Howard University Hospital

National Labor Relations Board - Administrative Judge Opinions

Dec 2, 2010

05-CA-035584 (N.L.R.B. Dec. 2, 2010)

JD–65–10
Washington, DC
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
HOWARD UNIVERSITY HOSPITAL
and Case 5-CA-35584
JOAN STEVENSON, an Individual
Daniel Heltzer and Brendan Keough, Esqs.,
for the Acting General Counsel.
Leroy Jenkins, Jr. and Candace Dabney Smith, Esqs.,
of Washington, D.C., for the Respondent.
DECISION
Statement of the Case
GEOFFREY CARTER, Administrative Law Judge. This case was tried in Washington,
D.C., from September 13–15, 2010. The charge was filed on February 16, 2010, and the
complaint was issued on May 28, 2010. The complaint alleges that Howard University Hospital
(Respondent) violated Section 8(a)(3) and (1) of the National Labor Relations Act (the Act) by
unlawfully discriminating against and/or coercing employee Ms. Joan Stevenson (Stevenson)1
by: discouraging her from speaking at an October 30, 2009 staff meeting about terms and
conditions of employment in the hospital ultrasound department; admonishing Stevenson at a
November 4, 2009 meeting with her supervisor about her tone in the October 30 meeting;
issuing a disciplinary memorandum to Stevenson on December 18, 2009, for having her
daughter present in the patient care area, and delaying meeting with her supervisor about that
issue; and terminating her on or about January 9, 2010, for engaging in protected concerted
activities and/or union activities.2 The Respondent filed a timely answer denying the alleged
violations in the complaint.

1 Unless otherwise noted, all references to Stevenson refer to Joan Stevenson.
2 During trial, I granted the General Counsel’s request to amend the complaint to: (a) add
Joseph Martinez and Howard Hill as additional supervisors in par. 4 of the complaint; (b) amend
par. 10(c) of the complaint to allege that Stevenson was terminated on or about January 9, 2010
(instead of on or about January 5, 2010, as originally alleged); and (c) add par. 9(c), to allege:
On or about November 4, 2009, in his office, the Respondent’s District of Columbia facility, (Mr.
Vonzell Barker) threatened employees by telling them he hoped they would not again raise
concerns as they did in the meeting described above in par. 8. The Respondent did not object
to the requests to amend the complaint, but did deny the factual allegations outlined in items (b)
and (c) noted above. Transcript (Tr.) 12-15, 170–171.
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On the entire record,3 including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the Acting General Counsel and the Respondent, I make the
following
Findings of Fact
I. Jurisdiction
The Respondent, a corporation, operates a hospital that provides inpatient and
outpatient medical care in Washington, D.C., where it annually derives gross revenue in excess
of $250,000 and purchases and receives goods valued in excess of $5000 directly from points
located outside of the District of Columbia. The Respondent admits, and I find, that it is an
employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and
that the National Union of Hospital and Health Care Employees, Local 2094, American
Federation of State, County and Municipal Employees (AFSCME or the Union) is a labor
organization within the meaning of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
A. Background Facts
In 2007, the Union and the Respondent entered into a collective-bargaining agreement
that addresses (among other things) terms and conditions of employment, overtime, and
discipline and discharge, and also outlined grievance procedures (including arbitration) for all
regular, probationary staff, temporary and part time hospital employees, including employees in
the hospital radiology department. GC Ex. 2 at 2. The agreement recognized the Union as the
exclusive bargaining agent for the employees covered by the agreement.4 Id.
The Respondent’s radiology department is separated into three primary areas: main
radiology (including plain film, nuclear medicine, special procedures, CT and ultrasound);
outpatient (including MRI, CT); and women’s imaging (including mammograms, DEXA
procedures and outpatient ultrasound). In 2009, the radiology department performed over
91,000 procedures. Tr. 394–395.
During the relevant time period, the radiology department generally employed five
ultrasound technologists (also known as sonographers),5 with three ultrasound technologists
assigned to the day shift, one assigned to the evening shift, and one assigned to the night shift.
Tr. 38–39. To meet its staffing requirements, the Respondent hired full-time ultrasound
technologists (staff technologists), but also supplemented its staff with contract agency

3 The trial transcript is generally accurate, but I make the following corrections to clarify the
record: (a) at Tr. 174, line 23, the word “her” should be “your”; (b) references to January 24,
2010 at Tr. 204–206 are incorrect, and the correct date is at some point on or before January 5,
2010; and c) at Tr. 270, line 11, the word “irrelevance” should be “relevance,” and the speaker
at line 12 should be Mr. Heltzer.
4 The agreement excluded the following employees: all employees covered by other
contracts, personnel employees, trainees, requisition and student employees, supervisory,
confidential office employees, administrative and managerial employees, [and] physical and
occupational therapists. GC Exh. 2 at 2.
5 Ultrasound technologists perform (or assist doctors with) ultrasound and biopsy
procedures. Tr. 138.
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technologists (agency technologists) who are employed by an outside agency that provides staff
to the Respondent as needed. Tr. 39, 139. Mr. Vonzell Barker supervised the ultrasound
department (as well as certain other departments within radiology). Tr. 38, 139–141.
Under the collective-bargaining agreement, new employees join the hospital as
probationary employees. A probationary employee is one hired to work for a trial period of 6
months with the expectation of continued employment. GC Exh. 2, p. 2. Although probationary
employees are members of the bargaining unit, probationary employees are employed at will
during the trial period, and thus the Respondent may terminate probationary employees without
completing the progressive discipline process set forth in the collective bargaining agreement.6
Tr. 203, 219-220.
B. Stevenson Joins The Radiology Department
On July 6, 2009, Stevenson joined the radiology department at Howard University
Hospital as a probationary registered ultrasound technologist.7 Tr. 34; see also GC Exh. 15.
From July 2009 to January 2010, Stevenson normally worked the day shift8 with Ms. Avril
Rutherford (a staff technologist) and Ms. Nina Madden (an agency technologist), while Ms.
Sahra Mire (a staff technologist) worked the evening shift. Tr. 138–139, 345–346. The shift
hours overlapped slightly, such that the final hour of one shift overlapped with the first hour of
the following shift. Tr. 346.
Shortly after Stevenson joined the ultrasound department in July 2009, Dr. Bonnie Davis
and other radiologists formed the opinion that some of Stevenson’s ultrasound work was
deficient because the resulting images or studies were not sufficiently reliable. Tr. 322–324. To
address that issue, Stevenson was paired up with another ultrasound technologist (Avril
Rutherford) for a period of 2 weeks to improve her skills.9 Tr. 325. Stevenson’s skills improved
to an acceptable level after the 2 week training period with Rutherford.10 Tr. 325.
C. Stevenson Expresses Her Concerns About the Ultrasound Department
In late August 2009, Stevenson asked Barker about the possibility of serving as the lead
ultrasound technologist on a temporary basis until Barker selected someone to fill that role on a
permanent basis. Tr. 43–44. In the same time period, Stevenson volunteered for a weekend

