American Red Cross Blood Services, Arizona Region

National Labor Relations Board - Administrative Judge Opinions

Feb 1, 2012

28-CA-023443 (N.L.R.B. Feb. 1, 2012)

JD(SF)–04-12
Phoenix and Tucson, AZ
1
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
SAN FRANCISCO BRANCH OFFICE
DIVISION OF JUDGES
AMERICAN RED CROSS ARIZONA
BLOOD SERVICES REGION
And Case 28-CA-23443
LOIS HAMPTON, an Individual
Mary Davidson, Esq., and Paul Irving, Esq.,
Phoenix, AZ, for the General Counsel.
Howard Cole, Esq., Las Vegas, NV, Abbe Goncharsky, Esq.,
and Sarah Selzer, Esq., Phoenix, AZ, for the Respondent.
DECISION
Statement of the Case
Gregory Z. Meyerson, Administrative Law Judge. Pursuant to notice, I heard this
case in Phoenix, Arizona, on September 20-23 and November 14-16, 2011. Lois Hampton, an
individual (the Charging Party or Hampton), filed an unfair labor practice charge in this case on
April 12, 2011.1 Based on that charge, the Regional Director for Region 28 of the National
Labor Relations Board (the Board) issued a Complaint and Notice of Hearing (the complaint) on
June 30, 2011. The complaint alleges that American Red Cross Arizona Blood Services Region
(the Respondent, the Employer, or the Red Cross) violated Section 8(a)(1) of the National Labor
Relations Act (the Act).2 The Respondent filed a timely answer to the complaint denying the
commission of the alleged unfair labor practices.
All parties appeared at the hearing, and I provided them with the full opportunity to
participate, to introduce relevant evidence, to examine and cross-examine witnesses, and to
argue orally and file briefs. Based upon the record, my consideration of the briefs filed by
counsel for the General Counsel and counsel for the Respondent, and my observation of the
demeanor of the witnesses,3 I now make the following findings of fact and conclusions of law.

1 G.C. Ex. 1(a) and 1(b) establish the filing and service of the charge as alleged in the
complaint.
2 At the hearing, the correct name of the Respondent, as reflected above, was stipulated to
by the parties, and counsel for the General Counsel amended the formal papers to reflect that
name.
3 The credibility resolutions made in this decision are based on a review of the testimonial
record and exhibits, with consideration given for reasonable probability and the demeanor of the
witnesses. See NLRB v. Walton Manufacturing Company, 369 U.S. 404, 408 (1962). Where
witnesses have testified in contradiction to the findings herein, I have discredited their
testimony, as either being in conflict with credited documentary or testimonial evidence, or
because it was inherently incredible and unworthy of belief.
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2
Findings of Fact
I. Jurisdiction 5
During the hearing, the parties agreed to the following jurisdictional facts as set forth in
the Respondent’s answer: The Respondent is a federally-charted, non-profit corporation
headquartered in Washington, D.C. At all relevant times, it has had offices in Phoenix and
Tucson, Arizona. Since October 12, 2010, it has been engaged in the collection, processing, 10
and distribution of blood products in the State of Arizona.
Further, at the hearing, the Respondent admitted the allegations in the complaint that
during the 12-month period ending April 12, 2011, the Respondent, in conducting its business
operations, derived gross revenues in excess of $250,000; and during the same period it 15
purchased and received at its Arizona facilities goods valued in excess of $50,000 directly from
points outside the State of Arizona. In its answer, the Respondent admitted that “it falls within
both the statutory and discretionary standards for exercise of jurisdiction by the Board.”
Accordingly, I conclude that the Respondent is now, and at all times material herein has20
been, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the
Act.4
II. Alleged Unfair Labor Practices
25
A. The Dispute
It is the General Counsel’s contention that the Respondent discharged its employee Lois
Hampton because she engaged in protected concerted activity. Allegedly, that activity included
complaining to the Respondent’s supervisors about working conditions, specifically the improper 30
conduct of Hampton’s immediate supervisor, Beverly Arriaga. The alleged protected concerted
activity also included Hampton’s conversations with other employees about this matter, and her
efforts to garner support from her fellow employees. Further, the General Counsel contends
that the Respondent has unlawfully maintained an allegedly overly-broad and discriminatory
provision in its “Agreement and Acknowledgement of Receipt of Employee Handbook” form (the35
acknowledgment form), which employees are required to sign.
The Respondent denies the commission of any unfair labor practices. According to
counsel for the Respondent, Hampton was fired because of her poor production and failure to
achieve the blood drive goals set for her, and because she falsified information regarding those 40

4 The parties could not agree on what period constituted “at all times material herein.”
Counsel for the Respondent offered to stipulate such material times would begin in August of
2010, which counsel argues “is the earliest named date as a relevant time in the complaint.”
However, counsel for the General Counsel would not agree to limit the phrase in this way. In
any event, I do not believe this is a significant dispute. The Board’s jurisdiction has been
established, and those “times material” would include the entire period of the Charging Party’s
employment, during which time she is alleged to have engaged in protected concerted activity,
as well as the period of time during which the Respondent is alleged in the complaint to have
committed unfair labor practices. Those unfair labor practices alleged in the complaint do not
run afoul of the statute of limitations under Section 10(b) of the Act. As I have so concluded, no
further specific findings need be made.
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3
drives, was deceptive and created “phantom” drives. According to the Respondent, Hampton’s
complaints about her supervisor’s job performance or other concerted activity in which she may
have engaged were unrelated to her termination. Further, counsel for the Respondent denies 5
that the acknowledgment form, which employees were required to sign, was unlawful. In any
event, the Respondent has recently changed the language on the acknowledgment form, which
new language allegedly remedies any previous overly-broad and discriminatory provisions.
B. Background Facts 10
The Respondent is an autonomous region under the structure of the American Red
Cross, a national organization that provides relief to victims of disaster, and helps individuals
and organizations prepare for and respond to emergencies. The Respondent’s principal office
is in Tucson, Arizona, with a smaller satellite office located in Phoenix, Arizona. It provides 15
blood services through voluntary blood donations collected at blood drives hosted by volunteer
sponsor organizations held within the State of Arizona. The Respondent’s Donor Recruitment
Department (DRD) plans, coordinates, and implements the blood drives in Arizona, and is
currently managed by Robert Meketa, who began working for the Respondent in the fall of
2009. Donor Recruitment Representatives (DRRs) recruit, retain, and manage the blood drive 20
sponsors. Meketa has overall supervision of the DRRs, with direct supervision of those DRRs
who work in Tucson, and with indirect supervision of those DRRs who work in Phoenix, where a
DRR supervisor is located. The DRR supervisor in Phoenix from approximately June 2009
through March 25, 2011 was Beverly Arriaga.
