South Nassau Communities Hospital d/b/a Mount Sinai South Nassau

373 NLRB No. 91 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. South Nassau Communities Hospital, d/b/a Mount Sinai South Nassau and Marylene Teopengco- Merritt and New York State Nurses Association. Case 29–CA–312425 September 6, 2024 DECISION AND ORDER BY CHAIRMAN MCFERRAN AND MEMBERS PROUTY AND WILCOX On March 5, 2024, Administrative Law Judge Benja- min W. Green issued the attached decision. The Re- spondent filed exceptions and a supporting 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,1 and conclusions and to adopt the recommended Order as modified and set forth in full below.2 ORDER The National Labor Relations Board orders that the Respondent, South Nassau Communities Hospital, d/b/a Mount Sinai South Nassau, Oceanside, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from 1 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless the clear preponder- ance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. The judge found that the Respondent violated Sec. 8(a)(1) of the Act by interrogating and threatening Marylene Teopengco-Merritt with discipline because of her union activity and violated Sec. 8(a)(3) and (1) by denying Teopengco-Merritt a per diem registered nurse (RN) position, suspending her, and discharging her because of her union activity. The Respondent’s sole argument on exception is that Teo- pengco-Merritt is a supervisor within the meaning of Sec. 2(11). For the reasons set forth by the judge, we affirm his finding that the Re- spondent failed to meet its burden of establishing Teopengco-Merritt’s supervisory status. In doing so, we find that The Arc of South Norfolk, 368 NLRB No. 32 (2019), cited in support by the Respondent, is clear- ly distinguishable. There, the Board found that the employer’s program coordinators exercised independent judgment in assigning or effective- ly recommending assignment of case managers to clients. Id., slip op. at 3–4. The Board noted that these assignment decisions entailed the consideration of individualized strengths and weaknesses, the specific personalities involved, and the expertise and experience of each of the case managers. Id. Here, by contrast, there is no evidence demonstrat- ing that Teopengco-Merritt exercised independent judgment in the assignment process. 2 We shall modify the judge’s recommended Order to conform to his unfair labor practice findings and the Board’s standard remedial language. We shall also substitute a new notice to conform to the Or- der as modified. (a) Discharging, suspending, or otherwise discriminat- ing against employees for supporting New York State Nurses Association (the Union) or any other labor organ- ization. (b) Denying employees per diem RN positions be- cause of their support for and activities on behalf of the Union. (c) Threatening employees with discipline, including discharge, if they engage in activities on behalf of the Union. (d) Coercively interrogating employees about their un- ion activities. (e) In any like or related manner interfering, restrain- ing, 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 Marylene Teopengco-Merritt full reinstatement to her choice of her former Service Line Coordinator position or the per diem registered nurse position in requisition # 53, or, if the position she has selected no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights or privileges previously enjoyed. (b) Make Teopengco-Merritt whole for any loss of earnings and other benefits, and for any other direct or foreseeable pecuniary harms suffered as a result of the discrimination against her, in the manner set forth in the remedy section of the decision. (c) Compensate Teopengco-Merritt for the adverse tax consequences, if any, of receiving a lump-sum backpay award, and file with the Regional Director for Region 29, 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 year(s). (d) File with the Regional Director for Region 29, 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 Teopengco-Merritt’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 suspen- sion and discharge of Teopengco-Merritt, and within 3 days thereafter, notify her in writing that this has been done and that the unlawful suspension and discharge will not be used against her in any way. (f) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place 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, DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 necessary to analyze the amount of backpay due under the terms of this Order. (g) Post at its facility in Oceanside, New York, copies of the attached notice marked “Appendix.”3 Copies of the notice, on forms provided by the Regional Director for Region 29, after being signed by the Respondent's authorized representative, shall be posted by the Re- spondent and maintained for 60 consecutive days in con- spicuous places, including all places where notices to employees are customarily posted. In addition to physi- cal 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 Re- spondent customarily 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 covered by any other material. If the Re- spondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall du- plicate and mail, at its own expense, copies of the notice to all current employees and former employees employed by the Respondent at any time since January 3, 2023. (h) Within 21 days after service by the Region, file with the Regional Director for Region 29 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. Dated, Washington, D.C. September 6, 2024 ______________________________________ Lauren McFerran, Chairman ______________________________________ David M. Prouty, Member 3 If the facility involved in these proceedings is open and staffed by a substantial complement of employees, the notice 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 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.” ________________________________________ Gwynne A. Wilcox, 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 discharge, suspend, or otherwise dis- criminate against any of you for supporting New York State Nurses Association (the Union) or any other labor organization. WE WILL NOT deny you per diem RN positions because of your support for and activities on behalf of the Union. WE WILL NOT threaten you with discipline, including discharge, if you engage in activities on behalf of the Union. WE WILL NOT coercively question you regarding your union 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 Marylene Teopengco-Merritt full reinstate- ment to her choice of her former Service Line Coordina- tor position or the per diem registered nurse position in requisition # 53, or, if the position she has selected no longer exists, to a substantially equivalent position, with- out prejudice to her seniority or any other rights or privi- leges previously enjoyed. WE WILL make Marylene Teopengco-Merritt whole for any loss of earnings and other benefits resulting from her discharge, less any net interim earnings, plus interest, and WE WILL also make Teopengco-Merritt whole for any other direct or foreseeable pecuniary harms suffered as a result of her unlawful discharge, including reasonable search-for-work and interim employment expenses, plus interest. WE WILL compensate Marylene Teopengco-Merritt for the adverse tax consequences, if any, of receiving a lump-sum backpay award, and WE WILL file with the SOUTH NASSAU COMMUNITIES HOSPITAL 3 Regional Director for Region 29, 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 29, 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 Marylene Teopengco-Merritt’s corre- sponding 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 suspension and discharge of Marylene Teopengco- Merritt, and WE WILL, within 3 days thereafter, notify her in writing that this has been done and that the suspension and discharge will not be used against her in any way. SOUTH NASSAU COMMUNITIES HOSPITAL D/B/A MOUNT SINAI SOUTH NASSAU The Board’s decision can be found at https://www.nlrb.gov/case/29-CA-312425 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. Marcia Adams, Esq., for the General Counsel. Joseph Baumgarten, Esq. and Godfre O. Blackman, Esq., for the Respondent. Raymond Nardo, Esq., for the Charging Party. Clair Tuck, Esq., and Queen Arsem O’Malley, Esq., for the Party-in-Interest. DECISION STATEMENT OF THE CASE BENJAMIN W. GREEN, Administrative Law Judge. The com- plaint in this case alleges that South Nassau Communities Hos- pital, d/b/a Mount Sinai South Nassau (the “Respondent”) vio- lated Section 8(a)(3) and (1) of the Act by denying Charging Party Marylene Teopengco-Merritt a per diem registered nurse (“RN”) position and subsequently suspending and discharging her. The complaint also alleges that the Respondent violated Section 8(a)(1) of the Act by interrogating Teopengco-Merritt regarding her union activities and threatening Teopengco- Merritt with discipline, up to and including discharge, if she continued to support the New York State Nurses Association (the “Union”) and engage in union activities. Teopengco- Merritt was employed by the Respondent as a Service Line Coordinator (“SLC”) at the time of the alleged violations. The Respondent contends that SLCs such as Teopengco-Merritt are supervisors within the meaning of Section 2(11) of the Act and, therefore, not protected by Section 7 of the Act. As discussed at length below, I find that the Respondent vio- lated the Act as alleged in the complaint. The original charge in this case was filed on February 17, 20231 and a first amended charge was filed on June 19. The complaint issued on July 24 and the Respondent filed an an- swer thereto on August 4. The hearing in this case was tried before me in Brooklyn, New York on October 17-18. On the entire record, including my observation of the de- meanor of the witnesses, and after considering the post-hearing briefs filed by the General Counsel, the Respondent, and the Union, I render these FINDINGS OF FACT2 JURISDICTION Based upon the pleadings, I find as follows: The Respondent is an acute care hospital located at One Healthy Way, Oceanside, New York. During the year proceeding the issu- ance of the complaint, the Respondent derived gross revenues in excess of $250,000 and purchased and received at its Oceanside facility supplies valued in excess of $5000 directly from suppliers located outside the State of New York. The Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The dispute affects commerce and the Board has jurisdiction over this case under Section 10(a) of the Act. ALLEGED UNFAIR LABOR PRACTICES The Respondent’s Operating Rooms The Respondent has 17 operating rooms. Surgeries are scheduled in about 14 to 15 operating rooms each day, while the remaining rooms are reserved for unscheduled emergency surgeries and other “add on” procedures. (Tr. 138–139, 191.) Surgery normally begins at 7:45 a.m. (except Mondays when surgeries begin at 8:45 a.m. because in-service training is pro- vided beforehand). (Tr. 148, 165, 209, 211–212.) Nicole Ng is the director of Perioperative Services and Kathy Malone is the assistant director of Perioperative Services. (Tr. 189, 234–235.) At the time of the hearing, Ng was on materni- ty leave. (Tr. 235.) Perioperative services includes the OR Unit, pre- and post-operative units, and an equipment sterilizing unit. (Tr. 189, 235–238.) Each operating room is generally staffed with a surgeon, a circulating RN, and an RN or surgical technician (tech) who “scrubs.” RNs can either circulate or scrub, while techs can only scrub. (Tr. 64, 69.) The Respondent prefers techs to scrub 1 All dates refer to 2023 unless stated otherwise. 