Inverted Healthcare Staffing, LLC d/b/a United MedSource

National Labor Relations Board - Board Decisions

Jun 29, 2017

365 NLRB No. 103 (N.L.R.B. 2017)

365 NLRB No. 103
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Inverted Healthcare Staffing, LLC d/b/a United Med-
source and Tamara Szabo-Schmid. Case 08–
CA–174289
June 29, 2017
DECISION AND ORDER
BY CHAIRMAN MISCIMARRA AND MEMBERS PEARCE
AND MCFERRAN
The General Counsel seeks a default judgment in this
case pursuant to the terms of an informal settlement
agreement. Upon a charge, a first amended charge, and a
second amended charge filed by Tamara Szabo-Schmid
on April 18, July 26, and July 29, 2016, respectively, the
General Counsel issued a complaint on August 30, 2016,
against Inverted Healthcare Staffing, LLC d/b/a United
MedSource (the Respondent), alleging that it violated
Section 8(a)(1) of the Act. On September 12, 2016, the
Respondent filed an answer to the complaint.
Subsequently, the Respondent and Charging Party
Szabo-Schmid executed an informal settlement agree-
ment, which was approved by the Regional Director for
Region 8 on October 28, 2016. Pursuant to the terms of
the settlement agreement, the Respondent agreed, among
other things, to (1) post at its facility the appropriate
Board notice for 60 days; (2) make Szabo-Schmid whole
by paying her $4,496.80 in backpay; (3) remove from its
files all references to Szabo-Schmid’s termination and
notify her in writing that this had been done and that the
termination would not be used against her in any way;1
and (4) rescind certain personal conduct, attention to
duty, and confidentiality rules in the employee hand-
book.
The settlement agreement also contained the following
provision:
The Charged Party agrees that in case of non-
compliance with any of the terms of this Settlement
Agreement by the Charged Party, and after 14 days’
notice from the Regional Director of the National La-
bor Relations Board of such non-compliance without
remedy by the Charged Party, the Regional Director
will reissue the complaint previously issued on August
30, 2016 in the instant case. Thereafter, the General
Counsel may file a Motion for Default Judgment with
the Board on the allegations of the Complaint. The
Charged Party understands and agrees that all of the al-

1 The Notice to Employees included in the settlement agreement
states that Szabo-Schmid waived reinstatement.
legations of the Complaint will be deemed admitted
and its Answer to such Complaint will be considered
withdrawn. The only issue that the Charged Party may
raise before the Board will be whether it defaulted on
the terms of this Settlement Agreement. The General
Counsel may seek, and the Board may impose, a full
remedy for each unfair labor practice identified in the
Notice to Employees. The Board may then, without
necessity of trial or any other proceeding, find all alle-
gations of the Complaint to be true and make findings
of fact and conclusions of law consistent with those al-
legations adverse to the Charged Party on all issues
raised by the pleadings. The Board may then issue an
Order providing a full remedy for the violations found
as is appropriate to remedy such violations. The parties
further agree that a U.S. Court of Appeals Judgment
may be entered enforcing the Board Order ex parte, af-
ter service or attempted service upon Charged Party at
the last address provided to the General Counsel.
On November 2, 2016, the Compliance Officer for
Region 8 (Compliance Officer), on behalf of the General
Counsel, sent a compliance package to the Respondent’s
counsel, by regular mail, containing copies of the Notice
to Employees, a Certification of Compliance form to be
completed by an official of the Respondent and returned
to Region 8, and a detailed letter of the Respondent’s
obligations under the settlement agreement. On Novem-
ber 7, 2016, the Respondent’s counsel, by email, sug-
gested that the Compliance Officer contact the Respond-
ent’s official Erick LaGroux directly concerning the Re-
spondent’s obligations under the settlement agreement.
On November 10, 2016, the Compliance Officer sent a
duplicate compliance package to the Respondent’s offi-
cial Erick LaGroux, by regular mail, containing copies of
the notice to employees, a certification of compliance
form to be completed by an official of the Respondent
and returned to Region 8, and a detailed letter of the Re-
spondent’s obligations under the settlement agreement.
On December 13, 2016, the Compliance Officer sent a
letter to the Respondent, by regular mail, reminding the
Respondent of the steps necessary to ensure compliance
with its obligations under the settlement agreement and
notifying the Respondent that, to date, it had failed to
comply with the terms of the settlement agreement.
On January 19, 2017, the Acting Regional Director
sent a letter to the Respondent and to the Respondent’s
counsel, by regular mail, notifying the Respondent that it
had not complied with its obligations contained in the
settlement agreement, and stating that unless the Re-
spondent provided evidence of compliance or intent to
comply with the settlement agreement within 14 days,
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the complaint would be reissued and a motion for default
judgment would be filed with the Board.
The Respondent failed to respond to the correspond-
ence referred to above and failed to comply with any of
the terms of the settlement agreement. Accordingly, pur-
suant to the terms of the noncompliance provisions of the
settlement agreement, on April 21, 2017, the Regional
Director issued a complaint based on breach of affirma-
tive provisions of settlement agreement.
On April 24, 2017, the General Counsel filed a Motion
for Default Judgment with the Board, requesting that the
Board issue a Decision and Order against the Respondent
containing findings of fact and conclusions of law based
on the allegations in the reissued complaint, and provide
“a full remedy for each and every unfair labor practice
violation.” On April 26, 2017, the Board issued an order
transferring the proceeding to the Board and a Notice to
Show Cause why the motion should not be granted. The
Respondent filed no response. The allegations in the
motion are therefore undisputed.
Ruling on Motion for Default Judgment
According to the uncontroverted allegations in the mo-
tion for default judgment, the Respondent has failed to
comply with any of the terms of the settlement agree-
ment. Consequently, pursuant to the noncompliance
provisions of the settlement agreement set forth above,
we find that the Respondent’s answer to the original
complaint has been withdrawn and all of the allegations
in the reissued complaint are true.2 Accordingly, we
grant the General Counsel’s Motion for Default Judg-
ment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent has been an Ohio
limited liability company with an office and place of
business in Youngstown, Ohio, and has been engaged in
providing temporary employee staffing services to vari-
ous hospitals in Ohio.
During the 12-month period ending December 31,
2015, the Respondent provided services valued in excess
of $50,000 for health care institutions located within the
State of Ohio, including University Hospitals Health Sys-
tem, Inc., and The Cleveland Clinic Foundation, enter-
prises directly engaged in interstate commerce.
During the 12-month period ending December 31,
2015, the Respondent derived gross revenues in excess