6 Ms. Regina Bryan, an employee and labor relations specialist for the Respondent, did
indicate that although progressive discipline is not required for probationary employees, she
does ask supervisors whether they provided a probationary employee selected for termination
the opportunity to correct his or her behavior. Tr. 220.
7 Stevenson also worked for Howard University Hospital from 1987 to 1991. Tr. 32–33.
8 Stevenson generally worked the night shift in July and early August 2009, and then
switched to the day shift. Tr. 44.
9 On rebuttal, Rutherford testified that she trained six ultrasound technologists (including
Stevenson) using the buddy system described herein. Sahra Mire was one of those six
individuals, and paired up with Rutherford for a period of 2 months after commencing her
employment with the Respondent in 2007. Tr. 345, 416–417.
10 Dr. Davis testified that although Stevenson’s skills improved, where possible she (Dr.
Davis) chose to work with other ultrasound technologists because she had established
relationships with them and felt more confident about their work. Tr. 326–327. There is no
evidence that Dr. Davis communicated any additional concerns about the quality of Stevenson’s
work to Barker after Stevenson completed her 2 week training period with Rutherford.
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overtime shift and, in connection with expressing a general interest in more overtime hours,
asked Barker whether the Respondent’s policy was to give those hours to agency technologists
before staff technologists. Barker responded that he needed to cover his department as he saw
fit.11 Tr. 46–47.
In a memo dated August 28, 2009, Barker agreed to have Stevenson “take on a more
active participatory role in improving the daily operation of the sono area” for a six to nine month
period, and switched Stevenson to the day shift to facilitate her new role. Tr. 43–44; GC Exh. 3.
Barker also acknowledged Stevenson’s desire to work overtime, and promised to provide her
with a monthly schedule showing available overtime slots (starting with the September 2009
schedule, which was attached to the memo), with the caveat that he had to balance her request
with the “overall provision of service for the entire operation.” Finally, Barker stated that he
expected Stevenson to be serious about working any additional shifts she selected, noting that
he found it difficult to backfill an overtime shift that Stevenson backed out of “with very little
notice.”12 GC Exh. 3.
Stevenson reviewed the September 2009 schedule, and signed up for 9 open overtime
slots (out of the 22 that were available), including Labor Day. Upon learning that she was not
assigned to the Labor Day shift that she requested, Stevenson expressed her complaint to
Rutherford. Both Stevenson and Rutherford then went to the union office, where Stevenson
questioned whether it was proper for Barker to assign the Labor Day shift (or any overtime
hours) to an agency technologist when a staff technologist wanted to work the same shift.13 Tr.
52-53, 158–159. Stevenson again asked Barker for more overtime hours on October 10, 2009,
and was told that he (Barker) had to staff the department as he saw fit. Tr. 61–62.
In addition to her concerns about overtime, Stevenson became concerned about Nina
Madden’s role in the ultrasound department. Specifically, Stevenson believed that Madden was
acting like a supervisor in the department by (among other things) ordering furniture and
supplies, even though Madden was an agency technologist and other members of the
department (such as Rutherford) had more experience. Tr. 58–60. Stevenson and Rutherford
discussed these concerns on a regular basis.14 Tr. 60, 156–158.

