United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 16, 2015 Decided July 24, 2015

No. 14-1144

INOVA HEALTH SYSTEM,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

Consolidated with 14-1176

On Petition for Review and Cross-Application 

for Enforcement of an Order

of the National Labor Relations Board

Maurice Baskin argued the cause and filed the briefs for 

petitioner. 

Barbara A. Sheehy, Attorney, National Labor Relations 

Board, argued the cause for respondent. With her on the brief 

were Richard F. Griffin, Jr., General Counsel, John H. 

Ferguson, Associate General Counsel, Linda Dreeben, 

Deputy Associate General Counsel, and Jill A. Griffin, 

Supervisory Attorney.
2

Before: ROGERS and MILLETT, Circuit Judges, and 

SENTELLE, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge MILLETT. 

MILLETT, Circuit Judge: Inova Health System (“Inova”)

operates several hospitals in Northern Virginia. In June 2014, 

the National Labor Relations Board ruled that Inova had 

unlawfully discharged, disciplined, or failed to promote 

certain nurses because they had engaged in concerted 

activities protected by the National Labor Relations Act, 29 

U.S.C. § 158(a)(1). Inova views the events at issue 

differently and asks this court to overturn the Board’s 

decision. That we cannot do. Our review of such Board 

decisions is narrow and “highly deferential.” Parsippany 

Hotel Mgmt. Co. v. NLRB, 99 F.3d 413, 419 (D.C. Cir. 1996). 

Because each of the Board’s determinations is reasoned and 

supported by substantial evidence, we must deny the petition 

for review and grant the Board’s petition for enforcement, 

regardless of whether we might “‘have reached a different 

result had we considered the question de novo.’” Id. (quoting 

Synergy Gas Corp. v. NLRB, 19 F.3d 649, 651 (D.C. Cir. 

1994)). 

I 

Statutory Background

The National Labor Relations Act, 29 U.S.C. §§ 151 et 

seq., protects the right of employees to engage in “selforganization, to form, join, or assist labor organizations, to 

bargain collectively through representatives of their own 

choosing, and to engage in other concerted activities for the 

purpose of collective bargaining[.]” Id. § 157. But the Act’s 

protections are not limited to such union-related activities. 

The Act also grants employees the right “to engage in other 
3

concerted activities for the purpose of * * * mutual aid or 

protection.” Id. “Other concerted activities” are actions

“undertaken” by an employee “with or on the authority of 

other employees, and not solely on behalf of the employee 

himself.” Citizens Inv. Services Corp. v. NLRB, 430 F.3d 

1195, 1198 (D.C. Cir. 2005). And those concerted activities 

will be for “mutual aid or protection” if they “relate to 

legitimate employee concerns about employment-related 

matters.” Tradesman Int’l, Inc. v. NLRB, 275 F.3d 1137, 

1141 (D.C. Cir. 2002) (internal quotation marks omitted); 

Venetian Casino Resort v. NLRB, 484 F.3d 601, 606 (D.C. 

Cir. 2007) (“‘[M]utual aid or protection’ * * * include[s] 

employee efforts to ‘improve terms and conditions of 

employment or otherwise improve their lot as employees[.]’”) 

(quoting Eastex, Inc. v. NLRB, 437 U.S. 556, 565 (1978)). 

Put plainly, the Act “protect[s] the right of workers to act 

together to better their working conditions.” NLRB v. 

Washington Aluminum Co., 370 U.S. 9, 14 (1962). 

To that end, the Act prohibits all employers from 

“interfer[ing] with, restrain[ing], or coerc[ing] employees in 

the exercise of th[ose] rights.” 29 U.S.C. § 158(a)(1). If an 

employer runs afoul of that prohibition, the aggrieved 

employee can file an unfair labor practice charge with the 

local Regional Director of the National Labor Relations 

Board. 29 C.F.R. § 101.2. If the Regional Director 

determines that the charge has merit, then that Director can 

file a formal complaint against the employer. 29 U.S.C. 

§ 160(b); 29 C.F.R. § 101.8. An administrative law judge 

(“ALJ”) will hear the case and issue a decision that makes 

factual findings, credibility determinations, legal conclusions, 

and a remedial recommendation. See 29 C.F.R. §§ 101.10(a), 

101.11(a). 
4

Either party may seek review of the ALJ’s decision by 

the Board, 29 C.F.R. § 101.11(b), which generally sits in

three-member panels, 29 U.S.C. § 153(b); New Process Steel 

v. NLRB, 560 U.S. 674, 688 (2010) (Board’s power can be 

vested in no fewer than three members). The Board will 

review the entire record and issue a decision in which it 

adopts, modifies, or rejects the factual findings and legal 

recommendations of the ALJ. 29 C.F.R. § 101.12(a). In 

doing so, the Board’s longstanding policy is not to overrule an 

ALJ’s credibility judgments unless “the clear preponderance 

of all the relevant evidence convinces” the panel that the 

determination is incorrect. E.N. Bisso & Son, Inc. v. NLRB, 

84 F.3d 1443, 1444 (D.C. Cir. 1996); Standard Dry Wall 

Products, 91 N.L.R.B. 544 (1950). Any party aggrieved by 

the Board’s final decision can seek review either in this court 

or in the United States Court of Appeals for the circuit where 

the unfair labor practice occurred or where the petitioning 

party resides or transacts business. 29 U.S.C. § 160(f); 29 

C.F.R. § 101.14. 

Factual Background

This case arises from Inova’s discipline or discharge of 

three nurses in the ambulatory surgery center of Inova’s 

Fairfax, Virginia campus. 

Donna Miller

Donna Miller worked for Inova for nearly a quarter 

century prior to her discharge, including seven years in the 

ambulatory surgery center. There she rose to the level of 

Registered Nurse III. Colleagues described Miller as a 

“fabulous nurse,” an “excellent clinician,” “very efficient,” 

and completely trustworthy. 
5

In early 2009, Inova received three anonymous phone 

calls complaining about Miller. Although Miller did not have 

the authority to change anyone’s schedule, the first caller

accused Miller of vindictively changing the schedules of 

employees she did not like. The second caller said that Miller 

had used profanity in the operating room “for years,” 

occasionally talked about sexual situations, and made others 

uncomfortable. The third caller accused Miller of 

intimidating coworkers, frequently using profanity, and taking

extended lunch breaks. Following the third call in early 

February, Inova’s human resources manager, Leanne 

Gorman, began investigating Miller, unbeknownst to Miller. 

