Children���s Studio School Public Charter School

National Labor Relations Board - Board Decisions

Nov 30, 2004

343 N.L.R.B. 801 (N.L.R.B. 2004)

CHILDREN’S STUDIO SCHOOL PUBLIC CHARTER SCHOOL
343 NLRB No. 89
801
Children’s Studio School Public Charter School and
Maria Firmino-Castillo. Case 5–CA–31624
November 30, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND
WALSH
On August 31, 2004, Administrative Law Judge Rich-
ard A. Scully issued the attached decision. The Respon-
dent filed exceptions and a supporting brief, and the
General Counsel filed an answering 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 briefs1 and has decided to
affirm the judge’s rulings, findings,2 and conclusions,3
and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Children’s Studio School
Public Charter School, Washington, D.C., its officers,
agents, successors, and assigns, shall take the action set
forth in the Order.
Stan P. Simpson, Esq., for the General Counsel.
Alexis Segal, Esq., and David J. Shaffer, Esq., of Washington,
D.C., for the Respondent.
DECISION
STATEMENT OF THE CASE
RICHARD A. SCULLY, Administrative Law Judge. Upon a
charge filed on December 4, 2003, by Maria Firmino-Castillo

1 The Respondent has requested oral argument. The request is de-
nied as the record, exceptions, and briefs adequately present the issues
and positions of the parties.
2 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.
3 On April 13, 2004, the Respondent filed with the Board a motion to
dismiss or, in the alternative, to stay the Board’s proceedings because
the Charging Party had a similar claim pending before the D.C. Human
Rights Commission. On May 26, 2004, the Board denied the Respon-
dent’s motion. In denying the motion, Chairman Battista noted that he
would allow the Respondent to bring to the attention of the administra-
tive law judge any developments in the Commission’s case. On No-
vember 16, 2004, the Respondent apprised the Board, by way of its
counsel’s declaration, that the Commission was beginning its investiga-
tion on or about November 1, 2004. Accepting that declaration as true,
the Commission is starting to investigate its case after the instant case
was fully litigated by the parties and decided by the Board’s adminis-
trative law judge. In these circumstances, Chairman Battista would not
defer to the Commission proceeding.
(Firmino), the Regional Director for Region 5, National Labor
Relations Board, issued a complaint on February 24, 2004,
alleging that Children’s Studio School Public Charter School
(the Respondent) had violated Section 8(a)(1) of the National
Labor Relations Act (the Act), by terminating the employment
of the Charging Party because she had engaged in concerted
activity protected by Section 7 of the Act. The Respondent
filed a timely answer denying that it had committed any viola-
tion of the Act.1
A hearing was held in Washington, D.C., on June 14 and 15,
2004, at which the parties were given a full opportunity to ex-
amine and cross-examine witnesses and to present other evi-
dence and argument. Briefs submitted on behalf of the General
Counsel and the Respondent have been given due considera-
tion.2 Upon the entire record, and from my observation of the
demeanor of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a District of Columbia not-for-profit cor-
poration with an office and place of business in Washington,
D.C., engaged in the operation of an elementary and secondary
charter school. During the 12-month period preceding Febru-
ary 2004, a representative period, the Respondent in the course
of its business operations derived gross revenues in excess of
$1 million and it purchased and received at its Washington,
D.C. facility products, goods, and materials, valued in excess of
$5000, directly from points located outside the District of Co-
lumbia. The Respondent has admitted, and I find, that at all
times material it was an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.3
II. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges that Firmino was terminated from her
position as a teacher at the Respondent’s school in violation of
Section 8(a)(1) of the Act because she engaged in certain pro-
tected concerted activities.