25
Lois Hampton was first employed as a DRR in the Respondent’s Phoenix office in
February 2005.5 It is uncontested that for the first three to four years of her employment,
Hampton was a productive employee, with the General Counsel taking the position that she was
a superior employee. The record evidence established that in January and April 2009, Hampton
received two awards from the Respondent, one for “Outstanding Service ‘Above & Beyond’” and 30
the other for “Outstanding External Customer Service.” (G.C. Ex. 26, 27.) Further, in May
2009, Human Resources Manager Laura Reed recognized Hampton for her “hard work and
dedication during this time of transition” and awarded her an “interim hardship incentive equal to
10% of [her] current base salary.” (G.C. Ex. 29.) However, it is important to note that these
awards were given to Hampton just shortly prior to the time that Arriaga became her supervisor. 35
The DRRs are responsible for reaching specific monthly goals, measured in “blood
units,” for those blood drives that they arrange. According to Meketa’s testimony, the basic
requirement for each DRR is “roughly 500 units per month,” but with that goal “fine-tuned” from
month to month. He testified that such fine-tuning “has a lot to do with the account or accounts 40
that are assigned to [each DRR].” The goals are set my management, with the supervisor in
Phoenix typically making those assignments to the DRRs that she supervises. To some extent,
the individual monthly goals are a product of the type of accounts assigned to each DRR. If in a
given month a DRR has a drive scheduled with a particularly large account, that monthly goal
would likely be in excess of the basic requirement. If the next month the DRR has only drives 45
scheduled with small accounts, it would likely result in a monthly goal lower than the basic
requirement. According to Meketa, the object is to “try to balance” each DRRs monthly goal so

5 While counsel for the General Counsel’s brief indicates that Hampton was hired in
February 2006, Hampton’s testimony was that she began her employment with the Respondent
the previous year.
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4
that over the course of a year the basic requirement is met. In this way, the expectation is that
the region as a whole will meet the goal set for the region by the parent organization, the
American Red Cross. 5
It appears from the testimony of the various current and former DRRs and from Meketa’s
own testimony that the monthly goals were somewhat fluid, and could change and be adjusted
by management prior to the start of any given month, and even during a given month, if
necessary. Both Meketa and the supervisor in Phoenix had the authority to change a DRR’s 10
goals if factors so warranted. Since there are frequently problems that develop in any blood
drive that may serve to cause the blood collected to be lower than anticipated, the DRRs are
actually expected monthly to book drives that would exceed 100% of goal, assuming all drives
for the month met expectations.
15
Regarding the individual blood drives, each sponsoring organization would designate a
blood drive coordinator (BDC) with whom a DRR would work to ensure the success of the drive.
Each individual blood drive would have a goal as to a specific number of blood units expected to
be collected during that drive. For sponsors that had held previous drives, the individual drive
goals would usually be derived from the average of the previous three drives. However, that 20
was not always the case, as other factors used in determining drive goals would include the
date and time of the drive, and whether the employee complement had changed. The success
of any particular drive was measured by the number of blood units collected. For the DRRs,
their success and corresponding evaluations were measured in both their ability to meet goal
each month, as well as the efficiency of each individual drive, meaning whether the individual 25
drive met its goal.
The Respondent expects that its DRRs will book drives two or three months in advance
and will remain in contact with the sponsoring organization’s BDC during that period of time. It
is the responsibility of the DRR to see that notices alerting employees/members of the sponsor 30
to the location, time, and date of the drive are printed and delivered to the BDC. Further, the
DRR is expected to coordinate with the BDC as to the location at which the blood will be given,
and whether that will be a room made available by the sponsor, or a “bus” utilized for that
purpose by the Respondent.
35
The Respondent’s resources are obviously not unlimited. It has only a finite number of
employees, equipment, and vehicles that can be devoted to the collection of blood on any given
day. Accordingly, those resources must be properly allocated and shared among all the drives
scheduled monthly by the DRRs. Therefore, the actual “booking” of drives by the DRRs is of
critical importance to the Respondent’s managers. It is the Respondent’s Acquisition, Planning, 40
and Scheduling Department that is ultimately responsible for coordination with the DRRs as to
their scheduled drives and specific drive requirements, and for allocating resources to those
drives.
During the hearing, a good deal of time and testimony was devoted to the mechanics of 45
the booking process. Unfortunately, the parties disagree as to the specifics of that process.
The testimony of current and former DRRs, and of Meketa, and of the Senior Manager,
Acquisition, Planning, and Scheduling, Erna Goldkuhl, were somewhat at variance with each
other regarding both the Respondent’s stated requirements and the actual practice of booking
drives. Further, the booking process has been a work in progress, with various adjustments, 50
changes, and fine tuning to the process occurring throughout the last several years. In any
event, I have attempted to reconcile the conflicting evidence to the extent possible, setting forth
both the Respondent’s stated position on the booking process, as well as the Charging Party’s
contention, shared by several other DRRs, as to how the process really worked in practice.
JD(SF)–04-12
5
The Respondent’s software system, known as “Hemasphere,” is designed to maintain its 5
state-wide blood drive calendar and allow the Respondent to allocate and track its drive
resources. It is the Respondent’s position that the Scheduling Department would not place a
blood drive into Hemasphere until the DRR confirmed that the drive was an “actual drive,”
meaning that the DRR had already confirmed with the drive’s sponsor the date, time, location,
and size of the drive. However, according to the Charging Party, as well as former DRR Nikole 10
Holverson and current DRR Christa Mitchell, in practice things were not so exact. In this regard,
I credit the testimony of Mitchell, Holverson, and Hampton, as these DRRs generally supported
each others testimony, and as the persons ultimately responsible for the success of the drives,
they were in the best position to note how the booking system worked in practice, rather than
just theoretically. 15
According to the testimony of the DRRs, blood drives put on the schedule were not
necessarily fully confirmed. While that would have been ideal, Mitchell testified that only about
“75 percent of the drives go as planned.” She indicated that even after scheduling, the goal
could change, or the equipment, the location, or time could change. As a preliminary step to 20
placing a drive on Hemasphere, all the DRRs state-wide would attempt to place their drives on a
master calendar. In this regard, on July 12, 2010, the Respondent held a “booking-meeting” or
“booking-party,” for all DRRs at its headquarters in Tucson. This was not the first such meeting
of its kind, but was significant as it occurred at a time of transition for the scheduling process.
25
During this meeting, the DRRs were expected to place their anticipated blood drives on
a master calendar, a white-board, for a three month period, indicating the date of the drive, the
expected number of blood units to be collected, and whether a “bus,” which was supplied by the
Respondent, would be needed. Although the Respondent contends that these drives were
intended to be “real” drives, the credible evidence in the form of the testimony of the DRRs 30
indicates that these were merely anticipated or tentative drives. Meketa did clearly indicate to
the DRRs that following such a meeting, they were to quickly contact their sponsor’s blood drive
coordinator (BDC) to confirm the date, time, place, and expected blood units of those drives
placed on the master calendar. Once that was done, the DRRs were expected to submit a list
of their drives to the scheduling department, which the DRRs claim was then responsible for 35
placing the drives into Hemasphere within a few days. However, as the DRRs have noted, even
after a drive was placed into Hemasphere changes could be made, and apparently the only
really solid result of having a drive placing into Hemasphere was that the Respondent was
committing its resources to that drive.