Around that same time, Miller and four other nurses 

discussed problems they were having with the hospital’s 

nursing fellows program.1 Specifically, the nurses were 

concerned that they were not being informed of the objectives 

for their nursing fellows to meet, were not asked for feedback 

on the fellows, and were in need of a one-week break between 

fellow rotations. The nurses agreed that Miller would send an 

email on their collective behalf to Paige Migliozzi, the head 

of the program, to convey those shared concerns. 

On February 13th, Miller sent an email to Migliozzi and 

copied Paula Graling, the head of the ambulatory surgical 

center, spelling out the nurses’ concerns with the fellows 

program. The email enraged Migliozzi. She sought out the 

nurses, demanded to know if Miller was the leader of their 

group, sent a copy of the email to human resources, and 

explained to human resources that she was “furious” that 

Miller “decided to appoint herself as spokesperson for this 

group.” Deferred Appendix (“App.”) 408. Graling also 

 

1

 The nursing fellows program allows newly hired nurses, most of 

whom are recent graduates without operating room experience, to 

work with more senior nurses and obtain hands-on experience. 
6

called human resources about the email, and sent a reply 

which chastised Miller and the nurses for sending a “group 

signed email which puts everyone on the defensive” rather 

than approaching her directly. Id. at 864. 

Leanne Gorman and the human resources staff 

investigating Miller interviewed Migliozzi and eighteen 

additional employees, eight of whom were selected because 

they were known to have negative opinions about Miller. The

eighteen interviewees were asked if they had seen any 

violation of Inova’s policies or standards of behavior, if they 

had been made uncomfortable by other employees, or if they 

had witnessed inappropriate behavior in the workplace. 

Human resources, however, did not ask Migliozzi those 

standard questions, but instead specifically solicited 

information about her problems with Miller. Unsurprisingly, 

Migliozzi’s comments were, by far, the most negative,

complaining that Miller frequently talked about her intimate 

affairs, cursed, and did not properly count surgical 

instruments. 

After speaking with Migliozzi about Miller’s email, 

Gorman spoke with the Chief of Surgery, Dr. Russell Seneca, 

about her investigation of Miller. Gorman recorded in her 

notes that Dr. Seneca “fully support[ed]” Miller’s termination. 

App. 425. Dr. Seneca instructed Gorman not to involve any 

doctors in her investigation because “they would not be happy 

about the decision” to terminate Miller. Id. Human resources

closely involved Dr. Seneca in this personnel matter, and

updated him constantly in the days leading to Miller’s 

termination. 

The next day, just two work days after Miller’s February 

13th email about problems with the nursing fellows program, 

Graling and Gorman informed Miller of the investigation and 
7

placed her on administrative leave. Miller denied all but one 

allegation. She admitted that a doctor asked her what she did 

on New Year’s Eve, and that she responded by saying she 

spent the evening naked in a hot tub with her husband. Miller 

denied that she used profanity or sexual innuendo any more 

than the doctors or other nurses, and explained that she did 

not try to be intimidating, but she was “definite about what 

[she] think[s],” which might have been perceived as 

intimidating by others. App. 425. 

Miller also provided Gorman with a list of fourteen 

people she believed would attest to her professionalism, but 

Gorman refused to interview additional people on the ground 

that it “was not part of the investigation that [human 

resources] had chosen to go about.” App. 127. Gorman then 

instructed Miller not to discuss her suspension with anyone 

other than her husband. Miller asked “are you telling me that 

I cannot discuss this with anyone else,” and Gorman “said 

yes.” App. 292. 

Doctors Alexander Soutter and Allyson Askew, two 

surgeons who worked very closely with Miller, approached 

Gorman to provide statements on Miller’s behalf, but Gorman 

refused the offers. Dr. Soutter then attempted to contact 

Gorman’s supervisor, who did not return his calls. Dr. Askew

asked the Senior Director of Nursing, Eileen Dobbing, if she 

could give a statement in support of Miller, but Dobbing 

refused to speak with her. Dr. Askew then attempted to speak 

with human resources and later with Graling, the head of the 

ambulatory surgery center, but she was rebuffed at every turn. 

Finally, Doctors Soutter and Askew went to the Vice 

Chair of Surgery to discuss Miller’s suspension. The doctors

“were extremely supportive” of Miller, explaining that they 

considered her “an invaluable member of their team,” and in 
8

their daily work with her, they “had not seen any behavior in 

her which was objectionable.” App. 583. The doctors 

disputed the complaints that Miller was intimidating, stating 

that she simply behaved “in a way a senior, mature nurse” 

would be to others learning. Id. at 582. The doctors added 

that Miller did not use profanity or sexual innuendo any more 

than other employees, and that some profanity and sexual 

innuendo was part of the ambulatory surgery center culture, a 

“‘tone’ [the doctors] set in the operating room.” Id. at 583. 

The doctors concluded that they could not fathom why Miller 

was being punished, and offered to change their approach if it 

would rectify matters.2 

Gorman and her supervisor, Julie Reitman, then 

discussed Miller with Inova’s in-house counsel. Reitman 

subsequently drafted a memorandum recommending that 

Miller either be terminated or given a final written warning. 

Graling, Reitman, Gorman, and Dobbing presented that

memorandum to the Chief Nursing Executive, Patricia 

Conway-Morana, during a meeting set up to discuss Miller’s 

“intimidating behavior.” App. 66–67. After the meeting, 

Conway-Morana sent an email to the Chief Executive Officer 

of Inova Fairfax, Dr. Reuven Pasternak. The email advised 

 

2

 Extensive evidence from the hearing corroborated the doctors’ 

views. See, e.g., App. 188 (cursing in lounges, operating rooms, 

and hallways), 209–210 (obscene calendars hanging in operating 

rooms), 223 (a young nurse showing a topless photo of herself on 

vacation), 228 (employees discussing their intimate affairs), 255 

(mooning in the locker room). As one nurse described: “The OR is 

a different place * * * a different culture,” “[w]e do or say things 

that other people might not consider appropriate, and maybe my 

mother taught me not to do those things. But the area in which we 

work, it’s not offensive[.] * * * It’s just historically the way it’s 

been since I’ve been there, since 1977. It’s like being in a different 

country.” Id. at 330. 
9

Dr. Pasternak that Conway-Morana had an “employee issue” 

with a “20+ year nurse” who “had been warned in the past 

about her intimidating and inappropriate behavior,” and who 

continued to be the object of complaints about “profanity, 

[being] vindictive about the schedule, [and] sexual 

innuendos.” Id. at 430. Conway-Morana recommended 

termination. Id. The record does not explain why ConwayMorana contacted Dr. Pasternak, who had rarely, if ever, been 

involved in a personnel decision for any of Inova Fairfax’s 

thousands of employees, other than the department chairs who 

report directly to him. 

