Valley Radiology, P.A.

JD-14-26 Fayetteville, N.C.

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

DIVISION OF JUDGES

VALLEY RADIOLOGY, P.A.

(Respondent)

and Case 10-CA-324512 LEENA MAMMEN, an Individual (Charging Party)

Heather B. Howard, Esq., for the General Counsel. Louis J. Cannon, Esq. and Cassandra L. Horton, Esq., for the Respondent

DECISION

STATEMENT OF THE CASE

ROBERT A. GIANNASI, Administrative Law Judge. This case was submitted on a stipulated record, pursuant to Section 102.35(a)(9) of the Board's Rules and Regulations. It was assigned to me by order dated February 14, 2026. The complaint alleges that Respondent violated Section 8(a)(1) of the Act by proffering a Separation and Release Agreement (hereafter referred to as the separation agreement) to the Charging Party, Dr. Leena Mammen, that contained non-disparagement and confidentiality clauses which broadly interfered with, restrained, and coerced employees in the exercise of their rights under

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Section 7 of the Act. The Respondent filed an answer denying the essential allegations in the complaint.¹ The General Counsel and Respondent filed briefs, which I have read and considered. Based on those briefs, the 5 stipulations, and the entire record in this case, I make the following:²

FINDINGS OF FACT

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I. Jurisdiction Respondent is a North Carolina professional corporation that operates a radiology practice providing medical care. It has offices and places of business in Leland, Fayetteville, and 15 Whiteville, North Carolina. During a representative one-year period, it derived gross revenues in excess of $250,000, and purchased and received at its North Carolina facilities products, goods and materials valued in excess of $5,000 directly from points outside North Carolina. I find, as Respondent admits, that 20 it is an employer engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act and a health institution within the meaning of Section 2(14) of the Act.

II. Alleged Unfair Labor Practices 25 The Facts

Background

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Respondent has 53 employees who work at its three radiology facilities. Dr. Mammen, the Charging Party, signed an employment agreement with Respondent on August 31, 2022, with a 6-month term commencing on February 1, 2023. The employment agreement provided that Dr. Mammen would receive 5 a signing bonus in advance of starting her employment of $50,000, which was treated as a loan subject to repayment and forgiveness terms. On September 8, 2022, Respondent provided the loan to Dr. Mammen, and she started work on the agreed commencement date. 10

The employment agreement also provided that Respondent would forgive the signing bonus loan in an amount of $4,1667.67 per month for each completed month of work. If she ended her employment for any reason before the first anniversary of her 15 commencement date, Dr. Mammen was to repay Respondent within 10 days of her termination any unrepaid portion of the signing bonus loan.

Dr. Mammen ended her employment with Respondent on 20 July 16, 2023. At that time, 50% of the signing bonus loan had been forgiven according to the employment agreement. On July 25, 2023, Respondent sent Dr. Mammen a letter notifying her that she still owed $25,000 of the signing bonus loan and was extending the time of repayment to ten days after the date of the 25 letter. Exh. 3. In the letter Respondent also alternatively offered a separation agreement which would have forgiven the balance of the signing bonus loan and contained the following provisions (Exh. 4):

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8. Non-disparagement. Employee will not say, write, or do anything (to include causing others to say, write, or do anything) to disparage or defame Company or, to the extent any of the same is known by Employee to be an Affiliate of Company, any Affiliate of Company. The term "Affiliate" 35

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means any or all of Company's members, managers, owners, officers, contractors, directors, employees, affiliated entities, investment funds, limited partners, clients, or vendors. Further, Employee will not knowingly say, write, or do anything (to include causing others to say, 5 write, or do anything) that is likely to injure or harm Company or its relationships with current or prospective employees, limited partners, investment funds, current or targeted portfolio companies, clients, vendors, or the public; except that Employee may respond truthfully to enforce this 10 Agreement or when called upon by subpoena or court order to testify or provide information in a legal or administrative proceeding.

9. Confidentiality of Agreement. Employee agrees that the terms of this Agreement are strictly confidential. 15 Employee agrees that Employee will not disclose the fact or contents of this Agreement, including the amount of monetary payment, to anyone other than Employee's attorneys, financial advisers, government taxing authority, or Employee's spouse or partner, or as part of Employee's 20 application for unemployment benefits, pursuant to an appropriate order from a court or other entity with competent jurisdiction, or as otherwise allowed under applicable law.

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The severance agreement also contained provisions that the remaining balance would be forgiven if Dr. Mammen waived a series of other employment rights she might have against Respondent. Exh. 4.

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Dr. Mammen did not reply to the Respondent's July 25 letter and did not sign the severance agreement or pay back the remainder of the signing bonus loan.

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Discussion and Analysis Alleged Violations in the Language of the Separation Agreement

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The test for evaluating an employer's conduct or statements with respect to violations of Section 8(a)(1) of the Act is "whether they have a reasonable tendency to interfere with, restrain, or coerce employees who may engage in activities protected by Section 7." American Freightways Co., 124 NLRB 145, 147 10

(1959).