2 The Findings of Fact are a compilation of credible testimony and other evidence, as well as logical inferences drawn therefrom. To the extent evidence of a fact is trustworthy and not contested, the fact is generally stated without reference to the underlying evidence. Testi- mony contrary to my findings has been discredited. In assessing credi- bility, I rely upon witness demeanor. I also consider the context of witness' testimony, the quality of their recollection, testimonial con- sistency, the presence or absence of corroboration, the weight of the respective evidence, established or admitted facts, inherent probabili- ties, and reasonable inferences that may be drawn from the record as a whole. Witnesses may be credited or discredited in whole or in part. See Double D Construction Group, 339 NLRB 303, 305 (2003); Daikichi Sushi, 335 NLRB 622, 623 (2001) (citing Shen Automotive Dealership Group, 321 NLRB 586, 589 (1996)), enfd. sub nom., 56 Fed. Appx. 516 (D.C. Cir. 2003). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 because they are paid less than RNs. (Tr. 230.) The scrub passes instruments to the surgeon during surgery. The circulat- ing RN performs a broader range of tasks such as retrieving the patient from pre-op, ensuring the operating room is fully equipped, confirming the patient’s history and consent, assist- ing with any difficulties the patient may be experiencing, trou- bleshooting equipment problems, and handling specimens. (Tr. 69–73, 193.) The Respondent documents the names of staff assigned to each operating room each day, including the circu- lator and scrub. (Tr. 179.) The Respondent has two assistant nurse managers (ANMs), including ANM Virginia Doughty. The ANMs are nurses in charge of the OR. The Respondent had three ANMs in 2022 and is planning to add a third. (Tr. 188, 192.) In 2022, at least two ANMs were normally present during the day. (Tr. 88) The ANMs are generally stationed at the “blue desk” with a unit clerk. An electronic board behind the blue desk contains the surgeries to be performed in each operating room and the staff performing them. (Tr. 120, 140–142, 243–244.) An RN is generally designated to be a daily charge nurse in charge of the OR overnight. The charge nurse designation is not a permanent job title, but the same experienced RNs are regularly designated as such on a weekly basis. (Tr. 250–251, 261–263.) The Respondent has morning, afternoon, and night shifts. Teopengco-Merritt testified that as many as 40 employees (20 RNs and 20 techs) work on the morning shift. (Tr. 96.) Surgeries are divided into service lines. Those service lines include neurology, spine, orthopedics, urology, ears nose throat, gynecology, robotics, chest, plastics, vascular, bariatric, podiatry, ocular, and general. (Tr. 22, 93-96, 138, 190-191, 241) The Respondent employs about seven SLCs who are inter- changeably referred to as service line coordinators or service line leaders. (Tr. 137, 241–241) (R. Exh. 1, 7). SLCs have responsibility for one or more service lines and report to the ANMs. (Tr. 22–23.) The Respondent maintains a 6-week master staffing schedule for the OR. The master schedule shows all staff scheduled to work each day. The master schedule does not show who will work in each operating room. (Tr. 139–140, 177–178, 213.) At about 9:30 a.m. each day, a preliminary schedule is re- leased which shows the surgeries to be performed in each oper- ating room the following day. (Tr. 247, 251–252.) As dis- cussed below, specific RNs/techs are then assigned to circulate and scrub in each operating room. Those names are written on the preliminary schedule. (Tr. 201.) A final schedule is gener- ally released at about 2 p.m., but is subject to change if not all assignments were made or if someone calls out sick the next morning. (Tr. 120–121, 189–190, 214–217, 247.) If an RN or tech calls out sick on the day of a surgery, an ANM will ar- range to replace that person. (Tr. 247.) The daily schedules are kept in a binder at the blue desk. (Tr. 179.) All the OR RNs/techs can work on any type of surgery and, in the event of an unscheduled emergency surgery, the ANM will simply as- sign whoever is available. (Tr. 141, 147–148, 230–232.) The Respondent holds meetings called “huddles” each morn- ing. The first huddle is held at about 7 a.m. and concerns sur- gical cases to be performed that day. The 7 a.m. huddle is at- tended by all perioperative service staff and is generally led by an ANM. Another brief huddle is held at the blue desk after the preliminary schedule is released at about 9:30 a.m. to discuss cases scheduled for the following day. This 9:30 a.m. huddle is only attended by perioperative leadership. (Tr. 140, 143–146, 163–165, 180–181, 184, 199–200, 217–219, 222.) Charging Party Teopengco-Merritt and the Service Line Coordinator Position In December 2006, the Respondent hired Teopengco-Merritt as an OR RN. (Tr. 22.) In about 2017, the Respondent created the SLC position because, according to assistant direct Malone, one ANM could not oversee the entire OR. (Tr. 244–245.) In about December 2017 or January 2018, the Respondent pro- moted Teopengco-Merritt to the position of SLC for neurology and spine. (Tr. 22, 61–62) (R. Exh. 2). In July 2021, the Re- spondent promoted Katherine Garcia from RN to SLC for tho- racic, bariatric, and general surgery. In April, Garcia switched to the service lines of orthopedics and podiatry. (Tr. 136–137.) SLC Pay The Respondent pays SLCs and ANMs by the hour and does not consider either position exempt from wage-and-hour regu- lations. (Tr. 243.) The base pay rate for an RN with no experi- ence is $48.9003 per hour and that rate increases depending upon years of experience to a maximum of $59.6695 per hour for an RN with 25 years of experience. The base pay rate for an SLC with no experience is $64.5695 per hour and that rate increases depending upon years of experience to a maximum of $75.3387 per hour for an SLC with 25 years of experience. (R. Exh. 8) Prior to becoming an SLC, Teopengco-Merritt was paid $59.6695 per hour as an RN with 25 years of experience. Teopengco-Merritt’s pay rate increased to about $703 per hour when she was promoted to SLC. (Tr. 63, 266–268.) SLC Job Description The Respondent’s personnel requisition form for the SLC position describes the job title of “Operating Room Svc Line Coordinator (RN)” as follows (R. Exh. 7): The Service Line Leader is responsible for organizing and implementing services within a specific specialty service. Provide the specialty group with clinical, educational, and technical expertise and support. The Service Line Leader is the first line contact with the physicians in the specialty ser- vice to maximize quality of patient care. Responsible for maintaining the working status of specialty instruments and equipment, as well as fostering vendor relations within the clinical specialty. The Service Line Leader assigns, oversees and holds staff countable for performance of daily duties in the specific specialty service. The Service Line Leader acts as the internal expert in the clinical service line, and functions as a resource person for less experienced personnel and unit pre- ceptors. Teopengco-Merritt incorporated this job description lan- guage almost verbatim in her resume, which she used to apply for certain positions. (R. Exh. 1) (Tr. 74–77). The Respondent’s counsel read into the record Teopengco- Merritt’s investigation affidavit to the extent it described her job duties as follows (Tr. 73–74): As a service line coordinator, I was responsible for coordinat- 3 According to a chart prepared by the Respondent, an SLC with 11 years of experience earns $70.2105. (R. Exh. 8.) SOUTH NASSAU COMMUNITIES HOSPITAL 5 ing with surgeons, vendors (reps who bring company instru- ments and implants for surgical procedure), coordinate and facilitate that neuro-spine cases are done correctly and in a timely manner. I also help turn over rooms, help the circula- tor and scrub . . . nurses with any problems they may have, and to make the case run smoothly, and circulate and render primary nursing care to patients during surgeries/surgery. Sometimes, I performed my duties as a scrub and assisted the surgeons in surgery, like passing surgical instruments. SLC Location of Duties Initially, although SLCs could be assigned to circulate and scrub in a specific operating room, they were expected to be stationed in the hallway and move between operating rooms as necessary to facilitate the smooth operation of all the surgeries in their respective service lines. (Tr. 67, 144,149–151, 207– 208, 220–221, 225.) However, Teopengco-Merritt testified that this did not actually occur. According to Teopengco-Merritt, as an SLC, she still spent 80 to 90 percent of her time assigned to work in specific operating rooms.4 In fact, in early-2022, Teo- pengco-Merritt and other SLCs complained to assistant director Malone about this. (Tr. 64–69, 73.) ANM Doughty and SLC Garcia testified that SLCs tend to spend more time assigned to specific operating rooms when the hospital is short staffed. They also testified that some SLCs like spending more time assigned to operating rooms than oth- ers. (Tr. 161–162, 165–166, 208, 225–227.) Doughty estimat- ed that, in 2023, SLCs circulated or scrubbed at least once per week. (Tr. 207–208.) Garcia estimated that, in 2022, she spent less than 50 percent of her time circulating or scrubbing. (Tr. 51–52, 73, 165–166.) SLC Assignment of RNs and Techs to Specific Operating Rooms A significant portion of the hearing in this case concerned SLC involvement in the assignment of RNs and techs to specif- ic operating rooms. Teopengco-Merritt testified that she did not have authority to assign RNs and techs to operating rooms within her service line.5 (Tr. 52, 120–121) According to Teo- pengco-Merritt, ANMs preliminarily assigned RNs and techs to operating rooms and Malone confirmed those assignments. (Tr. 88, 120–121) Teopengco-Merritt admitted that, once or twice a week, she was asked whether a certain tech “will be good.” (Tr. 85, 122) However, Teopengco-Merritt testified that this only occurred when the hospital was “lacking some staff,” if there was a “conflict,” or if there was a question whether someone was competent to perform a particular proce- 4 The Respondent keeps daily schedules reflecting who circulated and scrubbed in each operating room, but did not attempt to introduce those schedules into evidence to rebut Teopengco-Merritt’s assertion in this regard. (Tr. 217, 222–223.) 