the record
shows that she was speaking for the FHI physicians, acting in concert.
There is no credible evidence that Dr. McCallum suggested that she
was speaking for FHI. Thus, there is no evidence that Dr. McCallum
“misrepresented the intentions of her employer” as stated at p. 23 of
Respondent’s brief. Mark Bridenbaugh conceded that hospital privi-
leges belong to the individual physicians, not to FHI. (Tr. 602–604.)
Moreover, employees engaged in protected activity may communi-
cate with third parties to advance legitimate interests when the commu-
nication is not so disloyal, reckless or maliciously untrue to lose the
Act’s protection, see Emarco, Inc., 284 NLRB 832, 834 (1987); Arling-
ton Electric, 332 NLRB 845 (2000), Five Star Transportation, Inc., 349
NLRB 42 (2007). Thus, regardless of whether Dr. McCallum commu-
nicated with Adena to prepare Adena for loss of the FHI physicians’
services, and/or, as Mark Bridenbaugh believed, to put pressure on FHI
through Adena to alter the terms of the new contract (Tr. 459) she did
not lose the protection of the Act. Dr. McCallum’s communication
with Adena in this regard was clearly related to the physicians’ con-
certed protest of the terms of their new contract.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
“First, I want to apologize for any confusion that has been
caused by Dr. K. McCallum’s remarks. She is not authorized
to act as hospital liaison for FHI, she speaks only for herself.”
Dr. Murray noted that FHI’s Chillicothe physicians recently
said they planned to give up inpatient responsibilities in light of
the new contract, but that FHI did not have anything in writing
to this effect. Murray promised to talk to the Chillicothe physi-
cians about maintaining their current level of inpatient work
through October 1, 2008.
On July 2, McCallum met with Bridenbaugh and informed
him that six of the seven Chillicothe doctors were withdrawing
their privileges at Adena and that she had done so that day.
Also, on July 2 or 3, Dr. McCallum had a conversation with
Bridenbaugh in which she told him that he was a figurehead
and that Dr. Murray and Melissa Walls were running FHI and
“really messing things up.” (Tr. 567.) There is no evidence as
to whether or not Bridenbaugh relayed this to Murray or Walls.
On July 21, Murray and Bridenbaugh met with the Chilli-
cothe doctors. Murray expressed anger at the fact that
McCallum and other doctors had communicated with Adena
about withdrawing their privileges directly, rather than doing so
through FHI.
On July 28, Dr. Murray and Bridenbaugh summoned Dr.
McCallum to a meeting and handed her a short letter terminat-
ing her employment contract. The letter provided no reason for
the termination. When McCallum asked why she was being
terminated, Murray replied that things just weren’t working
out.6

6 I do not credit the testimony of Mark Bridenbaugh that he decided
to terminate Dr. McCallum on July 2. His testimony (Tr. 461) and Dr.
Murray’s testimony (Tr. 504) establishes that no such decision was
made prior to the July 21 meeting and that this decision was initiated by
Dr. Murray; not Bridenbaugh. Dr. Murray initiated the termination of
Dr. McCallum on the grounds that McCallum had been disrespectful
and had undermined her authority. Bridenbaugh concurred in Dr.
Murray’s recommendation/decision.
Bridenbaugh’s testimony that he decided to terminate Dr. McCallum
on July 2 is also inconsistent with the fact that on July 2 he agreed with
Dr. McCallum that she should be a 70-percent part-time employee, as
opposed to a 60-percent part-time employee.
At pp 27–28 of its brief, Respondent argues that Dr. McCallum’s
conduct was unprotected due to the comments she made about Mark
Bridenbaugh being a figurehead and Dr. Murray and Melissa Walls
running FHI and “messing things up.” There is absolutely no evidence
that Respondent terminated Dr. McCallum for these remarks or even
that they played any role in termination. Respondent’s brief mentions
other alleged “misbehavior” by Dr. McCallum, such as her refusal to
see patients who arrived more than 15 minutes late for an appointment.
There is no evidence that any of this alleged misconduct (assuming it is
misconduct) were factors in her termination.
Furthermore, Respondent’s statement at p. 28 of its brief that, “Dr.