11 Barker also testified about this discussion with Stevenson about overtime, but did not
mention any discussion of whether staff or agency technologists have priority when selecting
overtime shifts. I have credited Stevenson’s account of the exchange because it is consistent
with the record as a whole (which shows that Stevenson had an ongoing concern about the
overtime policy), and because Barker did not deny these aspects of Stevenson’s testimony even
though he was present in the courtroom (as the Respondent’s designated assistant) for
Stevenson’s testimony.
12 Stevenson admitted that in late August, she notified Barker that she could not perform a
Sunday overtime shift for which she volunteered. Stevenson notified Barker of this issue on the
Thursday before the overtime shift. Tr. 48.
13 Rutherford accompanied Stevenson to this meeting even though she (Rutherford) did not
work overtime shifts. Tr. 160.
14 Sahra Mire observed Stevenson’s developing frustration with Madden’s role in the
department. On one occasion, Mire observed Stevenson become agitated after Stevenson
learned that Madden planned to order supplies. Stevenson began pacing around the room,
repeating the word stupid as she did so. Tr. 353–355. On another occasion, Mire heard
Stevenson say (in an animated fashion) that Madden was nothing and not important, in contrast
to the staff technologists in the ultrasound department. Tr. 355–356. Mire was taken aback by
these incidents, but the record does not show that either incident was ever reported to Barker.
Continued
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D. The October 30, 2009 Staff Meeting
On October 30, 2009, Stevenson attended the monthly ultrasound team meeting in the
mammogram conference room. Barker, Rutherford, and Madden were also present. After
Barker covered some opening topics about the volume of patients in the department, the
November schedule and the need for written protocols for the department, he asked if any of the
employees had any concerns to address. Tr. 62–64, 66, 142–145, 242–244, 291–294. In
response, Stevenson said she had some concerns about the leadership and supervision in the
ultrasound department. Specifically, Stevenson stated that the department seemed like it did
not have direction, and added that although she had volunteered to help with leading the
department, Barker had not acknowledged that and instead used Madden as a go-between
between himself and staff technologists. Stevenson also expressed concern about how
supplies were being ordered for the department, asserting that the technologists did not know
who to go to for supplies or supply requests. And, Stevenson raised a concern about overtime,
asserting that contrary to Union policy to give staff technologists priority over agency
technologists for overtime, the schedule listed agency technologists for overtime slots before the
staff technologists had an opportunity to select those slots.15 Tr. 67–69, 145–146, 148, 244–
_________________________
Tr. 355–59 (the only incident concerning Mire that was conveyed to Barker was a dispute,
discussed infra, between Mire and Stevenson about who should handle certain patients during a
shift change).
Similarly, Madden was aware of Stevenson’s objections to Madden’s role in the
department. On October 30, 2009, Madden advised Stevenson that Barker postponed the
monthly staff meeting from 8 to 8:30 a.m. and indicated that the meeting would be held in the
mammography department. In Madden’s presence, Stevenson questioned why Barker notified
Madden instead of notifying a staff technologist. Tr. 299–300. In another exchange, Stevenson
objected when Madden advised her that Dr. Davis wished to be present during a procedure
Stevenson would be performing. In Madden’s presence, Stevenson questioned why Dr. Davis
conveyed this message through Madden instead of communicating directly to Stevenson. Tr.
300–301. There is no evidence that Madden advised Barker about either of these two incidents.
Tr. 302–303.
15 Barker testified that Stevenson did not raise the issue of overtime at the October 30,
2009 meeting. Tr. 245. After being confronted with his affidavit, Barker maintained that
Stevenson raised the issue of overtime on October 30, but did not do so at the staff meeting, but
instead at a later point in the day. Tr. 247; see also GC Exh. 4 (Barker’s minutes of the October
30, 2009 staff meeting). I do not credit Barker’s testimony (or his meeting minutes) on this
point. First, he was contradicted by both Stevenson and Rutherford. Second, Madden (who
was called by the Respondent, and was the only other person who attended the meeting
besides Barker) also contradicted Barker. In her testimony on direct, Madden offered a
summary of the topics discussed at the meeting that included scheduling and “does anyone
want to sign up for . . . any of the available hours.” Tr. 292. However, in response to cross-
examination, Madden admitted that Stevenson not only asked about overtime hours, but also
asserted that agency technologists were getting preference for the hours that she (Stevenson)
wanted. Tr. 311. Third, Barker’s assertion that Stevenson did not raise the issue of overtime in
the staff meeting is implausible, in light of his ongoing discussions with Stevenson about
overtime hours and the fact that the November schedule was discussed at the meeting before
Stevenson spoke. And fourth, Barker had motive to deny that Stevenson raised the issue of
overtime at the meeting (as an issue affecting the entire staff, rather than just herself), because
the issue of overtime is addressed in the collective-bargaining agreement and was the subject
of a prior dispute between the Respondent and the Union regarding multiple employees. See
Continued
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247. Barker asked Stevenson if the conversation she was starting should occur privately
instead of in the staff meeting, and indicated that he preferred to discuss the issues with
Stevenson one-on-one in his office. Stevenson declined, stating that she preferred to make her
concerns known at the meeting since they affected all of the technologists, and because she
wanted to avoid a he-said/she-said scenario that could result from a private conversation. Tr.
69, 145–146. Returning to the topic of overtime, Stevenson stated that she had been asking
Barker for overtime, but he refused to give it to her. In that connection, she invited Barker to call
any of her prior employers to verify that she is a hard worker. Barker invited Stevenson to sign
up for any available overtime slot on the schedule, but refused Stevenson’s request to sign up
for slots already assigned to an agency technologist. Stevenson insisted that she was entitled
to the overtime hours, and asserted that she would take the issue to the Union if her request
was denied. Barker then told Stevenson that she was full of herself. Tr. 69-70, 146–148.
Before the meeting adjourned, Madden advised Barker that she needed some time off for
Thanksgiving, and Barker agreed to adjust the schedule once he received the necessary
information from Madden. Stevenson then cited that exchange as an example of Barker giving
preferential treatment to agency technologists, asserting that he was willing to change the
schedule for Madden, but not Stevenson.16 Tr. 70, 149.
E. November 2009 Conflict Between Stevenson and Mire
In early November 2009, a conflict developed between Stevenson and Mire when their
work shifts overlapped (Stevenson was completing the day shift, and Mire was starting the
evening shift).17 At approximately 4 p.m., Stevenson sent for a patient who required a study in
the ultrasound department. When the patient arrived, Mire (who had just started her shift) and
Stevenson converged on the patient, resulting in a debate about who should perform the study.
Mire’s view was that she should handle the patient since her shift was beginning, while
Stevenson’s view was that she routinely stayed until 5 p.m. and should perform the study on the
patient that she sent for.18 Tr. 89, 345–347, 351. Mire relented and allowed Stevenson to
handle the patient, but left the dispute (which she described as including a brief tug-of-war on
_________________________
GC Exh. 16 (May 18, 2009 memo regarding overtime hour settlement, sent to Barker and other
supervisors). In short, contrary to Barker’s testimony (see Tr. 410–412); I find that Stevenson
did raise the issue of overtime at the October 30 ultrasound staff meeting.
16 Stevenson, Barker, Madden and Rutherford each testified about Stevenson’s tone and
demeanor during the October 30 meeting. Although Stevenson spoke in an assertive manner
and in a somewhat elevated voice (but short of yelling), she did not use profanity or engage in
any behavior that attracted the attention of anyone who may have passed by the conference
room. Tr. 71–73, 149–150, 295, 314.
17 Both Stevenson and Mire were somewhat unclear about the date of this incident, but I
find that the approximate date is established by subsequent email communication to Barker
about the incident. See Respondent (R.) Exh. N (On November 18, 2009, Dr. Davis indicated
that the incident occurred over two weeks before her email).
18 It was not uncommon for ultrasound technologists who were concluding one shift to work
simultaneously (for a brief period of time) with ultrasound technologists scheduled to start the
next shift. There are no written guidelines concerning which technologist handles which patient
during these time periods when shifts overlap. In response to my question about whether any
unwritten guidelines addressed this issue, Barker stated that (in his view) an ultrasound
technologist who starts a patient before his or her shift ends should finish that patient. However,
Barker also stated that the ultrasound technologist starting his or her shift should handle any
new patient arriving in the department after their shift began. Tr. 274–275. Stevenson and
Mire’s dispute arose out of this ambiguity.
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the patient’s gurney) feeling as if Stevenson blocked her from starting her shift. Mire
communicated her concerns to Dr. Davis, who observed that Mire appeared shaken and
anxious. Tr. 328. Dr. Davis in turn advised Barker of the incident. Tr. 329–331; see also R.
Exh. N.
F. The November 4, 2009 Warning
On November 4, 2009, Barker called Stevenson to his office and advised her that, as a
written warning, he was giving her a memo about her inappropriate conduct in the October 30,
2009 staff meeting. Barker added that he did not appreciate Stevenson’s tone of voice during
the meeting, and that he did not want such conduct to occur again in the future. Tr. 78.
Barker’s memo stated:
Re: Inappropriate Conduct
This memo serves to inform you that your conduct during this past Friday’s (Oct. 30)
Ultrasound team meeting was totally inappropriate.
The tone and manner in which you addressed me was condescending, disrespectful,
and has no place in the work environment. This type of verbal communication serves no
productive outcome and accomplishes no useful good.
Joan, even with the points you made that had merit (and some of them did, in fact), the
rude and curt manner in which you delivered them completely took away from whatever
your intended purpose may have been.
This type of behavior displays a total lack of professionalism, and to display this in the
presence of others reflects a complete lack of regard for them as well.
Be advised that further occurrences of this nature will not be tolerated.
GC Exh. 5.
Stevenson discussed the memo with Rutherford, and then took the letter to the union
office. Stevenson also told the union officer that the issue of overtime came up at the October
30, 2009 meeting, and stated that staff technologists were still not getting preference when
choosing overtime slots. After discussing these matters with the union officer, Stevenson
decided not to respond to Barker’s November 4, 2009 memo, but did prepare a memo (dated
Nov. 11, 2009) to Union President Lauretta Stevenson that outlined her concerns about the
ultrasound department and Nina Madden’s role in the department despite being an agency
technologist. Both Joan Stevenson and Rutherford signed the November 11, 2009 memo. Tr.
80–83, 85–87, 153–154; GC Exh. 6.
G. Stevenson’s Step Two Union Grievance About Overtime, and The Respondent’s
Simultaneous Attempt to Address Stevenson’s Conflict With Mire
On November 12, 2009, the Union filed a step 2 grievance on Stevenson’s behalf,
alleging that the Respondent failed to adhere to the terms of the collective-bargaining
agreement regarding contracting out work, overtime, and maintaining benefits. Tr. 92–93, 194;
GC Exh. 7. On November 17, 2009, Stevenson learned from the Union that her step 2
grievance meeting would occur at 4 p.m. on November 19, 2009. The Union also advised
Stevenson that Barker and Ms. Steven Mitchell (director of radiology) would be present as the
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Respondent’s representatives, while Lauretta Stevenson would serve as Joan Stevenson’s
representative. Tr. 93-94.
On November 18, 2009, Barker sent an email to Dr. Davis in response to concerns that
she expressed about the incident (from early November) between Stevenson and Mire. Barker
stated that “there have been some of the same issues between [Stevenson and Madden],” but
indicated that he felt his options were constrained by “direction we’re being given . . . that having
staff should override having the right staff.” Accordingly, Barker asked Dr. Davis to assist him
by preparing a memo to describe the deficiencies in Stevenson’s work that led her to ask Barker
to pair Stevenson up with another ultrasound technologist (in July/August 2009) to improve
Stevenson’s skills. Barker also assured Davis that he intended to sit down with Stevenson and
Mire to discuss their conflict. R. Exh. N at p. 1.
At approximately 2:35 p.m. on November 19, 2009, Barker (first, via Madden, and then
directly) told Stevenson that he wished to meet with her in the conference room. Tr. 95–96,
259; R Exh. N at p. 2. When Stevenson finished working with her patient, she called the Union
and confirmed that the grievance meeting was still scheduled for 4 p.m. According to
Stevenson, the Union also advised her not to meet with Barker, since the grievance meeting
was forthcoming that same afternoon. Tr. 96–97. Stevenson therefore continued to see
patients, but did not tell Barker that she was not willing to meet with him in the conference room.
Thus, Stevenson did not learn that the purpose of the proposed conference room meeting was
to discuss her conflict with Mire (who, at Barker’s request, had come to work early for the
meeting) from earlier in the month.19 Tr. 262–263; R. Exh. N. at p. 2. Barker did not discipline
Stevenson for failing to attend the meeting with Mire, but Stevenson’s failure to appear at the
meeting did prompt Barker to again ask Davis to provide the memo that he requested about the
quality of Stevenson’s work.20 Tr. 262; R. Exh. N. at p. 2.
The union grievance meeting occurred at 4 p.m. on November 19, 2009, as scheduled,
with one issue being how the Respondent distributed overtime among its employees, and
particularly between staff and agency technologists. Mitchell attended the meeting, along with
Lauretta Stevenson and Joan Stevenson. Barker was not at the meeting initially, but arrived at
4:20 p.m. to provide (at Mitchell’s request) a sample of the monthly overtime schedule.21 Tr.
365–369, 376.
H. Stevenson’s Conflicts With Coworkers Continue
Madden and Stevenson had another disagreement in the morning on November 20,
2009. At that time, Madden was assigned to the outpatient ultrasound unit, and observed that
five or six patients in that unit required studies. Madden called Stevenson, who was working in
the inpatient ultrasound unit and was busy assisting Rutherford with (and learning how to do) a
study for renal artery stenosis. When Madden asked for help with the patients in the outpatient
unit, Stevenson stated that she knew about the list of patients, told Madden to handle them, and
hung up the phone. Tr. 102–103, 155–256, 296–297; R. Exh. M. Stevenson joined Madden in