1 At the hearing, the Respondent filed a second amended answer to
the complaint which was inadvertently marked as a part of the formal
papers as GC Exh. 1(m). It should be GC Exh. 1(o).
2 The General Counsel’s unopposed motion to correct the record by
renumbering certain exhibits and to correct errors in the hearing tran-
script is granted. The Respondent’s motion for leave to file a reply
brief, which the General Counsel opposes, is denied as unnecessary.
3 In its brief, the Respondent asserts that the General Counsel did not
introduce evidence to establish jurisdiction over it. This was unneces-
sary inasmuch as its answer admits that its gross annual revenue ex-
ceeded $1 million and that it received goods and materials in excess of
$5000 in interstate commerce. This meets the Board’s jurisdictional
standard for private schools. See Roman Catholic Archdiocese, 216
NLRB 249 (1975). Moreover, the Board has plenary jurisdiction over
the Respondent which is located in the District of Columbia. E.g.,
Catholic University, 201 NLRB 929 (1973); Westchester Corp., 124
NLRB 94 (1959). The Respondent’s argument that the Board should
defer to the District of Columbia Human Rights Commission, which
has a complaint filed by Firmino before it, has already been considered
and rejected by the Board. See GC Exh. 1(m).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD802
A. Background Facts
Since 1990, the Respondent has operated an accredited pub-
lic charter school following a philosophy of “arts as education”
through which it undertakes to teach academic subjects, liter-
acy, math, science, social studies, etc., through the arts process.
The teachers are a culturally diverse group of talented artists
who use their various art forms, painting, sculpture, dance, etc.,
to impart knowledge to the students. The students in each of
the classrooms, which are known as “studios,” consist of mixed
age groups who are taught using a “Socratic approach” rather
than using traditional textbooks.
Marcia McDonell is the founder, owner, and president of the
school. She has an office at the school and is there on a daily
basis. Franklin Wassmer served as principal/associate director
of the school from 1997 until June 2003. He was responsible
for the operation of the school and his duties included oversee-
ing the staff and faculty and performing periodic evaluations of
the teachers. After Wassmer submitted his resignation, effec-
tive at the end of the school year in June 2003, he was replaced
by Julie Doar-Sinkfield (Doar), who served as interim principal
from June 2 through December 31, 2003. Their tenure at the
school overlapped by about 3 weeks.
The Charging Party, Firmino, began working at the school as
a grant writer in May 1999. She was appointed a teacher in
August of that year and served in that capacity until the end of
the academic year in June 2003 when she was informed that her
contract was not being renewed.
B. Firmino’s Protected Activity
In late February or early March 2003,4 Firmino was called at
her home by the school’s volunteer coordinator, who was upset
and expressed frustration with the school and complained that
volunteers were being used as substitute teachers but were not
being adequately compensated for their work. Firmino re-
sponded that she felt other people at the school had similar
feelings and suggested that they get together with other em-
ployees to find a way to address their problem. She then dis-
cussed with a number of other staff members that Wassmer was
leaving, that there were rumors about changes at the school,
and that they needed to communicate their views to the school
administration. Firmino and approximately seven other staff
members and volunteers held a meeting at the Mark’s Café.
Among the things they discussed were the fact that Djenaba
Faal, a program coordinator at the school had been fired, the
possibility of forming a union of the school’s artist-teachers,
that the artist-teachers’ salaries were too low in relation to their
responsibilities and workloads, that certain special education
needs at the school were not being met, that they would write a
letter protesting the midyear performance evaluations that had
been done in February, and that they would present a list of
demands for changes to the school administration.
Thereafter, a meeting was held in Firmino’s studio at the
school and was attended by approximately seven faculty mem-
bers to discuss the midyear evaluations and reach a consensus
on the language to be used in their letter of protest. Firmino
prepared the letter on behalf of those faculty members, dated