40
In any event, as noted, the booking system was a work in progress, with DRR Holverson
testifying that originally it was necessary to have Hemasphere confirm that the resources were
available for a drive before that drive was confirmed with the sponsor. At some point the
procedure changed to more reflect that system as discussed above. But unfortunately, it is
difficult to determine precisely when this change was fully implemented. Erna Goldkuhl testified 45
that there had been a “significant disarray in booking drives,” so that a new system was
announced in May 2010. However, she admits that there was a “learning curve” with the new
system. She acknowledges that this was apparent following the July 2010 booking meeting,
when most of the drives placed on the master calendar were “holds,” until such time as the
DRRs could confirm the drives with their sponsors.50
While I can not definitively determine to what extent the Respondent had attempted to
fully implement the new booking system as of the time of the July 12 booking meeting, I do find
that even as of that date the system continued to be in disarray. This leads me to conclude,
based primarily on the credible testimony of the DRRs, that it was reasonable as of that date for 55
the DRRs, including Hampton, to believe that drives placed into Hemasphere could legitimately
JD(SF)–04-12
6
constitute “holds,” which still needed confirmation from the sponsor, and could, therefore, be
altered in Hemasphere if necessary. In fact, the Respondent utilized an “exemption” form for
making changes to drives that had already been placed into Hemasphere, which form
apparently was used with some regularity.
10
There is no question that Hampton did not get along with Beverly Arriaga who became
her supervisor in the summer of 2009. All parties seem to agree that Arriaga was an abusive
manager, although they may somewhat disagree as to the extent of that abuse. All the DRRs
who testified provided lurid details of their abuse at the hands of Arriaga. She was a micro-
manager who treated the DRRs with disrespect and used intimidation, threats, histrionics, and15
verbal abuse to supervise them on a daily basis. It appears that she caused a constant turnover
of DRRs in the Phoenix office. In an effort to unite against her and protect each other from her
abuse, the DRRs maintained a kind of code to alert each other as what type of mood Arriaga
was in on any given day. Upon entering the office, the DRRs would inquire as to the weather,
meaning how Arriaga was acting. A report that the weather was stormy meant that she was in a 20
bad mood and they should take care in dealing with her.
Hampton testified that in August or September of 2009, shortly after Arriaga became the
supervisor in the Phoenix office, she and Ronda Brown, another DRR, began to discuss the
problems and complaints that they had with Arriaga. In the late summer and early fall that year, 25
Hampton called the Human Resource Manager, Laura Reed, in Tucson and complained about
Arriaga. However, matters got progressively worse, and later in the fall Brown and Hampton
were in Tucson for a meeting and used the opportunity to talk in person with Reed about
Arriaga’s abusive behavior, which included threats of discharge, yelling, screaming, and an
overall “hostile work environment.” This testimony was unrebutted as Reed, who was no longer 30
employed as the Respondent’s Human Resource Manager in Tucson, did not testify.
Conditions in the Phoenix office did not improve, and in November Brown resigned. That left
only two DRRs in the Phoenix office, the Charging Party and Nikole Holverson. While the
Phoenix office was designed to be a three DRR office, because of turnover, that has frequently
not been the case.35
In his post-hearing brief, counsel for the Respondent acknowledges that Hampton raised
her concerns about Arriaga on “multiple occasions with Robert Meketa.” In March 2010,6 all the
DRRs were in Tucson for a training session. Hampton used that opportunity to discuss her
concerns about Arriaga with Meketa. She again expressed her complaints about Arriaga to 40
Meketa in late June in Tucson. Additionally discussed at that time, according to both Meketa
and Hampton, was Meketa’s concern that the Charging Party’s work’s “performance was
slipping,” and that she was “not making goal.” According to Meketa, Hampton did not really offer
any excuse for her recently poor production, except perhaps the difficult work environment
created by Arriaga. Meketa testified that he told Hampton that “she needed to buckle down and 45
get the job done.” At the time of the meeting, Meketa knew that Hampton was going to be
placed on a Performance Improvement Plan (PIP) within the next week or two, and so was
somewhat uncomfortable having this conversation with her.
It is very significant that Meketa acknowledges that during the meeting he had with 50
Hampton in February 20107 where she complained about Arriaga’s conduct, that he “counseled
[Hampton] to take a leadership role to bring the team together.” He considered Hampton to be

6 All remaining dates are in 2010, unless otherwise indicated.
7 While Meketa places this meeting in February, it is more likely that it occurred the following
month and was the March meeting referred to by Hampton.
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one of the “senior people,” and told her “to try to make it a team-enhanced work environment
and not to be the one constantly behind the scenes or in front of the scenes, prodding, stirring
the pot or whatever.” He testified that he “counseled [Hampton] on this several times.”
10
The testimony of Hampton, Holverson, and Christa Mitchell, who was hired as a DRR in
the Phoenix office in May 2010, was uncontested that Arriaga was continuing her abusive
behavior, and that they would discuss on an almost daily basis what do to about their
mistreatment. According to Holverson, it was Hampton who would stand up to Arriaga when the
other DRRs in the office were fearful of doing so. She described Arriaga as engaging in 15
“screaming matches” when Hampton would stand up to her. Holverson testified that she did not
want to “emulate” what Hampton did because Arriaga was acting in a very negative way
towards Hampton. Holverson characterized the situation as being “like the tall nail gets
hammered down….It was not a good environment to question or challenge anything.”
20
In mid-June, Arriaga gave Hampton a form to sign acknowledging the receipt of the
employee handbook. A few days after receiving this “Agreement and Acknowledgement of
Receipt of Employee Handbook ” form, Hampton informed Arriaga that she did not agree with
some of the language on the form, specifically that language listing the actions that the
Respondent could unilaterally take against an “at-will” employee. She told Arriaga that she 25
wanted a new form to sign that would show she specifically did not agree with the language to
which she objected. Hampton testified that Arriaga “was agitated that [she] wanted to do this.”
However, Arriaga did ultimately allow Hampton to cross out the language on the form that she
found offensive, and so Hampton signed a redacted copy of the form. (G.C. Ex. 37, G.C. Ex.
79, “Exhibit 2.”) Hampton discussed the acknowledgement form with the other DRRs in the 30
Phoenix office, counseling Holverson and Mitchell to be careful what they signed.
As of July 1, the Respondent placed Hampton on a 60 day Performance Improvement
Plan (PIP). Hampton was so advised by Arriaga and Linda Filep,8 Human Resource Manager,
on July 6. The decision to place Hampton on this PIP was made by Meketa, with input from35
Arriaga, Filep, and the Respondent’s CEO, Nancy Mowry. According to the memorandum
placing Hampton on the PIP, the reasons for the Respondent having taken the action included:
1. a failure to meet goal 6 months out of 12 months for the fiscal year, 2. a failure to be booked
out a minimum of 3 months, and 3. a failure to provide excellent customer service and timely
follow up with sponsors. (G.C. Ex. 35, Res. Ex. 11.9) 40
Hampton testified that Arriaga told her not to discuss her PIP with anyone as “it was
personal and confidential.” However, Hampton did discuss the PIP with DRRs Mitchell and
Holverson, as well as with Jayne Hudson, a customer service representative in the Phoenix
office. According to Hampton, during a break room conversation with her co-workers about her 45
PIP, Hampton raised the issue of their ongoing problems with Arriaga, that matters were not
improving, and the impact the stress was having on their health. Hampton testified that about

8 Filep had replaced Reed in that position.
9 There are two copies of the PIP in evidence. The PIP makes reference to an “attached
spreadsheet.” That spreadsheet is the final page of Res. Ex. 11, while G.C. Ex. 35 does not
contain the spreadsheet. During the hearing, the parties disagreed over whether the PIP
document given to Hampton contained this spreadsheet. In any event, based on the record
evidence and the context in which these documents were admitted into evidence, I am of the
view that it is more likely than not that the PIP received by Hampton included the spreadsheet.
