Capitol Street Surgery Center LLC

372 NLRB No. 8 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. Capitol Street Surgery Center, LLC and Martin Lauster. Case 25–CA–271204 November 22, 2022 DECISION AND ORDER BY CHAIRMAN MCFERRAN AND MEMBERS KAPLAN AND RING On May 12, 2022, Administrative Law Judge Robert A. Giannasi issued the attached decision.1 The Respond- ent filed exceptions and a supporting brief, the General Counsel filed an answering brief, and the Respondent filed a reply brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,2 and conclusions and 1 This proceeding was heard July 13 through 15, 2021, on the Zoom for Government platform, before Administrative Law Judge Elizabeth M. Tafe. On April 25, 2022, Judge Tafe left the Division of Judges without issuing a decision in this case and was thus unavailable to complete the decision within the meaning of Sec. 102.36(b) of the Board’s Rules and Regulations. Also on April 25, Deputy Chief Ad- ministrative Law Judge Arthur J. Amchan designated Administrative Law Judge Robert A. Giannasi to render a decision based on the record made before Judge Tafe, all parties having agreed to that procedure. 2 The Respondent urges the Board to review Judge Giannasi’s cred- ibility determinations de novo because Judge Giannasi did not conduct the hearing and did not observe the witnesses’ demeanor while testify- ing. Although we note that the Respondent declined to avail itself of the opportunity for a new trial before Judge Giannasi, we have re- viewed Judge Giannasi’s credibility determinations de novo. See Sam- sung Electronics America, Inc., 363 NLRB 946, 947 (2016) (reviewing credibility determination de novo because judge had not based it on demeanor), enfd. in relevant part sub nom. Franks v. NLRB, 742 Fed. Appx. 463 (11th Cir. 2018). We have carefully examined the record and find no reason to disagree with the judge’s credibility determina- tions. In the absence of exceptions, we adopt the judge’s findings that Lead Interventional-Radiology Technicians Danielle Mohindra and Jennifer Lozano are supervisors within the meaning of Sec. 2(11) of the Act and that employee Martin Lauster engaged in protected concerted activity when, during a November 5, 2020 staff meeting, he objected to the Respondent’s plan to have unlicensed personnel operate the Respond- ent’s C-arm machine. Also in the absence of exceptions, we affirm the judge’s dismissal of the allegation that the Respondent violated Sec. 8(a)(1) by asking employee Cassandra Shepard for a copy of her audio recording of the November 5 meeting without first providing her the assurances required by Johnnie’s Poultry Co., 146 NLRB 770 (1964), enf. denied 344 F.2d 617 (8th Cir. 1965). The Respondent does not specifically except to the judge’s finding that the General Counsel satisfied the knowledge element of her initial Wright Line burden of proving that Lauster’s protected concerted activ- ity was a motivating factor in the Respondent’s decision to discharge to adopt the recommended Order as modified and set forth in full below.3 him. See Wright Line, 251 NLRB 1083 (1980), enfd. on other grounds 662 F.2d 25 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). Indeed, the Respondent concedes that “Mohindra and Lozano’s knowledge of Lauster’s [protected] C-arm comments may be imputed to [the Respondent] . . . .” (Br. at 23.) However, the Respondent does claim that “[Administrator Brandon] Ehret had no knowledge of the C- arm discussion, much less anything related specifically to comments by Lauster” when arguing that the General Counsel failed to prove a nexus between Lauster’s protected concerted activity and his discharge. Assuming for argument’s sake that the Respondent adequately placed the knowledge element before us, we agree with the judge’s finding that the Respondent, and Administrator Ehret specifically, knew of Lauster’s November 5 protected concerted activity when Lauster was discharged on November 18. Circumstantial evidence strongly sup- ports this finding. Ehret had a practice of being debriefed about staff meetings that he did not attend, and Ehret testified that he had received a general report about the November 5 meeting. In addition, it was Ehret himself who added the C-arm matter to the agenda for the No- vember 5 meeting, and the announcement at the meeting that an unli- censed employee would run the machine during early-morning proce- dures proved controversial and provoked employee pushback. These circumstances, coupled with the pretextual nature of the Respondent’s proffered justifications for discharging Lauster (discussed below), support a finding of knowledge and warrant discrediting Ehret, Danielle Mohindra, and Lozano to the extent they testified that Lauster’s pro- tected comments were not relayed to Ehret. The judge found that the General Counsel established that the Re- spondent bore animus towards Lauster’s protected concerted activity based, in part, on the pretextual nature of the Respondent’s proffered justifications for firing Lauster, including that on November 18, 2020, he had purportedly shined a flashlight in a nurse’s eyes and made shad- ow puppets on the wall during surgery. In adopting the judge’s pretext and animus findings, we note that Lauster did not engage in any mis- conduct with a flashlight on that date, and the Respondent did not actu- ally believe that he had. Rather, the Respondent fabricated this pur- ported misconduct to create a pretext for discharging Lauster. In addi- tion, no witness present during the surgery in question corroborated Lozano’s claim that Lauster made shadow puppets on the wall. Finally, the Respondent complains that the judge failed to discuss certain testimony that Lauster was an unfocused employee and engaged in misconduct prior to the events of November 18. Because we have adopted the judge’s finding that Lauster did not commit—and the Re- spondent did not believe Lauster committed—the alleged misconduct on November 18 that the Respondent claims prompted the discharge, such testimony cannot serve to demonstrate that the Respondent would have discharged Lauster on November 18 even absent his protected concerted activity. 3 We shall modify the judge’s recommended Order to conform to our standard remedial language and in accordance with our decisions in Cascades Containerboard Packaging—Niagara, 371 NLRB No. 25 (2021), modifying 370 NLRB No. 76 (2021), Paragon Systems, 371 NLRB No. 104 (2022), and Excel Container, Inc., 325 NLRB 17 (1997). We shall substitute a new notice to conform to the Order as modified. Members Kaplan and Ring acknowledge and apply Paragon Systems as Board precedent, although they expressed disagreement there with the Board’s approach and would have adhered to the position the Board adopted in Danbury Ambulance Service, Inc., 369 NLRB No. 68 (2020). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 ORDER The National Labor Relations Board orders that the Respondent, Capitol Street Surgery Center, LLC, Indian- apolis, Indiana, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Discharging or otherwise discriminating against employees for engaging in protected concerted activities. (b) 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) Within 14 days from the date of this Order, offer Martin Lauster full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed. (b) Make Martin Lauster whole for any loss of earn- ings and other benefits suffered as a result of the discrim- ination against him, in the manner set forth in the remedy section of the judge’s decision. (c) Compensate Martin Lauster for the adverse tax consequences, if any, of receiving a lump-sum backpay award, and file with the Regional Director for Region 25, within 21 days of the date such award is fixed, either by agreement or Board order, a report allocating the back- pay award to the appropriate calendar year(s). (d) File with the Regional Director for Region 25, within 21 days of the date the amount of backpay is fixed by agreement or Board order or such additional time as the Regional Director may allow for good cause shown, a copy of Martin Lauster’s corresponding W-2 form(s) reflecting the backpay award. (e) Within 14 days from the date of this Order, re- move from its files any reference to the unlawful dis- charge of Martin Lauster, and within 3 days thereafter, notify him in writing that this has been done and that the discharge will not be used against him 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 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. (g) Post at its Indianapolis, Indiana facility copies of the attached notice marked “Appendix.”4 Copies of the notice, on forms provided by the Regional Director for Region 25, after being signed by the Respondent’s au- thorized representative, shall be posted by the Respond- ent and maintained for 60 consecutive days in conspicu- ous places, including all places where notices to employ- ees are customarily posted. In addition to physical post- ing of paper notices, notices shall be distributed electron- ically, such as by email, posting on an intranet or an in- ternet site, and/or other electronic means, if the Respond- ent customarily communicates with its employees by such means. The Respondent shall take reasonable steps 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 18, 2020. (h) Within 21 days after service by the Region, file with the Regional Director for Region 25 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. IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges violations of the Act not specifically found. Dated, Washington, D.C. November 22, 2022 ______________________________________ Lauren McFerran, Chairman 4 If the facility involved in these proceedings is open and staffed by a substantial complement of employees, the notices must be posted within 14 days after service by the Region. If the facility involved in these proceedings is closed or not staffed by a substantial complement of employees due to the Coronavirus Disease 2019 (COVID-19) pan- demic, the notice must be posted within 14 days after the facility reo- pens and a substantial complement of employees have returned to work. If, while closed or not staffed by a substantial complement of employees due to the pandemic, the Respondent is communicating with its employees by electronic means, the notice must also be posted by such electronic means within 14 days after service by the Region. If the notice to be physically posted was posted electronically more than 60 days before physical posting of the notice, the notice shall state at the bottom that “This notice is the same notice previously [sent or posted] electronically on [date].” If this Order is enforced by a judg- ment of a United States court of appeals, the words in the notice read- ing “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” CAPITOL STREET SURGERY CENTER, LLC 3 ______________________________________ Marvin E. Kaplan, Member ________________________________________ John F. Ring, Member (SEAL) NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TOEMPLOYEES 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 discharge or otherwise discriminate against any of you for engaging in protected concerted 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, within 14 days from the date of the Board’s Order, offer Martin Lauster full reinstatement to his for- mer job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed. WE WILL make Martin Lauster whole for any loss of earnings and other benefits resulting from his discharge, less any net interim earnings, plus interest, and WE WILL also make him whole for reasonable search-for-work and interim employment expenses, plus interest. WE WILL compensate Martin Lauster for the adverse tax consequences, if any, of receiving a lump-sum back- pay award, and WE WILL file with the Regional Director for Region 25, 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 year(s). WE WILL file with the Regional Director for Region 25, within 21 days of the date the amount of backpay is fixed by agreement or Board order or such additional time as the Regional Director may allow for good cause shown, a copy of Martin Lauster’s corresponding W-2 form(s) reflecting the backpay award. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlaw- ful discharge of Martin Lauster, and WE WILL, within 3 days thereafter, notify him in writing that this has been done and that the discharge will not be used against him in any way. CAPITOL STREET SURGERY CENTER, LLC The Board’s decision can be found at https://www.nlrb.gov/case/25-CA-271204 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., Washing- ton, D.C. 20570, or by calling (202) 273-1940. Ashley M. Miller, Esq., for the General Counsel. Gregory W. Guevara, Esq., for the Respondent. John R. Panico, Esq., for the Charging Party. DECISION STATEMENT OF THE CASE ROBERT A. GIANNASI, Administrative Law Judge. This case was tried virtually in the Zoom for Government platform from July 13 to July 15, 2021, before Judge Elizabeth Tafe. Briefs were submitted on August 19, 2021. On April 25, 2022, Judge Tafe left the Division of Judges without issuing the decision in this case and is thus unavailable to complete the decision within the meaning of Rule 102.36(b) of the Board’s Rules and Regu- lations. The parties agreed that a newly appointed judge could issue the decision on the record made before Judge Tafe. I was subsequently assigned the case to write the decision. The complaint alleges that the Respondent violated Section 8(a)(1) of the Act by discharging employee Martin Lauster for raising concerns, in an employee meeting, about which em- ployees could use certain equipment, a protected activity under the Act. On the second day of the trial, the General Counsel was permitted to amend the complaint to add another allegation that Respondent had violated Section 8(a)(1) by interrogating employees during trial preparation without giving the appropri- ate warnings and safeguards under Johnnie’s Poultry, 146 NLRB 770 (1964). See Tr. 272–281. Respondent denied the DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 essential allegations in the complaint. Based on the filed briefs and the entire record, including the testimony of the witnesses, I make the following FINDINGS OF FACT I. JURISDICTION Respondent, a limited liability corporation with an office and place of business in Indianapolis, Indiana, operates an ambula- tory outpatient surgery center. During a representative one- year period, Respondent, in conducting its operation as above described, derived gross revenues in excess of $250,000 and purchased and received, at its Indianapolis facility, goods val- ued in excess of $5000 directly from points outside Indiana. Accordingly, I find, as Respondent admits, that it is an employ- er engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Facts Background Respondent employs some 25–27 employees at its ambulato- ry outpatient surgery center. Those employees include admin- istrative and support staff, doctors, nurses, and interventional radiologic technologists (IR Techs). Tr. 21–22, 550–551. Dr. Sanjay Mohindra is the only interventional radiology doctor at the center, although he is not an employee of Respondent. Tr. 407, 550. Brandon Ehret, who has no medical or clinical back- ground (Tr. 28–29), is Respondent’s administrator, with overall responsibility and authority over the employees and related personnel matters. Tr. 21–23. He is an admitted