2 See U-Bee, Ltd., 315 NLRB 667, 668 (1994). We note, however,
that the complaint erroneously alleges that Szabo-Schmid’s concerted
activity and termination occurred on November 2, 2016, rather than on
November 2, 2015, as alleged in the charge and amended charges.
of $1 million and purchased and received at its Youngs-
town, Ohio facility products, goods and materials valued
in excess of $5000 directly from points outside the State
of Ohio.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, the following individuals held
the positions set forth opposite their respective names
and have been supervisors of the Respondent within the
meaning of Section 2(11) of the Act and agents of the
Respondent within the meaning of Section 2(13) of the
Act:
Erick LaGroux Chief Executive Officer
Jessica LaGroux Officer
M. Constance Augustine-
Thompson
Chief Financial Officer
At all relevant times until approximately mid-May
2016, the Respondent maintained the following policies
and/or work rules as they appeared in the Respondent’s
employee handbook, revised September 2007:
(A) Personal Conduct
-You may not exhibit inappropriate or unac-
ceptable conduct
-You may not engage in fights, horseplay, or
any form of boisterous or disorderly conduct while on
assignment
(B) Attention to Duty
-You may not loiter or attend to personal busi-
ness while on assignment
(C) Honestly (sic) and Confidentiality
-You must at all times maintain confidentiality
of Company business records, operations, methods of
doing business, client lists, employee lists, etc.
About November 2, 2015,3 the Respondent’s employee
Tamara Szabo-Schmid engaged in concerted activities
with other employees for the purposes of mutual aid and
protection by engaging in discussions related to job secu-
rity and/or by sending an email to other employees and
the Respondent in which she raised concerns about job
security.
About November 2, 2015, the Respondent terminated
the employment of Tamara Szabo-Schmid. The Re-
spondent did so because she engaged in the conduct de-
scribed above and to discourage employees from engag-
ing in these or other concerted activities.