5 Teopengco-Merritt testified that, when she accepted the SLC posi- tion, she expected to have such authority, but it did not materialize and was an issue SLCs complained about to Malone in early 2022. This was apparently the same meeting in which SLCs complained that they were spending too much time circulating and scrubbing in specific operating rooms and not enough time facilitating all the surgeries in their service lines. Teopengco-Merritt testified that, a month or two before her termination, management told her she could suggest any RN or tech to work on the surgeries in her service line. (Tr.64–69, 97.) dure.6 (Tr. 52, 83, 121–122.) Teopengco-Merritt denied she was asked about the assignment of RNs (as opposed to techs). (Tr. 85.) Further, Teopengco-Merritt testified that her recom- mendations were rarely followed. (Tr. 52–53.) Teopengco-Merritt testified that, when asked by an ANM to confirm whether a certain tech would be good in a particular operating room, she considered whether the tech was experi- enced, comfortable, and competent to work on the surgeries to be performed, their rapport with the doctor, and their knowledge of surgical instruments. Teopengco-Merritt was familiar with techs’ skillsets, especially if she often worked with the tech. (Tr. 83–85.) SLC Garcia, ANM Doughty, and assistant director Malone testified that SLCs generally assign staff to their operating rooms at the 9:30 a.m. huddle by coming to the blue desk and writing the names of their desired circulators and scrubs on the preliminary schedule. (Tr. 141-142, 180-181, 190, 194, 200– 201, 210, 214, 217, 247.) According to Garcia, she assigns RNs and techs to work in 1-4 orthopedic operating rooms and does so without the approval of an ANM or assistant director Malone. (Tr. 140, 173-174, 181.) SLCs do not attend the 9:30 a.m. huddle if they are assigned to an operating room that day or otherwise needed to help in an operating room. (Tr. 164- 165, 200.) Garcia reluctantly admitted she did not recall seeing Teopengco-Merritt at the 9:30 a.m. huddles. (Tr. 164-165.) Doughty testified that Teopengco-Merritt was only “occasion- ally” at the 9:30 a.m. huddle because she was usually needed in the operating room of Dr. Bolognese, a neurosurgeon who per- formed long, complicated, all-day surgeries. (Tr. 202, 222, 229–230.) According to Doughty, if an SLC is not present for the 9:30 a.m. huddle, she can call the SLC to ask for their RN/tech room assignments. (Tr. 194). As an example, Dough- ty testified that she would call plastics and vascular SLC Erika Murray to obtain RN/tech room assignments if Murray was not at the huddle. (Tr. 194.) Teopengco-Merritt testified that she was only invited to the 9:30 a.m. huddle one time to discuss a big neurology case being performed that day. (Tr. 286.) SLC Garcia testified that her decisions to assign staff to op- erating rooms depends on the surgeons’ requests for particular RNs/techs and RN’s/tech’s experience working in particular service lines. (Tr. 141.) Garcia has never denied a surgeon’s request for an RN or tech. (Tr. 176.) Garcia observed that staff members developed specialties. (Tr. 141, 176.) Thus, accord- ing to Garcia, although “everyone does everything” and she (Garcia) could, for example, work on a GYN procedure, “someone that’s in the GYN every day consecutively for a year is probably going to be better in the room than me.” (Tr. 141, 147–148.) Garcia noted that, although the Respondent does not maintain formal operating teams, informal teams develop as a matter of practice. (Tr. 178–179.) ANM Doughty admitted she assigns RNs and techs to ORs if the SLC is not available, if an RN or tech calls out sick, or for emergency trauma cases. For trauma cases, Doughty simply assigns whoever is available. (Tr. 190, 195, 198, 201, 231.) According to Doughty, if she makes a change and the SLC objects, she (Doughty) will “see what else I can do.” (Tr. 203.) However, Doughty does not like pulling staff out of a room once they are already there because it is bad for morale. (Tr. 6 I assume “lacking staff” means certain nurses or techs were absent and “conflict” means an RN or tech were wanted for two different operating rooms. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 203, 206.) If two SLCs want the same staff member in two different op- erating rooms, they will generally discuss and resolve the mat- ter themselves. (Tr. 142–143, 198.) ANM Doughty testified that, in the event of such a conflict, she might suggest alterna- tive staffing for one of the rooms and the SLC will “say yes or no.” (Tr. 190.) Assistant director Malone testified that, if two SLCs select the same person to work in their rooms, the SLCs and ANM will discuss and collaborate to resolve the conflict. (Tr. 247, 254–259, 263.) Malone denied she has ever resolved such a conflict. (Tr. 254–255.) However, Doughty testified, to the contrary, that she shows Malone the daily schedule every day and leaves any unresolved staffing conflicts up to her (Malone). Doughty testified that Malone has final say over the daily schedule. (Tr. 210, 215.) ANM Doughty testified that SLCs are well situated to assign staff to operating rooms because they know which RNs/techs are good at working on surgeries within their service line and which RNs/techs the surgeons like to work with. (Tr. 215.) According to Doughty, staff will not usually be assigned to a room over an SLC’s objection because, if “the surgeon in the room doesn’t want that person in, we’ve got to take them out.” (Tr. 203.) SLC Garcia testified that she has removed and replaced RNs and techs from operating rooms if that person was struggling with a procedure. (Tr. 158–159.) Garcia will notify the ANM that she had done so. (Tr. 169.) Garcia testified that this hap- pens a few times per month. (Tr. 175.) However, as noted above, Doughty testified that RNs and Techs are not normally removed from an operating room unless that person says they really do not know the case because removing a person is bad for morale. (Tr. 206.) Teopengco-Merritt testified that, on one occasion, a tech said she was not comfortable working on a surgery, and she (Teopengco-Merritt) took that tech to ask ANM Doughty to switch operating rooms. Doughty denied the request to switch rooms. (Tr. 100–104, 287.) SLC Direction of Work Teopengco-Merritt testified that she was responsible for overseeing the performance of RNs and techs working in neu- ro-spine operating rooms. This involved ensuring staff were doing their jobs properly without delay or errors, all necessary equipment and instruments were in the room, the surgeon had no complaints, and the patients were safe. (Tr. 89–90.) How- ever, according to Teopengco-Merritt, she did not evaluate staff other than respond and help if an RN or tech complained about a problem. (Tr. 90.) Teopengco-Merritt testified that she never reported the poor performance of a nurse to an ANM. (Tr. 100–105, 124–125.) As noted above, on one occasion, Teo- pengco-Merritt took a tech who felt uncomfortable working on a particular procedure to talk to ANM Doughty about being replaced in that room. (Tr. 100–103, 287.) SLC Garcia has seen RNs and techs do things wrong and told them how to correct those errors in the future. (Tr. 154– 156.) Garcia testified that she generally notifies an ANM that she has done so. (Tr. 158.) Garcia further testified that SLCs are required to implement certain “monitoring tools.” These tools reflect procedures which Garcia reviews with operating room staff following a surgery to discuss whether their perfor- mance was consistent with the procedure. (Tr. 151–154.) Gar- cia also testified that ANMs have asked her about employees’ performance when they need to prepare the annual evaluation of those employees. (Tr. 158.) SLCs are generally responsible for ensuring that staff under- stand what surgical equipment is for, when it is to be used, and how to use it. Thus, if someone has difficulty with equipment during a surgery, the SLC might trouble shoot and show them how the equipment works. (Tr. 78–79, 106–107.) SLCs also arrange for vendors to conduct in-service staff training on equipment and participate in such training themselves. (Tr. 107–111, 115–116, 209–210.) Like other RNs, SLCs may work as preceptors to provide training, orientation, and assistance to new or less experienced staff. (Tr. 79-80, 183, 260–261.) SLC Participation in Hiring Interviews SLC Garcia testified that she participates in panel interviews of OR job applicants if she is available. The interviews are conducted by a panel which may include director Ng, assistant director Malone, ANMs, SLCs, and educators. Garcia testified that she and other members of the panel ask questions of the applicant during the interview. Once the interview is over, each panel member is asked whether they think the applicant should be hired and the applicant is likely to be hired if most panel members say they should be. Garcia testified that she has never made a hiring recommendation which was not ultimately implemented. (Tr. 156–158.) However, those hiring decisions are not made at the interview and Garcia has not been involved in hiring deliberations or determinations. (Tr. 181.) Garcia testified that she has participated in at least 10 interview panels. Garcia believes she has seen Teopengco-Merritt participate in interview panels, but was not entirely sure. (Tr. 168.) Union Organizing Campaign and Teopengco-Merritt’s Un- ion Activity From about October 2022 to January 2023, the Union en- gaged in a campaign to organize a bargaining unit of RNs em- ployed by the Respondent. (Tr. 8.) On November 11, 2022, the Union filed a petition to repre- sent an RN unit in case 29–RC–307688. (GC Exh. 1(h), 1(j)) In about November and December 2022, Teopengco-Merritt participated in the Union’s organizing campaign by such activi- ty as the distribution of Union literature in the lobby of the hospital. (Tr. 8, 28–29.) The Respondent was admittedly aware of Teopengco-Merritt’s union activity during the cam- paign. (Tr. 278–279) (Jt. Exh. 3). On December 19, 2022, the Regional Director of Region 29 approved a stipulated election agreement which provided for an election to be held on January 12 in a unit of RNs. The stipu- lated bargaining unit did not specifically reference SLCs as an included or excluded classification.7 (Jt. Exh. 1.) SLCs were 7 The parties stipulated to the following appropriate bargaining unit (Jt. Exh. 1): INCLUDED: All full-time, regular part-time, and per diem licensed registered nurses, including inpatient dialysis, resi- dents, fellows, and admitting nurses, and nurse practitioners. EXCLUDED: All other employees, including offsite outpa- tient nurses, quality coordinators, bed coordinators, intake co- ordinators, stroke coordinators, PI coordinators, care coordi- nators, bed coordinators, trauma PI coordinators, clinical co- ordinators, trauma injury prevention community outreach co- ordinators, inpatient bariatric coordinators, nurse educators (nurse educators, education specialists, professional develop- SOUTH NASSAU COMMUNITIES HOSPITAL 7 not included on the Respondent’s list of eligible voters. (Jt. Exh. 3 ¶ 5) (Tr. 47). On January 12, an election was held in which 370 unit em- ployees voted for and 290 voted against union representation with 12 nondeterminative challenged ballots. (GC Exh. 4.) Teopengco-Merritt’s vote was challenged because, as an SLC, her name was not included on the Respondent’s list of eligible voters. (Jt. Exh. 3 ¶ 5.) On January 20, the Respondent filed objections to the elec- tion based on the contention that Teopengco-Merritt was a su- pervisor who supported the Union and engaged in union activi- ty. More specifically, the Respondent objected to Teopengco- Merritt’s conduct to the extent she appeared in a picture in a Union flyer, distributed the flyer, encouraged employees to support the Union and speak with Union representatives, solic- ited signatures for Union authorization cards, “fiercely” spoke out in support of Union representation during a meeting of unit employees, voted in the election, and spent the day of the elec- tion with Union organizers “counting votes” and harassing unit employees to vote for the Union. (Jt. Exh. 3.) Teopengco-Merritt’s Application for a Per Diem RN Posi- tion In about December 2022, Teopengco-Merritt learned from the Union that the Respondent did not include SLCs on its list of eligible voters. Accordingly, Teopengco-Merritt decided to apply for a unit RN position. (Tr. 45–47.) On December 20, 2022, Teopengco-Merritt told director Ng she wanted to apply for a per diem RN job. Ng said she did not think this would be a problem and believed a per diem E-3 surgery assistant position was available. Ng said she needed to verify that the position was available and get back to Teo- pengco-Merritt. Ng also said Teopengco-Merritt should email her resignation of the SLC position and go through the inter- view/hiring process for the RN position. Teopengco-Merritt asked whether that process was necessary because she had been employed by the Respondent for 16 years. Ng said it was. (Tr. 23–25, 268–269.) Teopengco-Merritt and Ng exchanged the following emails after this meeting (GC Exh. 2 p. 3–4): Teopengco-Merritt—2:59 p.m. – Thank you for your time. As per our conversation today, I am tendering my resignation as a Service Line Coordinator effective January 17th 2023. Also thank you for accommodating me for a per diem posi- tion. I am looking forward for the confirmation of my new position. Please advise me of the next step that I have to do. Ng—3:03 p.m.