Accordingly, I find that the PIP document received by the Charging Party did in fact include the
spreadsheet, as reflected in Res. Ex. 11.
JD(SF)–04-12
8
one week later she was orally reprimanded by Arriaga for “saying harassing things about her in
the break room.” Arriaga also complained that Hampton “was talking about her, and [Hampton]
wasn’t supposed to be doing that.” Allegedly Arriaga also reminded Hampton that she had “told
[her] not to talk about [her] PIP.” As Arriaga did not testify at the hearing, the evidence of this 10
conversation went unrebutted.
On about July 12, there was a “booking meeting” held in the Respondent’s Tucson
office, attended by all the DRRs, including those from Phoenix. The purpose of the meeting
was to have the DRRs place their blood drives for a three month period on a master calendar 15
white-board, also indicating the number of anticipated blood units for each drive, as well as
whether the Respondent would need to provide a “bus” for any specific drive. This information
would allow the Respondent to plan the allocation of its state-wide resources for those three
months. Earlier in this decision I indicated at some length the parties differing positions
regarding the definitive nature of the selections made by the DRRs. As noted, the Respondent 20
takes the position that the drives listed on the calendar were expected to be “real drives,” with
relatively few changes occurring, while the General Counsel contends that the DRRs
understood that these drives were merely “anticipated drives,” which still needed sponsor
confirmation and might be altered significantly, even after they were entered into Hemasphere.
25
The problems in the Phoenix office reached a boiling pointing in early August. Arriaga
was apparently upset with a suggestion made by Hampton and Holverson as to how blood drive
information was to be entered on a spreadsheet. Arriaga pounded on Hampton’s desk and
shouted, “Lois, you’re not the manager. I want it done this way.” Arriaga took Holverson into
her office, from which Hampton and the other employees could hear yelling, screaming, and the 30
pounding on desks. Subsequently, Holverson exited from Arriaga’s office crying.
The three DRRs went to lunch together and talked about the situation. They decided
that immediate action needed to be taken. When they returned to the office, calls were made to
management in Tucson. However, there is some dispute as to exactly who made the calls. 35
According to Hampton, she called Meketa, spoke with him for 20 minutes, told him what
had transpired, and regarding Arriaga said, “I think this woman is crazy, and I don’t know what
she’s going to do, but she could go home and grab a gun and come back and shoot us all.”
Hampton claims that Meketa told her to tell “everyone to go home.” However, according to 40
Meketa, he believes it was Holverson who called him and reported the incident. He testified that
she was very upset, describing a “confrontation” between Arriaga and Hampton, which
“escalated to the point where people were yelling and shouting at each other.” Meketa claims
that he told Holverson to go home and to tell Mitchell to do the same. Meketa also sent Arriaga
home, and then instructed Linda Filep to conduct an investigation of what had transpired in 45
Phoenix. Filep testified that it was actually Arriaga who called first to tell her what had just
happened in Phoenix, followed by calls from Holverson and Hampton.
In any event, Meketa and Filep were concerned enough about the incident to drive to
Phoenix to speak with Arriaga and the three DRRs. The record evidence is somewhat unclear 50
as to when the managers made this trip to Phoenix, whether it was the following day, or as late
as a week later, or even whether there were actually two trips made during this time period. In
any event, Meketa and Filep spoke with the three DRRs both as a group and individually. They
also spoke separately with Arriaga. There is no question that the DRRs expressed their distress
over the way Arriaga was managing the office and her behavior towards them. As a result of 55
the investigation of the incident, the Respondent placed Arriaga on a PIP for poor performance
as a supervisor, effective August 10. (G.C. Ex. 11.) The DRRs were told that while Arriaga was
going to return to the office as their supervisor, that they were now permitted to work at home
JD(SF)–04-12
9
three days a week. Presumably, this would ease the tension in the office, as they would have
less contact with Arriaga.
10
When Holverson met with the managers she informed them that she was going to
resign, making it clear that she could no longer handle the stress in the office and the way
Arriaga treated the staff, creating an abusive work environment. When Hampton met with Filep
and Meketa, she reminded them that she had told them for some time that things were going to
escalate, and they finally had. She told them that she was “scared for her life.” Clearly, 15
Hampton was not happy with the news that Arriaga would be returning to the office. According
to Hampton, Meketa reiterated that she could now work at home for part of the week, so things
“will all work out.” Filep allegedly added that Hampton had brought some of these problems on
herself by “agitating [Arriaga,]” as Hampton had allegedly “talked back to her.”
20
It is important to note certain comments that Meketa made while testifying under cross-
examination by counsel for the General Counsel. Counsel asked him if it was true that during
the 60 day period that Hampton was on her PIP that he had heard she was talking with the
other DRRs about the Employer and about Arriaga. Meketa responded that he “had heard
reports from different individuals that, yes, she was talking to people.” He testified that he 25
“wouldn’t phrase the word talking. Inciting would be a better word. Again, stirring the pot. In
other words, that she was bringing these issues up not at their request, but she was trying to
cause trouble. That’s the way [he] read it, interpreted the statements that [he] heard from other
people.” He felt that Hampton was being unprofessional and unproductive. Meketa went on to
say that “there was a lot of turmoil” in the Phoenix office, that “people were going at it with each 30
other,” which he attributed to “a joint effort by Ms. Hampton and Ms. Arriaga.”
Holverson gave several weeks notice to the Respondent of her resignation, during which
period of time her accounts were distributed to the remaining DRRs, Mitchell, Hampton, and
Arriaga. On August 24, Hampton wrote an email to Meketa, with the assistance of Holverson, 35
complaining about the distribution of Holverson’s accounts. Hampton stated in the email that
she was concerned about the decision to have 175 units placed under Arriaga’s name, but
managed by Jayne Hudson. Hudson was the customer service representative in Phoenix, and
Hampton felt that Hudson did not have adequate training as a DRR, and that both she and
Arriaga were too busy to properly handle these accounts.40
The following day, August 25, Arriaga presented Hampton with her yearly performance
review. (G.C. Ex. 41.) Hampton received an “unsatisfactory” rating of one (on a scale of one to
five) for not meeting the core competence of her monthly goals and for not meeting the core
competence of booking her calendar 90 days in advance during the second half of the 45
preceding year. Hampton’s overall performance rating for the year was two (on the one to five
scale), with two reflecting that “more is expected.” This rating reflected the Respondent’s
contention that Hampton had missed reaching her performance goals for seven out of twelve
months. It should be noted that under the “Ethics and Integrity” portion of the review, Arriaga
wrote: “This is an area of concern because of gossip, not maintaining confidentiality and 50
negative attitude that affects the team. This has been addressed with Lois.” Hampton testified
that she understood this comment to refer to the one conversation that she had with Arriaga
about Hampton “gossiping” in the break room, when she was discussing Arriaga and Hampton’s
PIP with her coworkers, and during which Arriaga had told her that she was not supposed to
discuss her PIP with anyone. 55
As of September 1, Hampton’s PIP was extended for an additional 30 days. Arriaga
presented her with the memorandum extending the PIP. (G.C. Ex. 47.) The document states
that: “Although you have made strides in your bookings, not making goal for the first two months
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of this FY, along with having more than 3 drives in a month (you had five) that fell below 70% of
efficiency, and behavior concerns, constitute grounds to be placed on a PIP.” The document
showed specifically that in July only 56% of Hampton’s goal was collected, but that in August
99% had been collected. It also indicated the future months where Hampton had failed to meet
the minimum booking expectations, but complemented her achievement none-the-less, stating
that, “You have made great progress with booking out thus far and are almost there.” However,
it should be noted that Arriaga also wrote, in part: “complaints from other employees continue as
to your negative behavior and gossiping with several internal staff members in both Phoenix and
Tucson. You have received repeated warnings about your negative attitude, unprofessional
behavior with your manager and gossiping.” According to Meketa, the decision to extend
Hampton’s PIP was made by him, with input from Arriaga, and Filep. It should also be added
that at some point, although the exact date is uncertain, Meketa removed Arriaga from the PIP
that she had been on since the incident occurring in the Phoenix office in early August.