Dr. Pasternak responded the next morning, saying that he 

and Conway-Morana “need[ed] to talk about this case.” App.

429. Following that conversation, Conway-Morana sent an 

email to the involved Inova personnel saying: “I think we 

need to move forward with termination.” Id. Three work 

days later, Graling and Gorman told Miller that she was fired. 

Judy Giordano

Miller returned to Inova on March 18, 2009 to appeal her 

termination. That day, seven nurses went to human resources 

to express their support for Miller. When Miller and a human 

resources representative, Michelle Melito, walked through the 

hall, the nurses approached Melito, telling her that the 

hospital was “making a big mistake” because the nurses 

“love[d]” Miller. App. 628. Melito’s notes indicate that “one 

staff member” “firmly pushed” her left shoulder to get her 

attention. Id.

When Melito complained, Inova investigated the 

incident. Six of the nurses present reported that they did not 

see anyone touch Melito. Inova nonetheless placed Giordano 

on administrative leave, explaining that, “[f]rom reviewing 

the surveillance video, it is apparent that you did touch the left 
10

should[er] of” Melito, but that “[t]his touch was not done in 

an aggressive manner[.]” App. 633. Inova subsequently 

issued Giordano a final written warning that cited her for 

“inappropriate physical and verbal behavior.” Id. at 631. 

That final warning removed all references to the incident as a 

“touch” that was “not done in an aggressive manner.” Id. 

Cathy Gamble

In February 2009, Inova created new positions in the 

ambulatory surgery center for “clinical nurse leaders,” and 

encouraged senior nurse specialists to apply. At that time, 

Inova had not decided how many clinical nurses it would hire. 

Five nurses, including Cathy Gamble, applied for the 

positions. 

Gamble qualified for the promotion. She was a senior 

nurse specialist, had been a nurse for 29 years, and was the 

clinical expert for vascular and general surgery at the 

ambulatory surgery center. Her annual evaluations showed 

that she was an excellent nurse with superior clinical skills. 

In June 2009, while her application was pending, Gamble 

and a colleague approached another nurse, Guna Perry, after 

she had volunteered to stay for an after-hours surgery. 

Gamble warned Perry that she was setting a bad precedent 

because management would come to expect ambulatory 

surgery center nurses to stay late to assist in surgeries that 

should have been scheduled for the main operating room. 

Two months later, Inova promoted all of the applicants 

except Gamble to clinical nurse leader. When Gamble asked 

the management coordinator, Mary Lou Sanata, why she had 

not been promoted, Sanata cited her June discussion with 

Perry about not volunteering for after-hours surgeries. 
11

Procedural History

In July 2009, the Fairfax Hospital’s Nurses Association 

for Patient Safety filed unfair labor practice charges against 

Inova on behalf of Miller and Giordano. Cathy Gamble filed 

a separate charge concerning Inova’s failure to promote her. 

The Regional Director subsequently filed a consolidated 

complaint covering all of the charges involving the three

nurses. That complaint alleged that Inova committed unfair 

labor practices by (i) suspending and later terminating Donna 

Miller because she engaged in concerted activities by sending 

an email to management on behalf of herself and other nurses 

just two work days before she was suspended, (ii) instructing 

Miller not to discuss her suspension with anyone, (iii) 

suspending and then issuing a final written warning to Judy 

Giordano because of her protest against Miller’s discharge, 

and (iv) failing to promote Gamble because she “concertedly 

told another employee not to accept unscheduled late 

surgeries because nurses would be expected to work late.” 

App. 21.

Administrative Law Judge Decision

After a fourteen-day hearing, the ALJ found that Inova 

committed all four of the unfair labor practices alleged in the 

complaint. 

First, the judge found, as relevant here, that Miller 

engaged in protected activity on February 13, 2009, when she 

sent the email on behalf of a group of nurses seeking a week’s 

hiatus between nursing fellows to improve the conditions of 

the nurses’ work. The ALJ further found that Inova 

demonstrated animus toward that protected conduct when its 

high-level managers reacted to the February 13th email with 

extreme agitation and directed the nurses not to engage in 

such group complaints. 
12

The ALJ also determined that Inova’s alleged, nondiscriminatory reasons for terminating Miller—her alleged 

use of profanity and sexual jokes—were post-hoc, pretextual 

rationalizations. The ALJ explained that Inova tolerated far 

more egregious conduct from other employees and that, in 

fact, the use of sexual jokes and profanity pervaded Inova’s 

operating rooms. 

The ALJ also found that the investigation against Miller 

“was not an impartial search for the truth; it was [an] effort to 

build a case against [her],” given that the investigators 

focused on individuals who already had grievances against 

Miller and refused to speak to her supporters. App. 30. 

Second, the ALJ found that Inova had instructed Miller 

not to discuss her discipline with anyone but her husband, and

that Inova lacked any legitimate justification for precluding 

such employee discussion, thereby interfering with Miller’s 

right to engage in concerted activities. 

Third, the ALJ found that, at the time Giordano came into 

physical contact with Melito, Giordano was engaged in a 

protected protest against Inova’s unlawful termination of 

Miller, which entitled her to certain protections so long as she 

did not physically assault Melito. The ALJ concluded that, 

because the original disciplinary notice recognized that no 

shoving or pushing occurred, the severe discipline that Inova 

meted out for such minor contact was designed to intimidate 

other nurses from engaging in concerted activity. 

Fourth, the ALJ found the failure to promote Gamble to 

be retaliatory because Inova conceded that an identified 

reason for the decision was Gamble’s opposition, in concert 

with another nurse, to voluntary overtime. The ALJ found 

Inova’s alternative explanations for not promoting Gamble to 

be non-credible, post-hoc, and pretextual rationalizations.
13

National Labor Relations Board Decision

The Board affirmed the ALJ’s rulings, findings, and 

conclusions. Inova Health System v. NLRB, 360 N.L.R.B.

No. 135, at 1 (2014).

3

 The Board rejected Inova’s factual 

contention that it did not have knowledge of Miller’s 

protected activity, ruling that Inova’s “high-level managers, 

including HR Manager Gorman and Chief of Surgery Dr. 