McCallum in particular had a history of rude and sometimes outwardly
disrespectful behavior toward other staff, the management of FHI, and
sometimes even patients,” is not supported by the record. Indeed, the
record evidence is to the contrary. For example, Respondent, intro-
duced Dr. McCallum’s 2003–2004 performance evaluation, which
mentions some patient complaints and one written grievance. (R. Exh.
3.) However, this evaluation is overwhelmingly positive. Dr.
McCallum’s testimony is that the grievance was filed in 2002 and was
At a meeting in early August, after Respondent terminated
Dr. McCallum, Adena asked the other Chillicothe physicians to
temporarily restore their hospital privileges until October 2.
They did so. Neither Respondent nor Adena made such a re-
quest to Dr. McCallum before terminating her employment.
Adena Hospital retained Dr. McCallum as an independent con-
tractor in early August 2008 and then hired her as a staff physi-
cian effective January 1, 2009. Dr. McCallum’s hospital privi-
leges at Adena have been restored.
At hearing, Respondent attempted to suggest that the reasons
for Dr. McCallum’s termination were broader than her conduct
related to the new employment contract. This is completely
incredible. In the only written evaluation Respondent gave to
Dr. McCallum, in July 2004, she was rated as outstanding in 9
of 10 categories. (R. Exh. 3.)
The initiative for Dr. McCallum’s termination came from
Medical Director Murray. When I pressed Dr. Murray on the
reasons for the termination, she testified:
I terminated her because there’s been a pattern of be-
havior over time that basically when we started talking
about the contract, it didn’t have anything to do with the
contract.
But the behavior during the time that we were talking
about the contract just got to be to the point that it was the
last straw.
And the thing about the Adena privileges, she took—
she withdraws her privileges, but they were all in the proc-
ess of whether they were going to withdraw privileges or
not. We were still in the process of talking about that.
(Tr. 493.)
Thus, it is crystal clear that Respondent would not have ter-
minated Dr. McCallum in the absence of her challenge to the
new contract and her concerted activity with other Chillicothe
physicians to withdraw their hospital privileges in light of
FHI’s new contract. Furthermore, where there is no reason
given for a discharge, it is indicative of unlawful motivation,
Hurst Performance, Inc., 242 NLRB 121, 128 (1979). Respon-
dent knew that Dr. McCallum was acting in concert with other
physicians. For example, in General Counsel’s Exhibit 14, Dr.
Eric Crawford, in a June 7, 2008 e-mail to Dr. Murray, noted
that his specific concerns about the new contract had been ad-
dressed by Doctors Frazier and McCallum.
Mark Bridenbaugh testified that a decision was made to ter-
minate Dr. McCallum after the July 21 meeting because Dr.
McCallum had “in affect challenged Dr. Murray’s leadership.”
(Tr. 583.) Since this challenge related primarily, if not exclu-
sively, to the terms and conditions of employment of the Chilli-
cothe physicians, the conduct for which Respondent terminated
Dr. McCallum was clearly protected by Section 7 of the Act.7

occasioned by her refusal to prescribe diet pills to a patient that she
believed should not have received the prescription.
7 Contrary to Respondent’s brief, FHI terminated Dr. McCallum for
her conduct related to the new contract, not simply the withdrawal of
her privileges. Moreover, the withdrawal of her privileges was in es-
sence part of a concerted protest of her employer’s decision not to
FAMILY HEALTHCARE, INC. 5
FHI violated Section 8(a)(1) of the Act in terminating Dr.
McCallum in retaliation for engaging in protected concerted
activity.
Dr. McCallum did not Lose the Protection of the Act
by Raising her Voice to Dr. Murray
or any Other Conduct.
Pursuant to Atlantic Steel Co., 245 NLRB 814, 816–817
(1979), an employer violates the Act by discharging an em-
ployee engaged in the protected concerted activity of voicing a
complaint about his or her employment terms unless, in the
course of that protest, the employee engages in opprobrious
conduct, costing him the Act’s protection. In assessing the con-
duct, the Board assesses four factors: (1) the place of the dis-
cussion; (2) the subject matter of the discussion; (3) the nature
of the employee’s outburst; and (4) whether the outburst was, in
any way, provoked by the employer’s unfair labor practices.
Consideration of these factors leads me to conclude that Dr.