supervisor and agent. Interventional radiology procedures are part of a group of surgeries performed at Respondent’s facility and they are per- formed in two of the four operating rooms at the facility— Rooms 3 and 4. Tr. 484. The procedures require the utilization of IR Techs, who are primarily responsible for running the C- arm, which is a radiation machine that provides x-ray images. Tr. 111, 229, 443, 516. They are the only employees registered and licensed to use the C-arm and the license is required as part of the Respondent’s employment process. Tr. 49, 111–112, 229. One of a number of IR Techs employed by Respondent until his termination on November 18, 2020, was Martin Lauster. Lauster and the other IR Techs report to Lead IR Techs Dan- ielle Mohindra, Dr. Mohindra’s wife, and Jennifer Lozano, who assign the IR Techs their work and provide written evaluations of the IR Techs that are used in connection with promotions and disciplinary actions. They also set the hours, schedule shifts, including starting and ending times, and make room assignments for the IR Techs; and they approve vacation dates and time off requests for the IR Techs. Tr. 27–30, 115, 441– 446, 513–517. The employee handbook (GC Exh. 2) confirms that those who advise employees of their scheduled shifts and starting and ending times are supervisors. And Mohindra con- ceded that no one else is involved in the scheduling process. Tr. 445. There is thus no doubt that Mohindra and Lozano as- sign work to employees and responsibly direct them beyond what would be routine or clerical in nature, using independent judgment within the broad meaning of two of the specific defi- nitions of a supervisor in Section 2(11) of the Act. Their re- sponsibility in writing evaluations for use in promotions and discipline also brings in other authority listed in Section 2(11), including, at the least, effective recommendations for those actions. Accordingly, I find that Lead IR Techs Mohindra and Lozano are supervisors within the meaning of the Act. See Oakwood Healthcare, Inc., 348 NLRB 686 (2006). Moreover, the evidence set forth above, as well as evidence that the Lead IR Techs arrange for and run quarterly meetings of employees (Tr. 447–448), including the one discussed later in this deci- sion, shows that they have the actual or apparent authority to speak and act on Respondent’s behalf. They are thus also agents of Respondent under Section 2(13) of the Act. See Bill’s Electric, Inc., 350 NLRB 292, 292 fn. 2 (2007).1 Lauster’s Employment Record Lauster’s December 20, 2019, written evaluation rated him as “always exceeds the standard” for employee dependability, attendance, cooperation in the workplace and interpersonal skills. His overall summary was deemed “usually exceeds the standard,” with the following narrative: “[Lauster] is very relia- ble & flexible. He’s willing to accommodate the scheduling needs of the center by coming in early or staying late. [He] has a very cheerful attitude & is willing to do anything that is asked of him.” In the section titled “future training and growth,” the evaluation states that Lauster “needs to work on being more focused in the procedures, by paying attention & anticipating the needs of the case & physician.” The evaluation was pre- pared by then-Director of Nursing Shannon Genovese and signed by Administrator Ehret. GC Exh. 5, Tr. 329–332, 343. Genovese remained employed by Respondent until after Lauster’s termination and worked closely with Lauster during that time. She testified that Lauster’s work performance throughout the remainder of his employment was consistent with what she wrote in that evaluation. Tr. 335. There was no other written comment or discipline concern- ing Lauster’s work and no written or documented verbal warn- ings issued to him from the time of the above evaluation to the date of Lauster’s termination on November 18, 2020. This despite Respondent’s handbook policy specifically providing that, “[i]n most cases [Respondent] will use progressive disci- plinary actions before dismissing employees.” The handbook policy also provides for the use of disciplinary action to “fairly and impartially correct behavior and performance problems early on to prevent recurrence.” The policy specifically pro- vides for “verbal warning, written warning, suspension with or without pay, and termination of employment, depending on the severity of the problem and the frequency of occurrence.” Fi- nally, the policy specifically lists a number of offenses that 1 In its answer Respondent denied that the Lead IR Techs were su- pervisors and agents and it makes a cursory reference in its brief (R. Br. at 19) to the alleged failure of the General Counsel to prove the allega- tions. But Respondent does not discuss the facts and the legal issues in any detail, thus failing completely to rebut the General Counsel’s evi- dence of supervisory and agency status. CAPITOL STREET SURGERY CENTER, LLC 5 justify immediate termination “without observing other disci- plinary action first,” such as workplace violence, harassment, theft, insubordination, vandalism, unauthorized use of company property, indiscretion about work history, divulging confiden- tial information, misrepresentation, and presence on company property during non-work hours. GC Exh. 2. The November 5, 2020 Meeting On November 5, Supervisors and Lead IR Techs Mohindra and Lozano led a meeting with interventional radiology em- ployees to discuss inventory and related issues. They prepared an agenda and checked beforehand with Ehret, who cleared the agenda and added a new topic, which reads as follows: “Bran- don would like us to rotate into OR when C-arm is needed dur- ing our working hours. Chelsy will run C-arm (early) cases.” GC Exh. 4, Tr. 34–35, 431, 448–449. Ehret did not attend the meeting. Among the other people present at the meeting were Dr. Mohindra and employees Marty Lauster, Amber Rollins and Cassandra Shephard, who recorded a good part of the meet- ing and the recording was received in evidence as GC Exh. 10(c). I have listened to the recording and the findings below are based on my assessment of the recording, along with testi- mony about the meeting.2 At some point, Danielle Mohindra raised the C-arm issue, stating that when the C-arm was to be used during hours when no IR Techs were at work, Chelsy Perry, a nurse, was to run the C-arm. Lauster immediately objected. He stated that Chelsy Perry was an RN and not allowed to run the C-arm, adding that that would be illegal. Lauster’s concern was that Perry was not licensed to run the C-arm like the IR Techs. Tr. 122–123, 176,181–183, 198. At that point, other IR Techs, including Amber Rollins, joined in, supporting Lauster’s position. See Tr. 181–183, 202–204, 207, 243, 254–255.3 2 Lauster testified that the recording does not capture all of what was said at the meeting and certainly what is recorded often reflects many people talking at the same time. Tr. 205-207. Shepard also acknowledged some difficulties in understanding what was said and by whom. Tr. 243–255. My assessment of the recording confirms Shephard’s view. Most of the recording deals with inventory issues but certainly there is a discrete part that deals with the C-arm issue and what happen if nurses and not IR Techs were permitted to run the C- arm. 3 On cross-examination of Lauster, Respondent’s counsel ques- tioned whether the recording reflected Lauster stating, as he testified, that it would be illegal for a nurse to run the C-arm would, emphasizing that it was Rollins who said it would be “prosecutable.” It is true that the recording reflects a lot of people speaking at the same time and Rollins, who was closer to the site of the recording device than Lauster, was probably more clearly