19 When about his efforts to speak to Stevenson about her conflict with Mire, Barker
responded that Stevenson would not meet with him. Tr. 263. There is no evidence that Barker
attempted to discuss the matter with Stevenson at any time besides November 19, 2009.
20 In this same timeframe, Barker also told Mitchell that he did not believe Stevenson was
going to work out as an employee. Tr. 266.
21 Before November 19, 2009, Mitchell advised Barker that a union grievance meeting was
scheduled, but did not specify the date or time of the meeting. Tr. 366, 374–375.
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the outpatient unit approximately 10–15 minutes after Madden’s phone call, after she and
Rutherford completed their study. Tr. 156. Madden reported the telephone exchange to Barker,
who asked her to “write it up.” Tr. 298. In her written incident report, Madden summarized the
telephone conversation with Stevenson and asserted that she “felt the conversation was deeply
inappropriate and it was rude for Joan to have hung up the phone. No coworker should be
disrespected in a manner where they feel belittled by another coworker.” R. Exh. M. Barker
never spoke to Stevenson to get her version of or explanation for the telephone conversation
with Madden. Tr. 266.
Also on November 20, 2009, Barker held another monthly ultrasound department staff
meeting. Rutherford, Stevenson, and Madden attended, as did Mitchell. Mitchell’s attendance
was unusual, as (to Stevenson’s knowledge), he had never before attended such a meeting.
The meeting was relatively brief, and occurred without incident. Barker provided the
technologists with a copy of the December 2009 schedule. Barker intentionally left all night-shift
slots open, which enabled Stevenson to sign up for all of the overtime slots that she wanted.
Tr. 105–106, 412.
The day after Thanksgiving (Nov. 27, 2009), Stevenson reported to work and noted
that staffing was thin because various employees were on vacation. During a busy period
that morning, Stevenson was assisting Dr. Davis with a biopsy when she received a call from
Ms. Beverly Brown (a/k/a Beverly Blake), who was working as a secretary in the outpatient
department. Because of the focus required for the biopsy (a tense procedure, as Stevenson
described it), Stevenson had trouble answering the phone when it first rang. When Stevenson
picked up the phone, Brown asked Stevenson to come help with patients who were waiting for
studies in the outpatient department. Stevenson told Brown that she couldn’t talk to her, and
then hung up the phone. Brown then called Barker to ask him to bring someone to the
outpatient department to assist the patients. Tr. 106–109, 177–178; GC Exh. 11.
Later on November 27, Stevenson approached Brown and apologized for how she
spoke to Brown in the telephone conversation. After that exchange, Brown felt that the issue
was resolved.22 Tr. 111–113, 178–179. However, in the afternoon, Barker asked Brown to
write a note about her interaction with Stevenson. Barker returned to Brown’s office twice to
see if Brown had written the requested note, and in fact waited while Brown wrote the note
during his final visit shortly before the end of Brown’s shift.23 Tr. 179–182; see also GC Exh. 11.
Barker did not speak to or discipline Stevenson for her interaction with Brown.24 Tr. 109,
267–268.
I. Respondent Resolves Stevenson’s Step 2 Union Grievance
In a memo dated November 30, 2009, Mitchell denied Stevenson’s Union grievance,
finding that the grievance lacked merit. Tr. 370–371; R. Exh. D. Mitchell took the position that

22 Brown explained that she encounters similar situations (where she calls on a supervisor
to ensure that technologists help with patients who are waiting) on a daily basis. Tr. 178.
23 Brown delayed writing the note about her conversation with Stevenson because she did
not believe the incident needed to be written up. Instead, Brown merely wanted Barker to
advise Stevenson to communicate with her more effectively. Tr. 185–186.
24 When asked to confirm the fact that he did not discuss the Brown incident with
Stevenson, Barker interjected that Stevenson would not meet with him. Tr. 267–268. There is
no evidence that Barker ever attempted to talk to Stevenson about the November 27 incident
with Brown.
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the collective-bargaining agreement exempts the radiology department from the procedures that
apply before the Respondent may contract out bargaining unit work. Mitchell added that the
radiology department nonetheless provided its technologists with the opportunity to volunteer for
overtime by signing up for open slots on the monthly schedule. R. Exh. D. The Union filed a
step 3 grievance on December 9, 2009, to contest Mitchell’s decision. GC Exh. 12.
J. The December 18, 2009 Incident and Disciplinary Memo
On December 18, 2009, Stevenson’s daughter came to the department at approximately
12:30 p.m. because she had a CT scan scheduled for later in the afternoon. While Stevenson
was working with a patient, she had her daughter sit in a nearby, vacant examination room.
Barker noticed Stevenson’s daughter in the room, and at 1:25 p.m., told Stevenson that he
wanted to speak with her in his office. When Stevenson finished her patient’s study
(approximately 30–45 minutes after speaking with Barker), she went to meet with Barker, but
Barker was not in his office. Stevenson therefore dropped her daughter off for her appointment,
had lunch, and then resumed seeing patients (checking once more in this timeframe, and not
finding Barker in his office). Stevenson finally met with Barker in his office at 3:30 p.m., where
Barker admonished Stevenson for having her daughter in patient care. Stevenson apologized
and promised that she would not make the same mistake in the future. Tr. 113–116; GC Exh. 8.
That same day, Barker prepared a written memo to Stevenson.25 Barker described
observing Stevenson’s daughter in patient care at 1:10 p.m., and stated that at 1:25 p.m., he
directed Stevenson to meet with him as soon as she finished working with the patient she was
examining at the time. Barker acknowledged meeting with Stevenson at 3:30 p.m. that day,
but asserted that:
your [Stevenson’s] willful refusal to comply with my requests to meet with you is a
serious problem. With this immediate matter, a radiology department is not a place that
children should be, unless they are having a procedure or with a parent that is having
one. Further, your failure to communicate made any efforts to work with the situation or
come up with any workable alternative impossible.
GC Exh. 8.
K. Stevenson’s Termination
On January 5, 2010, Barker recommended that the Respondent terminate Stevenson’s
employment due to unsatisfactory completion of her probationary period. GC Exh. 14.
In support of that recommendation, Barker stated:
Ms. Stevenson was employed as an ultrasound technologist. During her time with [the
Respondent], I received numerous complaints from Radiologists, her peers and
coworkers regarding her rude, discourteous and unprofessional behaviors towards them.
I have received written documentation from various staff regarding some of these
episodes.
I have also been on the receiving end of some of these inappropriate behaviors. One

25 Although the memo was directed to Stevenson, she did not receive a copy until after she
was terminated in January 2010. Tr. 116. Barker did not write the memo as a disciplinary
memo. Tr. 269.
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such occurrence took place during a team meeting in the presence of other staff.26
Further, Joan has consistently and over time, displayed a totally insubordinate attitude
and approach to any efforts I have made to try and sit down to discuss the above
mentioned matters.
GC Ex. 14.
Barker’s submitted his termination recommendation memo to the Respondent’s human
resources office, where it was received and reviewed by Regina Bryan, an employee and labor
relations specialist. Tr. 190, 207. Bryan concurred with Barker’s recommendation and prepared
her own memo (to Anthony Jacks, director of human resources) to recommend Stevenson’s
termination for unsatisfactory completion of the probationary period.27 Relying on Barker’s
memo, Bryan asserted that Stevenson did not acclimate to the working environment at the
hospital, as demonstrated by her rude and inappropriate behavior and blatant disrespect
towards her supervisor. GC Exh. 15; see also Tr. 211–112. Jacks gave his oral approval to
terminate Stevenson on January 5, 2010.28 GC Exhs. 15, 24.
Based on Jacks’ oral approval, Bryan provided Barker with a termination notice to deliver
to Stevenson. GC Exh. 9. At approximately 3:30 p.m. on January 5, 2010, Barker told
Stevenson that he needed to see her in his office. Stevenson stopped by Barker’s office shortly
before 4 p.m., but Barker was not present. Stevenson therefore finished her shift and went
home. Tr. 118–119.
Just after midnight on January 6, 2010, Stevenson returned to the hospital to work the
night shift. To her surprise, two ultrasound technologists were already present (instead of just
one, as she expected). Barker appeared, handed Stevenson the termination notice, and
instructed her to pack her belongings and leave the premises. Tr. 119–120.
L. Stevenson’s Grievance About Her Termination
Stevenson notified the Union about her termination, and the Union filed a grievance on
her behalf on January 7, 2010, asserting that the Respondent’s decision to discipline and
discharge Stevenson violated the collective-bargaining agreement and was retaliatory.
Tr. 120–23; GC Exh. 10. The grievance meeting occurred on January 12, 2010, and was
attended by Ms. Amy Person (for the Union), Bryan, Barker, Stevenson, and one of the
Respondent’s attorneys. The parties debated the rationale for Stevenson’s termination, and for
the first time, Barker showed Stevenson the memos that he collected from coworkers about
Stevenson. Tr. 123–127. The record does not state the result of Stevenson’s grievance about
her termination, but I infer from the record as a whole that Stevenson’s grievance was not
successful.