—Was my pleasure meeting with you. We have PD RN req#53 open and posted for you to apply. Please let me know if you need any other information. We will take this letter as your letter of resignation from your position as Service Line Coordinator and we truly thank you for all of your work in the Neuro department! After this email exchange, Ng advised Teopengco-Merritt to speak with a recruiter regarding the job posting. (Tr. 25.) On December 23, 2022, Teopengco-Merritt called Assistant ment specialists, and professional development educators), care managers, case managers, outpatient infusion nurses, ra- diation oncology nurses (including gamma knife), home care nurses, managerial employees, confidential employees, guards, and supervisors as defined in the Act. Recruiter Rosland Fernandez. At first, Fernandez told Teo- pengco-Merritt the per diem RN job was available, but then said she could not find it. Fernandez told Teopengco-Merritt she would check the job posting and get back to her after the holidays. Teopengco-Merritt sent Fernandez an email confirm- ing this discussion. (GC Exh. 2 p. 3) (Tr. 25). On December 27, 2022, Fernandez emailed Teopengco- Merritt and stated “[t]he requisition is open and you should be able to submit your application internally now.” (GC Exh. 2 p. 1.) Teopengco-Merritt applied for the RN per diem position. (Tr. 26.) Neither Ng nor Fernandez testified in this case. Assistant Vice President of Human Resources Mary Golden testified that Ng told her she originally thought there was a per diem RN opening but there was not. According to Golden, requisition # 53 was extremely old and, when Fernandez consulted the HR business partner who was responsible for overseeing the peri- operative area, that business partner told Fernandez the requisi- tion would not be posted. Golden did not confirm these events with Fernandez or the HR business partner directly. Rather, Golden spoke only to Ng. (Tr. 268–270, 280–281.) On about January 3, Golden told Teopengco-Merritt requisi- tion # 53 was a mistake and posted in error. Golden said Teo- pengco-Merritt resigned her SLC position and showed Teo- pengco-Merrit Ng’s email accepting that resignation. Teo- pengco-Merritt said she was not resigning if the per diem RN position was not available. Teopengco-Merritt said she only resigned the SLC position because she was advised it was something she had to do before accepting the per diem job. (Tr. 26–27.) Golden testified that she told Teopengco-Merritt she had to decide whether she wanted to continue working as an SLC or go per diem to address certain family issues. (Tr. 270–271.) In the morning on January 5, Teopengco-Merritt met with Golden and Senior Human Resources Business Partner Jamie Glunan. Golden asked Teopengco-Merritt whether she was recording the meeting. Golden then asserted that, as an SLC, Teopengco-Merritt was a leader and supervisor who should be supporting the administration rather than the Union in the or- ganizing campaign. (Tr. 27–28, 272.) Teopengco-Merritt re- plied that she was not a supervisor. Teopengco-Merritt testified that Golden spent the remainder of this meeting asking ques- tions about her union activity. (Tr. 27–28.) According to Golden, Teopengco-Merritt agreed that she would not work for the Union in the organizing campaign. (Tr. 281–283.) Teo- pengco-Merritt was not told, until January 5, that she was a supervisor or manager. (Tr. 28.) In the afternoon on January 5, Teopengco-Merritt met with Golden and assistant director Malone. (Tr. 29–30.) Golden again told Teopengco-Merritt the Respondent was accepting her resignation. Teopengco-Merritt again replied that she was not resigning since she would not have resigned if the Re- spondent did not tell her a per diem RN position was available. Golden and Malone repeated that Teopengco-Merritt had al- ready resigned, but Teopengco-Merritt reiterated that she was not resigning and would remain in the position of SLC. Alter- natively, Teopengco-Merritt offered to accept an RN opening in a different department. Golden said there were no openings in other departments. (Tr. 29–30.) On January 8, Golden called Teopengco-Merritt and told her she did not have to come to work but would still be paid. Teo- pengco-Merritt asked that Golden explain the reason for this. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8 Golden said the reason was Teopengco-Merritt’s lack of under- standing of her role in the union debate. (Tr. 31.) Golden testified that she told Teopengco-Merritt the Respondent was accepting her resignation effective January 17 and would pay her until that date. (Tr. 273.) On January 27, Golden called Teopengco-Merritt in for an- other meeting. (Tr. 33–36.) Golden told Teopengco-Merritt she was a supervisor and should support management instead of campaigning for the Union. Golden then said she wanted to understand Teopengco-Merritt’s role in the union campaign and asked whether she handed out Union flyers and authorization cards, whether she contacted the Union or the Union contacted her, and whether she gave the names and numbers of employ- ees to Union organizers. (Tr. 34–35, 274–275.) On January 30, Golden again called Teopengco-Merritt in for a meeting. (Tr. 36–37.) Golden told Teopengco-Merritt that, as an SLC, she was a leader who had to support the hospi- tal rather than the union and there would be no problem if she did. Teopengco-Merritt said she thought Golden wanted to meet to discuss her job. Golden told Teopengco-Merritt the SLC position was her job. Golden reiterated that it was Teo- pengco-Merritt’s job to support the hospital and not the Union. Teopengco-Merritt replied that it was her job to work as an RN in the operating room and serve her patients and colleagues. Golden again said there would be no problem if Teopengco- Merritt cooperated but, if she did not, there would be more disciplinary action. Teopengco-Merritt asked what type of disciplinary action this would be. Golden said it could be sus- pension without pay or termination. Golden again asserted that Teopengco-Merritt was a supervisor, but Teopengco-Merritt responded, “okay, we’ll see if I’m a supervisor.” Golden then told Teopengco-Merritt the meeting was over since she would not support the hospital. (Tr. 36–37.) On January 31, Teopengco-Merritt sent Golden the follow- ing email, copying director Ng and assistant director Malone (GC Exh. 3): You have stated that my refusal to answer questions would be considered insubordination and would lead to my immediate suspension without pay. I have stated more than once that I would answer any questions if they were provided in writing. To date, that has not occurred but that has not removed the threat of suspension for insubordination. Therefore I submit this document in compliance with the request made that I an- swer questions pertaining to my union activity and assumed refusal to be compliant with managerial directions to coerce my colleagues to vote against the union. I would like to remind you that I am a 16-year RN who has never had a disciplinary infraction or negative review to date. It has been since this entire union business began that I have fallen in bad graces with managers. Since December, I have been harassed, interrogated, and intimidated. I have been talked town to and have had rumors spread to my coworkers about me. This has damaged not only my reputation but my mental health. I have been on paid leave for almost a month and there has been zero response to any of my inquiries. In- stead, I’ve only been interrogated and berated over matters that I consider personal and have nothing to do with my pro- fessional conduct as a Registered Nurse and as a Service Line Coordinator. In December 2022, I was informed that I was not included in the list of voters and could vote [by] challenge if I decided. I knew my personal view on this should not cloud my profes- sional work so I stopped talking to my colleagues about this matter and advised others to educate themselves. Ultimately this was a personal choice for my coworkers to make. On January 5, 2023, you called me into your office and you told me that if I don’t support the anti union campaign it would be going against the hospital’s policy. It was only then that I was told that I am a supervisor and that I had to publicly advocate against the union. At no time before was this brought to my attention. I stated my position that this was per- sonal and you put me on paid leave since January 8, 2023 with no answers or direction. I do not remember the names of the NYSN people I spoke with or which colleagues of mine asked questions. The stress of the interrogations and harassment I have received has made me block much of this experience as it has been traumatic to my mental health. I am neither an agent of the union or an agent of any anti-union campaign. I am an SLC who has done her job professionally for the past 16 years. It is my intention to return to work and continue to care for our patients. I would like to know when I can return to work. On February 6, Golden called Teopengco-Merritt in for a fi- nal meeting. (Tr. 37.) Golden handed Teopengco-Merritt a termination letter which stated as follows (Jt. Exh. 2): This will confirm our conversation today in which I informed you that your employment is terminated effective immediate- ly. As a supervisor, you were expected to represent manage- ment’s position concerning the question of representation of nurses by the New York State Nurses Association. Instead, you took a position adverse to the Hospital by campaigning and advocating on behalf of union representation and allow- ing your image to be used by the union in its appeal to em- ployees. In our recent conversation, you acknowledged that you fa- vored union representation and that you had advocated on NYSNA’s behalf. While the hospital respects the right of em- ployees to organize, we also have a right to expect supervisors to support management’s position and not to undermine that position. We believe your conduct not only violated your ob- ligations as a supervisor, it also served to restrain and coerce employees in their right to decide how to vote. Under the cir- cumstances, your continued employment with the hospital is untenable. Because of your actions, your employment is being terminat- ed effective immediately. You must return your hospital ID badge and any property belong to the hospital. You are not permitted on hospital property or its off-site facilities unless you are seeking medical attention or visiting a patient during regular visiting hours. Teopengco-Merritt told Golden she was not resigning and re- fused