understood than Lauster. But Lauster was adamant in insisting that he said letting an unlicensed nurse run the C- arm would be illegal. I would tend to credit him because I found him credible in other parts of his testimony, as discussed later in this deci- sion. I also note that Lauster was acutely protective of his licensed status, having previously spoken with his fellow IR Techs about license compliance issues (Tr. 124) and later contacting the director of the State office of radiology to discuss the legality of using a non-licensed person for this procedure. Tr. 182, 187. But, even without that specific reference, it is clear that Lauster was the person who raised the issue and prompted the entire discussion dealing with employee objections to using unlicensed personnel to run the C-arm. After a rather heated discussion dealing with concerns over the use of unlicensed people running the C-arm, Lozano summed up the Respondent’s position. She told the employees that “[I]f that’s the case”, then the IR Techs should be prepared to start coming in early and staying late “so you know before we go down this rabbit hole, I’m just pointing it out.” GC Exh. 10(c). Those comments prompted a discussion about coming in ear- ly and staying late and what the employees should do about their hours. This is clearly reflected in the recording. Also clearly reflected in the recording is Dr. Mohindra’s lengthy statement in support of paying overtime to the IR Techs if they were required to come in early and stay late. GC Exh. 10(c). 4 That this was an important issue for the employees is also shown by Lauster’s credible testimony that he had had previous discussions about the issue with a number of people, including Supervisor-Lead IR Techs Mohindra and Lozano, and was told that Respondent did not want to pay overtime to the IR Techs. Tr. 123–124.5 Ehret testified that normally one of the Lead IR Techs would report to him what happened in similar employee meetings. Tr. 32. And he specifically admitted that, after the November 5 meeting, Danielle reported what had happened in the meeting to him in person. Tr. 35.6 The Termination of Lauster After the November 5 meeting, which was on a Thursday, Lauster worked the next day, Friday, but did not work the entire next week because of a medical issue. He returned to work on Monday, November 16, 2020. Tr. 124–125. He was terminated at the end of the work day on Wednesday, November 18, 2020. 4 The General Counsel alleges that the recording has Danielle Moh- indra stating that she would ask Ehret how the employees could man- age their hours and report back to them. That may well be, but I cannot make that finding with exactitude, although I did hear someone speak- ing with authority say, “I will ask him that.” I also note that the written version of the recording set forth in Respondent’s brief omits the part, which is significant in my view, where the employees questioned their hours and where Dr. Mohindra spoke favorably about paying overtime to the IR Techs. 5 I credit Lauster’s firm testimony on this issue. Mohindra and Lozano testified they could not “recall” such conversations. Tr. 435, 510. My determination on this issue is also confirmed by my assess- ment of the credibility of these witnesses discussed later in this deci- sion. 6 Despite the above clear admission by Ehret, he later suggested he knew nothing about the discussion of the C-arm in the November 5 meeting. Tr. 567. Mohindra and Lozano likewise denied telling Ehret about the meeting or its contents. I do not credit the testimony that Ehret was not told of the discussions in the November 5 meeting about the objections by the IR Techs to the use of non-licensed personnel to run the C-arm and particularly the fact that Lauster raised the issue. I find it implausible that such an important and controversial issue, in- cluding the comments of Dr. Mohindra about permitting overtime for IR Techs, would not have been reported to Ehret, especially since he was the one who put the issue on the agenda for the meeting. The contradictions on this issue within Ehret’s own testimony and between his testimony and that of Mohindra and Lozano show that their denials are not credible. This matches their inconsistencies on other matters, which I discuss later in this decision. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 At the end of his workday on November 18, Lauster was summoned to Ehret’s office, where they were joined by Ehret’s aide, Chris McGlaughlin. At the termination meeting, Ehret told Lauster, “We’re all adults here. It’s clear you don’t want to be here, so we’re going to make our separation here now.” Lauster responded, “why don’t we call it a constructive dis- charge?” Tr. 134–135. Ehret then confirmed the termination and told Lauster to collect his things and leave. Ehret did not provide Lauster with a specific reason for the discharge and raised no performance issues in the meeting. Tr. 135–136, 186. The above is based on the credible, direct and clear testimo- ny of Lauster. McGlaughlin did not testify and Ehret’s testi- mony on what was said in the interview was vague and frankly meaningless. According to Ehret, he and Lauster discussed “the continued digression and lack of progression in the skill work . . . there was no improvement and it was actually going backwards.” Tr. 94. Ehret also testified that he told Lauster he was terminated and he escorted him out of the facility. Tr. 566–567. He did not dispute Lauster’s testimony that he did not give Lauster a specific reason for the termination. And Ehret conceded that, when he told Lauster it appeared that he did not want to be there, Lauster disputed that and said “yes, I do.” Tr. 556–557. Credibility Determinations as to What Really Happened on November 18, 2020 Danielle Mohindra testified that, during a procedure on No- vember 18, she observed Lauster taking an emergency flash- light off the wall and playfully shining it into a nurse’s eye. Tr. 418–421. She did not mention the matter to Lauster at the time and she also testified that she did not remember anything else about “that procedure that day.” Tr. 424. She did, however, mention the flashlight incident to Ehret later in the day, and, at his request, wrote up the incident. The document was titled “Employee Write Up,” dated November 18, 2020, and signed by Brandon Ehret. It cited Lauster for a violation of unspeci- fied “safety rules.” The write up also stated that the nurse, who was not identified in the write-up, asked Lauster to “stop two different times.” GC Exh. 6, Tr. 94, 424, 425. Mohindra never discussed the write-up with Lauster. Tr. 428. According to Lauster’s credible, direct, and clear testimony, the write up was not given to Lauster in the termination meet- ing. He did not even see the document until shortly before the hearing. Tr. 132, 167. Nor was the substance of the write-up discussed in the termination meeting. Tr. 134–136. Ehret did not contradict that testimony of Lauster. He testified he could not recall whether the document was given to Lauster or even whether the subject matter was discussed in the termination interview. Tr. 94-95. Had this topic been discussed it would have been obvious that the person doing the termination would have recalled the matter. Significantly, Ehret never investigat- ed the incident by talking to either Lauster or the nurse in- volved in the alleged incident or anyone else in the room during the procedure. All of this casts serious doubt on whether the flashlight incident was a reason for the discharge or even whether it occurred as reflected in the write-up that was not provided to Lauster. I also have doubts about Mohindra’s testimony with respect to the flashlight incident itself, particularly the part