26 Barker admitted that the team meeting he referenced in his memo was the October 30,
2009 ultrasound department staff meeting. Tr. 254–255.
27 Time was of the essence with Stevenson’s termination, since she was hired on July 6,
2009, and was nearly at the end of her probationary period. Tr. 221–222; GC Exh. 15.
28 Jacks did not know Stevenson, and had never interacted with her. In making his decision
to terminate Stevenson, Jacks considered Bryan’s and Barker’s memos (GC Exhs. 14 and 15),
and spoke with Bryan about her recommendation. GC Exh. 24. Although he provided oral
approval for Stevenson’s termination on January 5, Jacks did not sign the termination memo
(prepared by Bryan) until January 9, 2010. GC Exhs. 15, 24.
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M. Disparate Treatment Evidence
As evidence of disparate treatment, the Acting General Counsel introduced two memos
that Barker wrote about another employee, C.B., about conduct that occurred early during his
(C.B.’s) employment. On September 18, 2008, Barker was with a DC Health Department
inspector and discovered C.B. in a locked exam room listening to something on his earphones.
C.B. explained that he had not had a break all day, and was entitled to a ten minute break.
Barker admonished C.B. for being inside an exam room with the door locked for no legitimate
reason, and for being reluctant to remove his earphones despite being aware of the inspector’s
visit. Barker also noted that while C.B. had many ideas and suggestions about the Radiology
department that had merit, “the tone and manner in which you deliver them is inappropriate.”
Barker advised C.B. that as a probationary employee, he needed to be mindful of how he
comes across and that he should show improvement quickly. GC Ex. 20.
On January 9, 2009, Barker gave C.B. a written reprimand for inappropriate and
unprofessional behavior. Specifically, Barker cited the following incidents that occurred earlier
in the month: a) C.B. left a portable x-ray unit and a patient requisition form sitting in front of the
cafeteria while he had breakfast during his assigned shift; b) C.B. did not process nine operating
room procedures correctly, creating the possibility that the Respondent would not be reimbursed
for the procedures; and c) C.B. reported working a full day, but other information suggested that
he was absent from the department for a considerable period of time and performed a low
number of procedures. Barker warned C.B. that “any further occurrences like the above
mentioned will result in progressive disciplinary actions to include termination of your
employment.”29 GC Ex. 19. C.B. remained employed at the hospital at the time of the ALJ
hearing in this matter. Tr. 269.
Complaint Allegations
As amended, the complaint alleges that the Respondent (through Barker) violated the
National Labor Relations Act by:
1. telling employees, on October 30, 2009, that complaints about the terms and
conditions of employment should not be discussed in the presence of other employees
(in violation of Section 8(a)(1) of the Act);
2. telling employees, on November 4, 2009, that the tone in which they raised their
complaints in the October 30, 2009 meeting was inappropriate (in violation of Section
8(a)(1) of the Act);
3. telling employees, on November 4, 2009, that he hoped they would not again raise
concerns as they did in the October 30, 2009 meeting (in violation of Section 8(a)(1) of
the Act);
4. issuing a disciplinary memorandum to Stevenson on November 4, 2009 (in violation

29 The record does not show when C.B. concluded his probationary period. However, the
language that Barker used in his January 9, 2009 memo (concerning progressive discipline,
which is outlined in the collective-bargaining agreement for employees who have completed
their probationary period) suggests that C.B. finished his probationary period before January 9,
2009. See GC Exh. 19.
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of Section 8(a)(3) and (1) of the Act);
5. placing a disciplinary memorandum in Stevenson’s file on December 18, 2009 (in
violation of Section 8(a)(3) and (1) of the Act); and
6. discharging Stevenson on or about January 9, 2010 (in violation of Section 8(a)(3)
and (1) of the Act).
See GC Exh. 1(c); fn.2, supra. In short, the Acting General Counsel alleges that the
Respondent unlawfully interfered with, restrained and coerced employees in the exercise of
rights guaranteed in Section 7 of the Act, and also unlawfully discriminated against employees
in violation of the Act.
Legal Standards
The test for evaluating whether an employer’s conduct or statements violate Section
8(a)(1) of the Act is whether the statements have a reasonable tendency to interfere with,
restrain or coerce union or protected activities. Yoshi’s Japanese Restaurant., Inc., 330 NLRB
1339, 1339 n.3 (2000) (noting that the employer’s subjective motivation for the statements is not
relevant); see also Park N’ Fly, Inc., 349 NLRB 132, 140 (2007).
The legal standard for evaluating whether an adverse employment action violated the
Act is generally set forth in Wright Line, 251 NLRB 1083, 1089 (1980). To sustain a finding of
discrimination, the General Counsel must make an initial showing that a substantial or
motivating factor in the employer’s decision was the employee’s union or other protected
activity. Pro-Spec Painting, Inc., 339 NLRB 946, 949 (2003). The elements commonly required
to support such a showing are union or protected concerted activity by the employee, employer
knowledge of that activity, and animus on the part of the employer. Consolidated Bus Transit,
Inc., 350 NLRB 1064, 1065 (2007). If the General Counsel makes the required initial showing,
then the burden shifts to the employer to prove, as an affirmative defense, that it would have
taken the same action even in the absence of the employee’s union or protected activity. Id. at
1066; see also Blue Diamond Growers, 353 NLRB 50, 54–55 (2008); Pro-Spec Painting, 339
NLRB at 949. The General Counsel, however, may offer proof that the employer’s reasons for
the personnel decision were false or pretextual. Pro-Spec Painting, 339 NLRB at 949 (noting
that where an employer’s reasons are false, it can be inferred that the real motive is one that the
employer desires to conceal – an unlawful motive – at least where the surrounding facts tend to
reinforce that inference.) (citation omitted). However, Respondent’s defense does not fail
simply because not all the evidence supports its defense or because some evidence tends to
refute it. Ultimately, the General Counsel retains the burden of proving discrimination. Park N’
Fly, Inc., 349 NLRB at 145 (citations omitted).
Discussion and Analysis
There is no dispute that Stevenson’s stint in the radiology department was somewhat
rocky, even in the early months of her tenure in 2009. However, the level of conflict rose
significantly on and after October 30, 2009, the day of the ultrasound staff meeting at which
Stevenson decided to air her concerns about the department. The alleged violations in the
complaint understandably begin with that pivotal staff meeting.
1. The October 30, 2009 staff meeting
The complaint alleges (in pars. 9(a) and 11 – see GC Exh. 1-C) that the Respondent ran
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afoul of Section 8(a)(1) of the Act at the October 30 meeting when Barker coerced employees
by telling them that complaints about terms and conditions of employment should not be
discussed in the presence of other employees.
It is well established that an employee’s honest and reasonable invocation of a
collectively bargained right constitutes concerted activity, regardless of whether the employee
turns out to have been correct in his belief that his right was violated. NLRB v. City Disposal
Systems, Inc., 465 U.S. 822, 840 (1984); see also Kingsbury, Inc., 355 NLRB No. 195 at 10
(2010) (“It is beyond cavil that an honest and reasonable assertion of collectively bargained
based rights – even if . . . it is incorrect – is protected and concerted activity.”)
Based on that authority, I agree that Stevenson was engaging in protected concerted
activity at the October 30 meeting. Stevenson advocated both her and Rutherford’s interests,
and more broadly, the interests of all staff technologists (including Mire) in the ultrasound
department to be given priority over agency technologists in various work related matters.
Further, to the extent that Stevenson raised concerns about overtime (an issue covered by the
collective-bargaining agreement); she was engaging in union activity. I also have credited
Stevenson’s and Rutherford’s uncontradicted testimony that Barker indeed did assert that
Stevenson should express her concerns to him privately. Tr. 69, 145–146. The record also
shows that when Stevenson declined Barker’s request to voice her concerns privately, Barker
permitted Stevenson to speak her mind in the staff meeting while the other ultrasound
technologists were present. Id.
The fact that Barker suggested that Stevenson should raise her concerns with him in
private (rather than in front of other employees at the staff meeting) does not, in and of itself,
establish that the Respondent (through Barker) violated Section 8(a)(1). The General Counsel
must also show that Barker’s statement had a reasonable tendency to interfere with, restrain or
coerce union or protected activities. Yoshi’s Japanese Restaurant., supra at 1339 fn.3.
Moreover, the provisions of Section 8(c) of the Act must be considered, as that section states
that “[t]he expressing of any views, argument, or opinion, or the dissemination thereof, whether
in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor
practice under any of the provisions of this Act [subchapter], if such expression contains no
threat of reprisal or force or promise of benefit.”
The record shows that at the October 30 meeting, Barker merely expressed his
preference that Stevenson discuss her concerns with him privately, and invited Stevenson to
agree to such an arrangement. Barker’s statement was not accompanied by any actual or
implied threat to Stevenson (or anyone else) if she opted to proceed with voicing her concerns
at the staff meeting. Nor was there any suggestion that employees were prohibited from
discussing the terms and conditions of employment with each other as a general matter.30