4 Hereinafter, all dates are in 2003.
March 12, addressed to Principal Wassmer. Another meeting
was held in one of the studios at the school to discuss present-
ing demands for changes to the administration. Prior to that
meeting, Firmino informed Wassmer about it and that the fac-
ulty member would be developing a proposal concerning labor
and other issues to present to the school’s board of trustees,
McDonell, and the incoming principal. Wassmer responded
that he also had presented a proposal concerning changes he
felt were needed at the school to the Board and McDonell, but
that they had rejected it. He gave her a copy of his proposal
and asked her to have the faculty consider it when they pre-
pared their own. At the meeting, she distributed copies of
Wassmer’s proposal and a written draft of her own proposals
which were discussed along with the other faculty members’
ideas.
The next meeting was held a short time later at Firmino’s
home and was attended by approximately five employees.
They discussed the fact that many of them could not afford the
cost of the health insurance the school offered, the fact that the
school’s retirement plan was not available to all employees, and
the concern of an artist-teacher’s assistant that he was being
asked to substitute for a teacher but was not being compensated
properly. Another meeting of four or five employees was held
at the 24-7 Café. They discussed the need to get the school to
do more to support the artist-teachers in the various media in
which they perform, such as providing a darkroom, supporting
attendance at artistic conferences and programs, and creating
opportunities to display and enhance their talents.
Firmino took notes at each of the meetings in order to collect
all of the ideas of the various participants on ways to improve
their conditions at the school. She turned her notes over to
artist-teacher Carlos Tabernero who volunteered to draft a letter
to be presented to the administration. He prepared a hand-
written draft which Firmino typed up and added her comments
and proposed changes. The letter was not submitted to the
school because they had decided to wait until they had their
new employment contracts in hand before doing so. She was
the moving force behind this effort and once her contract was
not renewed it went no further.
During the early part of the second semester, Firmino
learned that Djenaba Faal had been asked to resign her position
at the school. She discussed this with Faal, listened to her alle-
gations as to why she was terminated, and offered her support.
Faal told her that she had filed a complaint with the D.C. Office
of Human Rights alleging racial discrimination and asked
Firmino to write a letter of support to that Office. Firmino
agreed to do so and prepared a letter, dated April 27, 2003,
which stated that the school may have received certain of the
criticisms and proposals that Faal had offered “with some dis-
comfort and much misunderstanding, thus leading to hasty, and
in my opinion, mistaken dismissal of an extremely competent
and committed member of our team.” Firmino said that after
giving the letter to Faal, she sensed a lot of tension and hostility
directed towards her by McDonell. She was also informed by
another member of the school staff, Neomy Rivera, that
McDonell was very upset about her having written the letter
and felt that Firmino was hurting the school. Rivera also told
Firmino that McDonell was very displeased by her support of
CHILDREN’S STUDIO SCHOOL PUBLIC CHARTER SCHOOL 803
Faal, that she should be careful, and that she might lose her job
if she continued to go around talking to teachers and meeting
with people who were trying to hurt the school.
Because of this, Firmino sought a meeting with McDonell
which was held in her office in May. McDonell began by tell-
ing Firmino that she was “more reactive than astute.” Firmino
asked what she meant by this and McDonell responded that
Firmino was “doing things to hurt the school.” Firmino re-
sponded that she was not trying to hurt the school but had writ-
ten the letter in support of Faal because she thought she was
valuable to the school and should be reinstated. Firmino also
told McDonell that the teachers had gotten together to create a
list of recommendations and demands for change. She testified
that McDonell seemed unhappy about this and said that she
cared deeply about the school and about the kids. Firmino
responded that she and the other teachers also cared about the
school and the kids and that is why they were doing this.
During a meeting of all staff, administrators, and teachers at
the school, Firmino and others asked Wassmer why Faal had
been terminated, but he said that he could not discuss personnel
matters with other employees. Firmino told Wassmer that there
had been serious allegations of possible misconduct by the
school and that if they did not get more information they would
have to consider the possibility that these allegations were true.
Wassmer repeated that he could not discuss the matter and the
meeting ended. While employed at the school, Faal had formed
a group called Parents Anonymous. When she was terminated,
the group had circulated a petition seeking her reinstatement. A
short time later, the Parents Anonymous group disbanded and a
new group called the Independent Parent Association (IPA)
was formed. Firmino assisted the IPA in preparing a survey to
be administered to the teachers at the school to gather informa-
tion concerning their problems, concerns, and criticisms, but
she did not know whether it was ever issued. She assisted the
IPA by translating into Spanish a flyer it had prepared inviting
members of the school community to attend one of its meet-
ings. The flyer was distributed at a school picnic. She also
assisted the IPA in preparing a letter to the Board and school
administration outlining its demands concerning learning con-
ditions, labor issues, and health and safety issues, but she did
not know if it was ever sent.
The foregoing findings are based on the credible and uncon-
tradicted testimony of Firmino. Much of her testimony about
these events was corroborated by the credible testimony of
witnesses Djenaba Faal, a former staff member of the school,
teachers Allan Nieta and Garry James, who are currently em-
ployed at the school, Clay Harris, who served as a volunteer at
the school, and Jeff Schmidt, a parent of a student at the school
and member of the IPA, all of whom were involved in the one
or more of the meetings and/or activities Firmino described.
C. Events Surrounding the Termination of Firmino
On June 10, Firmino met with the interim principal, Doar, in
her office. Firmino testified that Doar told her that the school
was restructuring but that no faculty positions would be cut.
Doar asked a series of questions about Firmino’s teaching, her
strengths, weaknesses, and successes. Firmino described some
of the projects she considered very successful and told her what
she considered the school’s strengths and her personal chal-
lenges with the school. She described how committed she was
to the school and said that she had risked her job by initiating
contacts with the Board of Trustees concerning her and the
faculty’s areas of concern and constructive criticisms of the
school. She specifically mentioned the difficulties she encoun-
tered in implementing the arts as education process in attempt-
ing to teach math to several levels of children some with special
needs. Doar asked her if she would accept a larger class size
and a wider range in age of her students and she responded that
she would do it if it were necessary. Doar asked for a list books
and supplies that she needed for the coming year and their
meeting ended.
On about June 20, Firmino was given a performance evalua-
tion in a meeting with Wassmer that Doar also attended.
Firmino told Wassmer that she believed she had a very success-
ful year and that her evaluation did not reflect the quality of her
work but that since it was his last evaluation she was not going
to give him a hard time about it. She said that she questioned
Wassmer about a comment on the evaluation to the effect that
she needed to find constructive means to work within the
school structure. He responded that she had to understand that
she was part of the school structure and she could not question
every decision the institution makes, could not criticize every-
thing it did, or go above and beyond the institution every time
you disagree with something. She responded that this was a
public school and she felt a responsibility to speak her mind
and not remain silent if she felt the school was wrong or not
meeting its responsibilities. Doar said nothing during the meet-
ing.
On June 27, Firmino met with Doar in McDonell’s office.
McDonell left as Firmino arrived. Doar said that she had de-
cided not to invite Firmino back for the next year. Firmino
asked if there was anything to discuss and Doar said “no” and
the meeting ended. She then encountered Wassmer and
McDonell and asked if McDonell was aware of what had hap-
pened and if she approved Doar’s decision. McDonell re-
sponded that she did. Firmino asked what she had done wrong
and McDonell responded it was Doar’s decision. Firmino
asked again and McDonell responded that there have always
been “areas of difficulty.” Firmino asked what these areas of
difficulty were, as she had never received a warning, repri-
mand, or other disciplinary action. McDonell said that Firmino
had many good qualities as a teacher but there were “areas of
concern” which she would not identify. Firmino said that she
wanted to continue teaching there and asked what she could do.
McDonell responded that there was nothing she could do.
While Firmino was pleading for her job, Doar entered the office
and told Firmino that this perfectly illustrated why she made
her decision, because Firmino was “argumentative and uncoop-
erative,” and that all she could do was to pack her things and
turn in her keys. The foregoing findings are based on the
credible testimony and largely uncontradicted of Maria
Firmino. McDonell and Wassmer testified at the hearing but
neither gave any testimony, which disputed Firmino’s version
of these events or cast any doubt on her veracity or recollection.
Julie Doar testified that her only current association with the
Respondent is as a parent of a student at the school. After be-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD804
coming interim principal in June, she was given responsibility
to determine which teachers would be offered contracts to teach
during the following academic year. She did not consult with
Wassmer about these determinations although he was still at the
school because he indicated he did not want to be involved.
Firmino was the only teacher whom she decided not to invite
back. She never observed Firmino in a classroom and based her
decision on the fact that Firmino told her that “she couldn’t
teach all the standards the way she was supposed to.” When
she informed Firmino that her contract was not being renewed
she told her the reason was: “I didn’t think she had the right
spirit for us to be going through the transition.”
Analysis and Conclusions
The General Counsel contends that Firmino was terminated
in retaliation for the concerted protected activity she engaged in
while employed by the Respondent. The Respondent contends
that the reason it did not renew her contract was that Firmino
told interim principal Doar that “she lacked the ability to do her
job.”5
In cases where the employer’s motivation for a personnel ac-
tion is in issue, it must be analyzed in accordance with the test
outlined by the Board in Wright Line, 251 NLRB 1083 (1980),
enfd 662 F.2d 800 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982), approved in NLRB v. Transportation Management
Corp., 462 U.S. 393 (1983). Under Wright Line, the General
Counsel must introduce persuasive evidence that animus to-
ward the protected activity was a substantial or motivating fac-
tor in the employer’s decision. Once that has been done, the
burden of persuasion shifts to the employer to demonstrate that
it would have taken the same action even in the absence of
protected activity on the part of the employee. Manno Electric,
321 NLRB 278, 280 fn. 12 (1996). To sustain his initial bur-
den, the General Counsel must show (1) that the employee was
engaged in protected activity; (2) that the employer had knowl-
edge of that activity; and (3) that the activity was a substantial
or motivating reason for the employer’s adverse action. Naomi
Knitting Plant, 328 NLRB 1279, 1281 (1999). Direct evidence
of unlawful motivation is seldom available and it may be estab-
lished by circumstantial evidence and the inferences drawn
there from. E.g., Abbey Transportation Service, 284 NLRB
689, 701 (1987); FPC Moldings, Inc. v. NLRB, 64 F.3d 935,
942 (4th Cir. 1994); Shattuck Denn Mining Corp., 362 F.2d
466, 470 (9th Cir. 1966).
There is substantial uncontradicted evidence in the record
that throughout the first half of 2003, Firmino engaged in con-
certed activity with other employees. This activity included her
initiating and participating in a number meetings with other
teachers and staff members to discuss various issues relating to
their terms and conditions of employment, assisting in the
preparation and submission of a letter on behalf of a group of
faculty member protesting their midyear performance evalua-