included in the write-up that stated the nurse told Lauster twice to stop shining the flashlight in her face. None of the other participants in the procedure corroborated Mohindra on this matter. Lauster denied deliberately shining a flashlight in the eyes of the nurse, who was identified as Leyda Enid Feliu Corchado (herein referred to as Feliu or Nurse Feliu). Tr. 135. He testi- fied that he retrieved the flashlight that was on the wall for use in an emergency because Nurse Feliu asked him to retrieve it. She needed to check to see if it worked because it had previous- ly been inoperative. He took it to her and it was turned on to see if it worked and they both agreed that it did. The whole incident, according to Lauster, lasted less than two minutes and neither Mohindra nor Lozano said anything to him about the matter. Tr. 129–131. Indeed, Mohindra admitted she did not intervene to tell Lauster to stop (Tr. 462), countering any sug- gestion on her part that this was a safety issue. Mohindra never talked to Lauster about the incident. Nor did she even talk to Nurse Feliu. Tr. 465. Nurse Feliu supported Lauster’s version of the incident. Fe- liu, who was employed by Respondent at the time of the hear- ing and testifying against its interests, was for that reason alone a reliable witness. But her testimony is also very reliable be- cause she was the subject of the alleged impropriety. She testi- fied that the statements in the write-up were not accurate. Tr. 311. Feliu also testified that she asked Lauster to retrieve the emergency flashlight from off the wall in the room and bring it to her because she wanted to see if it worked, knowing that it had not previously been working. Feliu asked Lauster to turn it on toward her so that she could see if it worked. He did and the flashlight worked so she told him to put it back, which he did. Feliu denied that she told Lauster to stop shining the flashlight in her eyes, even “one time.” Tr. 309–312. According to Feliu, whose testimony survived cross-examination, the entire inci- dent lasted some 30 seconds and no one mentioned the incident at the time. Tr. 306–310, 321. This is not only contrary to the description in the Lauster write-up, but it is also in substantial accord with Lauster’s testimony, notwithstanding a minor dis- crepancy between the two witnesses as to whether Lauster handed Feliu the flashlight or simply turned it on so she could see that it worked. The testimony of Nurse Genovese, who was also present during this procedure, is consistent with that of Lauster and Nurse Feliu and contrary to that of Mohindra. See Tr. 336– 341. She specifically denied that Feliu told Lauster to stop shining the flashlight in her eyes. Tr. 341. Genovese reaf- firmed her testimony on cross-examination. Tr. 346–352.7 Lozano, who was present during the procedure when the Fe- liu flashlight incident allegedly occurred, testified that she did not observe the incident as described by Mohindra. She specif- ically denied hearing Feliu tell Lauster to stop flashing it into her eyes twice. Tr. 522, 540. Because, as discussed later, she 7 I found no reason to doubt Genovese’s testimony because, as counsel for Respondent pointed out (Tr. 352–354), a description of the incident was not included in her pre-trial affidavit. There certainly was no inconsistency and Genovese’s testimony was corroborated by other witnesses, as indicated above. CAPITOL STREET SURGERY CENTER, LLC 7 described another incident involving the flashlight during the same procedure and because she was in the room during the whole procedure and Mohindra was not, it would have been likely, if the Feliu flashlight incident had occurred as Mohindra described it and had it been deemed significant, Lozano would have observed it.8 Based on the above, I do not credit Mohindra’s testimony as to what happened during the flashlight incident. I also find that the write-up, GC Exh. 6, is not an accurate description of what happened during the procedure depicted in the write-up. My decision to discredit Mohindra is also based on another problem I had with her testimony about another matter, which I believe casts doubt on her overall reliability as a witness. That matter dealt with Mohindra’s testimony about what was discussed during the November 5 meeting, which was inconsistent with a pre-trial statement she provided to the Board. In her affidavit she had stated that the only topic of discussion in the November 5 meeting was inventory. But she conceded during the trial that there was discussion about having a nurse use the C-arm being “prosecutable.” Tr. 453–454. In any event, as to the flashlight incident, I credit the testimony of Lauster, Feliu, and Genovese over that of Mohindra. In short, the incident was unworthy of discipline or discharge. It was not even an impropriety. Lozano did testify about two other things that happened dur- ing the same procedure—seeing Lauster do “hand puppets on the wall,” using the flashlight (Tr. 502); and not running the C- arm properly so that Mohindra had to take it over for the sec- ond half of the procedure, which, according to Lozano, was “unusual.” Tr. 528, 532. Lozano also testified that Lauster did not properly set up the room for the last procedure of the day. Tr. 503–504. She reported all three of these perceived prob- lems to Ehret at the end of the day. Tr. 504–505, 533–534. I did not find Lozano a reliable witness on what she reported about Lauster on November 18. Her description of the hand puppet incident was not only not corroborated by Mohindra (she said she did not see it, Tr. 460), but Lozano was seriously undercut on that issue when counsel for General Counsel ques- tioned her again on re-cross-examination. See Tr. 544–546. Nor did anyone else corroborate Lozano on the puppets on the wall allegation. Lauster denied doing what Lozano alleged (Tr. 136) and Genovese and Feliu did not see what was alleged; indeed, Feliu said the room was too bright for the shadows described by Lozano. Tr. 323, 339–340. Lozano, who admit- ted the hand puppets incident lasted for only “a minute or two” (Tr. 546), did not intervene to stop Lauster from doing the pup- pets or speak to him at all about the matter. Tr. 545. This even though Ehret testified that Lozano had the authority to address the situation right then. Tr. 83.9 I found it even more significant that Mohindra did not cor- 8 There is also some doubt whether Mohindra was even in the room when the flashlight incident took place. She normally leaves work at about 2 pm (Tr. 538–539) and both Lauster and Feliu testified that Mohindra was not in the room when the flashlight incident took place. See Tr. 190–191, 309, 321–322, 595. 