Two days after having her PIP extended, on the Friday afternoon before the Labor Day
weekend, Hampton sent an email to Meketa and Arriaga informing them that she was taking an
indefinite medical leave of absence,10 effective immediately. (G.C. Ex. 12.) Her first day of
absence was Tuesday, September 7. At her request, Hampton’s medical leave was extended a
number of times, and untimely, she was off from work approximately 12 weeks.
Over the Labor Day weekend, Hampton sent emails to her managers referencing
approximately 10 blood drives that she was working on, indicating the status of those drives and
certain issues related to them. (G.C. Ex. 57.) Hampton testified that she also sent a long email
to Meketa and Arriaga describing her upcoming drives and what still needed to be done on
those drives. However, she never made a copy of this alleged email, and the Respondent’s
managers testified that they never received any such communication. It is undisputed that
Meketa informed Hampton on approximately September 10 that she was to not perform any
work for the Respondent while she was out on medical leave.
Hampton testified that she expected that while out on medical leave, her active blood
drives would be assigned to other DRRs to complete, which procedure was used when DRRs
were out of the office on vacation, medical, or other leave. In fact, it is the Respondent’s
position that Hampton’s drives, those of which management was aware, were assigned to other
employees in the Phoenix office who were to continue to process them. At the time that
Hampton went out on medical leave the other employees in the Phoenix office who were in a
position to do so were Arriaga, Christa Mitchell, and the customer service representative, Jane
Hudson.
The Respondent contends that Arriaga, Mitchell, and Hudson were each allocated
certain of Hampton’s drives and proceeded to contact the sponsors and the blood drive
coordinators (BDC) responsible for those drives. The intent was to continue those drives to
completion and ensure their ultimate success. However, the Respondent also contends that in
the course of doing so, the employees assigned the drives in Hampton’s absence uncovered
serious problems with many of the drives, which problems indicated that Hampton had at best
been careless and inattentive to details in scheduling drives, and at worst she had been

10 Although the email mentions the Family Medical Leave Act (FMLA), because of the size
of the Phoenix office, it does not qualify under the FMLA. Accordingly, those employees who
have medical issues are simply given a medical leave of absence.
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fabricating blood drives in an effort to “fraudulently” improve her statistics. The Respondent
takes the position that such conduct, along with her history of poor production, ultimately led to
the decision to terminate Hampton.
According to the Respondent, it uncovered a disturbing pattern showing that Hampton
had engaged in numerous efforts to artificially increase her performance data. It appears that
the Respondent considered most egregious Hampton’s alleged placement of multiple blood
drives on the Hemasphere calendar without confirming the details of the drive, thereby
committing the Respondent’s limited resources without justification. Hampton denies any such
conduct. The dispute is really with the parties different opinions as to what constitutes a
confirmed drive. As I discussed earlier in this decision, it is the position of the Respondent that
drives should not be placed into Hemasphere unless and until the DRR has confirmed with the
sponsor all the various details of the drive. However, Hampton, Holverson, and Mitchell
contend that the Respondent’s stated position did not reflect actual practice. They testified that
it was not unusual to have anticipated drives placed into Hemasphere even before the sponsor
had agreed to all the details, which sometimes resulted in changes being made in Hemasphere.
The Respondent offered evidence that six different blood drives that were booked into
Hemasphere by Hampton had not been confirmed by the sponsors’ blood drive coordinators,
specifically: JDA Software, the Knights of Columbus-Glendale, the Morristown Fire Department,
Superior High School, the Outlets at Anthem, and Anthem Community. (Res. Ex. 24; 15; 16;
13; 1-2; 19.) As is reflected in the documentation, some of these sponsors’ BDCs indicated that
they had never even agreed to a date for the drive, let alone a time, place, or number of
anticipated units of blood.
During her testimony, Hampton did not contend that she had finalized and confirmed all
the details of the drives with the BDCs before having the drives placed into Hemasphere. She
merely alleged that she followed the standard practice at the time and had anticipated drives
placed into Hemasphere. She argued that in some cases Laura Mew, the scheduler, was late in
adding these drives into Hemasphere, and so Hampton did not have an opportunity to confirm
the drives with the BDCs before she left to go on medical leave. Hampton testified that she
expected that in her absence, whichever DRRs were assigned to complete her drives would
take care of confirming those drives with the BDCs.
It is important to note that Mitchell testified that she was not assigned to take care of
Hampton’s work while Hampton was on leave and was not aware of anybody being assigned to
do so. However, Mitchell testified that Arriaga asked to be informed whenever Mitchell had any
conversations with Hampton’s BDCs. According to Mitchell, Arriaga said, “I want to know if
there are any conflicts, if anything arises with Lois’ accounts. I’m keeping track of this.” Mitchell
felt that the clear implication was that “while [Hampton] was away, Arriaga wanted to build a
case against [Hampton].”
Of course, the Respondent takes the position that Hudson and Arriaga uncovered these
deficiencies in Hampton’s blood drives only in the course of trying to complete the work that
Hampton had started. It then allegedly became apparent to management that Hampton had
filled her calendar with blood drives that were not actually booked. According to the
Respondent, Hampton’s deceitful efforts had made it appear that her performance had
improved, when actually it had not. This improvement had been the basis for the Respondent’s
willingness to extend Hampton’s PIP (G.C. Ex. 47.), rather than to simply terminate her.
In addition to having drives placed into Hemasphere that were not fully confirmed with
the BDCs, the Respondent contends that it also uncovered other deficiencies in Hampton’s
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work. Maricopa County was one of the Respondent’s largest accounts. Hudson, who was
assigned many of Hampton’s drives to complete, testified that while Hampton had confirmed
two separate blood drives with the Maricopa County BDC, she had never entered the
information for either drive into Hemasphere. The result was that the drives could not be
conducted on the dates agreed to with the BDC, as Hampton had failed to reserve the
necessary resources by entering the drives into Hemasphere. Further, the Respondent
discovered that in several instances Hampton had artificially increased the collection goal for
drives without justification. Normally the appropriate goal for a blood drive is based on the
average from the past three drives, with an increased goal approved for documented reasons.