McCallum’s conduct does not come close to that which would
forfeit the Act’s protection. Her “disrespectful” conduct oc-
curred in meetings held to discuss the terms and conditions of
the physicians’ employment. Dr. McCallum’s comments per-
tained to these conditions and did not even rise to the level of
“an outburst.” Merely speaking loudly or raising one’s voice
while engaging in protected concerted activity generally will
not deprive an employee of the Act’s protection. Alton H. Pi-
ester, LLC., 353 NLRB No. 33, slip op. at 6 (2008); Firch Bak-
ing Co., 232 NLRB 772 (1977). There is nothing about Dr.
McCallum’s conduct that warrants departing from this general
rule.
I do not credit Dr. Murray’s self-serving testimony that Dr.
McCallum “rolled her eyes and huffed at me, and slammed her
hand on the desk multiple times.” (Tr. 502.) There is no cor-
roboration for this testimony, not even from Bridenbaugh.8
Even if I were to credit this testimony, McCallum’s conduct
would be a far cry from the type of egregious conduct that
would negate the protected nature of her conduct.
Supervisory Status
Section 2(11) of the Act defines “supervisor” as any individ-
ual 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 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.
A statutory supervisor is not an employee pursuant to Sec-
tion 2(3) of the Act and thus is not protected by Section 8 of the
Act. Respondent has the burden of proving that Dr. McCallum
was a statutory supervisor.
The Board defines the power to effectively recommend as
meaning “that the recommended action is taken with no inde-
pendent investigation by superiors.” ITT Lighting Fixtures, 265

include hospital hours in the calculation of full-time employment or
percentage thereof.
8 Bridenbaugh testified to “heavy sighs” from Dr. McCallum at the
April 17 meeting.
NLRB 1480, 1481 (1982). Wesco Electrical Co., 232 NLRB
479 (1982). In a series of decisions issued on September 29,
2006, the Board expounded on what constitutes the responsibil-
ity to direct employees, to assign employees and when the ex-
ercise of such authority requires the use of independent judg-
ment. Oakwood Healthcare, Inc., 348 NLRB 686 (2006); Croft
Metals, Inc., 348 NLRB 717 (2006); Golden Crest Healthcare
Center, 348 NLRB 727 (2006)
Evidence Relied on by Respondent for its Contention that Dr.
McCallum was a Statutory Supervisor
Respondent relies on the following evidence, almost all of
which involves incidents occurring at least 5 years prior to Dr.
McCallum’s termination, for its contention that Dr. McCallum
was a statutory supervisor pursuant to Section 2(11) of the Act
in July 2008:
1. Attachment C to her latest employment contract, Respon-
dent Exhibit 1, states that among Dr. McCallum’s duties is to
“participate in supervision of ancillary staff.” Respondent’s
reliance of Dr. McCallum’s job description is misplaced. The
Board has long held that job titles and descriptions prepared by
employers are not controlling; rather the Board looks to the
authority actually possessed and the work actually performed
by the alleged supervisor. See, e.g., Heritage Hall, E.P.I.
Corp., 333 NLRB 458, 458–459 (2001) (“It is well settled that
employees cannot be transformed into statutory supervisors
merely by vesting them with the title or job description of su-
pervisor.”).
2. Respondent’s Exhibit 4, a memorandum from Dr.
McCallum dated October 24, 2000, in which she raised some
concerns about the performance of nurse Karen McKibben. Dr.
McCallum made no recommendations or suggestions that
McKibben be disciplined. As of 2008, Site Director Wanda
Justice made an independent investigation of any physician
complaint against a nurse, before deciding what action to take,
if any. (Tr. 438.)
3. Respondent’s Exhibit 5, a January 29, 2001 memorandum
in which Dr. McCallum suggested that Heather Martin either be
fired immediately or be placed on probation. However, Dr.
McCallum stated that she would defer to Clinical Manager
Cynthia Harness in whatever action Harness chose to take.
4. Respondent’s Exhibit 6, a memorandum of a February 15,
2002 meeting attended by Dr. McCallum at which the conduct
of LPN Laura Bowens was discussed. Bowens had adminis-
tered an allergy injection at 10 times the proper dosage, causing
a patient to experience a severe allergic reaction. There is no
evidence that Dr. McCallum recommended that any discipli-
nary measures be taken against Bowens. FHI terminated Bo-
wens on February 15. Bowens’ supervisor, Margaret DeSantos,
signed the termination notice; Dr. McCallum did not.