9 Lozano seemed confused about when this procedure took place, at one point fixing it during the late morning or early afternoon, contrary to her pre-trial affidavit, which fixed the time as the first procedure of the day. Tr. 528–529. roborate Lozano on the latter’s testimony that, during the same procedure involving the puppets on the wall, Mohindra had to take over the C-arm for Lauster for the second half of the pro- cedure. If that had happened, it would certainly have been serious enough—Lozano called it “unusual”—to warrant testi- mony about the matter from the Lead IR Tech who had to take over that procedure. On the contrary, not only did Mohindra not corroborate the charge, but Lauster specifically denied it. Tr. 594–595. Nor did anyone else support Lozano’s testimony in this respect, even though there were other people in the room at the time. Finally, Ehret did not mention being told by either Lozano or Mohindra about Mohindra having to take over the C- arm. Because, as Lozano testified, what Mohindra did was so “unusual,” if it had happened and been reported to Ehret, as Lozano testified, it certainly would have been mentioned by Ehret in his testimony.10 Ehret confirmed that, at the end of the day on November 18, Lozano and Mohindra made separate reports to him about Lauster. According to Ehret, Lozano came to his office first and told him that Lauster was “making hand puppets on the wall with a flashlight” during one procedure and had set up the room improperly in the other. But he could not recall any of the details beyond that. Tr. 82–83. Ehret considered the hand puppet incident a potential safety problem and, at this point, made a decision to terminate Lauster. He instructed his aide, Chris McGlaughlin, to prepare the termination email for Lauster’s discharge. Tr. 86, 89–91. He also told Lozano to go back to the room, although it is not clear for what purpose. See Tr. 87–88. Oddly enough, even though, at this point, Ehret supposedly made his discharge decision, he did not have Loza- no document her view of Lauster’s alleged improprieties (Tr. 86, 565), as he did Mohindra’s view of a different alleged im- propriety, as shown below. After that, within 5 minutes, according to Ehret, Danielle Mohindra came into Ehret’s office to report that Lauster had shone a flashlight into a nurse’s eyes, as described above. And he told Mohindra to prepare the write-up that has been previ- ously discussed. Tr. 91–93. Ehret did not speak to the nurse who was involved in the incident. Tr. 93. Ehret testified that his discharge decision was based on a long list of alleged deficiencies, most of which were of long duration and did not occur on November 18 and none of which were mentioned in the termination interview with Lauster. Those included: focusing during cases, dropping wires, doo- dling and drawing figures with a marker, not progressing properly, being a distraction, falling asleep during a meeting and in the nurse’s office, shining an emergency flashlight, and setting up a room incorrectly. See Tr. 63–66. Nor, except for the flashlight incident, were any of those alleged deficiencies memorialized in a written documentation. Tr. 66–67. Accord- ing to Ehret, a “majority” of these problems conveniently oc- curred after Lauster’s favorable evaluation since that evaluation 10 Because of Lozano’s general unreliability as a witness, I specifi- cally reject her testimony about Lauster’s alleged failure to properly set up the room in the final procedure of the day. Lauster specifically denied he did so incorrectly (Tr. 164–165) and no one else supported Lozano’s testimony in this respect. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8 had not mentioned the deficiencies alleged by Ehret. Tr. 67. Lauster credibly denied the allegations or that the alleged defi- ciencies were the subjects of talks or warnings by Ehret. Tr. 136–138, 597. Genovese, who had prepared Lauster’s favora- ble evaluation, confirmed that the performance of Lauster, with whom she worked regularly until his discharge, remained the same as she noted in that evaluation. Tr. 335. I found Ehret’s testimony about Lauster’s alleged problems, which Ehret admitted were not mentioned to Lauster in the termination interview (Tr. 94), completely unreliable. It was an obvious after-the fact attempt to buttress the vague and unspeci- fied reason given for the discharge at the time. As indicated, the November 18 write-up of Lauster for the flashlight incident was the only written documentation of his alleged failings and he was not even shown or presented with that write-up—or even asked about his version of the incident set forth in the write-up. In contrast, two other contemporaneous discharges, one for Lacy Richardson on December 6, 2019, and another for Melania James on January 16, 2020, were supported by lengthy write-ups dated the same day as their discharges. Tr. 95–101, 104–107, GC Exh. 7. Those write-ups detailed the shortcom- ings of the employees in the same manner as Ehret discussed Lauster’s shortcomings in his testimony. In fact, James had violated patient safety, as allegedly also had Lauster (Tr. 106). But Lauster’s write-up is limited to the flashlight issue, which, as mentioned above, was not an accurate reflection of the inci- dent. There was no detailed listing of performance failures in Lauster’s write-up as there were in the write-ups of Richardson and James. The difference in the write-ups shows that when Respondent wants to support a discharge, it does so in a well- supported documentation, as set forth in its handbook discipli- nary policy. Lauster’s situation was not handled that way. In fact, his termination information supplied by the Respondent in a subpoena says nothing about patient safety and appears to be incomplete or inaccurate. See Tr. 106. Because the testimony of Lozano, Danielle Mohindra, and Ehret about what happened on November 18, discussed above, was so contradictory, I cannot rely on any of their testimony on the matter. I found more reliable the testimony of Lauster, Feliu, and Genovese. Indeed, the testimonial unreliability of Ehret, Lozano and Mohindra about what happened on the day of the discharge leads me to reject their testimony on anything of importance in this case. But there is more. I have already commented about their unreliable testimony about reporting the results of the November 5 meeting to Ehret, in the face of his admission that Mohindra did report the results of the meeting to him. I also note Ehret’s unreliable testimony about Lauster’s performance issues, which were not mentioned in the termina- tion interview or in documentary evidence. Had those perfor- mance issues actually occurred and been deemed serious, they would have been documented, as they were in other instances and in accordance with Respondent’s handbook disciplinary policies. And they would have been specifically mentioned in the termination interview. B. Discussion and Analysis The Discharge of Employee Lauster It is settled that an employer violates Section 8(a)(1) of the Act if it disciplines or discharges an employee because that employee engaged in protected concerted activity within the meaning of Section 7 of the Act. Marburn Academy Inc., 368 NLRB No. 38 (2019), citing and discussing numerous authori- ties. This part of the case basically presents an issue of motiva- tion. Such cases are analyzed under the causation test set forth in Wright Line, 251 NLRB 1083 (1980), enf’d on other grounds 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). Under Wright Line, the General Counsel must satisfy an initial burden of showing by a preponderance of the evidence that the employee’s protected activity was a motivat- ing factor in a respondent’s adverse action. If the General Counsel meets that initial burden, the burden shifts to the re- spondent to show that it would have taken the same action even absent the employee’s protected activity. The respondent does not meet its burden merely by showing that it had a legitimate reason for its action; it must persuasively demonstrate that it would have taken the same action in the absence of the protect- ed conduct. But if the respondent’s proffered reasons are pre- textual—either false or not actually relied on—the respondent fails by definition to meet its burden of showing it would have taken the action for those reasons absent the protected activity. Hard Hat Services, LLC, 366 NLRB No. 106, slip op. 7 (2018), and cases there cited. A showing of pretext also supports the initial showing of discrimination. See Wright Line, supra, 251 NLRB at 1088 n.12, citing Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966) (where a respondent’s reasons are false, it can be inferred “that the [real] motive is one that the [respondent] desires to conceal—an unlawful motive—at least where . . . the