However, it is the position of the Respondent that Hampton increased certain drive goals
without proper justification simply in an effort to improperly inflate her statistics. Finally, the
Respondent discovered that Hampton had scheduled two blood drives at the same site within
56 days of each other, which is an improper procedure since donors are ineligible to give blood
again within that limited period of time.
Based on the discoveries made during Hampton’s medical leave, the Respondent
concluded that she had attempted to deceive her managers into believing that her production
and efficiencies were better than was truly the case. This created problems for the Respondent,
the most significant of which was the commitment of resources for “phantom” drives, depriving
genuine drives of those limited resources needed to successfully complete them.
On the other hand, Hampton testified, with some support from the other DRRs, that
those drives that were unfinished at the time she went on medical leave required attention and
continued processing. She testified that had she been at work, these problem issues would not
have developed, as she would have completed the processing and brought these drives to
successful conclusions. Hampton places most of the blame for these problems on the alleged
failure of the Respondent to properly monitor her drives. The General Counsel contends that
such inaction was deliberate, and an effort by Arriaga to make Hampton look bad, and, thus,
give management a pretext for discharging her.
Meketa testified that he made the decision to terminate Hampton in consultation with,
and following the approval of, Darrin Greenlee, the Respondent’s CEO. In his post-hearing
brief, counsel for the Respondent stresses that Arriaga did not have the authority to make that
determination. Meketa instructed Arriaga to work with Linda Filep to draft Hampton’s
termination notice. That Notice of Termination dated November 13 charged that Hampton had
failed to meet her goals, failed to have her calendar booked for future months, failed to have
efficient drives, and failed to provide excellent customer service. (G.C. Ex. 13.)
Hampton was terminated the day that she returned from medical leave, on
November 29. The termination notice was presented to her by Arriaga in the presence of Filep.
Hampton disputed the reasons given for her termination, as is set forth above. Of course, it is
the position of the General Counsel that Hampton was fired because she led the concerted
efforts by the DRRs in Phoenix to have management take action against Arriaga who had
created a hostile work environment in that office. Allegedly, in furtherance of the Respondent’s
efforts to terminate Hampton for having engaged in protected concerted activity, Arriaga had
sabotaged the processing of Hampton’s blood drives while she was on medical leave.
The Respondent acknowledges that Hampton and other DRRs complained about
Arriaga’s supervisory performance, but denies that those complaints were in any way related to
Hampton’s ultimate termination. The Respondent points to its having placed Arriaga on a PIP in
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August as an indication that it took the complaints from the DRRs about her abusive behavior
seriously, and, rather than resenting the complaints that Hampton and others raised, the
Respondent relied on those complaints to take appropriate action against Arriaga.
Further, the Respondent offered evidence that when the DRRs in the Phoenix office
continued to complain about Arriaga’s poor performance as a supervisor, it terminated her
employment effective March 25, 2011. Based on complaints that the Respondent received from
Mitchell, and the new DRR in the Phoenix office, Rachael Greathouse, Meketa testified that he
concluded Arriaga had reverted to the unacceptable behavior that she had exhibited in August
2010. This resulted in the decision to terminate her. (G.C. Ex. 9.) The Respondent argues that
of all the DRRs who complained about Arriaga, namely Brown, Holverson, Mitchell, Hampton,
and Greathouse, the only one to be terminated or otherwise disciplined was Hampton. In fact,
Greathouse was ultimately promoted to supervisor, in place of the terminated Arriaga. This, the
Respondent contends, is proof that Hampton’s complaints about Arriaga were unrelated to
Hampton’s termination.
Finally, as was mentioned earlier, the General Counsel contends that the Respondent
violated the Act by maintaining an allegedly overly-broad and discriminatory provision in an
“Agreement and Acknowledgement of Receipt of Employee Handbook” form, which among
other matters attempts to define an “at-will” employment relationship. In that definition is
contained the following language: “I further agree that the at-will employment relationship
cannot be amended, modified or altered in any way.” Employees are required to sign the
acknowledgement form, whereby they acknowledge receipt of the employee handbook and
agree to abide by the rules set forth in the handbook. As was noted earlier, Hampton objected
to signing the acknowledgement form as worded, and was reluctantly permitted by Arriaga to
strike out certain language in the form, including the above referenced language, before signing
the form. (G.C. Ex. 4, 37, 38.)
According to the testimony of Linda Filep, she sent to the Respondent’s managers by
email dated September 19, 2011, a memorandum attaching a new acknowledgement form and
“updated statement” regarding at-will employment, which “replace[d]” the at-will employment
policy set forth in the employee handbook (emphasis as is reflected in the email). Filep
testified that the memorandum and form were to be distributed by the Respondent’s managers
to all employees, who were then to sign the acknowledgement form and return it to the human
resources department. The attached new acknowledgment form did not contain the language
that the General Counsel contends was unlawful. (Res. Ex. 25). The Respondent continues to
deny that the cited language in the original acknowledgement form was in any way unlawful,
and contends that the language was deleted merely out of “an abundance of caution.” Further,
counsel for the Respondent argues that as the alleged offending language has now been
deleted, the allegation in the complaint dealing with this alleged unlawful language is now
“moot.”
III. Legal Analysis and Conclusions
A. Protected Concerted Activity
Section 7 of the Act guarantees employees “the right to self-organization, to form, join, or
assist labor organizations…and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection….” Employees are engaged in protected
concerted activities when they act in concert with other employees to improve their working
conditions. Eastex, Inc. v. NLRB, 437 U.S. 556 (1987); NLRB v. Washington Aluminum Co.,
370 U.S. 9, 14 (1962). An employer may not retaliate against an employee for exercising the
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right to engage in protected concerted activity. Triangle Electric Co., 335 NLRB 1037, 1038
(2001); Meyers Industries, 268 NLRB 493, 479 (1984). An employer violates Section 8(a)(1) of
the Act when it discharges and employee, or takes some other adverse employment action
against him, for engaging in protected concerted activity. Rinke Pontiac Co., 216 NLRB 239,
241, 242 (1975).
The Board, with court approval, has construed the term “concerted activities” to include
“those circumstances where individual employees seek to initiate or induce or to prepare for
group action, as well as individual employees bringing truly group complaints to the attention of
management.” Meyers Industries, Inc., 281 NLRB 882 (1986), affirmed 835 F.2d 1481 (D.C.
Cir. 1987), cert. denied 487 U.S. 1205 (1988); See Mushroom Transportation Co., v. NLRB, 330
F.2d 683, 685 (3rd Cir. 1964) (observing that “a conversation may constitute a concerted activity
although it involves only a speaker and a listener” if “it was engaged in with the object of
initiating or inducing or preparing for group action or…it had some relation to group action in the
interest of employees”); See also NLRB v. City Disposal Systems, Inc., 465 U.S. 822, 831
(1984) (affirming the Board’s power to protect certain individual activities and citing as an
example “the lone employee” who “intends to induce group activity”).