to sign the letter. Golden said she did not have to sign the letter. (Tr. 37.) CREDIBILITY DETERMINATIONS Here, I address certain factual disputes that turn on credibil- ity. There is a factual dispute as to what extent Teopengco- Merritt participated in the assignment of RNs and techs to neu- ro-spine operating rooms. On direct examination, ANM SOUTH NASSAU COMMUNITIES HOSPITAL 9 Doughty initially named various SLCs who came to the 9:30 a.m. huddle to write on the preliminary schedule the names of staff assigned to their respective service line operating rooms, but did not name Teopengco-Merrit among them. (Tr. 194, 200–201.) Doughty only testified at the end of direct examina- tion in response to a leading question by Respondent’s counsel that Teopengco-Merritt did so as well. (Tr. 210) Doughty admitted that Teopengco-Merritt was usually busy working on long complicated surgeries with Dr. Bolognese at the time of the 9:30 a.m. huddles. Further, Garcia admitted she never saw Teopengco-Merritt at the 9:30 a.m. huddle. And although Doughty indicated she could call SLCs who were not present at the huddle to obtain their operating room assignments, Doughty provided as an example the calls she made to plastics and vas- cular SLC Murray (not Teopengco-Merritt). It is not clear whether Teopengco-Merritt was in the same position to take such calls while in the middle of complicated surgical proce- dures and Doughty did not explain how that would work. Meanwhile, Teopengco-Merritt credibly testified that she did not attend the 9:30 a.m. huddles and was not primarily respon- sible for assigning staff to operating rooms. Rather, Teo- pengco-Merritt testified that ANMs made the assignments and only consulted her in the event of an absence, conflict, or ques- tion regarding the ability of a tech (not RNs) to work on a par- ticular surgery. I credit Teopengco-Merritt in this regard. There is also a factual dispute as to whether Teopengco- Merritt’s recommendations regarding operating room assign- ments were routinely followed. Teopengco-Merritt testified that they were not, and again I credit her. Doughty testified that Teopengco-Merritt “would tell me who she wanted in the room . . . and I would say okay.” (Tr. 210.) Doughty testified that she did not recall denying a request by Teopengco-Merritt that a particular person be in an operating room. (Tr. 210.) Although Doughty did not “recall saying no,” she is responsible for all the SLCs and her recollection regarding the assignments by any one SLC is likely to be less accurate than the recollec- tion of SLCs regarding their own assignments. Doughty also admitted that, “if I have a conflict with somebody, I just say, Kathy [Malone], she wants him in the room and I can’t put him in the room, what do you want to do. I always bang it upstairs to Kathy.”8 (Tr. 210.) This suggests that the Respondent did not simply leave assignment decisions entirely up to the SLCs or accept every assignment SLCs recommended. The Re- spondent did not attempt to produce a sampling of scheduled neuro-spine surgeries and discuss who made those decisions or why. (Tr. 210.) On at least one occasion, Teopengco-Merritt brought a tech who felt uncomfortable working on a certain surgery to speak with Doughty about moving the tech to a dif- ferent room, but Doughty denied the request. (Tr. 287) I be- lieve it is more likely than not that Teopengco-Merritt’s as- 8 I credit Doughty to the extent this was denied by Malone. Malone admitted she has changed assignments based on feedback she previous- ly received from a surgeon about an RN/tech or if an accommodation was requested by an RN/tech. Malone also admitted she has questioned SLCs and ANMs about assignments if she was not sure whether a certain RN or tech was the proper person to work on a surgery. (Tr. 255-256) Doughty, as a manager called by the Respondent to testify, is particularly credible to the extent she testified contrary to the Respond- ent’s interest. Doughty also works exclusively in the OR and her recol- lection of the functioning of assignments in that unit is more likely to be accurate than the recollection of Malone. signment recommendations were not routinely followed.9 ANALYSIS Supervisory Status of Charging Party MaryLene Teopengco-Merritt The Respondent contends that Teopengco-Merritt is a super- visor within the meaning of Section 2(11) of the Act. Section 2(11) of the Act defines a supervisor as: [A]ny individual having authority, in the interest of the em- ployer, to hire, transfer, suspend, lay off, recall, promote, dis- charge, assign, reward, or discipline other employees, or re- sponsibly to direct them, or to adjust their grievances, or ef- fectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. Pursuant to this definition, the Board has noted that the fol- lowing elements must be demonstrated to establish an individu- al’s supervisory status: (1) they hold the authority to engage in any 1 of the 12 super- visory functions (e.g., “assign” and “responsibly to direct”) listed in Section 2(11); (2) their “exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment;” and (3) their authority is held “in the interest of the employer.” Supervisory status may be shown if the putative supervisor has the authority either to perform a supervisory function or to effectively recommend the same. Oakwood Healthcare, Inc., 348 NLRB 686, 687 (2006) (“Oakwood Healthcare”). The burden of proving supervisory status is on the party al- leging such status. See Oakwood Healthcare, 348 NLRB at 687. Accordingly, “[t]he Board construes a lack of evidence on any of the elements necessary to establish supervisory status against the party asserting that status.” Busco Tug and Barge, Inc., 359 NLRB 486, 490 (2012). A party seeking to prove that an individual is a supervisor must do so by the presentation of “detailed, specific evidence” that is not “in conflict or other- wise inconclusive.” Id. See also Dean & Deluca New York, Inc., 338 NLRB 1046, 1048 (2003) (any lack of specific evi- dence which would support a finding of supervisory status must be construed against the party asserting supervisory status). The “Board exercises caution ‘not to construe supervisory status too broadly because the employee who is deemed a su- pervisor is denied rights which the Act is intended to protect.’” Oakwood Healthcare, 348 NLRB at 688 quoting Chevron Shipping Co., 317 NLRB 379, 381 (1995). Thus, the Act pro- tects “straw bosses, lead men, and set up men” even though they perform “minor supervisory duties.” Id. quoting NLRB v. Bell Aerospace Co., 416 U.S. 267, 280–281(1974). To be a supervisor, an individual must use independent judgement in such a way as to affect employees’ terms and conditions of employment. Oakwood Healthcare, 348 NLRB at 688; Chil- 9 I note that the burden to prove supervisory status is on the party at- tempting to establish the same and evidentiary ambiguities are resolved against that party. Oakwood Healthcare, Inc., 348 NLRB 686, 687 (2006). I credit Teopengco-Merritt. However, even if I were unable to discern who to credit regarding the effectiveness of Teopengco- Merritt’s assignment recommendations, the ambiguity would be re- solved in favor of the General Counsel and against the Respondent. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10 dren’s Farm Home, 324 NLRB 61 (1997). “Independent judgement” will not be found where it “is dictated or controlled by detailed instructions, whether set forth in company policies or rules, the verbal instructions of a higher authority, or in the provisions of a collective bargaining agreement.” Oakwood Healthcare, 348 NLRB at 693. See also Busco Tug & Barge, Inc., 359 NLRB 486, 491 (2012). Accordingly, for a recom- mendation to be “effective” and involve “independent judge- ment,” the recommendation must be independent of an investi- gation or other action of the purported supervisor’s superiors and be based on an “opinion or evaluation by discerning and comparing data.” Id. at 692-693. See also Alstyle Apparel, 351 NLRB 1287, 1297–1298 (2007); Children’s Farm Home, 324 NLRB 61, 61 (1997). The Board has also long held that the ad hoc, isolated, and irregular exercise of 2(11) decisions will be insufficient to establish supervisory status. See Brusco Tug & Barge, Inc., 359 NLRB 486, 492 (2012); Greenspan, D.D.S., P.C., 318 NLRB 70 (1995), enfd. Mem. 101 F.3d 107 (2d Cir. 1996), cert. denied 519 U.S. 817 (1996); Highland Telephone Cooperative, Inc., 192 NLRB 1057, 1058 (1971). In borderline cases, the Board may look at “secondary indi- cia” such as the individual’s title, the perception of the purport- ed supervisor and employees of supervisory status, attendance at supervisory or managerial meetings, pay differentials, differ- ent uniforms or clothing worn by the purported supervisor, the work location of the purported supervisor, the ratio of supervi- sors to employees, and other factors suggesting whether the alleged supervisor possesses a status separate and apart from rank-and-file employees. See Avante at Wilson, Inc., 348 NLRB 1056, 1058, fn. 4 (2006); Pratt Towers, Inc., 338 NLRB 61, 71 (2002); Webco Industries, 334 NLRB 608, 609 (2001); Bozeman Deaconess Foundation, 322 NLRB 1107, 1117, fn. 10 (1997); Zack Co., 278 NLRB 958, 964 fn. 12 (1986). How- ever, secondary indicia will not establish supervisory status absent a showing of at least one supervisory authority among those expressly listed in Section 2(11) of the Act. Dean & Deluca New York, Inc., 338 NLRB 1046, 1047 (2003). The Respondent contends that Teopengco-Merritt was a Sec- tion 2(11) supervisor because she assigned and responsibly directed nurses and techs.10 As discussed below, I find that the Respondent has not satisfied its burden to prove the same. Accordingly, I find that Teopengco-Merritt was at all times a Section 2(3) employee protected by the Act. Assignment All the parties rely heavily on Oakwood Healthcare, 348 NLRB 686 (2006), a case involving the supervisory status of charge nurses. In Oakwood Healthcare, the Board construed “the term ‘assign’ to refer to the act of designating an employee to a place (such as a location, department, or wing), appointing an employee to a time (such as a shift or overtime period), or giving significant overall duties, i.e., tasks, to an employee.” Id. at 689. Accordingly, the Board held that the term ‘assign’ encompasses the responsibility of certain charge nurses to as- sign nurses and aides to particular patients. Id at 688, 695. Here, the authority to “assign” includes the assignment of RNs 10 In its brief, the Respondent noted that SLC Garcia participated in interview panels prior to the hiring of staff in the OR. However, the Respondent did not assert in the Argument section of its brief that Teopengco-Merritt had the authority to hire or recommend employees for hire with the meaning of Sec. 2(11) of the Act. Accordingly, I do not address such authority herein. and techs to operating rooms for the purpose of circulating or scrubbing on surgeries. However, the question remains wheth- er Teopengco-Merritt’s participation in such assignments in- volved sufficient “independent judgement” and was exercised with sufficient regularity to establish that she is a supervisor unprotected by the Act. As noted above, the exercise of independent judgement must involve decisions “free of the control of others . . ..” Oakwood Healthcare, 348 NLRB at 692–-693. Here, the operating room assignments are significantly controlled by surgeons. SLC Garcia testified that she has never denied a surgeon’s request for a particular RN or tech. ANM Doughty testified that the very reason staff are rarely assigned to an operating room over an SLC’s objection is because the SLCs know who the sur- geons want to work with and if “the surgeon in that room doesn’t want that person in, we’ve got to take them out.” (Tr. 203) Thus, any SLC authority to assign staff or recommend the assignment of staff to operating rooms is not “independent” of control by the surgeons working in those rooms. Although the term “independent judgement” is ambiguous, we do know from the language of the Act that “independent judgement” must involve the exercise of discretion and not be “of a merely routine or clerical nature.” In Oakwood Healthcare, the Board observed that a nurse exercises inde- pendent judgement by weighing “the individualized condition and needs of a patient against the skills or training of available nursing personnel[.]” 