30 In this connection, I do not see Barker’s suggestion as a work rule that explicitly restricts
Sec. 7 activity or that was issued or applied for the purpose of restricting such activity. Nor
could employees reasonably construe Barker’s suggestion that he and Stevenson talk privately
as a rule to prohibit Sec. 7 activity. See Northeastern Land Services, 352 NLRB 744, 745
(2008) (articulating the legal standard for such work rules). Indeed, such a finding would be
contrary to the facts of this case, including the undisputed fact that before Barker suggested
(based on his impression of Stevenson’s tone) that he and Stevenson speak privately, he
invited employee comments about the ultrasound department. While the Acting General
Counsel did point out that Barker (during trial) confirmed that he believes “when a supervisor
tells an employee they should not talk about an issue in a roomful of people, that employee
Continued
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In the absence of any other evidence that Barker’s statement had a tendency to be coercive,
I recommend dismissing the allegations in paragraph 9(a) of the complaint.
2. Barker’s November 4, 2009 meeting With Stevenson
Regarding the events of November 4, 2009, the complaint alleges that the Respondent
coerced employees in violation of Section 8(a)(1) when Barker told them “he found the tone in
which they raised their complaints in the [October 30] meeting . . . to be inappropriate,” and
when he told them that “he hoped they would not again raise concerns as they did in the
[October 30] meeting.” GC Exh. 1-C (pars. 9(b) and 11); Tr. 170–171 (adding par. 9(c) to the
complaint).
The complaint also alleges that Respondent violated Section 8(a)(3) and (1) when it
issued a disciplinary memorandum to its employee, Joan Stevenson. GC Exh. 1-C (pars. 10(a)
and 12).
I have credited Stevenson’s uncontradicted testimony about Barker’s comments in the
November 4, 2009 meeting. See Tr. 78, 252. Barker’s November 4, 2009 memo to Stevenson
(in which he sets forth his objections to Stevenson’s conduct at the October 30 staff meeting)
also carries considerable weight, and fully corroborates Stevenson’s account of the November 4
meeting.
As noted above, I agree that Stevenson engaged in protected concerted activity and
union activity at the October 30 meeting, as she reasonably asserted rights on behalf of both
herself and other staff ultrasound technologists that related to the terms and conditions of
employment, and implicated the terms of the collective-bargaining agreement regarding
overtime. However, the Respondent argues that it issued the November 4 disciplinary memo to
Stevenson because of her tone (and not because of her comments) in the October 30 meeting.
In so arguing, the Respondent invokes the theory that its November 4 disciplinary memo was
lawful because Stevenson’s conduct at the staff meeting was so egregious as to take it outside
the protection of the Act. Ogihara America Corp., 347 NLRB 110, 112 (2006) (internal
quotations omitted).
The Wright Line standard does not apply in this circumstance, where there is no dispute
that the employer took action against the employee because the employee engaged in activity
that is protected under the Act. In such a single motive case, the only issue is whether the
employee’s conduct lost the protection of the Act because the conduct crossed over the line
separating protected and unprotected activity. Phoenix Transit System, 337 NLRB 510, 510
(2002). Specifically, “[w]hen an employee is discharged for conduct that is part of the res
gestae of protected concerted activities, the pertinent question is whether the conduct is
sufficiently egregious to remove it from the protection of the Act. Aluminum Co. of America, 338
NLRB 21 (2002). In making this determination, the Board examines the following factors:
_________________________
should stop talking” (Tr. 250), there is no evidence that Barker expressed that view to
Stevenson on or before October 30, 2009.
In addition, I note that the General Counsel did not identify any Board decision that deemed
statements similar to Barker’s to be coercive. See GC Posttrial Br. at 28 (citing cases only for
the proposition that the Board considers all of the surrounding circumstances and uses an
objective standard when determining whether a statement violates Sec. 8(a)(1)). The lack of
such authority is consistent with my finding that, viewed objectively, Barker’s comments on
October 30, 2009 were not coercive and thus did not violate the Act.
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(1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the
employee’s outburst; and (4) whether the outburst was, in any way, provoked by an employer’s
unfair labor practice. Atlantic Steel Co., 245 NLRB 814, 816 (1979).” Stanford Hotel, 344 NLRB
558, 558 (2005).
In this case, the relevant factors largely support Stevenson. First, Stevenson’s protected
activity occurred in a scheduled ultrasound staff meeting, and began after Barker expressly
asked if any employees at the meeting had any concerns they wished to raise. Second, the
subject matter of the discussion (whether agency technologists were getting preferential
treatment over staff technologists regarding overtime, department leadership and other
ultrasound department matters) was directly related to terms and conditions of employment in
the ultrasound department. And third, the evidentiary record does not support a finding that
Stevenson engaged in any sort of outburst that removed her conduct from the protection of the
Act.31 At most, Stevenson spoke in a firm manner and with a slightly elevated voice, consistent
with the strength of her belief that staff technologists were being treated unfairly. While Barker
certainly would have preferred that Stevenson voice her concerns outside of the presence of
other employees and in a less confrontational manner (from his perspective), the fact remains
that Stevenson’s conduct was not so egregious as to remove it from the protection of the Act.32
Since Stevenson’s remarks and conduct at the October 30 meeting did not cross over
the line separating protected and unprotected activity, I find that the Respondent violated
Section 8(a)(3) and (1) when it issued the November 4 disciplinary memo to Stevenson for her
“inappropriate conduct” at the staff meeting.
I also find that given the totality of the circumstances (which include handing Stevenson
the unlawful discipline memo), Barker’s comments to Stevenson on November 4 (as stated in
pars. 9(b) and (c) of the complaint) violated Section 8(a)(1) of the Act because they had a
reasonable tendency to interfere with, restrain or coerce protected activities. In effect, the
Respondent unlawfully warned Stevenson about her October 30 protected activity, and further
warned that she should not engage in similar (protected) activity in the future. Such comments
could reasonably be expected to restrain or coerce employees from asserting their Section 7
rights.
3. The Respondent’s Decision to Discipline Stevenson on December 18, 2009
There is no dispute that, as alleged in the complaint (GC Exh. 1 – par. 10(b), the
Respondent placed a memo in Stevenson’s file on December 18, 2009, citing Stevenson for
having her child in the patient care area and for delaying complying with Barker’s request for a
meeting about that issue. See GC Exh. 8. Consequently, the December 18, 2009 memo was
effectively a disciplinary memo, even if Barker did not draft it as such.