In the matter before me, there can be no doubt that Lois Hampton was engaged in
protected concerted activity with other DRRs in the Phoenix office. The evidence is unrebutted
that over an extended period of time, Hampton had numerous conversations with Brown,
Holverson, and Mitchell regarding their displeasure with the manner is which Arriaga was
supervising them. Hampton spoke with Brown, which conversations led to complaints made to
Human Resource Manager Reed and Recruitment Manager Meketa, as well as repeated
conversations with Holverson and Mitchell, which conversations led to complaints made to
Human Resources Manager Filep and again with Meketa. While Hampton seemed to be the
most outspoken of any of the DRRs, all the representatives shared the same general concern
that Arriaga was abusive towards them, creating a hostile work environment through
intimidation, threats, yelling, banging on desks, and micro-managing the staff. Obviously, such
concerns involved the working conditions of the DRRs, and, as such, the most basic form of
concerted activity.
The concerted activities of the DRRs did not end with merely having discussions among
themselves. As noted above, they took their concerns directly to those supervisors who could
most immediately resolve the problem. There is no question that Hampton, both individually
and collectively with other DRRs, spoke by telephone and in person to Reed, Filep, and Meketa
over a extended period of time about her concerns with Arriaga’s conduct. While Hampton was
still employed by the Respondent, her complaints, along with those of Mitchell and Holverson,
resulted in Meketa and Filep conducting an investigation of Arriaga’s conduct towards the DRRs
in August 2010, and then in the placement of Arriaga on a PIP in an effort to improve her
supervisory performance. In fact, so obvious were Hampton’s complaints to the supervisors,
that the Respondent does not deny her involvement in such protected conduct. The
Respondent merely denies that Hampton’s protected concerted activity was in any way involved
in the decision to terminate her. That remains the gravamen of this case.
B. The Termination of Lois Hampton
In Wright Line, A Division of Wright Line, Inc., 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the Board announced the following
causation test in all cases alleging violations of Section 8(a)(3) or violations of 8(a)(1) turning on
employer motivation. First, the General Counsel must make a prima facie showing sufficient to
support the inference that protected conduct was a “motivating factor” in the employer’s
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decision. This showing must be by a preponderance of the evidence. Then, upon such a
showing, the burden shifts to the employer to demonstrate that the same action would have
taken place even in the absence of the protected conduct. The Board’s Wright Line test was
approved by the United States Supreme Court in NLRB v. Transportation Corp., 462 U.S. 393
(1983).
In the matter before me, I conclude that the General Counsel has made a prima facie
showing that Hampton’s protected concerted activity was a motivating factor in the
Respondent’s decision to terminate her. In Tracker Marine, L.L.C., 337 NLRB 644 (2002), the
Board affirmed the administrative law judge who evaluated the question of the employer’s
motivation under the framework established in Wright Line. Under the framework, the judge
held that the General Counsel must establish four elements by a preponderance of evidence.
First the General Counsel must show the existence of activity protected by the Act. Second, the
General Counsel must prove that the Respondent was aware that the employee had engaged in
such activity. Third, the General Counsel must show that the alleged discriminatee suffered an
adverse employment action. Fourth, the General Counsel must establish a link, or nexus,
between the employee’s protected activity and the adverse employment action. In effect,
proving these four elements creates a presumption that the adverse employment action violated
the Act. However, more recently the Board has stated that, “Board cases typically do not
include [the fourth element] as an independent element.” Wal-Mart Stores, Inc., 352 NLRB 815,
fn.5 (2008) (citing Gelita USA, Inc., 352 NLRB 406, 407, fn.2 (2008)); SFO Good-Nite Inn,
L.L.C., 352 NLRB 268, 269 (2008); Also see Praxair Distribution, Inc., 357 NLRB No. 91, fn.2
(2011). In any event, to rebut the presumption, the Respondent bears the burden of showing
that the same action would have taken place even in the absence of the protected conduct.
See Manno Electric, Inc., 321 NLRB 278, 280, fn.12 (1996); Farmer Bros. Co., 303 NLRB 638,
649 (1991).
It is axiomatic that Section 7 of the Act gives employees the right to communicate with
each other regarding their wages, hours, and working conditions. Further, the Board has
consistently held that the communication between employees “for nonorganizational protected
activities are entitled to the same protection and privileges as organizational activities.” Phoenix
Transit Systems, 337 NLRB 510 (2002) (citing Container Corporation of America, 244 NLRB
318, 322 (1979)).
As I have already found, there is no doubt that Hampton was engaged in protected
concerted activity. She had numerous discussions with fellow DRRs, including Brown, Mitchell
and Holverson, regarding their complaints about supervisor Arriaga. Many of these discussions
occurred in the Phoenix office, specifically around their cubicles and in the break room. Arriaga
was aware of these conversations, once even orally reprimanding Hampton regarding her and
the other DRRs “gossiping” about Arriaga in the break room, and talking about Hampton’s PIP,
which Arriaga had instructed her not to do.
In addition to Arriaga, agents/supervisors Meketa, Reed, and Filep were aware of the
complaints that the DRRs had with Arriaga’s supervisory conduct as Hampton, and to a lesser
extent Brown, Holverson, and Mitchell, had over an extended period of time spoken to them in
person and by phone about this issue. On several occasions, Hampton, who clearly was the
lead spokesperson for the DRRs in Phoenix, had spoken at length about Arriaga’s abusive
behavior. Meketa acknowledged that Hampton was the leader in this effort when he
“counseled” her during a meeting that they had in February 2010 where Hampton complained
about Arriaga, and he advised her “not to be the one constantly behind the scenes or in front of
the scenes, prodding, stirring the pot or whatever.” Further, Meketa testified that while Hampton
was on her original 60 day PIP, he had heard from certain people that she was “stirring the pot,”
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which he characterized as “trying to cause trouble.” He felt that Hampton was being
unprofessional and unproductive, and that “there was a lot of turmoil” in Phoenix, caused by the
animosity between Hampton and Arriaga. Of course, Meketa and Filep were very aware of the
problems that Arriaga was creating in the Phoenix office, placing her on a PIP in August 2010.
Meketa, Reed, and Filep were all admitted agents and supervisors of the Respondent.
(Jt. Ex. 1.) The many conversations that Hampton had with fellow DRRs and with Meketa,
Reed, and Filep regarding complaints about Arriaga, beyond question constituted protected
activity. See Champion Home Builders Co., 343 NLRB 671, 680 (2004). Further, supervisor
Meketa, who allegedly made the decision to fire Hampton, supervisor Filep, and supervisor
Arriaga herself were aware of Hampton’s role in making these complaints. Accordingly, the
Respondent’s knowledge of Hampton’s protected activity cannot be seriously denied.
Obviously, Hampton’s discharge was an adverse employment action. But was the
discharge retaliation for her concerted activities? As is reflected in the fact section of this
decision, the Respondent had numerous stated reasons for terminating Hampton, specifically
her low production and problems that developed with her blood drives while she was on medical
leave. More will be said about these stated reasons for termination later in this decision.
However, at this point it is very germane to the analysis to recall the testimony of Christa
Mitchell. She is still employed by the Respondent as a DRR. To the extent that she testified
adversely to the interests of the Respondent, her testimony is highly credible as she continues
to be subject to the Respondent’s evaluation of her performance.