5. Respondent’s Exhibit 7, an April 23, 2002 memo by Dr.
McCallum recommending that disciplinary action be taken
against Dawn Jessee. Jessee’s supervisor, Margaret DeSantos
issued Jessee a warning the same day.
6. Respondent’s Exhibit 8, a November 5, 2002 memo in
which Dr. McCallum complained about the work performance
of Robyn Smith several days earlier. Dr. McCallum did not
recommend that any discipline be taken against Smith. Mark
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
Bridenbaugh terminated Smith on November 8. Bridenbaugh’s
termination letter on its face indicates that the termination was
the result of Smith’s failure to comply with instructions on
many occasions, not simply the incident about which Dr.
McCallum complained.
7. Respondent’s Exhibit 9, Dr. McCallum’s very positive
January 16, 2000 evaluation of nurse Heather Callahan. Dr.
McCallum concluded by stating that Callahan, “deserves what-
ever recognition for her hard work that the organization can
offer.” On February 11, 2000, Respondent granted Callahan a
merit increase in salary. There is no evidence that Dr.
McCallum played any role in determining the specific amount
of the increase. There is in fact, no indication as to what effect,
if any, her January 16 evaluation was given with respect to the
increase.
8. Respondent’s Exhibit 10, Dr. McCallum’s August 2, 2000
memorandum regarding Kelly Hamilton-Lott. In this memo,
Dr. McCallum stated, in pertinent part:
Recently my primary nurse moved out-of-state. I had
to select a new primary nurse, and I had several choices. I
chose Ms. Hamilton with enthusiastic certainly.
. . . .
I feel that she well deserves any pay raise that this or-
ganization has to offer her.
FHI’s site director has approached Dr. McCallum with a
choice of applicants for the job of Dr. McCallum’s primary
nurse and asked her who she would like to select. (Tr. 181–
182.)
The current site director, Wanda Justice, “does her best” to
honor the preferences of a physician regarding assignment of a
primary nurse. (Tr. 412–413.) She also considers the prefer-
ences of the nurses. However, Justice has the authority to as-
sign a physician a primary nurse contrary to the physician’s
preference and has done so. For example, she reassigned nurse
Terra Betz from Dr. Ellis Frazier to another physician, despite
Dr. Frazier’s desire to retain Betz as his primary nurse. (Tr.
442–443.) Justice, not a physician, assigned Betz as primary
nurse first to Dr. Ucci and then to Dr. Sharma. Justice did not
consult with Dr. Sharma before assigning Betz to be his pri-
mary nurse.
9. Whenever Respondent was considering hiring another
physician for Chillicothe, FHI arranged for a candidate under
strong consideration for hire to go to dinner with some or all
the physicians who were already working at this site. The phy-
sicians reviewed the applicant’s résumé and discussed his or
her compatibility with the incumbent doctors. Dr. McCallum
attended five or six such dinners between 1999 and 2008.
Dr. McCallum, also on one occasion, sat in on Wanda Jus-
tice’s interview of an LPN candidate. She told Justice, who
supervises the FHI nurses, that the candidate was acceptable.
Justice, who is FHI’s Chillicothe site manger, has the ultimate
authority to hire and assign nurses to physicians on a temporary
or permanent basis. On at least one occasion, Justice declined
to hire an applicant recommended by a physician for a front
desk position.
10. Dr. McCallum’s January 21, 2003 peer review/evaluation
form for Kelly Hamilton Lott, Respondent’s Exhibit 12. Lott
received a modest salary increase the same day. However, Dr.
McCallum did not recommend any specific salary increase and
there is no evidence that she played any role in granting the
raise to Lott. Dr. McCallum has filled out one or two similar
evaluation forms for Lott since 2003. Whether a physician fills
out such an evaluation is strictly voluntary and some physicians
complete nurse evaluations more often than others.
Wanda Justice, FHI’s site director, makes a determination as
to whether a nurse gets a raise and, if so, how much of a raise.
She considers physician input, but also such factors as a nurse’s
attendance record. Justice’s recommendation regarding a raise
is subject to the approval of either Executive Director Mark
Bridenbaugh or Chief Operations Officer Melissa Walls. Even
assuming that physicians can recommend a specific salary in-
crease for a nurse, FHI does not automatically grant such an
increase. FHI has pay scales for nurses to which it strictly ad-
heres.