3 See fn. 2, above.
INVERTED HEALTHCARE STAFFING, LLC D/B/A UNITED MEDSOURCE 3
CONCLUSION OF LAW
By the conduct described above, the Respondent has
been interfering with, restraining, and coercing employ-
ees in the exercise of the rights guaranteed in Section 7
of the Act in violation of Section 8(a)(1) of the Act.4 The
Respondent’s unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, and in accordance with the
General Counsel’s request for a “full remedy” for the
violations found, we shall order it to cease and desist and
to take certain affirmative action designed to effectuate
the policies of the Act. Specifically, having found that
the Respondent violated Section 8(a)(1) of the Act by
terminating the employment of Tamara Szabo-Schmid,
we shall order the Respondent to offer Szabo-Schmid 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. In addition, we shall order the Re-
spondent to make Szabo-Schmid whole for any loss of
earnings and other benefits suffered as a result of the
unlawful action against her. Backpay shall be computed
in accordance with F. W. Woolworth Co., 90 NLRB 289
(1950), with interest at the rate prescribed in New Hori-
zons, 283 NLRB 1173 (1987), compounded daily as pre-
scribed in Kentucky River Medical Center, 356 NLRB 6
(2010). In accordance with our recent decision in King
Soopers, Inc., 364 NLRB No. 93 (2016), enfd. in rele-
vant part No. 16-1316, 2017 WL 2485311, __ F.3d __
(D.C. Cir. June 9, 2017), we shall also order the Re-
spondent to compensate Szabo-Schmid for her search-
for-work and interim employment expenses regardless of
whether those expenses exceed interim earnings.5
Search-for-work and interim employment expenses shall

4 The Board finds the violations here based on the Respondent’s
breach of the prior settlement agreement, resulting in the withdrawal of
Respondent’s answer, which means there is no defense to the com-
plaint’s allegations, and the allegations are therefore admitted as true.
Accordingly, Chairman Miscimarra expresses no views as to whether
he would have found the policies and/or work rules in the Respondent’s
Employee Handbook unlawful if the Respondent had put the lawfulness
of those rules at issue. However, he disagrees with Lutheran Heritage
Village-Livonia, 343 NLRB 646, 647 (2004), which articulated the
current standard that the Board applies when evaluating the legality of
facially neutral rules, employment policies and employee handbook
provisions, and Chairman Miscimarra adheres to the views he ex-
pressed in William Beaumont Hospital, 363 NLRB No. 162, slip op. at
7–24 (2016) (Member Miscimarra, dissenting).
5 For the reasons stated in his separate opinion in King Soopers, 364
NLRB No. 93, slip op. at 12–16, Chairman Miscimarra would adhere to
the Board’s former approach, treating search-for-work and interim
employment expenses as an offset against interim earnings.
be calculated separately from taxable net backpay, with
interest at the rate prescribed in New Horizons, supra,
compounded daily as prescribed in Kentucky River Medi-
cal Center, supra.6
The Respondent additionally shall be ordered to re-
move from its files any references to the termination of
Szabo-Schmid and to notify her in writing that this has
been done and that the termination will not be used
against her in any way. We shall further order the Re-
spondent to compensate Szabo-Schmid for any adverse
tax consequences of receiving a lump-sum backpay
award and to file with the Regional Director for Region 8
a report allocating the backpay award to the appropriate
calendar years. AdvoServ of New Jersey, Inc., 363
NLRB No. 143 (2016).
Having found that the Respondent has violated Section
8(a)(1) by maintaining unlawful handbook rules, we shall
order the Respondent to rescind the unlawful rules to the
extent it has not already done so. Pursuant to Guards-
mark, LLC, 344 NLRB 809, 812 fn. 8 (2005), enfd. in
part 475 F.3d 369 (D.C. Cir. 2007), the Respondent may
comply with our order of rescission by rescinding the
unlawful provisions and republishing its handbook with-
out the unlawful rules. We recognize, however, as we
did in Guardsmark, that republishing the handbook could
be costly. Accordingly, the Respondent may supply the
employees either with inserts to the handbook stating that
the unlawful rules have been rescinded, or with new and
lawfully worded rules on adhesive backing that will cor-
rect or cover the unlawful rules, until it republishes the
handbook without the unlawful provisions. Any copies
of the handbook that include the unlawful rules must
include the inserts before being distributed to employees.
See, e.g., Triple Play Sports Bar & Grille, 361 NLRB
No. 31, slip. op. at 8 (2014), enfd. 629 Fed.Appx. 33 (2d
Cir. 2015).
ORDER
The National Labor Relations Board orders that the
Respondent, Inverted Healthcare Staffing, LLC d/b/a
United MedSource, Youngstown, Ohio, its officers,
agents, successors, and assigns shall
1. Cease and desist from