Seneca, were aware of the concerted nature of Miller’s 

conduct when they shared and discussed Miller’s email,” and 

the timing of Miller’s suspension “strongly suggests that 

animus toward the email played a role in the decision.” Id. at

5. The Board also found that Inova failed to show that it 

would have suspended and discharged Miller in the absence 

of that protected activity, given that the cited reason—the 

allegedly inappropriate conduct—was an established “part of 

the culture of [Inova’s] operating rooms,” which Inova 

“tolerated” when committed “by others[.]” Id. at 6. 

With respect to the gag order on Miller’s discussion of 

her suspension, the Board found that Inova’s argument that it 

only “recommended” that Miller keep silent was flatly 

contradicted by the record evidence. Inova, 360 N.L.R.B. No. 

135, at 6–7.

On the question of Judy Giordano’s discipline, the Board 

rejected Inova’s argument that Giordano lost all protection 

under the Act because of her contact with Melito. The Board 

held that, even if Giordano had touched Melito’s shoulder,

that was not the type of serious physical conduct that would 

strip an employee of the Act’s protections. Inova, 360 

N.L.R.B. No. 135, at 7. 

 

3

 In doing so, the Board said that it was adopting the ALJ’s factual 

findings without “rely[ing] on his numerous inferences[.]” Inova, 

360 N.L.R.B. No. 135, at 1 n.2.
14

Finally, the Board agreed that Inova had improperly 

failed to promote Gamble. The Board held that Gamble’s 

comments to Perry were protected, finding that Inova’s claim 

that Gamble encouraged an unprotected strike misunderstood 

the law because a refusal to perform voluntary work is not a 

strike. Inova, 360 N.L.R.B. No. 135, at 8. The Board further 

determined that Inova’s asserted non-discriminatory reasons

for its denial of promotion were post-hoc rationalizations that 

were “unsupported by the record, and in one instance, simply 

untrue.” Id. at 9.

The Board then ordered Inova to take certain remedial 

steps, including: (i) to offer Miller full reinstatement to her 

former, or a substantially equivalent, position; (ii) to offer 

Gamble the position of clinical nurse leader; (iii) to remove 

all reference to the unlawful discipline of Miller and Giordano 

from its files; and (iv) to make Miller and Gamble whole for 

any losses suffered as a result of the discrimination against 

them. Inova, 360 N.L.R.B. No. 135, at 10.

II

Analysis

Our review of the Board’s unfair labor practice 

determinations is tightly cabined and we afford the Board a 

“high degree of deference.” Parsippany, 99 F.3d at 419; see 

also Douglas Foods Corp. v. NLRB, 251 F.3d 1056, 1061 

(D.C. Cir. 2001) (“Judicial review of NLRB unfair labor 

practice findings is limited.”). We will uphold a decision of 

the Board “unless it relied upon findings that are not 

supported by substantial evidence, failed to apply the proper 

legal standard, or departed from its precedent without 

providing a reasoned justification for doing so.” E.I. Du Pont 

De Nemours & Co. v. NLRB, 682 F.3d 65, 67 (D.C. Cir. 

2012). The Board’s findings of fact are “conclusive when 
15

supported by substantial evidence on the record considered as 

a whole,” and “[i]ndeed, the Board is to be reversed only 

when the record is so compelling that no reasonable factfinder 

could fail to find to the contrary.” Bally’s Park Place, Inc. v. 

NLRB, 646 F.3d 929, 935 (D.C. Cir. 2011) (internal quotation 

marks omitted). “‘We are even more deferential when 

reviewing the Board’s conclusions regarding discriminatory 

motive, because most evidence of motive is circumstantial.’” 

Traction Wholesale Center Co., Inc. v. NLRB, 216 F.3d 92, 99

(D.C. Cir. 2000) (quoting Vincent Industrial Plastics, Inc. v. 

NLRB, 209 F.3d 727, 734 (D.C. Cir. 2000)). Finally, we 

accept all credibility determinations made by the ALJ and 

adopted by the Board unless those determinations are 

“patently insupportable.” Id. (internal quotation marks 

omitted); Douglas Foods, 251 F.3d at 1061.

Suspension and Termination of Donna Miller

In determining whether an employer’s discipline of an 

employee constituted an unfair labor practice, the Board 

applies the Wright Line test. See generally Wright Line, a 

Division of Wright Line, Inc., 251 N.L.R.B. 1083 (1980); see 

also NLRB v. Transportation Mgmt. Corp., 462 U.S. 393, 395 

(1983) (approving Wright Line test); Synergy Gas Corp. v. 

NLRB, 19 F.3d 649, 652 (D.C. Cir. 1994). To make out a 

prima facie case under Wright Line, the General Counsel for 

the Board must demonstrate that (i) the employee was 

engaged in an activity protected by 29 U.S.C. § 157, (ii) the 

employer was aware of that protected activity, and (iii) “the 

protected activity was a motivating factor in the employer’s 

decision to take adverse action[.]” Citizens Inv. Services, 430 

F.3d at 1198. Oftentimes the General Counsel can show that 

the protected activity was a motivating factor by evidencing 

“a reasonable proximity in time between the adverse action in 

question and the employer’s knowledge of, and hostility 
16

toward, the employee’s protected activity.” G.B. Electric, 

Inc., 319 N.L.R.B. 653, 658 (1995). Once the General 

Counsel has made that prima facie showing, the burden of 

persuasion shifts to the employer “to show that it would have 

taken the same action in the absence of the unlawful motive.” 

Bally’s Park Place, 646 F.3d at 935 (internal quotation marks 

omitted). 

Inova does not dispute that the Board applied the correct 

legal standards under Wright Line. Inova just challenges the 

substantiality of the evidence supporting the Board’s 

application of that test to this record. That is a hard hill to 

climb. “Substantial evidence,” after all, is “less than a 

preponderance of the evidence,” albeit “more than a scintilla.” 

Multimax Inc. v. FAA, 231 F.3d 882, 887 (D.C. Cir. 2000) 

(internal quotation marks omitted). The question before the 

court thus “is not whether” Inova’s “view of the facts supports 

its version of what happened, but rather whether the” Board’s 

“interpretation of the facts is reasonably defensible.” Dean 

Transportation, Inc. v. NLRB, 551 F.3d 1055, 1061 (D.C. Cir. 