348 NLRB at 693. However, “[a]ssigning employees according to their known skills is not evidence of independent judgement.” Shaw, Inc., 350 NLRB 354, 356, fn. 9 (2007). See also The Arc of South Norfolk, 368 NLRB No 32, slip op. 3 (2019); S.D.I. Operating Partners, L.P., 321 NLRB 111 (1996). Here, the evidence established that RNs and techs are repeatedly assigned to rooms within a certain service line based on their well-known specialties. Gar- cia noted that informal surgical teams develop and, for exam- ple, an RN might simply be assigned every day to a GYN oper- ating room. Such assignments based on known skills are rou- tine in nature and do not involve the type of independent judgement required to establish supervisory authority.11 Shaw, Inc., 350 NLRB 354 fn. 9 (2007). It is instructive to contrast the evidentiary details of this case with those in Oakwood Healthcare. In Oakwood Healthcare, the Board determined that charged nurses would “choose per- sonnel for assignments based on judgements as to the particular condition and medical needs of a given patient and the skill sets or specialized training of the available staff.” 348 NLRB at 696. The record in that case contained specific credited testi- mony that a charge nurse would, for example, select a nurse particularly good at peritoneal dialysis or vasoactive drug monitoring to care for patients who required such treatment. Id. Here, by contrast, the record contains little more than vague and conclusionary testimony that SLCs match skills with spe- cific needs of the patient, and such evidence is insufficient to establish supervisory status.12 See Flow Service Partners Op- 11 The significance of operating room assignments are also some- what diminished here because RNs and techs are all capable of working on any surgical procedure. In an emergency, the ANM simply assigns whoever is available to that procedure. 12 The best way for the Respondent to prove that SLCs exercise in- dependent judgment in the assignment of work would probably have been to produce an actual sample of daily schedules and explain how those assignments were made. See Brusco Tug & Barge, Inc., 359 SOUTH NASSAU COMMUNITIES HOSPITAL 11 Co, LLC d/b/a Perfection Heating, Air Conditioning, and Re- frigeration, LLC, 373 NLRB No. 4 (2023) (vague and general testimony that project manager matched work to be done with the skill set of available employees insufficient to establish supervisory authority, particularly where decisions appear to be based on known skills).13 The Respondent also failed to prove that Teopengco-Merritt, in particular among the SLCs, regularly assigned or recom- mended operating room assignments. After becoming an SLC, Teopengco-Merritt was still assigned to specific operating rooms 80–90 percent of the time and she did not, like SLC Garcia, write assignments on the preliminary schedule at the 9:30 a.m. huddle.14 Rather, as noted in the credibility section above, ANMs were primarily responsible for assigning staff to neuro-spine operating rooms and only consulted Teopengco- Merritt on an ad hoc basis as needed. Teopengco-Merritt’s ad hoc and irregular participation in the assignment of staff to operating rooms defeats any assertion that she was a supervisor on that basis. See Brusco Tug & Barge, Inc., 359 NLRB 486, 492 (2012); Greenspan, D.D.S., P.C., 318 NLRB 70 (1995); Highland Telephone Cooperative, Inc., 192 NLRB 1057, 1058 (1971). As also discussed in the credibility section above, the Re- spondent did not establish that Teopengco-Merritt “effectively” recommended assignments using “independent judgement” because her recommendations were not always followed. See Oakwood Healthcare, 348 NLRB 686, 688 (2006); Busco Tug and Barge, Inc., 359 NLRB 486, 490 (2012). For example, Teopengco-Merritt asked Doughty to replace a tech on a sur- gery the tech did not feel comfortable assisting with, but Doughty denied the request. Finally, the secondary indicia favor a finding that Teo- pengco-Merritt was not a supervisor. The Respondent’s per- sonnel requisition for “Operating Room Svc Line Coordinator (RN)” identifies SLCs as an “RN,” “coordinator,” and “leader,” rather than a “supervisor,” “manager,” or “director.” (R. Exh. 7) The Respondent did not otherwise inform Teopengco- Merritt she was a supervisor until January 5, when the Re- spondent sought to compel her to stop engaging in union activi- ty.15 As an SLC, Teopengco-Merritt was not assigned to an NLRB 486, 591 (2012) (hypothetical situations where mate might select one deckhand over another based on their relative strengths in- sufficient to establish supervisory assignment). 13 The Respondent’s reliance on language in its SLC job description, which Teopengco-Merritt incorporated into her resume, is also insuffi- cient to establish supervisory status, as “job descriptions, job titles, and similar ‘paper authority,’ without more, do not demonstrate supervisory authority.” G4S Regulated Security Solutions, 362 NLRB 1072, 1073 (2015), citing Lucky Cab Co., 360 NLRB 271, 272 (2014), and Golden Crest Health Center, 348 NLRB 727, 731 (2006). 14 This is not a situation where certain SLCs aggressively exercised supervisory authority and Teopengco-Merritt simply chose not to do so. As an SLC, Teopengco-Merritt was routinely required to work on the all-day surgeries performed by Dr. Bolognese. When, in early 2022, Teopengco-Merritt and other SLCs complained that they were spending too much time assigned to specific operating rooms and were not al- lowed to assign other staff to those rooms, the complaint was ignored. Conveniently, the Respondent only began urging Teopengco-Merritt to make such assignments after the organizing campaign began and the Respondent took the position that SLCs are statutory supervisors. (Tr. 64–69, 97.) 15 It is noteworthy that the Respondent was aware that Teopengco- Merritt was supporting the union and did not immediately tell her to stop doing so on the grounds that she was a supervisor. This would office or desk. Rather, she continued to be assigned to circulate or scrub in operating rooms 80–90 percent of the time. Even when she was not assigned to a single specific room, Teo- pengco-Merritt largely worked in neuro-spine operating rooms. Teopengco-Merritt wore no distinctive uniform which distin- guished her from other RNs. The Respondent pays SLCs on an hourly rather than salary basis and does not consider the classi- fication exempt from wage and hour laws. Teopengco-Merritt did not attend the 9:30 a.m. huddle with other members of OR leadership. These secondary indicia indicate that Teopengco- Merritt was not a supervisor. See Avante at Wilson, Inc., 348 NLRB 1056, 1058 fn. 4 (2006); Pratt Towers, Inc., 338 NLRB 61, 71 (2002); Webco Industries, 334 NLRB 608, 609 (2001); Bozeman Deaconess Foundation, 322 NLRB 1117, 1107 fn. 10 (1997); Zack Co., 278 NLRB 958, 964, fn. 12 (1986). The secondary indicia referenced above outweigh indicia re- lied upon by the Respondent. Teopengco-Merritt received a raise of about $10 per hour when she was promoted to SLC and the SLC wage range is higher than that of RNs. While signifi- cant, a 17 percent increase does not necessarily reflect supervi- sory or managerial pay where the record contains no evidence of what other supervisors and managers earn. SLCs’ instruc- tion of OR staff on the use surgical equipment, including the arrangement for or provision of in-service training, reflects SLCs expertise as RNs within their respective service lines, but does not necessarily reflect a hierarchal personnel status above RN. Although the Respondent contends that a ratio of 1-3 ANMs to about 40 OR day shift employees “makes no sense if SLCs were excluded from those considered supervisory” (R. Brf. p. 25), the Respondent functioned with such a ratio before the SLC position was created in 2017.16 And although Teo- pengco-Merritt did not deny sitting on interview hiring panels, the totality of the secondary indicia indicates that Teopengco- Merritt did not possess a supervisory status separate and apart from other OR employees. Based upon the foregoing, I find that the Respondent has not proved that Teopengco-Merritt was a 2(11) supervisor who regularly assigned work or effectively recommended the as- signment of work using independent judgement. Responsible Direction The Board deems “accountability” to be critical in determin- ing whether direction is “responsible” within the meaning of Section 2(11). See Oakwood Healthcare, 348 NLRB at 691- 692. That is, “the person directing and performing the over- sight of the employee must be accountable for the performance of the task by the other, such that adverse consequence may befall the one providing the oversight if the tasks performed by the employee are not performed properly.” Id at. 692. Here, the record contains no evidence that the Respondent has held SLCs accountable for the poor work performance of RNs or techs. See Buchanan Marine, L.P., 363 NLRB 523 (2015). impliedly indicate that Teopengco-Merritt was an employee free to unionize. 16 The ratio is also somewhat deceptive because SLCs other than Te- opengco-Merritt (such as Garcia) were in a better position to assist the ANMs. Teopengco-Merritt was involuntarily required to spend most of her time working in a specific operating room. ANM Doughty testified that Teopengco-Merritt could not normally attend the 9:30 a.m. huddle because Dr. Bolognese usually “needed her” in his operating room on “very long, complicated cases.” (Tr. 222.) However, ANMs were not entirely without help from other SLCs. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 12 Accordingly, SLCs such as Teopengco-Merritt do not responsi- bly direct employees and are not Section 2(11) supervisors on that basis. Substantive Allegations Having found that the Respondent did not prove the 2(11) supervisory status of Teopengco-Merritt, I turn to an analysis of the substantive unfair labor practice allegations. The Respond- ent relied exclusively as a defense to these allegations on Teo- pengco-Merritt’s purported supervisory status. Nevertheless, I provide below the applicable legal standards for each allegation and an analysis pursuant thereto. 