In McLaren Macomb, 372 NLRB No. 58 (2023), the Board found that the mere proffer of a separation agreement whose language was broad enough to limit the Section 7 rights of 15 employees violated Section 8(a)(1). In that case, the Board overruled Baylor University Medical Center, 369 NLRB No. 43 (2020) and IGT d/b/a International Game Technology, 370 NLRB No. 50 (2020), cases in which severance agreements were deemed different from work rules because they dealt only with 20 post-employment matters and not existing working conditions. The Board rejected the rationale of those decisions and returned to the pre-existing law in recognition that inclusion of unlawful provisions in a severance agreement offered to employees has a reasonable tendency to interfere with, restrain or coerce the 25 exercise of employee rights under Section 7 of the Act. As the Board stated at slip op. 5-6:

Agreements between employers and employees that restrict employees from engaging in activity protected by the Act, or from filing charges with the Board, assisting 30 other employees in doing so, or assisting the Board's investigative process, have been consistently deemed unlawful. The "future rights of employees as well as the rights of the public may not be traded away" in a manner which requires "forbearance from future charges and 35

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concerted activities." (footnotes omitted) The separation agreement in McLaren Macomb contained a requirement that the signatories abide by a non-disparagement clause and a confidentiality clause that the Board found violative 5 of Section 8(a)(1) of the Act. Because the agreement required acceptance of those unlawful provisions, the Board found that the proffer of the severance agreement was itself violative of Section 8(a)(1). Slip op. pp. 7-8.

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The Specific Provisions Alleged to be Unlawful The Respondent concedes that, because the non- disparagement clause and the confidentially clause in the separation agreement offered to, and declined by, the Charging 15 Party are part of the separation agreement, proffering the separation agreement is governed by McLaren Macomb and thus unlawful. The Respondent also stated its intention to seek a reversal of McLaren-Macomb by the Board. R. Br. at p. 8. However, I am required to apply it as extant Board law. 20 The non-disparagement provision in this case bans the employees, including the Charging Party, from doing anything to

"disparage," "injure," or "harm" the Respondent. That puts the provision in the same category as the one considered in McLaren, 25 which banned employees from making statements that "would disparage or harm the image of [the] Employer." The Board in McLaren found that that language broadly encompassed Section 7 rights because it would include banning statements asserting that the Employer had violated the Act, filing charges or 30 participating in Board investigations; and the ban would also

"encompass conduct regarding any labor issue, dispute or term and condition of employment." 372 NLRB at slip op. 6-8. Since the McLaren language was found to have violated Section 8(a)(1),

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I must also find a violation with respect to the language in the Respondent's non-disparagement provision.

The same result governs Respondent's confidentiality provision, which broadly bans employees, including the Charging 5 Party, from "disclosing the facts or contents of the Agreement . . to anyone [excluding parties not applicable here]." Such broad language would include in the ban the filing of Board charges in this very case, as well as engaging in other protected activity. This mirrors the language found unlawful in McLaren where the 10 clause at issue banned employees from disclosing the terms of the agreement to "any third person." In McLaren, the Board found that that language precluded employees from even disclosing an unlawful provision of the agreement by filing an unfair labor practice charge or assisting the Board in its investigation of the 15 legality of the non-disparagement clause in that case. Accordingly, the Board found the confidentiality clause violative of Section 8(a)(1). 372 NLRB at slip op. 8. I make the same finding as to the confidentiality clause in this case.

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I therefore find that the confidentiality and non- disparagement clauses that are part of the separation agreement are violative of Section 8(a)(1) of the Act. Thus, proffering the separation agreement is itself unlawful and violative of Section 8(a)(1). 25

Conclusions of Law

1. By proffering a severance agreement to Dr. Mammen that contained unlawful non-disparagement and confidentiality 30 clauses, Respondent has violated Section 8(a)(1) of the Act.

2. The above violation constitutes an unfair labor practice within the meaning of the Act.

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Remedy Having found that Respondent has engaged an unfair labor practice, I shall recommend that it be ordered to cease and desist from its unlawful conduct and take certain affirmative action 5 designed to effectuate the policies of the Act, including the posting of an appropriate notice.

Respondent objects to the remedy set forth in the complaint and repeated in the proposed notice and order in the General 10 Counsel's brief (G.C. Br. at 23-24) because, in addition to reoffering a severance agreement without the two unlawful clauses, it is required to offer other terms previously offered to the Charging Party. R. Br. at 9-10. It particularly objects to the requirement to forgive the remainder of the signing bonus loan 15 still owed to Respondent, which was another part of the severance agreement. According to Respondent, that would mean the remedy would be punitive rather than remedial since

"statutes of limitation have expired for all claims that the Charging Party would 'waive' if she were to sign the Severance Agreement 20 now." R. Br. at 9-10.

I agree with the Respondent that the remedy suggested by the General Counsel is unwarranted. The gravamen of the violation here is the inclusion in the severance agreement of the 25 unlawful non-disparagement and confidentiality clauses. The unfair labor practice did not deal with the signing bonus loan or its forgiveness. Indeed the General Counsel's proposed conclusion of law defines the violation as simply proffering a severance agreement that "contained unlawful non-disparagement and 30 confidentiality of agreement provisions." G.C. Br. at 23. Moreover the General Counsel's suggested remedy would alter the terms agreed upon between the Respondent and Charging Party when they entered into the original agreement in order to entice Charging Party to join Respondent. It would also put the 35

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