surrounding facts tend to reinforce that infer- ence.”). In this respect, it is clear that a trier-of-fact may not only reject a witness’s testimony about his or her reasons for an adverse action, but also find that the truth is the opposite of that testimony. Hard Hat Services, cited above, 366 NLRB No. 106, slip op. 7, citing NLRB v. Walton Mfg. Co., 369 U.S. 404, 408 (1962). In addition to pretext, animus is shown by shifting or inconsistent reasons offered by the respondent to justify the action and disparate treatment in the application of the adverse action. See Airgas USA, LLC, 366 NLRB No. 104, slip op. 2 (2018), enforced, 916 F.3d 550, 560–561 (6th Cir. 2019). Applying the above principles, I find that Respondent dis- charged Lauster for engaging in protected concerted activity— his lead role in being the first to object to the use of nurses to utilize the C-arm instead of licensed IR Techs, during the No- vember 5 meeting, thus provoking a lengthy discussion of the matter by employees and supervisors alike. The Respondent does not seriously dispute that Lauster was engaged in protect- ed concerted activity during the November 5 meeting but does dispute that the discharge was motivated by that activity. The evidence of unlawful motivation, including its causal connection to the discharge, is supported by the timing of the discharge, which came within two weeks of the November 5, CAPITOL STREET SURGERY CENTER, LLC 9 2020, meeting—actually only 4 of Lauster’s work days. Con- trary to Respondent’s contention, the requisite knowledge is established by the presence at the meeting of Supervisors Moh- indra and Lozano, whose knowledge is necessarily imputed to the Respondent, as well as my credibility determination that they reported the matter to the decision maker, Administrator Ehret. The inference is clear that Lauster’s leading role in rais- ing the objection to the use of nurses to run the C-arm and the related support he engendered among the employees was prob- lematic for the Respondent. Lauster’s objection prompted a discussion of how the IR Techs were to use their hours, which were obviously limited to prevent overtime, and to a clear statement of support from Dr. Mohindra for overtime for IR Techs, if necessary. In the midst of the discussion, Supervisor Lozano warned employees that they might have to come in early and stay late if they went down the “rabbit hole” of ob- jecting to Respondent’s plan to use nurses to run the C-arm. This presented a Hobson’s choice for Ehret: Either stick by his guns to have nurses use the C-arm, as was his plan, and deal with the objections initiated by Lauster; or face the pressure to pay overtime to the IR Techs. The obvious solution was to get rid of the person who had initiated the objections to his plan to have nurses use the C-arm. Lauster had raised this matter in the past during discussions with fellow employees as well as Su- pervisors Lozano and Mohindra. Lozano’s “rabbit hole” re- marks at the November 5 meeting suggest a level of animus against employee objections to Respondent’s working condi- tions, but it is also well settled that “[t]iming alone” supports animus as a motivating factor in an employer’s adverse action. NLRB v. Rain-Ware, Inc., 732 F.2d 1349, 1354 (7th Cir. 1984). Other factors supporting a finding of discrimination include the following: No specific reason was given to Lauster for the termination and no investigation was done of the flashlight incident that was the subject of a write-up that was not even shared with Lauster in the termination interview. Nor were the other alleged deficiencies on the day of the discharge investi- gated. As the Board has stated, “An employer’s failure to per- mit an employee to defend himself before imposing discipline supports an inference that the employer’s motive was unlaw- ful.” West Maui Resort Partners, 340 NLRB 846, 849 (2003), citing authorities. Moreover, Administrator Ehret, who made the discharge de- cision, testified as to other shifting and contradictory reasons for the discharge. None of these other reasons were either men- tioned to Lauster at the time of his discharge or documented, as they were, in great detail, in the discharges of other employees, thus showing disparate treatment. Finally, Lauster was dis- charged without regard to the progressive discipline and other provisions of Respondent’s disciplinary policy as set forth in its handbook. Accordingly, I find, consistent with my earlier cred- ibility determinations, that the testimonial reasons offered by Ehret for Lauster’s discharge were pretexts intended to conceal the real reason for the discharge—Lauster’s protected concerted activity. See Airgas, cited above, as well as David Saxe Pro- ductions, LLC and V Theater Group, LLC, 370 NLRB No. 103, slip op. 21, 35 (2021) and Security Walls, LLC, 371 NLRB No. 74, slip op. 4 (2022). My finding of pretext—that the reasons advanced either do not exist or were not relied on—of necessity means that Re- spondent has not met its rebuttal burden and the “inquiry is logically at an end.” Thermon Heat Tracing Services, Inc., 320 NLRB 1035, 1038 (1996), citing Wright-Line, supra. In these circumstances, I find that, by discharging Lauster, Respondent violated Section 8(a)(1) of the Act. The Johnnie’s Poultry Allegation On January 11, 2021, a charge was filed with the Board on behalf of Lauster, alleging that he had had been unlawfully terminated for engaging in protected concerted activity. After receiving a copy of the charge, Ehret learned that employee Cassandra Shepard had recorded the meeting of November 5, 2020, that had spawned Lauster’s charge. On January 28, 2021, Ehret approached Shepard in a hallway at the facility and asked if she could provide him with the recording. She readily agreed and she later emailed him a copy of the recording. Tr. 36–37, 237, 287.11 Putting aside the hyperbolic part of the General Counsel’s assertion—that Ehret “forcefully interrogated” Shepard (Tr. 272), the basis of this allegation is that the brief conversation described above and Shepard’s voluntary action in turning over the recording to Ehret violated the requirements for the permis- sible questioning of employees during an unfair labor practice investigation in Johnnie’s Poultry, 146 NLRB 770 (1964). Thus, according to the General Counsel, Respondent violated Section 8(a)(1) of the Act. Permissible questioning in those circumstances must be free from coercion and the employer must affirmatively tell the employee the purpose of the ques- tioning, that the employee’s participation is voluntary, and that there will be no reprisals based on the employee’s participation. Id. at 774–775. I find no violation because Johnnie’s Poultry does not apply in this situation. Ehret’s request for the recording was not an interrogation in the sense that he sought information related to protected activity within the knowledge of the person ques- tioned. The danger in such interrogation and what makes it coercive is that, when such information is uncovered, it is most useful for possible future discrimination. That is not the situa- tion here. Ehret sought the recording of an open meeting at- tended by both employees and management, presumably to get an accurate reading of what was said at the meeting. There was no attempt to get anything more than a record of openly dis- cussed matters and there was no pressure or coercion in the request. Rather, this case is governed by the Board’s dismissal of a Johnnie’s Poultry allegation dealing with a similar attempt to obtain open information—in that case, a request of employ- ees to provide an affidavit to the employer’s attorney about a meeting between employees and management that was the subject of a charge. See Safelite Glass, 283 NLRB 929, 950– 951 (1987). In Safelite, the Board cited Rossmore House, 269 NLRB 1176 (1984), for the proposition that questioning must be considered in all the circumstances to determine whether it is coercive. The Board also determined that the request in Safe- lite was not calculated to inhibit employees from engaging in 11 The above is based on the mutually corroborative testimony of Eh- ret and Shepard, even though there are minor differences in their testi- mony about the conversation. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10 protected activity and did not interfere with the Board’s inves- tigatory processes. The same applies here. Accordingly, the alleged violation of Section 8(a)(1) of the Act under Johnnie’s Poultry is dismissed.12 CONCLUSIONS OF LAW 1. By discharging employee Martin Lauster because of his protected concerted activities, Respondent violated Section 8(a)(1) of the Act. 2. The above violation constitutes an unfair labor practice within the meaning of the Act. 3. The Respondent has not otherwise violated the Act. REMEDY Having found that Respondent engaged in an unfair labor practice, I shall recommend that it be ordered to cease and de- sist from its unlawful conduct and take certain affirmative ac- tion designed to effectuate the policies of the Act, including the posting of an appropriate notice. Since Respondent unlawfully discharged Martin Lauster, I shall recommend that it must offer him reinstatement to his former job or, if that job no longer exits, to a substantially equivalent position without prejudice to his seniority or any other rights or privileges previously enjoyed. The Respondent shall also make Lauster whole for any loss of earnings and other benefits he may have suffered as a result of the unlawful discrimination against him. The make-whole remedy shall be computed in accordance with F.W. Woolworth Co., 90 NLRB 289 (1950), plus interest as prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Ken- tucky River Medical Center, 356 NLRB 6 (2010). In accord- ance with King Soopers, Inc., 364 NLRB No. 93 (2016), enfd. in pertinent part 859 F.3d 23 (D.C. Cir. 2017), Respondent shall compensate Lauster for search-for-work and interim employ- ment expenses regardless of whether those expenses exceed his interim earnings, with interest. In accordance with AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016), Respondent shall compensate Lauster for any adverse tax consequences of re- ceiving a lump sum back pay award and shall, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, file, with the Regional Director of Region 25, a report allocating the backpay to the appropriate calendar year. In addition, in accordance with Containerboard Packaging- Niagara, 370 NLRB No. 76, as modified in 371 NLRB No. 25 (2021), Respondent is ordered to file, with the Regional Direc- tor for Region 25, a copy of Lauster’s W-2 form reflecting the backpay award. On these findings of fact and conclusions of law, and on the entire record, I issue the following recommended13 12 On March 1, 2021, the Board invited briefs in Sunbelt Rentals, Inc., 370 NLRB No. 94 (2021), on whether Johnnie’s Poultry should be overruled and, if so, what the standard should be for employer ques- tioning of employees in the preparation for a defense to an unfair labor practice allegation. 13 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 ORDER Respondent, Capitol Street Surgery Center, LLC, its officers, agents, successors and assigns, shall 1. Cease and desist from (a) Discharging or otherwise disciplining employees for en- gaging in protected concerted activity under Section 7 of the Act. (b) In any like or related manner, interfering with, restrain- ing, or coercing employees in the exercise of the rights guaran- teed 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 Martin Lauster reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights and privileges previously enjoyed. (b) Make Martin Lauster whole for any loss of earnings and other benefits suffered as a result of the discrimination against his, in the manner set forth in the remedy section of this deci- sion. (c) Compensate Martin Lauster for the adverse tax conse- quences, if any, of receiving a lump-sum backpay award, and file with the Regional Director for Region 25, 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 appro- priate calendar years. Also file with the Regional Director for Region 25 a copy of Lauster’s W-2 form reflecting the backpay award. (d) Within 14 days from the date of this order, remove from its files any reference to the unlawful discharge of Martin Lauster, and, within 3 days thereafter, notify him in writing that is has been done and that the unlawful action will not be used against him in any way. (e) 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 records, 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 back pay due under the terms of this Order (f) Within 14 days after appropriate notification by the Re- gion, post, at Its Indianapolis, Indiana facility, copies of the attached notice marked “Appendix.”14 Copies of the notice, on forms provided by the Regional Director for Region 25, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days, in conspicuous places, including all plac- es where notices to employees are customarily posted. In by the Board and all objections to them shall be waived for all purpos- es. 14 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” CAPITOL STREET SURGERY CENTER, LLC 11 addition to physical posting of paper notices, the notices shall be distributed electronically, such as email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with employees by such means. Reasonable steps shall be taken by the Re- spondent 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 pro- ceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since January 11, 2021. (g) 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 at Washington, D.C., May 12, 2022. APPENDIX NOTICE TOEMPLOYEES 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 no- tice. 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. YOU HAVE THE RIGHT to discuss wages, hours and working conditions with other employees and WE WILL NOT do anything to interfere with your exercise of that right. YOU HAVE THE RIGHT to freely bring matters and complaints about wages, hours and working conditions to our attention and WE WILL NOT do anything to interfere with your exercise of that right. WE WILL NOT discharge or otherwise discipline employees for the exercise of the above rights or because of their other protected concerted activities under Section 7 of the Act. WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce employees in the exercise of the rights listed above. WE WILL offer Martin Lauster immediate and full rein- statement to his 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. WE WILL make Martin Lauster whole, with interest, for any loss of earnings and other benefits suffered as a result of our discrimination against him. WE WILL remove from our files any references to the unlawful action taken against Martin Lauster, notify him that this has been done, and that that unlawful action will not be used against him in any way. WE WILL compensate Martin Lauster for the adverse tax con- sequences, if any, of receiving a lump-sum backpay award, and file with the Regional Director for Region 25, 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 ap- propriate calendar years. WE WILL file with the Regional Director a copy of the corre- sponding W-2 form reflecting the backpay award. CAPITOL STREET SURGERYCENTER,LLC The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/25-CA-271204 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.