8(a)(1) The General Counsel contends that the Respondent, by assis- tant VP of HR Golden, violated Section 8(a)(1) of the Act by interrogating Teopengco-Merritt on January 27 and threatening Teopengco-Merritt on January 30.17 The Board has long held that the basic test to determine if a statement violates Section 8(a)(1) is whether, under the totality of the circumstances, the statement has a reasonable tendency to coerce employees in the exercise of their Section 7 rights. See KSM Industries, Inc., 336 NLRB 133, 133 (2001). January 27, 2023 Interrogation In Rossmore House, 269 NLRB 1176, 1178 fn. 20 (1984), the Board identified certain nonexclusive factors which may be considered in analyzing an alleged unlawful interrogation as (1) the background, (2) the nature of the information sought, (3) the identity of the questioner; and (4) the place and method of interrogation. Here, those factors and the totality of the cir- cumstances indicate that, on January 27, Golden unlawfully interrogated Teopengco-Merritt regarding her union activities. The background leading to Golden’s January 27 questioning of Teopengco-Merritt rendered the interrogation more coercive. The questioning occurred not long after the Union pursued a successful organizing campaign the Respondent opposed. Ear- lier in the month, the Respondent denied Teopengco-Merritt a per diem RN position and simultaneously objected to Teo- pengco-Merritt’s involvement in the campaign on behalf of the Union. Teopengco-Merritt could, therefore, reasonably per- ceive a connection between the denied position and her union activity. The Respondent also attempted to railroad Teo- pengco-Merritt into confirming a resignation from the SLC position despite knowing that, as Teopengco-Merritt repeatedly said, she only resigned the SLC position for the purpose of accepting a per diem RN position.18 And failing to obtain Teo- pengco-Merritt’s voluntary resignation, the Respondent sus- pended Teopengco-Merritt with pay. This strained and adver- sarial background of Golden’s questioning of Teopengco- Merritt tends to support a finding that the subsequent interroga- tion was unlawful. The scope of the questioning also favors the finding of a vio- lation. Golden asked Teopengco-Merritt whether she handed out Union flyers and authorization cards, contacted the Union, and gave the names and numbers of employees to Union organ- 17 The General Counsel does not contend that the Respondent unlaw- fully interrogated Teopengco-Merritt on January 5. Accordingly, I do not address such an allegation. 18 In an email to Ng on December 20, 2022, Teopengco-Merritt ten- dered her resignation while simultaneously thanking Ng for the per diem position. (GC Exh. 2 p. ) izers. Although the Respondent may have wanted an assurance that, as a purported supervisor, Teopengco-Merritt would op- pose union organizing in the future, it is unclear why the Re- spondent needed details of Teopengco-Merritt’s past union activity. The overly broad and intrusive interrogation into the details of Teopengco-Merritt’s union activity would tend to be intimidating and coercive. Indeed, Teopengco-Merritt claimed she did not remember the names of union representatives or employees she spoke with. Teopengco-Merritt also reasonably claimed in a January 31 email to Golden that the “stress of the interrogations and harassment I have received has made me block much of the experience as it has been traumatic to my mental health.” (GC Exh. 3.) The identity of the questioner, location of the conversation, and method of interrogation also favor the finding of a viola- tion. Golden was a high-ranking assistant HR VP who called Teopengco-Merritt into the meeting. This was not a casual and consensual conversation between a low-level supervisor and employee on good terms with each other in the normal course of their regular communications. As noted above, on January 31, Teopengco-Merritt sent managers a lengthy email objecting to being questioned and threatened. (GC Exh. 3.) These facts indicate that Golden’s questioning of Teopengco-Merritt was unlawfully coercive. Accordingly, I find that the Respondent, on January 27, by Golden, violated Section 8(a)(1) of the Act by interrogating Teopengco-Merritt regarding her union activities. January 30, 2023 Threat The totality of the circumstances establish that Golden un- lawfully threatened Teopengco-Merritt with discipline because of her union support and activities. Golden admittedly insisted that Teopengco-Merritt cooperate with and support the hospital rather than the union. Golden clearly threatened Teopengco- Merritt with additional discipline, up to and including termina- tion, if Teopengco-Merritt refused to do so. This occurred just a few days after Golden interrogated Teopengco-Merritt regard- ing her union activity in the coercive manner discussed above. And as noted above, the next day, Teopengco-Merritt sent managers a lengthy email objecting to the questioning and threats. Under these circumstances, I find that the Respondent, on January 30, by Golden, violated Section 8(a)(1) of the Act by threatening Teopengco-Merritt with additional discipline if she continued to support the Union and engage in union activi- ties. 8(a)(3) Suspension and Discharge The General Counsel contends that the Respondent violated Section 8(a)(3) and (1) of the Act by suspending Teopengco- Merritt with pay on January 8 and discharging Teopengco- Merritt on February 6 because of her union support and activi- ties. As noted above, the Respondent does not deny suspending and discharging Teopengco-Merritt for that reason. The Re- spondent defends against these allegations solely upon the as- sertion that Teopengco-Merritt was a 2(11) supervisor unpro- tected by the Act. I have rejected this contention. I need not perform a Wright Line, 251 NLRB 1083 (1980) analysis be- cause the Respondent’s antiunion motive is not in dispute. See Cascade Containerboard Packaging-Niagara, 370 NLRB No. 76, slip op. 1 fn. 1 (2021). Moreover, there is no contention here that Teopengco-Merritt lost the Act’s protection. See SOUTH NASSAU COMMUNITIES HOSPITAL 13 CGLM, Inc., 350 NLRB 974, 974 fn. 2 (2007) citing Phoenix Transit System, 337 NLRB 510, 510 (2002) and Mast Advertis- ing & Publishing, 304 NLRB 819 (1991). Accordingly, I find that the Respondent violated Section 8(a)(3) and (1) of the Act by suspending and discharging Teopengco-Merritt because of her union support and activities. Denial of Per Diem RN Position The General Counsel contends that the Respondent violated Section 8(a)(3) and (1) of the Act by denying Teopengco- Merritt a per diem RN position. The General Counsel analyzed this allegation under the FES, 331 NLRB 9 (2000) refusal-to- hire standard. In FES, the Board determined that, to establish a discriminatory refusal to hire, the General counsel must, under the Wright Line, 251 NLRB 1083 (1980) allocation of burdens, show the following: (1) that the respondent was hiring, or had concrete plans to hire, at the time of the alleged unlawful conduct; (2) that the applicants had experience or training relevant to the an- nounced or generally known requirements of the position for hire, or in the alternative, that the employer has not adhered uniformly to such requirements, or that the requirements were themselves pretextual or were applied as a pretext for discrim- ination, and (3) that antiunion animus contributed to the deci- sion not to hire the applicants. 331 NLRB at 12. Thus, FES clarified that, in the refusal-to-hire context, an applicant’s ability to perform an available position is part of the Wright Line prima facie showing that the employer was aware of an employee’s union activity and discriminated against the employee on that basis. Once this is established, as in Wright Line, the burden shifts to the respondent to show it would not have hired the applicant even in the absence of union activity or affiliation. Id. Here, the evidence demonstrates that the Respondent was, in December 2022 and January, hiring a per diem RN position. On December 20, 2022, director Ng told Teopengco-Merritt it should not be a problem for her to move from SLC to an avail- able per diem RN position. Ng subsequently confirmed by email to Teopengco-Merritt that “[w]e have PD RN req#53 open and posted for you to apply.” (GC Exh. 2 p. 3) At Ng’s direction, Teopengco-Merritt consulted Assistant Recruiter Fernandez, who also confirmed by email to Teopengco-Merritt that “the requisition is open and you should be able to submit your application internally now.” (GC Exh. 2. p. 1) The Re- spondent did not call Ng or Fernandez to testify. Rather, the Respondent only called assistant HR VP Golden who provided convenient, vague, conclusory, and unreliable hearsay that Ng told her requisition # 53 was posted in error. Accordingly, the Respondent produced no admissible and reliable evidence to contradict the clear statements by Ng and Ferandez that the per diem RN position posted as requisition # 53 was available. The Respondent does not contend that Teopengco-Merritt was unqualified for the open per diem RN position and it is clear that she was qualified. Teopengco-Merritt worked for the Respondent as RN for 11 years and was paid as an RN with 25 years of experience. In 2017, Teopengco-Merritt was promoted to SLC because of her experience and expertise as an RN. And as an SLC, Teopengco-Merritt spent 80 to 90 percent of her time performing the RN duties of circulating and scrubbing in operating rooms. When Teopengco-Merritt requested the trans- fer from SLC to per diem RN, Ng told her she did not believe it would be a problem. Finally, antiunion animus contributed to the Respondent’s decision to deny Teopengco-Merritt the per diem RN position. On January 3 and 5, despite Teopengco-Merritt’s repeated statements that she did not intend to resign her SLC position or otherwise end her employment with the hospital if the per diem RN position was unavailable, Golden attempted to disingenu- ously “accept” Teopengco-Merritt’s resignation. This suggests the Respondent was not simply satisfied with Teopengco- Merritt ceasing her union activity as a purported supervisory SLC, but was intent on removing Teopengco-Merritt, a known union supporter, from the workforce altogether in advance of the election. Indeed, after failing to “confirm” Teopengco- Merritt’s resignation, rather than have her present at the hospi- tal during the week prior to the election on January 12, the Re- spondent opted to suspend her with pay on January 8. That the per diem RN requisition inexplicably vanished de- spite two written reassurances that it was available is also, it- self, a strong reason to believe the Respondent was pretextually attempting to orchestrate the removal of Teopengco-Merritt because of her union activities. In addition, the 8(a)(1) violations reflect the Respondent’s antiunion animus. Particularly, it is telling of the Respondent’s antiunion motivation that, on January 27, Golden interrogated Teopengco-Merritt about her prior union activity in a manner unrelated to whether Teopengco-Merritt would continue to engage in such activity as a purported supervisory SLC in the future. The interrogation suggests the Respondent wanted to know the extent of Teopengco-Merritt union activism as a pre- cursor to the decision on February 6 to discharge her. This, in turn, suggests the Respondent was inclined to discriminate against Teopengco-Merritt because of her union activity (be it by discharging her or by denying her a per diem RN position). Having found that the General Counsel established a prima facie case, I turn to whether the Respondent has shown it would have denied Teopengco-Merritt the per diem RN position ab- sent her union support and activities. The Respondent has not made such a showing. Although the Respondent did not fill the per diem RN position, the record contains no admissible evi- dence as to why. We are left to conclude that the Respondent refused to fill the per diem RN position to deny the position to Teopengco-Merritt because she was a Union supporter. See GTE Lenkurt, Inc., 204 NLRB 921, 1005–1006 (1973) (revoca- tion of promotion unlawful even though the position was not subsequently filled where employer provided no admissible evidence explaining its conduct) overruled on other grounds by Resistance Technology, Inc., 280 NLRB 1004, 1007 fn. 7 (1986), enfd. 830 F.2d 1188 (D..C. Cir. 1987). Based on the foregoing, I find that the Respondent, on Janu- ary 3, violated Section 8(a)(3) and (1) of the Act by denying Teopengco-Merritt a per diem RN position. CONCLUSIONS OF LAW 1. The Respondent, South Nassau Communities Hospital, d/b/a Mount Sinai South Nassau, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Charging Party Marylene Teopengco-Merritt was an em- ployee of the Respondent within the meaning of Section 2(3) of the Act. The Respondent failed to prove that Teopengco- Merritt was a supervisor within the meaning of Section 2(11) of DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 14 the Act. 3. The Respondent, on January 27, violated Section 8(a)(1) of the Act by interrogating Teopengco-Merritt regarding her union activities. 