11. Respondent’s Exhibit 13 regarding a bonus plan for
nurses which was to be effective on a trial basis for three
months beginning on October 30, 2006. Dr. McCallum played
a role in developing this plan. There is no evidence that the
plan was fully implemented. Even if it was implemented, the
program was discontinued by the end of January 2007.
Responsible Direction of Other Employees
To be deemed a statutory supervisor on the basis on an indi-
vidual’s authority to responsibly direct other employees, the
employer must hold the individual accountable for the perform-
ance of other employees. In Oakwood Healthcare, Inc., 348
NLRB at 692, the Board stated:
Thus, to establish accountability for purposes of responsible
direction, it must be shown that the employer delegated to the
putative supervisor the authority to direct the work and the au-
thority 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.
There is no credible evidence that FHI held Dr. McCallum
accountable for the performance of nurses or other employees.
Thus, she was not a supervisor by virtue of her authority to
responsibly direct other employees.
Assignment and Effectively Recommending Assignment
The Board stated in Oakwood Healthcare, above at 689, that,
“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 work of an em-
ployee are part of his/her terms and conditions of employment.”
In Greenspan, D.D.S., P.C., 318 NLRB 70 (1995), enfd.
mem. 101 F.2d 107 (2d Cir. 1996), the Board determined in a
case similar to the instant matter, that the authority of dentists
employed by Dr. Greenspan to recommend transfer of dental
assistants who were assigned to them was exercised too infre-
quently to establish the dentists’ supervisory status. The Board
did not overrule Greenspan in its Oakwood Healthcare trilogy.
In fact it cited Greenspan, above at 730 fn. 9 of the Golden
FAMILY HEALTHCARE, INC. 7
Crest decision for the proposition that, “the Board has declined
to find individuals to be supervisors based on alleged authority
that they were never notified they possessed, where its exercise
is sporadic and infrequent.”9 Thus, I find Greenspan to be
controlling precedent in the instant case.
The Board also cited Greenspan, as well as Highland Tele-
phone Cooperative, 192 NLRB 1057, 1058 (1971), in a more
recent case, Shaw, Inc., 350 NLRB 354, 357 fn. 21 (2007), for
the proposition that “isolated exercise of authority is insuffi-
cient to establish supervisory status.” In Highland, the record
established that an employee was granted a raise after his crew
leader had recommended the raise and that crew leaders were
occasionally consulted as to employees’ progress. However,
the Board found this evidence insufficient to establish the crew
leaders’ supervisory status. In Shaw, the Board found a fore-
man’s participation in the decision to suspend two employees to
be insufficient to establish his supervisory status.
In Greenspan, the office manager assigned individual dental
assistants to a particular dentist, as a permanent assignment.
However, if a dentist told Dr. Greenspan that he or she did not
want to work with the dental assistant assigned to him or her,
Dr. Greenspan’s normal practice was to transfer the dental as-
sistant. Indeed, in one case he transferred a dental assistant
within a half-hour of his dentist’s request.
The administrative law judge found “the credible evidence
therefore establishes that on one occasion a dentist effectively
recommended that a dental assistant be hired and that on three
occasions dentists effectively recommended that the dental
assistants then working with them be transferred to another
dentist.” Id. at 76. The judge found, and the Board agreed that:
The work of the employees herein is to perform dental work
on Respondent’s patients for about 7 hours a day. If once a
year they ask Dr. Greenspan to transfer their dental assistant
to another dentist and he follows that recommendation, these
activities are “incidental and extraordinary exceptions” to
their dental practice and does not, without more, make them
supervisors within the meaning of the Act.
Id. at 76.
Thus, even assuming that Dr. McCallum effectively recom-
mended the assignment of other employees, I conclude that per
the Greenspan case, she did so too infrequently over the course
of her nine year employment by FHI to be deemed a supervisor
pursuant to Section 2(11) of the Act.10
Effectively Recommending Hiring
First of all, I conclude that Dr. McCallum’s attendance at
lunch or dinner with physicians that FHI was considering for
hire was activity too infrequent to make her a supervisor.

9 The Board also cited Volair Contractors, Inc., 341 NLRB 673, 675
(2004), which also relied on the holding in Greenspan in a finding that
an employee was not a statutory supervisor, as alleged by his employer.