2009) (internal quotation marks omitted). Asking the latter 

question, we hold that substantial evidence supports the 

Board’s decision. 

First, the Board properly concluded that Miller was 

engaged in protected conduct when she sent the February 13th

email raising concerns, on behalf of a group of nurses, about 

their work with the nursing fellows program. The Board 

found, and Inova does not dispute, that the email constituted 

“concerted activity” within the meaning of 29 U.S.C. § 157,

because it was “undertaken with or on the authority of other 

employees[.]” Citizens Inv. Services, 430 F.3d at 1198. 

The Board also reasonably concluded that the email 

addressed a matter relevant to “mutual aid or protection,” 29 
17

U.S.C. § 157. The email spoke about the nurses’ collective 

need for a transitional break between each round of nursing 

fellows and the difficulties the nurses were confronting in 

integrating the fellows into their daily work activities. In so 

doing, the email directly addressed an aspect of the nurses’ 

own working conditions and gave voice to “legitimate 

employee concerns about employment-related matters.” 

Tradesman Int’l, 275 F.3d at 1141 (internal quotation marks

omitted); see also American Golf Corp., 330 N.L.R.B. 1238, 

1244 (2000) (employees’ protest letter complaining of short 

workweeks during winter rainy season was protected). 

Inova’s argument that the email pertained only to the 

quality of the fellows program ignores the communication’s 

request for transition time for the nurses. There is a clear 

“nexus” between, for example, the request for recovery time 

between rounds of supervising new fellows and the nurses’ 

“interests as employees.” Venetian Casino Resort, 484 F.3d 

at 606–607; Tradesmen Int’l, 275 F.3d at 1141. That issue

directly impacted the nurses’ own week-to-week working 

conditions because it determined how much time the nurses 

had to prepare for new fellows and the efficient integration of 

the fellows into the nurses’ daily work. See Inova, 360 

N.L.R.B. No. 135, at 3 (the nurses’ concerns needed to be 

addressed “[i]n order to be better prepared” and work through 

the program “in a timely fashion”). The Board further found 

that Miller’s email “initiate[d] a discussion about how certain 

aspects of [Inova’s] fellows program affected [the surgical 

center] nurses” and their working conditions. Id. at 5. For 

those reasons, the email communication’s connection to the 

nurses’ working conditions was specific and direct; it 

certainly was not “so attenuated that [it] cannot fairly be 

deemed to come within the ‘mutual aid or protection’ clause.” 

Venetian Casino, 484 F.3d at 608 (quoting Eastex, 437 U.S. at 

568) (alteration in original). 
18

Second, there is no dispute that Miller’s supervisors were 

aware of the communication. The email was sent to both 

Migliozzi and Graling, the head of the ambulatory surgery 

center, and was shared or discussed with others, including 

human resources manager Gorman. Substantial evidence 

also supports the Board’s finding that the email went further 

up the chain of command. Gorman spoke with Dr. Seneca 

about her investigation the very first work day after she 

received Migliozzi’s complaint about the February 13th 

email, and she kept Dr. Seneca updated throughout the 

process. Although Gorman denies mentioning the February 

13th email, the ALJ “discredit[ed] this denial” because “it 

defies credulity to believe that Gorman talked to Dr. Seneca 

on the very first work day after she received another 

complaint from Migliozzi about Miller and did not mention 

it.” Inova, 360 N.L.R.B. No. 135, at 18. As this credibility 

finding is not “patently insupportable,” we are bound by it. 

Traction Wholesale, 216 F.3d at 99. Thus, circumstantial, but 

substantial, evidence supports the Board’s finding that 

Gorman and Dr. Seneca “shared and discussed Miller’s 

email.” See Inova, 360 N.L.R.B. No. 135, at 5 (finding that 

Inova’s “high-level managers, including HR Manager 

Gorman and Chief of Surgery Dr. Seneca” “shared and 

discussed Miller’s email”). 

Third, substantial evidence supports the Board’s factual 

determination that supervisory animus over that protected 

communication was a motivating factor in Miller’s discharge. 

It is not even a close question. Migliozzi’s animus was 

undisguised. Her own email to Gorman said she was “quite 

furious” that Miller was acting as “spokesperson for this 

group” and that the nurses were “ganging up” on her. Inova, 

360 N.L.R.B. No. 135, at 3, 18. Graling then emailed Miller 

and the other nurses criticizing their use of a “one

dimensional group signed email [that] puts everyone on the 
19

defensive,” rather than “each” nurse coming to a supervisor 

directly. Id. at 4, 6, 18.4 

That Miller’s discharge came close on the heels of the 

protected email further substantiates the Board’s decision. 

The Board and this court have long recognized that the close 

proximity of protected conduct, expressions of animus, and 

disciplinary action can support an inference of improper 

motivation. See, e.g., Citizens Inv. Services, 430 F.3d at 1202 

(“The timing of [the employee’s] discharge,” which was “two 

 

4

Inova nowhere suggests—nor could it—that any aspect of the 

email’s content was incendiary, unprofessionally communicated, or 

lacking in proper tone. The email said: 

We are [writing] regarding the coordination of the fellows 

and follow up evaluations for each service. We haven’t 

received any packets with the objectives/evaluations for 

each fellow as they rotate through our service in quite a 

while. In order to be better prepared for a comprehensive 

rotation in each service, it would be helpful to know who 

is coming, the learning objectives and the length of the 

rotation. We need a tool to evaluate the fellows and a 

way to document their progress in a timely fashion. We 

have not been asked for any feedback on the fellows on 

their progress and we feel that is an important piece of the 

fellowship program that we need to pay attention to. I 

know in [pediatrics] that we need a break for a week 

before we have another fellow. The surgeons need it and 

we do too. Can you provide some assistance or guidance 

to us to help us with ou[r] concerns? We are committed 

to giving these fellows the best possible educational 

experience with all of our combined experience and 

guidance!

App. 32. 
20

weeks after he had identified himself as ‘union president’ in 

an email” to his supervisor, “also supports the Board’s finding 

of unlawful motive.”); Reno Hilton Resorts v. NLRB, 196 

F.3d 1275, 1283 (D.C. Cir. 1999) (“[T]iming is a telling 

consideration in determining whether employer action is 

motivated by anti-union animus.”); Masland Industries, 311 

N.L.R.B. 184, 197 (1993) (“‘Timing alone may suggest antiunion animus as a motivating factor in an employer’s 

action[.]’”) (quoting NLRB v. Rain-Ware, Inc., 732 F.2d 1349, 

1354 (7th Cir. 1984)). 