5 The General Counsel asserts that the Respondent has failed to fully
comply with a subpoena duces tecum issued to it and requests that the
defenses related to the unproduced documents be stricken. While I
agree that the Respondent has failed to establish that it made a good-
faith effort to fully comply with the subpoena, I find that the General
Counsel has not been prejudiced thereby and deny the request.
tions, and the preparation of proposals concerning improve-
ments in their terms and conditions of employment that they
wanted the Employer to implement. She also spoke out at a
staff meeting at the school in support of discharged employee
Djenaba Faal and wrote a letter to the D.C. Human Rights Of-
fice challenging her discharge. She consulted with and assisted
the IPA, a dissident parent group at the school, which make
recommendations to the school administration on a number of
subjects, including, labor issues. This group had also expressed
support for Faal and was critical of her dismissal. Firmino’s
activity was engaged in with other employees and not solely by
or on behalf of herself and is protected by the Act. E.g., Merit
Contracting, Inc., 333 NLRB 562, 563 (2001); Meyers Indus-
tries, 281 NLRB 882, 885 (1986); Meyers Industries, 268
NLRB 493, 497 (1984).
In its posttrial brief the Respondent contends that Firmino’s
“disruptive behavior” does not constitute protected activity.
This is apparently based on the testimony of former-teacher
Carololivia Herron that she considered Firmino’s conduct at
certain meetings, held by Wassmer to allow the teachers to
express their views, to be disruptive. I find there is no evidence
that any of Firmino’s concerted activity discussed herein could
reasonably be considered so outrageous, egregious, or disrup-
tive as to forfeit the protection of the Act. E.g., Wolkerstorfer
Co., 305 NLRB 592 fn. 2 (1991); Martin Marietta Corp., 293
NLRB 719, 725 (1989).
There is also substantial uncontradicted evidence that the
Respondent had knowledge of Firmino’s involvement in pro-
tected activity. She not only told Wassmer that the teachers
were meeting and preparing a proposal to be submitted to the
school administration concerning the changes they wanted im-
plemented, he asked her to have the teachers consider his own
proposals for changes in the course of their deliberations. A
letter the teachers prepared protesting the midyear performance
evaluations was sent to Wassmer with a copy to McDonell.
Firmino spoke out at a staff meeting in support of Faal and she
told McDonell about her letter in support for Faal and that the
teachers were preparing a proposal concerning changes in
working conditions they wanted implemented. Moreover, the
small size of the work force at the school supports the inference
that the Respondent was aware of Firmino’s concerted activity.
La Gloria Gas & Oil Co., 337 NLRB 1120, 1123 (2002).6
Both Wassmer and McDonell testified at the hearing but neither
denied knowledge of Firmino’s concerted activity.
The Respondent argues that there is no evidence that the per-
son it says made the decision not to offer Firmino a new con-
tract, Doar, knew about Firmino’s protected activity. I do not
agree. Such knowledge can be inferred from circumstantial
evidence. E.g., La Gloria Gas & Oil Co., supra, at 1123; Abbey
Transportation Services, supra at 701. After being appointed
interim principal, Doar had a meeting with her predecessor,
Wassmer, in which he gave her an “overview of the school”
and his “perspective on the various faculty members.” She also
sat in on the meeting in June when Wassmer gave Firmino her
performance evaluation in which he told her she could not