31 The fourth factor in the analysis (whether the employee’s outburst was provoked by an
unfair labor practice) is at most neutral. Although Stevenson’s conduct was not provoked by an
unfair labor practice, it is also a stretch to characterize her conduct as an outburst.
32 The Board’s decision in Lana Blackwell Trucking, LLC, 342 NLRB 1059 (2004), is
instructive on this point. In that case, the Board determined that an employee who “acted
purposefully and emphatically towards management, and . . . occasionally raised his voice”
while engaging in protected activity did not engage in conduct sufficiently serious to warrant
denying the employee the protection of Section 7 of the Act. Id. at 1062 (making this finding
even though the manager subjectively believed that the employee was rude, disrespectful and
embarrassed her in front of other employees).
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The Acting General Counsel alleges that the Respondent discriminated against
Stevenson in violation of Sections 8(a)(3) and (1) of the Act when it placed the December 18,
2009 memo in Stevenson’s file.33 GC Ex. 1 – par. 12. The Respondent counters that the
December 18 memo was issued to address a legitimate problem that was unrelated to any
protected activity.
The Wright Line framework applies to this allegation in the complaint. I find that the
Acting General Counsel presented enough evidence to make its initial showing that Stevenson’s
prior protected activity was a substantial or motivating factor in the Respondent’s decision to
place the December 18 disciplinary memo in Stevenson’s file. As noted previously, Stevenson’s
comments at the October 30 staff meeting qualify as protected activity, as do Stevenson’s
efforts in November and December 2009 to pursue her union grievance regarding contracting
out work, overtime, and maintenance of benefits. See GC Exhs. 7, 12. The Respondent was
aware of the protected activity, since Barker was at the October 30 meeting, and both Barker
and Mitchell responded to Stevenson’s November 2009 union grievance. The Acting General
Counsel has also demonstrated the Respondent’s animus towards Stevenson’s protected
activity, as demonstrated by Barker’s swift decision to discipline Stevenson (on November 4)
specifically for her conduct at the October 30 meeting, and Barker’s increasingly negative
assessment of Stevenson’s ability to get along in the department. Tr. 266. See North Carolina
License Plate Agency #18, 346 NLRB 293, 294 (2006) (explaining that the timing of an adverse
employment action in relation to protected concerted activity can provide strong evidence of an
employer’s animus); Children’s Studio School Public Charter School, 343 NLRB 801, 805
(2004) (explaining that an employer’s comments that an employee does not have the right spirit,
has a bad attitude, and is argumentative and uncooperative can be veiled references to the
employee’s protected activities, and thus circumstantial evidence of animus) (collecting cases).
Turning, then, to the Respondent’s affirmative defense, the Respondent contends that it
issued the December 18 memo without regard to any of Stevenson’s prior protected activity.
The Respondent’s position is somewhat supported by the fact that the Respondent’s December
18 memo stands on its own, without reference to any other events besides those that occurred
on that same day. More significantly, the disparate treatment evidence that the Acting General
Counsel offered at trial supports the Respondent’s position in this instance. In September 2008,
Barker issued a disciplinary memo to employee C.B., who was a probationary employee at the
time. Barker took issue with C.B. being present in a locked exam room when he was not with a
patient, and with C.B.’s reaction to being discovered (which included debating his need for a
break, providing dubious explanations for what he was doing in the exam room, and failing to
remove his earphones in the presence of an inspector who was with Barker). GC Exh. 20.
Stevenson’s conduct on December 18, 2009 was quite similar to C.B.’s. There is no dispute
that Stevenson improperly had her daughter with her in the patient care area (in an empty
examination room). Barker also took issue with Stevenson’s delay in meeting with him, as
although he told Stevenson he wanted to see her as soon as she finished the patient she had at
the time, the meeting did not occur until two hours later.34 GC Exh. 8. While C.B.’s and

33 Although the December 18 memo was addressed to Stevenson (from Barker), the record
shows that Stevenson did not receive the memo until after she was terminated in January 2010.
Tr. 116.
34 I found Stevenson’s explanation of the reasons for the delay (including not finding Barker
in his office when she went to see him) to be credible. Barker, however, was not privy to
Stevenson’s explanation when he wrote the disciplinary memo.
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Stevenson’s respective incidents are not identical,35 I do find that they are sufficiently similar to
support a finding that the Respondent would have placed the December 18 memo in
Stevenson’s file irrespective of her prior protected activity. Accordingly, I recommend
dismissing this allegation in the complaint.
4. Stevenson’s Termination On Or About January 9, 2010
The Acting General Counsel’s final allegation is that the Respondent violated Sections
8(a)(3) and (1) of the Act when it discharged Stevenson on or about January 9, 2010. GC Exh.
1-C, pars. 10(d) and 12; Tr. 13. The Wright Line standard applies to this allegation, since the
Respondent maintains that it discharged Stevenson not for protected activity, but instead
because she was rude, discourteous, unprofessional and insubordinate and thus did not
complete her 6 month probationary period in a satisfactory manner.
The precise date of Stevenson’s termination is somewhat relevant to the Respondent’s
defense. Stevenson’s probationary period (like any other employee’s) lasted for 6 months from
her start date. Once the probationary period ends, the progressive discipline rules in the
collective-bargaining agreement apply to the employee’s conduct. In Stevenson’s case, the
probationary period ended at 11:59 p.m. on January 5, 2010, 6 months after her July 6, 2009
start date. The Respondent argues that Stevenson was terminated on January 5, 2010, the day
that the Director of Human Resources (Anthony Jacks) orally approved Stevenson’s
termination, and the date of Stevenson’s termination letter. GC Exh. 9; see also Tr. 119–120
(noting that the Respondent delivered the termination letter to Stevenson just after midnight on
January 6, 2010). The Acting General Counsel argues that Stevenson was terminated on
January 9, 2010, the day that Jacks signed and dated the final recommendation (prepared by
Regina Bryan) for Stevenson’s termination. GC Exh. 15. After considering the evidentiary
record, I find that the Respondent indeed terminated Stevenson on January 5, 2010. The
Respondent completed its approval process for the termination on January 5 (save for the
administrative details of having Jacks physically sign the paperwork, and notifying Stevenson of
the decision), and consistent with that development, the Respondent did not permit Stevenson
to work when she came to the hospital to begin her shift at midnight on January 6.
The fact that Stevenson (barely) remained a probationary employee does not, however,
doom the Acting General Counsel’s claim that Stevenson’s discharge was unlawful. To the
contrary, the Acting General Counsel may still show that Stevenson’s prior protected activity
was a substantial or motivating factor in the Respondent’s decision to discharge her. Regarding
that issue, Stevenson’s comments at the October 30 staff meeting still stand as protected
activity, as do Stevenson’s efforts to pursue her November and December 2009 Union
grievances. As noted above, the Respondent (through Barker, and also through Mitchell) was
aware of the protected activity. As for animus, the Acting General Counsel’s case is supported
not only by circumstantial evidence of veiled references to Stevenson’s protected activities
(summarized in sec. 3, above), but also by an explicit reference to Stevenson’s October 30,
2009 protected activity contained in Barker’s termination recommendation memo. In outlining
his rationale for recommending Stevenson’s termination, Barker wrote: “During [Stevenson’s]