In this case, those events could hardly be more 

proximate. After receiving Miller’s email, Migliozzi fled 

work “because I am quite furious” and asked Gorman if they 

could discuss the email the next work day. Inova, 360 

N.L.R.B. No. 135, at 18. After Migliozzi and Gorman 

discussed the matter, Gorman raised the subject of the email 

and Migliozzi’s heated reaction at a managers’ meeting and 

with the Chief of Surgery, Dr. Seneca. The very next day, 

Miller was suspended. Substantial evidence thus supported 

the Board’s finding of improper motivation.5

Inova argues that all that causal evidence is for naught

because the final decision to discharge was made by the Chief 

Executive Officer of the Fairfax campus, Dr. Pasternak, and 

there is no evidence that he personally was motivated by the 

email. That argument blinks reality. The “high-level 

 

5

 In its order, the Board also discussed an incident in 2005 when 

Miller was disciplined for “insubordination” after questioning her 

supervisor about scheduling after-hours surgeries. Inova argues 

that, because of the Board’s six-month statute of limitations, 29 

U.S.C. § 160(b), the Board could not consider that incident. 

Because the record contains substantial evidence of an unfair labor 

practice even without reference to the 2005 incident, we need not 

address Inova’s objection. 
21

managers” who knew about the email and were upset by it 

were the same managers who (i) took the unsatisfactorily 

explained step of involving Dr. Pasternak in an individual 

nursing personnel decision that he self-admittedly had 

“rarely” been involved in before, App. 387, and indeed, Inova 

identified no other instance of his involvement in the 

discipline or discharge of a rank and file employee, (ii) 

selectively controlled all of the information fed to Dr. 

Pasternak, including that on which the termination decision 

was made, (iii) deliberately obstructed the efforts of Miller’s 

supporters to weigh in, and (iv) proposed termination as an 

appropriate remedy to Dr. Pasternak. Inova, 360 N.L.R.B.

No. 135, at 4, 24–25. In fact, those high-level managers’ 

investigation and recommendation formed the sole basis for 

Dr. Pasternak’s ultimate decision. 

It thus was “eminently reasonable” for the Board to rely 

on the critical causal role played by those “high-level 

corporate managers,” Parsippany, 99 F.3d at 423, because 

Pasternak’s decision—indeed, the fact that Pasternak was 

involved at all—was directly set in motion and driven by 

those managers’ animus-motivated conduct. See Inova, 360 

N.L.R.B. No. 135, at 4–5; see also United States v. Staub, 562 

U.S. 411, 416–422 (2011); Griffin v. Washington Convention 

Center, 142 F.3d 1308, 1312 (D.C. Cir. 1998) (“[E]vidence of 

a subordinate’s bias is relevant where the ultimate decision 

maker is not insulated from the subordinate’s influence.”); cf. 

Ross Stores, Inc. v. NLRB, 235 F.3d 669, 673–674 & n.7 

(D.C. Cir. 2001) (recognizing that it would have been 

“eminently reasonable” to impute animus to the company 

from a “high-level” manager, but holding that anti-union 

statements of a supervisor did not prove the company’s 

animus because there was not “any evidence that [the 

supervisor] was involved in [the employee’s] discharge”). In 

short, the Board reasonably found Inova responsible for an 
22

unfair labor practice because Inova’s high-level managers 

used the authority that Inova gave them to take measures 

based on discriminatory animus that caused and were 

intended to cause the dominoes to fall exactly as they did. 

Inova contends that Flagstaff Medical Center, Inc. v. 

NLRB, 715 F.3d 928 (D.C. Cir. 2013); Detroit Newspaper 

Agency v. NLRB, 435 F.3d 302 (D.C. Cir. 2006); and Meco 

Corp. v. NLRB, 986 F.2d 1434 (D.C. Cir. 1993), require a 

finding that the final decisionmaker must independently have 

knowledge of and animus toward the protected activity. That 

argument misunderstands those cases. They stand for the 

much narrower proposition that the Board must actually prove 

that a low-level supervisor had animus, and that the low-level 

supervisor played some material role in the eventual 

discharge. See Flagstaff Medical Center, 715 F.3d at 935–

936 (vice-president who made termination decision did not 

know about the employee’s union activities, and Board failed 

to prove that the supervisor who recommended termination

acted with animus at all, as he had a consistent record of 

enforcing the company’s attendance policy); Detroit 

Newspaper, 435 F.3d at 310 (knowledge and animus could 

not be imputed to the company when the only evidence of any 

animus was an allegation that a low-level supervisor, who 

“was not directly involved in the final decision to terminate,”

might have made an anti-union statement during a strike 

several years before); MECO Corp., 986 F.2d at 1437 (antiunion comments of two low-level factory supervisors failed to 

establish a motivating factor because “neither supervisor * * * 

had anything to do with [the] discharge”).

This case is very different. The record supported the 

Board’s judgment that Inova’s high-level supervisors had

knowledge of Miller’s protected activity, displayed animus 

toward that activity, and were directly and intimately involved 
23

in conducting a biased investigation that produced a biased 

recommendation that caused her termination. 

Fourth, the Board reasonably concluded that Inova failed 

to prove that it would have fired Miller even in the absence of 

her protected conduct. Inova pointed to a handful of 

complaints that this 22-year veteran nurse had been vindictive 

and vulgar. The Board found that explanation to be 

pretextual, and substantial evidence backed that judgment up.

To begin with, Inova failed to explain why, if Miller’s 

behavior was legitimately at issue, it conducted such a onesided investigation into the isolated complaints about her 

behavior, literally closing the door on doctors’ and others’

efforts to attest to Miller’s professionalism and skill. 

Inova stresses that it began the investigation before 

Miller’s protected email. True enough. But it fails to explain 

why that investigation came to a screeching halt immediately 

after Migliozzi complained to Gorman about the protected 

email communication. Also missing from Inova’s 

explanation is why Dr. Seneca, after the email had been sent, 

warned human resources not to speak to any doctors, why 

Inova went to such lengths to exclude any favorable 

information, and why human resources staff felt a need to 

have Dr. Pasternak pull the trigger given that he had “rarely” 

if ever, been involved in the hiring or firing of any hospital 

staff. App. 387. Thus, whatever the investigation’s genesis, 

it was the abrupt and abnormal conclusion of that skewed 

investigation in the immediate wake of Miller’s protected 

conduct that the Board found telling.