4. The Respondent, on January 30, violated Section 8(a)(1) of the Act by threatening Teopengco-Merritt with discipline, up to and including termination, if she continued to support the Union, New York State Nurses Association, or engage in union activities. 5. The Respondent, on January 3, violated Section 8(a)(3) and (1) of the Act by denying Teopengco-Merritt a per diem RN position because of her union support and activities. 6. The Respondent, on January 8, violated Section 8(a)(3) and (1) of the Act by suspending Teopengco-Merritt with pay because of her union support and activities. 7. The Respondent, on February 6, violated Section 8(a)(3) and (1) of the Act by discharging Teopengco-Merritt because of her union support and activities. 8. The unfair labor practices committed by the Respondent affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent engaged in unfair labor practices, I shall order the Respondent to cease and desist there- from and to take certain affirmative action designed to effectu- ate the policies of the Act. The reinstatement order is somewhat complicated by the Re- spondent’s failure to offer Marylene Teopengco-Merritt an open per diem RN position and subsequent discharge of Teo- pengco-Merritt from her SLC position. I will order the Re- spondent to offer Teopengco-Merritt reinstatement to her choice of the SLC position or the per diem RN position in req- uisition # 53. Further, among those two positions, if her pre- ferred position no longer exists, the Respondent will offer Teo- pengco-Merritt reinstatement to a substantially equivalent posi- tion, without prejudice to her seniority or any other rights or privileges she previously enjoyed. The Respondent shall make Teopengco-Merritt whole for any loss of earnings and other benefits resulting from her dis- criminatory discharge.19 Thus, in accordance with the Board’s decision in Thryv, Inc., 372 NLRB No. 22 (2022), the Re- spondent will compensate Teopengco-Merritt for any direct or foreseeable pecuniary harms incurred as a result of her unlaw- ful discharge, including reasonable search-for-work and interim employment expenses, if any, regardless of whether these ex- penses exceed interim earnings. Compensation for these harms shall be calculated separately from taxable net backpay, with interest at the rate prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky Riv- er Medical Center, 356 NLRB 6 (2010). In accordance with Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB 101 (2014), the Respondent shall compensate Teopengco-Merritt for the adverse tax consequences, if any, of receiving a lump sum backpay award, and, in accordance with AdvoServ of New Jersey, Inc., 363 NLRB 1324 (2016), the Respondent shall, within 21 days of the date the amount of backpay is fixed either by agreement or Board order, file with the Regional Director 19 It does not appear that Teopengco-Merritt suffered any monetary loss as a result of the denial of the per diem RN position or her suspen- sion since the RN position paid less than the SLC position and she was suspended with pay. for Region 29 a report allocating backpay to the appropriate calendar year(s). The Regional Director will then assume re- sponsibility for transmission of the report to the Social Security Administration at the appropriate time and in the appropriate manner. In addition, pursuant to Cascades Containerboard Packaging, 370 NLRB No. 76 (2021), the Respondent will file with the Regional Director a copy of Teopengco-Merritt’s W-2 form reflecting the backpay award. The Respondent will be required to remove from its files any reference to the unlawful suspension and discharge of Teo- pengco-Merritt. The Respondent shall then notify Teopengco- Merritt in writing that her unlawful suspension and discharge will not be used against her in any way. The Respondent will be ordered to post the notice attached hereto as “Appendix.” Copies of the notice, on forms provided by the Regional Director for Region 29, after being signed by the Respondent's authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in con- spicuous places, including all places where notices to employ- ees are customarily 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 customarily communicates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not al- tered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, copies of the notice to all current employees and former employees employed by the Respondent at any time since January 3, 2023. The General Counsel’s request that the Respondent be re- quired to provide Teopengco-Merritt with a written letter of apology is denied. On these findings of fact and conclusions of law, and on the entire record, I issue the following recommended order20 ORDER The Respondent, South Nassau Communities Hospital d/b/a Mount Sinai South Nassau, its officers, agents, representatives successors, and assigns, shall 1. Cease and desist from (a) Discharging, suspending, refusing to offer an available position, or otherwise discriminating against employees for their union support and activities. (b) Threatening employees with discipline, up to and includ- ing discharge, because of their union support and activities. (c) Interrogating employees regarding their union activities. (d) In any like or related manner interfering, restraining, 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 effec- tuate the policies of the Act. (a) Within 14 days from the date of this Order, offer Marylene Teopengco-Merritt reinstatement to her choice of her former service line coordinator position or the per diem regis- 20 If no exceptions are filed as provided by Section 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recom- mended Order shall, as provided in Section 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. SOUTH NASSAU COMMUNITIES HOSPITAL 15 tered nurse position in requisition # 53, or, if the position she has selected no longer exists, to a substantially equivalent posi- tion, without prejudice to her seniority or any other rights or privileges previously enjoyed. (b) Make Teopengco-Merritt whole for any loss of earnings and other benefits, and for any other direct or foreseeable pecu- niary harms suffered as a result of her unlawful discharge, in the manner set forth in the remedy section of this decision. (c) Compensate Teopengco-Merritt for the adverse tax con- sequences, if any, of receiving a lump-sum backpay award, and file with the Regional Director for Region 29, 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 year. (d) Within 14 days from the date of this order, remove from its files any reference to the unlawful suspension and discharge of Teopengco-Merritt, and within 3 days thereafter, notify Teo- pengco-Merritt in writing that this has been done and that the discriminatory suspension and discharge will not be used against her in any way. (e) 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, file with the Regional Director for Region 29 a copy of Teopengco- Merritt’s corresponding W-2 form reflecting the backpay award. (f) 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 rec- ords, timecards, personnel records and reports, and all other records including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (g) Within 14 days after service by the Region, post at its Oceanside, New York facility, copies of the attached notice marked “Appendix.”21 Copies of the notice, on forms provided by the Regional Director for Region 29, after being signed by the Respondent's authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in con- spicuous places, including all places where notices to employ- ees are customarily posted. In addition to physical posting of 21 If the facility involved in these proceedings is open and staffed by a substantial complement of employees, the notice 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 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.” 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 customarily communicates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not al- tered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, copies of the notice to all current employees and former employees employed by the Respondent at any time since January 3, 2023. (h) Within 21 days after service by the Region, file with the Regional Director for Region 29 a sworn certification of a re- sponsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. Dated, Washington, D.C., March 5, 2024 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 discharge, suspend, refuse to offer you an available position, or otherwise discriminate against you be- cause of your union support and activities. WE WILL NOT threaten you with discipline, up to and includ- ing termination, because of your union support or activities. WE WILL NOT interrogate you regarding your union activities. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce employees in the exercise of the rights guaran- teed them by Section 7 of the National Labor Relations Act. WE WILL offer Marylene Teopengco-Merritt full reinstate- ment to her choice of her former job of Service Line Coordina- tor or the per diem registered nurse position in requisition # 53, or, if her preferred position no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights or privileges previously enjoyed. WE WILL make Marylene Teopengco-Merritt whole for any loss of earnings and other benefits resulting from her discharge, less any net interim earnings, plus interest and WE WILL also make Marylene Teopengco-Merritt whole for any other direct or foreseeable pecuniary harms suffered as a result of her un- lawful discharge, including reasonable search-for-work and interim employment expenses, plus interest. WE WILL compensate Marylene Teopengco-Merritt for the adverse tax consequences, if any, of receiving a lump-sum backpay award and WE WILL file with the Regional Director for DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 16 Region 29, 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 29 a copy of Marylene Teopengco-Merritt’s corresponding W-2 form reflecting the backpay award. WE WILL remove from our files any reference to the unlawful suspension and discharge of Marylene Teopengco-Merritt, and WE WILL, within 3 days thereafter, notify Marylene Teopengco- Merritt in writing that this has been done and that her discrimi- natory suspension and discharge will not be used against her in any way. SOUTH NASSAU COMMUNITIES HOSPITAL D/B/A MOUNT SINAI SOUTH NASSAU The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/29-CA-312425 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.