6 Firmino and Respondent’s witness Neomy Gutierrez testified that
when something happened at the school “everybody” knew about it.
CHILDREN’S STUDIO SCHOOL PUBLIC CHARTER SCHOOL 805
question and criticize every decision the school administration
made or go above and beyond it every time she disagreed with
something. In her hearing testimony, Doar did not deny
knowledge of Firmino’s concerted activity.7 Her statement to
Firmino on the day she was told that her contract would not be
renewed, that she was “argumentative and uncooperative,”
further supports the inference, which I draw, that Doar knew
about Firmino’s concerted activity. There is no other reason-
able explanation for this comment since there is no evidence
that Firmino and Doar had any significant personal interaction
other than their one meeting on June 10, and there is nothing in
the record to suggest that Firmino was argumentative or unco-
operative during that meeting.
There is direct and circumstantial evidence establishing the
Respondent’s animus towards Firmino’s protected concerted
activity. In the meeting at which Firmino informed school
president McDonell that she had written a letter in support of
Faal and was working with other teachers to prepare a proposal
for changes at the school, McDonell accused her of “doing
things to hurt the school.” Doar admitted that she told Firmino
that the reason for her was termination was that she didn’t have
“the right spirit.” Similarly, in a conversation with McDonell
about the decision to terminate Firmino, Doar referred to
Firmino’s being unwilling to work together as a part of the
“team.” The Board has long considered similar comments,
such as accusing an employee of having a “bad attitude,” to be
a veiled reference to the employee’s protected activities. E.g.,
Climatrol, Inc., 329 NLRB 946 fn. 4 (1999); Promenade Ga-
rage Corp., 314 NLRB 172, 179–180 (1994); Cook Family
Foods, 311 NLRB 1299, 1319 (1993). When referenced in the
context of explaining why an employee was terminated, it con-
stitutes “especially persuasive evidence” that the termination
was unlawfully motivated. Cook Family Foods, supra at 1319.
Under the circumstances involved here, I find that Doar’s
statement that Firmino was “argumentative and uncooperative”
indicates that her concerted activities were considered by the
Respondent to constitute a lack of cooperation and played a
role in the decision to terminate her. We Can, Inc., 315 NLRB
170, 171 (1994).
What makes the Respondent’s motivation for terminating
Firmino most suspect is the weakness of its purported reason
for doing so. Wassmer, Doar, and McDonell all testified that
teaching children by means of the “arts as education” process is
a difficult task which can take years to perfect. A teacher who
can successfully do this is “very difficult” to find and is a
highly valuable employee. Firmino had been teaching at the
school for 4 years and there is nothing in the record to suggest
that she had not performed her job successfully.8 On the con-