35 In summary form, C.B. was a probationary employee who the Respondent disciplined for:
misusing an empty exam room for himself; debating the issue with Barker (and offering dubious
explanations in that debate); and displaying poor professionalism in the presence of an
inspector. Stevenson was also a probationary employee who the Respondent wrote up for:
misusing an empty exam room for a non-employee (her daughter); and for not promptly meeting
with her supervisor to address the matter.
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time with HUH, I received numerous complaints . . . regarding her rude, discourteous and
unprofessional behaviors[.] . . . I have been on the receiving end of some of these inappropriate
behaviors. One such occurrence took place during a team meeting in the presence of other
staff.” GC Exh. 14; Tr. 254–255 (Barker’s admission that the team meeting that he was
referring to was the October 30, 2009 staff meeting). Based on this collection of evidence, the
Acting General Counsel met its initial burden of showing that the Respondent’s decision to
discharge Stevenson was unlawful.
Following Wright Line, the burden shifts to the Respondent to prove, as an affirmative
defense, that it would have discharged Stevenson even in the absence of her Union or
protected activity. When Barker recommended Stevenson’s termination, he limited his rationale
to Stevenson’s track record with interpersonal relations,36 citing her rude, discourteous and
unprofessional behaviors towards Radiologists, peers and coworkers, and a totally
insubordinate attitude towards Barker’s efforts to address Stevenson’s inappropriate behaviors.
The Respondent, through Bryan and then Jacks, relied on and accepted Barker’s
recommendation that Stevenson be terminated. GC Exh. 15; Tr. 211–212.
The record does show that Barker was aware of at least some of Stevenson’s conflicts
with other employees in the Radiology department. Through communications with Dr. Davis,
Barker believed that he needed to address the early November 2009 conflict between
Stevenson and Mire. Barker also had written descriptions of two November 2009 telephone
conversations (one with Brown and one with Madden) in which Stevenson spoke to a co-worker
in (at a minimum) a terse and abrupt manner. While those incidents could reasonably have led
the Respondent to believe some limited corrective action was necessary, the Respondent’s
decision to use those incidents to justify Stevenson’s termination rings of pretext in light of the
evidence that Barker merely issued a disciplinary memo (on two different occasions) to
employee C.B. for unprofessional or inappropriate conduct.37 GC Exh. 19, 20.
The Respondent’s assertion that Stevenson was insubordinate to Barker’s efforts to
address her interpersonal interactions in the hospital also rings of pretext. The record shows
that Barker did not make an effort to speak to Stevenson about her conflicts with either Brown
or Madden. Tr. 266–228. When asked to confirm this at trial (as to the conflict with Brown),
Barker responded with a knee-jerk answer that Stevenson would not meet with him.
Tr. 267–268. Barker offered the same rote answer (“She would not meet with me.”) when asked
if he ever spoke with Stevenson about her conflict with Mire (Tr. 263), and about his overall
efforts to meet with Stevenson to address his concerns about her interpersonal communication
skills. (Tr. 273) I did not find Barker’s testimony credible on this point (Stevenson’s willingness
to meet with him), given his automatic and rote responses that lack consistency with the record

36 Notably, Barker did not allege that Stevenson was deficient in her ability to carry out the
technical responsibilities of an ultrasound technologist. Nor did Barker assert that Stevenson’s
conduct on December 18, 2009 (i.e., permitting her daughter to be in the patient care area)
warranted (in whole or in part) her discharge.
37 In September 2008, Barker issued a disciplinary memo to C.B. for (among other things)
the tone and manner in which he communicated his opinions about the radiology department.
C.B. was still a probationary employee at the time. GC Exh. 20. Barker issued C.B. another
disciplinary memo in January 2009, again citing unprofessional and inappropriate conduct (and
noting, among other things, C.B.’s poor response to a radiologist who approached him about an
x-ray unit and a patient requisition that C.B. left in front of the cafeteria). GC Exh. 20. C.B. was
not terminated for either incident, and was still employed by the Respondent at the time of trial.
Tr. 269.
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as a whole.38
Given Barker’s explicit reference to Stevenson’s protected activity (at the October 30
staff meeting) in his termination recommendation memo, and the evidence showing that his
other proffered reasons for recommending Stevenson’s termination were pretextual, I find that
the Acting General Counsel has met its burden of proving that the Respondent terminated
Stevenson for discriminatory reasons in violation of Section 8(a)(3) and (1) of the Act.
Conclusions of Law
1. By making two statements on November 4, 2009, that have a reasonable tendency to
interfere with, restrain, or coerce union or protected activities, the Respondent violated Section
8(a)(1) of the Act.
2. By issuing a discriminatory disciplinary memo to employee Joan Stevenson on
November 4, 2009, the Respondent violated Section 8(a)(3) and (1) of the Act.
3. By discharging employee Joan Stevenson on January 5, 2010, for engaging in union
and other protected concerted activity, the Respondent violated Section 8(a)(3) and (1) of the
Act.
4. The unfair labor practices stated in Conclusions of Law 1, 2, and 3 above are unfair
labor practices that affect commerce within the meaning of Section 2(6) and (7) of the Act.
5. I recommend dismissing the allegations stated in paragraphs 9(a) and 10(b) of the
complaint.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having discriminatorily discharged Joan Stevenson, the Respondent
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
daily compound interest as prescribed in Kentucky River Medical Center, 356 NLRB No. 8
(2010).
On these findings of fact and conclusions of law and on the entire record, I issue the

38 In this connection, it bears noting that Barker had multiple opportunities to meet with
Stevenson. On November 19, Stevenson admitted that she did not attend a requested meeting
with Barker (and Mire) because her union grievance meeting was already scheduled for later on
the same day. Barker attended the latter part of the union grievance meeting, but did not take
the opportunity after that meeting to meet with Stevenson about her relationships with her
coworkers. Similarly, there is no evidence that Barker asked Stevenson to meet with him after
the November 20 staff meeting, nor is there evidence that Barker raised any of Stevenson’s
office conflicts when he met with Stevenson on December 18, or at any other opportunity that
arose by virtue of Barker’s status as Stevenson’s supervisor.
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following recommended39
ORDER
The Respondent, Howard University Hospital, Washington, D.C., its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against any employee for engaging in
protected concerted activities or supporting the National Union of Hospital and Health Care
Employees, Local 2094, American Federation of State, County and Municipal Employees, or
any other union.
(b) Warning employees for engaging in protected concerted activities or union activities
at employee staff meetings.
(c) Telling employees not to engage any future protected concerted activities or union
activities at employee staff meetings.
(d) 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 effectuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer Joan Stevenson full
reinstatement to her former job or, if that job no longer exists, to a substantially equivalent
position, without prejudice to her seniority or any other rights or privileges previously enjoyed.
(b) Make Joan Stevenson whole for any loss of earnings and other benefits suffered as
a result of the discrimination against her in the manner set forth in the remedy section of the
decision, with interest.
(c) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful discipline and discharge, and within 3 days thereafter notify Joan
Stevenson in writing that this has been done and that the discipline and discharge will not be
used against her in any way.
(d) 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 designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.

39 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended 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.
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(e) Within 14 days after service by the Region, post at its facility in Washington, D.C.,
copies of the attached notice marked “Appendix.”40 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
conspicuous places including all places where notices to employees 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, or other electronic means, if the Respondent
customarily communicates with its employees [members] by such means.41 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 employees employed by the Respondent at any time since November 4,
2009.
(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.
Dated, Washington, D.C. , December 1, 2010.
____________________
Geoffrey Carter
Administrative Law Judge

40 If this Order is enforced by a judgment of a United States court of appeals, the words in
the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
41 The notice posting language provided herein (specifically regarding distributing notices
electronically) is consistent with the Board’s recent decision in J. Picini Flooring, 356 NLRB
No. 9 (2010).
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Washington, DC
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 benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT discharge or otherwise discriminate against any of you for engaging in protected
concerted activities, or for supporting the National Union of Hospital and Health Care
Employees, Local 2094, American Federation of State, County and Municipal Employees, or
any other union.
WE WILL NOT warn employees for engaging in protected concerted activities or union activities
at employee staff meetings.
WE WILL NOT tell employees not to engage any future protected concerted activities or union
activities at employee staff meetings.
WE WILL NOT in any like or related manner interfere with, restrain, 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 Joan Stevenson full reinstatement to
her former job or, if that job no longer exists, to a substantially equivalent position, without
prejudice to her seniority or any other rights or privileges previously enjoyed.
WE WILL make Joan Stevenson 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 discipline and discharge of Joan Stevenson, and WE WILL, within 3 days thereafter,
notify her in writing that this has been done and that the discipline and discharge will not be
used against her in any way.
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Washington, DC
HOWARD UNIVERSITY HOSPITAL
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
103 South Gay Street, The Appraisers Store Building, 8th Floor
Baltimore, MD 21202-4061
Hours: 8:15 a.m. to 4:45 p.m.
410-962-2822.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 410-962-3113.