6 The General Counsel additionally seeks a make-whole remedy that
includes reasonable consequential damages incurred as a result of the
Respondent’s unfair labor practices. This issue, which was not briefed,
would involve a change in Board law. We are not prepared at this time
to deviate from our current remedial practice. Accordingly, we decline
to order this relief at this time. See, e.g., Laborers International Union
of North America, Local Union No. 91 (Council of Utility Contractors),
365 NLRB No. 28, slip op. at 1 fn. 2 (2017).
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(a) Maintaining unlawful personal conduct, attention
to duty, and confidentiality rules in its employee hand-
book.
(b) Terminating the employment of employees be-
cause they engage in protected concerted activities, and
to discourage employees from engaging in these activi-
ties.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) To the extent it has not already done so, rescind
the following unlawful handbook rules:
(A) Personal Conduct
-You may not exhibit inappropriate or unac-
ceptable conduct
-You may not engage in fights, horseplay, or
any form of boisterous or disorderly conduct while on
assignment
(B) Attention to Duty
-You may not loiter or attend to personal busi-
ness while on assignment
(C) Honestly (sic) and Confidentiality
-You must at all times maintain confidentiality
of Company business records, operations, methods of
doing business, client lists, employee lists, etc.
(b) Revise the employee handbook to delete the above
unlawful rules and advise employees in writing that it
has done so and that the unlawful rules will no longer be
enforced.
(c) Furnish all current employees with inserts for the
employee handbook that (1) advise that the unlawful
rules have been rescinded, or (2) provide the language of
lawful policies; or publish and distribute to all current
employees a revised employee handbook that (1) does
not contain the unlawful rules, or (2) provides the lan-
guage of lawful policies.
(d) Within 14 days from the date of this Order, offer
Tamara Szabo-Schmid 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.
(e) Make Szabo-Schmid whole for any loss of earn-
ings and other benefits she may have suffered as a result
of the unlawful termination of her employment, in the
manner set forth in the remedy section of this decision,
plus reasonable search-for-work and interim employment
expenses.
(f) Compensate Szabo-Schmid for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, and file with the Regional Director for Region 8,
within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allo-
cating the backpay award to the appropriate calendar
years.
(g) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful termi-
nation of Szabo-Schmid, and within 3 days thereafter,
notify her in writing that this has been done and that the
termination will not be used against her in any way.
(h) 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 desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(i) Within 14 days after service by the Region, post at
its facility in Youngstown, Ohio, copies of the attached
notice marked “Appendix.”7 Copies of the notice, on
forms provided by the Regional Director for Region 8,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. If 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 em-
ployees and former employees employed by the Re-
spondent at any time since November 2, 2015.
(j) Within 21 days after service by the Region, file
with the Regional Director for Region 8 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.

7 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.”
INVERTED HEALTHCARE STAFFING, LLC D/B/A UNITED MEDSOURCE 5
Dated, Washington, D.C. June 29, 2017
______________________________________
Philip A. Miscimarra, Chairman
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT maintain unlawful personal conduct, at-
tention to duty, and confidentiality rules in our employee
handbook.
WE WILL NOT terminate your employment because you
engage in protected concerted activities, and to discour-
age employees from engaging in these activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, to the extent we have not already done so,
rescind the following unlawful handbook rules:
(A) Personal Conduct
-You may not exhibit inappropriate or unac-
ceptable conduct
-You may not engage in fights, horseplay, or
any form of boisterous or disorderly conduct while on
assignment
(B) Attention to Duty
-You may not loiter or attend to personal busi-
ness while on assignment
(C) Honestly (sic) and Confidentiality
-You must at all times maintain confidentiality
of Company business records, operations, methods of
doing business, client lists, employee lists, etc.
WE WILL revise the employee handbook to delete the
above unlawful rules and WE WILL advise employees in
writing that we have done so and that the unlawful rules
will no longer be enforced.
WE WILL furnish all current employees with inserts for
the employee handbook that (1) advise that the unlawful
rules have been rescinded, or (2) provide the language of
lawful policies; or publish and distribute to all current
employees a revised employee handbook that (1) does
not contain the unlawful rules, or (2) provides the lan-
guage of lawful policies.
WE WILL, within 14 days from the date of the Board’s
Order, offer Tamara Szabo-Schmid full reinstatement to
her former job or, if that job no longer exists, to a sub-
stantially equivalent position, without prejudice to her
seniority or any other rights or privileges previously en-
joyed.
WE WILL make Tamara Szabo-Schmid whole for any
loss of earnings and other benefits suffered as a result of
her unlawful termination, less any net interim earnings,
plus interest, plus reasonable search-for-work and inter-
im employment expenses.
WE WILL compensate Tamara Szabo-Schmid for the
adverse tax consequences, if any, of receiving a lump-
sum backpay award, and WE WILL file with the Regional
Director for Region 8, within 21 days of the date the
amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay award to the
appropriate calendar years.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to our unlaw-
ful termination of Tamara Szabo-Schmid, and WE WILL,
within 3 days thereafter, notify her in writing that this
has been done and that the unlawful termination will not
be used against her in any way.
INVERTED HEALTHCARE STAFFING, LLC D/B/A
UNITED MEDSOURCE
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Board’s decision can be found at
www.nlrb.gov/case/08-CA-174289 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.