Inova argues that whether Miller actually engaged in 

misconduct is beside the point, as long as it had a “reasonable 

belief” that Miller had done so. That shortchanges Inova’s 

burden of proof. It had to show not only that it reasonably 
24

believed Miller had engaged in vulgar and intimidating 

behavior, but that the nature of that behavior “would have” 

caused her suspension and termination regardless of her 

protected conduct. DTR Industries, Inc., 350 N.L.R.B. 1132, 

1135 (2007), enforced, 297 F. App’x 487 (6th Cir. 2008). 

That is where Inova’s proof came up short. The record

amply supports the Board’s skepticism that Inova suddenly 

started enforcing a zero-tolerance policy for vulgarity or 

vindictiveness. The only evidence of that purported policy 

was Dr. Pasternak’s reply to Conway-Morana, in which he

explained that he was instituting such a policy against 

physicians, not nurses, and Dr. Pasternak’s testimony, which

the ALJ and Board both found was not credible. Inova makes 

no showing that the credibility determination was “patently 

insupportable,” and so we must credit it. Traction Wholesale, 

216 F.3d at 99. 

In addition, Dr. Soutter testified that he had never heard 

of Inova’s so-called “citizenship” policy, let alone a shift to 

zero tolerance, until after Miller’s termination. App. 231. 

Nor did Inova introduce any evidence that any other 

employee—before or since—has been terminated on similarly 

scant evidence. Quite the opposite, the record is replete with

evidence that practical jokes, sexual innuendo, and obscenity 

were prevalent in Inova’s operating rooms and offices during 

that same time period, with at least one of the supervisors who 

orchestrated Miller’s termination joining in. App. 211 (“Dr. 

Seneca could cuss like a sailor.”). 

Moreover, employees who engaged in far more egregious 

behavior received a far more calibrated response. For 

example, employees who physically assaulted and made racial 

threats to a coworker, insulted and humiliated a coworker 

during a meeting, threatened to cut someone’s throat during 
25

an altercation, and showed topless photos of themselves to 

staff were all afforded written warnings and an opportunity to 

correct their behavior before termination. Thus, far from 

helping Inova, the record of selective and disproportionate 

punishment of Miller corroborates the Board’s finding of 

pretext. See, e.g., Bally’s Park Place, 646 F.3d at 936–939 

(the Board reasonably concluded that employer failed to meet 

its rebuttal burden when it enforced a policy with “zerotolerance” against the discharged employee, but not others);

NLRB v. ADCO Electric, Inc., 6 F.3d 1110, 1119 (5th Cir. 

1993) (employer failed to meet rebuttal burden when it 

claimed to have discharged an employee for failing to work 

overtime, but did not do so for non-union supporting 

employees). 

For those reasons, the Board reasonably determined that 

Miller’s discharge constituted an unfair labor practice. 

Warning Miller Not to Discuss Suspension

Inova separately challenges the Board’s determination 

that it committed an unfair labor practice by directing Miller 

not to discuss her suspension with anyone else. Inova, 

however, does not dispute—nor could it—settled Board 

precedent holding that employees have a protected right to 

discuss discipline or disciplinary investigations with fellow 

employees. See, e.g., Cast-Matic Corp., 350 N.L.R.B. 1349, 

1355 (2007) (“Absent a total ban on employee discussion 

about any topic during work, employees have a right to 

discuss discipline with fellow employees.”); see also Cintas 

Corp. v. NLRB, 482 F.3d 463, 468 (D.C. Cir. 2007) (The 

NLRA protects “an employee’s right to discuss the terms and 

conditions of her employment with other employees and with 

nonemployees[.]”) (internal citations omitted). An employer 

may prohibit such discussion only when a “substantial and 
26

legitimate business justification” outweighs the “infringement 

on employees’ rights.” Caesar’s Palace, 336 N.L.R.B. 271, 

272 (2001); see also Phoenix Transit System v. NLRB, 63 

F. App’x 524, 525 (D.C. Cir. 2003) (per curiam) 

(“Employees’ right to discuss the terms and conditions of 

their employment may legitimately be restricted only if their 

interests are outweighed by an employer’s valid 

confidentiality interest.”).

Instead, Inova fights the record evidence, insisting that it 

only “recommended” that Miller keep the investigation 

confidential and did not threaten Miller with discipline. The 

short answer is that the Board fairly read the record to say 

otherwise. Miller testified that, after Gorman advised her to 

keep mum about her suspension, Miller specifically asked 

“are you telling me that I cannot discuss this with anyone 

else,” and Gorman “said yes.” App. 292. In addition, an 

email exchange indicates that Miller’s husband was 

“counseled” for discussing his wife’s suspension. App. 867.

Finally, in its reply brief, Inova cursorily suggests that 

protecting employees’ right to discuss discipline is 

inconsistent with the official guidance of the federal Equal 

Employment Opportunity Commission. We need not 

consider this argument because Inova’s fleeting reference to 

the point, in its reply brief no less, cannot save it from 

appellate forfeiture. See American Wildlands v. Kempthorne, 

530 F.3d 991, 1001 (D.C. Cir. 2008).

Discipline of Judy Giordano

Inova challenges the Board’s determination that it 

committed an unfair labor practice when it disciplined Judy 

Giordano for her physical encounter with a human resources 

employee, Michelle Melito, while protesting Miller’s 

discharge. Inova argues that (i) Giordano lost the protection 
27

of the National Labor Relations Act by intentionally touching 

Melito during the protest, and (ii) Inova’s reasonable belief in 

Melito’s version of events justified disciplining Giordano. 

As an initial matter, Inova does not dispute that 

Giordano’s conduct arose in the context of a protected 

activity—a group protest against Miller’s discharge. Inova’s 

arguments instead come down to a quarrel with the Board’s 

reading of the record, which cannot survive our deferential 

review. 

The Board has long held that an employer commits an 

unfair labor practice if it disciplines an employee for engaging

in a lawful protest or concerted activity, unless the employee 

engages in “opprobrious conduct” in the course of otherwise 

protected activity. See Atlantic Steel Co., 245 N.L.R.B. 814, 

816 (1979). In assessing whether the employee’s conduct 

crosses that “opprobrious” threshold, the Board balances four 

factors: (i) the place of the discussion, (ii) the subject matter 

of the discussion, (iii) the nature of the employee’s outburst, 

and (iv) whether the outburst was, in any way, provoked by 

the employer’s unfair labor practices. Id. Inova does not 

dispute that Atlantic Steel governs this case. See Inova Br. 