7 Doar did testify that Firmino had told her that she had written
memoranda to the board of trustees but she did not know what this
involved. These memoranda are not a part of the protected concerted
activity alleged in the complaint.
8 Counsel for the General Counsel put into evidence summaries he
prepared based on those teachers’ performance evaluations that were
actually produced by the Respondent pursuant to subpoena. He con-
tends that they establish that Firmino was rated higher than other teach-
ers who were not terminated. The Respondent offered its own version
of the summaries and contends that the evaluations are not relevant
trary, Wassmer, who was the principal during that period and
did several performance evaluations, testified that there were no
major deficiencies in Firmino’s ability to perform as a teacher
at the school, that there was no performance-based reason not
to renew her contract, and that he had given her high ratings on
the performance evaluations in the category of understanding
and implementation of arts as education. At the time Firmino
was terminated, two other teachers had already announced that
they would not be returning to the school for the fall semester.
There is no evidence that the Respondent had lined up replace-
ments for any of them, let alone, that it had anyone more quali-
fied than Firmino available to replace her. Despite this, Doar
chose to terminate Firmino, notwithstanding her 4 successful
years of teaching at the school and the fact that Doar, who had
been interim principal only about 3 weeks, had never observed
her in the classroom.
There is also circumstantial evidence supporting the infer-
ence that Firmino was terminated for engaging in protected
activity. The timing of an adverse action can indicate an
unlawful motive. E.g., Masland Industries, 311 NLRB 184,
197 (1993); Limestone Apparel Corp., 255 NLRB 722, 736
(1981). Firmino had been employed by the Respondent for 4
years during which no disciplinary action had ever been taken
against her and she had received consistently positive perform-
ance evaluations. She began to actively engage in protected
concerted activity in the spring semester and she was termi-
nated immediately after it ended, which was the Respondent’s
first opportunity to do so once her contract expired. This oc-
curred soon after, but not until, Doar took over as principal
from Wassmer who, as noted, testified that he would not have
terminated Firmino.
Firmino had openly assisted Faal and the IPA during the
Spring semester and both were at odds with the school admini-
stration. McDonell testified that she perceived both as having
done things to harm the school, a charge she also leveled at
Firmino. According to McDonell, the IPA had circulated mate-
rial that was critical of the school and which she considered
libelous and untrue. After that, the IPA was no longer permit-
ted to use the school for its meetings. At some point, Faal’s
employment was terminated, effective at the end of the school
year, contingent upon her not discussing her personnel situation
with other school employees and parents. When the Respon-
dent believed she had violated that proviso, her employment
was terminated immediately.
On January 10, in connection with an application Firmino
was making for financial aid for her son’s education, the Re-
spondent issued a letter on her behalf which confirmed her
employment and stated: “The probability of her continued em-
ployment is excellent.” By the end of June, she was out of a
job. The only thing that had changed in the interim was that