10 I would note that there is no evidence that Dr. McCallum recom-
mended assignment of nurses other than which nurse should be as-
signed as her primary nurse. I believe that Sec. 2(11) contemplates the
exercise of a more generalized authority to recommend the assignment,
discipline or reward, etc. of other employees apart from recommenda-
tions regarding a single or a very few personal assistants.
Moreover, the record does not establish that she had the author-
ity to effectively recommend hiring. The applicants with whom
the physicians dined had effectively already been selected for
hire. Secondly, neither Wanda Justice nor any other witness
could testify to an instance in which Respondent rejected a job
applicant solely or even primarily on the basis of input from its
incumbent physicians. (Tr. 231–232, 477–479.) Moreover, the
record indicates that FHI made its hiring decisions independent
of the input of its doctors. As example is Wanda Justice’s deci-
sion not to hire a front desk applicant, after she interviewed the
individual, despite a physician’s recommendation that the ap-
plicant should be hired. (Tr. 448.)
Discipline
The record establishes that Dr. McCallum neither disciplined
employees, nor under Wesco Electric standard, effectively rec-
ommended discipline. FHI did not discipline employees with-
out doing an investigation independent of any of Dr.
McCallum’s recommendations and there is no evidence that
discipline recommended by Dr. McCallum was imposed with-
out management independently evaluating an employee’s mis-
conduct.
Reward
Dr. McCallum did not have the authority to reward other
employees, nor did she do so. Moreover, the record establishes
that Dr. McCallum’s recommendations for rewarding her pri-
mary nurse were not acted on without independent action by
Respondent’s management.
CONCLUSIONS OF LAW
1. The Respondent, Family Healthcare, Inc., is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. The Respondent violated Section 8(a)(1) by discharging
Dr. Kristine McCallum for engaging in protected concerted
activity.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Specifically, having found that the Respondent violated Sec-
tion 8(a)(1) by discharging Dr. Kristine McCallum because she
engaged in protected concerted activity, Respondent must offer
her full reinstatement to her former job or, if that job no longer
exists, to a substantially equivalent position, without prejudice
to her seniority or any other rights and privileges previously
enjoyed, and to make her whole for any loss of earnings and
other benefits suffered as a result of the discrimination against
her.
Backpay shall be computed in accordance with F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest as prescribed in
New Horizons for the Retarded, 283 NLRB 1173 (1987). The
Respondent shall also be required to remove from its files any
and all references to the unlawful discharge of Dr. McCallum,
and to notify her in writing that this has been done and that the
discharge will not be used against her in any way.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended11
ORDER
The Respondent, Family Healthcare, Inc., Chillicothe, Ohio,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging its employees for engaging in protected con-
certed activity.
(b) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of the rights guaran-
teed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Dr.
Kristine McCallum full reinstatement to her former job or, if
that job no longer exists, to a substantially equivalent position,
without prejudice to her seniority or any other rights or privi-
leges previously enjoyed.
(b) Make Dr. Kristine McCallum whole for any loss of earn-
ings and other benefits suffered as a result of the discrimination
against her, with interest, in the manner set forth in the remedy
section of this decision.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharge of Dr. Kristine
McCallum, and 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.
(d) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its
Chillicothe, Ohio facility, copies of the attached notice marked
“Appendix.”12 Copies of the notice, on forms provided by the
Regional Director for Region 9, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees

11 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
12 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since July 28,
2008.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
Dated, Washington, D.C., February 5, 2009
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 be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT discharge you or otherwise discriminate against
you for engaging in concerted protected activity.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights set forth
above.
WE WILL, within 14 days from the date of the Board’s Order,
offer Dr. Kristine McCallum full reinstatement to her former
job or, if that job no longer exists, to a substantially equivalent
position, without prejudice to her seniority or any other rights
or privileges previously enjoyed.
WE WILL make Dr. Kristine McCallum whole for any loss of
earnings and other benefits resulting from her discharge, less
any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s Order,
remove from our files any reference to the unlawful discharge
of Dr. Kristine McCallum, and WE WILL, within 3 days thereaf-
ter, notify her in writing that this has been done and that the
discharge will not be used against her in any way.
FAMILY HEALTHCARE, INC.