47–48 (relying on cases applying the Atlantic Steel 

framework); Reply Br. 21–22 (same). 

In applying that test, court and Board precedent have 

long recognized that it must be applied with an understanding 

that labor relations often involve heated disputes “likely to 

engender ill feelings and strong responses.” Kiewitt Power 

Constructors, 355 N.L.R.B. 708, 711 (2010), enforced, 652 

F.3d 22 (D.C. Cir. 2011) (internal quotation marks omitted). 

Accordingly, an employee’s right to engage in concerted 

activity “‘permit[s] some leeway for impulsive behavior.’” 

Kiewitt Power Constructors Co. v. NLRB, 652 F.3d 22, 27–28 
28

(D.C. Cir. 2011) (quoting NLRB v. Ben Pekin Corp., 452 F.2d 

205, 207 (7th Cir. 1971)). 

The record supports the Board’s conclusion, in applying 

those factors, that Giordano’s physical contact with Melito 

did not sink to such a low level as to strip Giordano of the 

Act’s protection. As an initial matter, the interchange with 

Melito occurred in a non-work area, a hallway in front of the 

human resource offices, where no patients or members of the 

public could have been disturbed. Cf. NLRB v. Starbucks 

Corp., 679 F.3d 70, 79 (2d Cir. 2012) (noting “the entirely 

legitimate concern of an employer not to tolerate employee 

outbursts * * * in the presence of customers”). 

More importantly, any physical contact was mild. It is 

not even clear from the surveillance tapes that Giordano 

touched Melito; six of the seven nurses denied it happened at 

all. Inova’s claim that Giordano “pushed” Melito, Inova Br. 

48, thus is a quite generous reading of the record that 

contradicted Inova’s own initial disciplinary form, which 

described the incident as a “touch” that “was not done in an 

aggressive manner,” Inova, 360 N.L.R.B. No. 135, at 7 n.17, 

26; see also App. 628 (Melito’s contemporaneous notes 

describe the incident “seemingly as a gesture to turn me 

around”). Hardly opprobrious. 

Failure to Promote Cathy Gamble

Inova’s final challenge is to the Board’s determination 

that it committed an unfair labor practice by refusing to 

promote Cathy Gamble because she engaged in protected 

concerted activity. The Board applies a modified version of 

the Wright Line test to allegations that an employer failed to 

promote an employee in retaliation for the employee’s 

protected activities. See W&M Properties of Connecticut, 

Inc. v. NLRB, 514 F.3d 1341, 1347 (D.C. Cir. 2008). The 
29

burden shifting framework remains the same, but the prima 

facie case has two additional components: the Board must 

find that (i) the employer was hiring, and (ii) the unhired 

applicant had relevant experience or training for the job. Id. 

(citing FES (A Division of Thermo Power), 331 N.L.R.B. 9, 

12–13 (2000), enforced, 301 F.3d 83 (3d Cir. 2002)).

The record supports the Board’s finding of a prima facie 

case of retaliatory failure to promote. First, it is 

uncontroverted that Inova was hiring, and that Gamble had 

the requisite experience and qualifications for the “clinical 

nurse leader” position. Second, the Board reasonably found 

that Gamble engaged in protected activity when she and 

another nurse advised Guna Perry against volunteering for 

after-hours surgeries, and the relevant decisionmakers knew 

about that prior to the denial of her promotion. Third, Inova 

does not argue that Gamble’s statements to Perry were not a 

form of concerted activity. Fourth, the causal relationship is 

undisputed. When Gamble was the only qualified applicant 

denied promotion to clinical nurse specialist, the management 

coordinator, Mary Lou Santana, specifically cited Gamble’s 

comments to Nurse Perry as evidencing a lack of leadership, 

adding “that wasn’t a good thing to say to your peer[.]” App.

197–198.

Inova does not dispute that Gamble’s discussion with 

Perry was a motivating factor in its promotion decision or any 

of the other elements of the prima facie case. Instead, Inova 

argues that Gamble’s comments to Perry constituted 

advocating for a partial strike, which under Audubon Health 

Care Center, 268 N.L.R.B. 135, 136 (1983), is not a protected 

activity.

That is incorrect. Employees engage in a partial strike 

when they refuse to work on “certain assigned tasks while 
30

accepting pay or while remaining on the employer’s 

premises.” Audubon Health Care Center, 268 N.L.R.B. at 

136. The refusal to perform voluntary work—non-mandatory 

work that is “not a condition of employment” and that the 

employee has a “right to decline to perform”—is not an 

unprotected strike. St. Barnabas Hospital, 334 N.L.R.B.

1000, 1000 (2001), enforced, 46 F. App’x 32 (2d Cir. 2002). 

Perry testified that she had “volunteered” to perform the late 

surgery, and that she could have declined and gone home. 

App. 320. The Board thus reasonably concluded that 

Gamble’s discouragement of such volunteerism could not 

have amounted to advocating a strike.

Inova also argues that it had legitimate reasons for not 

promoting Gamble. But substantial evidence supports the 

Board’s conclusion that Inova’s “stated reasons for failing to 

promote Gamble [were] largely unsupported by the record 

and, in one instance, simply untrue.” Inova, 360 N.L.R.B.

No. 135, at 8. For example, Inova argued that its matrix of 

factors indicated that Gamble was a middle to low performer. 

But Gamble had received above-average scores on most of 

her evaluations. In addition, management wrote “prone to 

gossip” on Gamble’s paperwork, but the management 

coordinator who played an instrumental role in Gamble’s 

evaluation had no idea what that comment referred to. App. 

198–199.

Lastly, Inova argues that the Board impermissibly 

substituted its judgment for that of the employer by rejecting 

Inova’s stated reasons. But once a prima facie case was made 

out, the burden was on Inova to persuade the Board that those 

alternative reasons were the basis for its decision. Given the 

management coordinator’s open admission that protected 

conduct influenced the decision and the evidentiary 

weaknesses in the alternative explanations proffered by Inova, 
31

this court cannot say that the Board’s decision was 

unreasonable or unsupported by the record. 

III

Conclusion

We hold that the Board’s unfair labor practice 

determinations were reasonable, consistent with the law, and 

supported by substantial evidence. We accordingly deny 

Inova’s petition to review the Board’s order and grant the 

Board’s cross-application for enforcement.

So ordered.