because they establish no meaningful distinction exists between the
scores of all the teachers. I find the evaluations are relevant at least to
the extent that they support the testimony of Wassmer, who made the
evaluations, that Firmino was successful in implementing the arts as
education process and that there was no performance-based reason for
her termination.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD806
she engaged in the protected concerted activity discussed
herein.
Based on all of the foregoing, I find that the General Counsel
has met his burden under Wright Line of establishing that
Firmino’s protected concerted activity was a motivating factor
in her termination. I also find that the Respondent has not es-
tablished that it would have terminated Firmino even in the
absence of that protected activity.
The Respondent points to the fact that other teachers joined
Firmino in her protected activity and were not terminated and
argues that this is proof her termination was lawful. The evi-
dence is clear that Firmino was the moving force behind much
of the protected activity going on at the school during the
spring semester and the most visible participant. In any event,
it is well settled that a discriminatory motive, otherwise estab-
lished, is not disproved by an employer’s proof that it did not
weed out all of the employees who engaged in the activities that
displeased it. E.g., Nachman Corp. v. NLRB, 337 F.2d 421,
424 (7th Cir. 1964); Audubon Regional Medical Center, 331
NLRB 374, 376 (2000).
According to the testimony of Doar, Firmino essentially ter-
minated herself by stating at their meeting on June 10 that she
“couldn’t teach all the standards she was supposed to.” Spe-
cifically, Doar said that she read the following question: “Are
you able to adequately teach through your art processes all the
required capabilities and knowledge as required in math, sci-
ence, social studies, and literacy?” Firmino answered: “No,
there [are] too many children and too many standards and too
many different levels to be able to do that.”9
Firmino had a different recollection of their conversation on
June 10. She testified that she told Doar about the difficulties
she had encountered in teaching math through the arts as educa-
tion process because of the different levels of ability of the
children in her class, some of whom had been diagnosed as
having special education needs, but that she was “stridently
making an effort” to do so. Doar asked her if in the coming
school year she would mind having the size of her class in-
creased and would work with an assistant. Firmino responded
that she would prefer not to have the size of her class increased
but that she “would live with it” and that she was used to work-
ing without an assistant because the assistants were often shuf-
fled to other classes to serve as substitutes. Doar asked her
about teaching a wider range of ages in her class and Firmino
responded that if it were necessary she would do it. Firmino
had no recollection of being asked scripted questions or a spe-
cific question being asked concerning her ability to teach the
arts as education process. Rather, she recalled a general con-
versation concerning the arts as education process in which she
outlined in detail the challenges and the successes she had en-
countered with that process. Their meeting ended with Doar
asking Firmino to provide a list of the supplies needed for her

9 Doar admitted that other teachers had told her they were struggling
with the arts as education process but she said that they told her that
they were “working on it,” She claimed Firmino did not. However, she
could identify only one of these teachers, John Murillo, and did not
remember what he said. Murillo and the others were offered contracts
for the fall semester.
classroom in the coming year. She described Doar as being
“supportive” during the meeting.
I credit Firmino’s detailed and essentially uncontradicted de-
scription of this meeting over the cryptic account by Doar,
which was elicited in large part through leading questions by
the Respondent’s counsel. That testimony establishes that
Firmino raised questions about the challenges she faced in im-
plementing the arts as education process, as Doar admitted
other teachers had done in similar interviews. It also estab-
lishes that Firmino did not say that she was unable to teach the
standards but expressed her belief that despite difficulties she
was making a “strident” effort to do so. Doar apparently ac-
cepted similar responses from the other teachers as sufficient to
show “the right spirit,” but not from Firmino.
However, even if Doar’s version of this conversation were
found to be credible, it is simply not believable that any reason-
able employer would base a decision to terminate one of its
most senior and successful teachers on this single question and
answer. This is particularly true where Doar expressed no mis-
givings to Firmino about her answer at the time and did not ask
her any followup questions or seek any clarification of her an-
swer. On June 27, after learning she was being terminated,
Firmino repeatedly told McDonell of her desire to continue
teaching at the school and pleaded with her to tell what she
needed to do to stay on. McDonell’s only response was
“there’s nothing you can do.” Considering all of the circum-
stances, I find the Respondent’s asserted reason for its termina-
tion of Firmino was a pretext. It apparently does not contend
that there was any other reason for her termination.10 Accord-
ingly, I find that the Respondent has not established that
Firmino would have been terminated in the absence of pro-
tected concerted activity on her part and that her termination
violated Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent, Children’s Studio School Public Charter
School, is an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
2. The Respondent violated Section 8(a)(1) by terminating
the employment of Maria Firmino-Castillo because she had
engaged in concerted activity protected by Section 7 of the Act.
3. The unfair labor practices found herein are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.

10 On this point the Respondent tries to have it both ways. At the
hearing, the Respondent presented testimony from Neomy Gutierrez, a
parent of one of Firmino’s students, that was critical of her performance
as a teacher during the spring semester. The Respondent’ s counsel
stated that this testimony “goes to possible causation for her [Fir-
mino’s] termination” and “supports Doar’s reasoning.” While in its
post-hearing brief it does not specifically argue that this played a role in
Firmino’s termination, it does allude to counsel’s remarks at the hear-
ing. I have given this testimony no consideration since there is no
evidence that Gutierrez raised any objections about Firmino to the
school administration or that it entered into Doar’s reasoning. On the
other hand, I find the Respondent’s suggestion that this evidence shows
that Firmino’s “performance was unsatisfactory” (R. Br. p. 18) raises
the inference that it is grasping for reasons to justify an unlawful dis-
charge. See U. S. Service Industries, 324 NLRB 834, 837 (1997).
CHILDREN’S STUDIO SCHOOL PUBLIC CHARTER SCHOOL 807
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall recommend that it be ordered to
cease and desist there from and to take certain affirmative ac-
tion designed to effectuate the policies of the Act.
The Respondent having discriminatorily discharged Firmino,
it must offer her reinstatement and make her whole for any loss
of earnings and other benefits, computed on a quarterly basis
from date of discharge to date of proper offer of reinstatement,
less any net interim earnings, as prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), plus interest as computed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended11
ORDER
The Respondent, Children’s Studio School Public Charter
School, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise disciplining employees because
they have engaged in concerted activities protected by Section
7 of the Act.
(b) In any like or related manner interfering with, 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 the Board’s Order, offer
Maria Firmino-Castillo full reinstatement to her former job or,
if that job no longer exists, to a substantially equivalent posi-
tion, without prejudice to her seniority or any other rights or
privileges previously enjoyed.
(b) Make Maria Firmino-Castillo whole for any loss of earn-
ings and other benefits suffered as a result of the discrimination
against her in the manner set forth in the remedy section of the
decision.
(c) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful discharge and
within 3 days thereafter notify Maria Firmino-Castillo in writ-
ing that this has been done and that the discharge will not be
used against her in any way.
(d) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its fa-
cility in Washington, D.C., copies of the attached notice

11 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
marked “Appendix.”12 Copies of the notice, on forms provided
by the Regional Director for Region 5, 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 employees
are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since June 27,
2003.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
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 the
National Labor Relations Act and has ordered us to post and abide
by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.
WE WILL NOT discharge or otherwise discriminate against any
of you for participating in concerted activities protected by
Section 7 of the Act.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, offer
Maria Firmino-Castillo full reinstatement to her former job or,
if that job no longer exists, to a substantially equivalent posi-
tion, without prejudice to her seniority or any other rights or
privileges previously enjoyed.
WE WILL make Maria Firmino-Castillo whole for any loss of
earnings and other benefits resulting from her discharge, less
any net interim earnings, plus interest.
WE WILL, within 14 days from the date of this Order, remove
from our files any reference to the unlawful discharge of Maria

12 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD808
Firmino-Castillo and WE WILL, within 3 days thereafter, notify
her in writing that this has been done and that the discharge will
not be used against her in any way.
CHILDREN’S STUDIO SCHOOL PUBLIC CHARTER SCHOOL