Mitchell testified that while Hampton was on medical leave, although the only DRR left in
the Phoenix office, she was not aware of anybody being assigned to take care of Hampton’s
work while Hampton was gone. Allegedly Hudson, although a customer service representative,
under Arriaga’s direction, was to process Hampton’s blood drives to completion. Yet, according
to Mitchell, Arriaga seemed interested not so much in completing those drives, as in building a
case against Hampton. Mitchell credibly testified that Arriaga said, “I want to know if there are
any conflicts, if anything arises with Lois’ accounts. I’m keeping track of this.” I find this
statement very significant. It seems obvious to me that Arriaga was intent on finding reasons to
take disciplinary action against Hampton. She knew that of all the DRR’s, Hampton had taken
the lead in bringing their complaints about her abusive supervisory style to management’s
attention. This had led to Arriaga receiving a PIP, for which she appears to have held Hampton
responsible. Arriaga had earlier orally reprimand Hampton for “saying harassing things about
her in the break room.” She complained that Hampton “was talking about her, and [Hampton]
wasn’t supposed to be doing that.”
I believe that the credible, probative evidence shows that Arriaga, Hampton’s immediate
supervisor, used the opportunity of Hampton’s absence on medical leave to help build a case
against her for termination. In her capacity as the DRR supervisor in Phoenix, she was in a
position to either actively assist in the processing of Hampton’s blood drives, or to act passively
and allow some of those drives to fail to be completed. It appears to me that that is precisely
what Arriaga allowed to happen. Her passive indifference to Hampton’s drives resulted in some
of them failing to be completed, or to cause them to need significant modification. She was,
thereafter, able to use these “problem drives” to build a case for termination, which was a
course of action Meketa appeared to need little encouragement to follow.
Further, I would note that Arriaga failed to testify as a witness. As Hampton’s former
supervisor and the person who worked closely with Meketa in placing before him those “facts”
that he used to justify terminating Hampton, she should logically have been called to testify by
the Respondent in order to support its defense. One would naturally assume that she would
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testify favorably for the Respondent. Despite the fact that she was subsequently terminated by
the Respondent and might well have been a reluctant witnesses, I shall draw an adverse
inference from the Respondent’s failure to call Arriaga to testify, or to offer a reason for failing to
do so. I must, therefore, conclude that had Arriaga testified, her testimony would not have
supported the Respondent’s defense. International Automated Machines, 285 NLRB 1122,
1122-23 (1987), enfd. 861 F.2d 720 (6th Cir. 1988).
Finally, it is apparent to me that Meketa harbored animosity towards Hampton because
she engaged in protected concerted activity. This animus was openly demonstrated when
Meketa “counseled” Hampton in February 2010 that she should not constantly be “prodding,
stirring the pot,” and from his testimony that he believed she was “trying to cause trouble,” and
was “stirring the pot.” He testified that he “counseled [Hampton] on this several times.”
Meketa’s concerns about Hampton’s conduct were all made in connection with her complaints
about Arriaga’s supervisory abuse.11 They demonstrate that his ultimate decision to terminate
Hampton was motivated, at least in part, by her protected concerted activity.
Having found that counsel for the General Counsel has offered sufficient evidence to
meet her burden of establishing a prima facie case that the Respondent was motivated to
discharge Hampton, at least in part, by her protected concerted activity, the burden now shifts to
the Respondent to show that it would have taken the same action absent the protected conduct.
Senior Citizen Coordinating Counsel of Riverbay Community, 330 NLRB 1100 (2000); Regal
Recycling, Inc., 329 NLRB 355 (1999). The Respondent must persuade by a preponderance of
the evidence. Peter Vitalie Company, Inc., 310 NLRB 865, 871 (1993). I am of the view that
the Respondent has failed to meet this burden. The Respondent’s reasons for terminating
Hampton appear to be a pretext.
Counsel for the General Counsel issued a number of voluminous subpoenas directed to
the Respondent for the production of documents. Ultimately, a veritable mountain of documents
was admitted into evidence in this case. Further, throughout the course of the hearing much
time was consumed by Counsel for the General Counsel arguing that the Respondent was not
in compliance with the subpoena request. Following a number of rulings by the undersigned,
and the production of still more documents by the Respondent, I concluded that the Respondent
was in substantial compliance with the various subpoenas, and I denied counsel for the General
Counsel’s seemingly insatiable desire for still more documents, which I held were unnecessary
for a proper adjudication of this case. In reviewing these documents, I am reminded of that well
known adage from Mark Twain that, “There are three kinds of lies: lies, damned lies, and
statistics.” The production of so many pages of statistics concerning blood drive goals and
efficiencies, reported on so many documents, with so many variables, regarding changing
numbers of employees, over so many different periods of time created a mass of conflicting
information. In my view, the result is that both the Respondent and the General Counsel are
able to point to documents that each contends support their respective arguments.
The documents do tend to show that during the 2009-2010 fiscal year, Hampton’s
performance deteriorated sharply. Specifically, she missed her goal seven of those twelve
months, and in those seven months, she missed her monthly goals by thirteen to forty-five
percent. (G.C. 41, p. 8, the chart.) Further, as of July 2010, it appeared that she would
continue to miss her goals, due to inadequate bookings, for at least two out of the next three
months. (Res. Ex. 11.) However, Hampton was not the only employee with production

11 Hampton’s complaints ultimately resulted in Arriaga being place on a PIP in August 2010.
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problems.
Carlos Apalategui was a DRR in the Respondent’s Tucson office employed during some
of the same time period as Hampton. On July 6, 2010, he was placed on a PIP by the
Respondent for poor production. His PIP shows that he failed to make goal for May and June
2010, failed to book his calendar at the minimum required for July, August, and September
2010, and failed to bring his drives in at 70% or greater in May and June 2010. (G.C. Ex. 19.)
Apalategui was not terminated, despite a significant period of very low production. Counsel for
the General Counsel cross-examined Meketa extensively regarding why Apalategui was
excused for his poor production and Hampton was not. According to Meketa, Apalategui was
given a break because he was suffering from personal issues, specifically being the victim of a
home invasion and beating, which were “affecting his day-to-day behavior and job
performance.” According to Meketa, “I took that into consideration when I wrote this [PIP]. The
bottom line is, he wasn’t getting the job done, but there were circumstances that I could attribute
part of this happening, why he wasn’t getting it done. It was something we were working
through.”
Meketa knew that Hampton’s poor production was, at least in part, the result of the
difficulty she was having with Arriaga, and due to the abusive atmosphere that Arriaga had
created in the Phoenix office. However, he did not give Hampton the same consideration that
he gave to Apalategui. It appears that he treated her in a disparate fashion, which I conclude
was the result of Meketa’s admitted feeling that Hampton was “stirring the pot.” I believe that
this constitutes a clear and unambiguous reference to Hampton’s protected concerted activity in
raising complaints with fellow-employees and managers about Arriaga’s supervisory conduct.
I did not find Meketa to be a credible witness. He had difficulty recalling events, dates,
who he spoke to, and what was said during certain very important conversations, including
those that he had with Hampton. I found his answers to questions on cross-examination to be
evasive. I did not find reasonable his attempt to distinguish Apalategui’s poor production from
that of Hampton. Further, he appeared to exaggerate and embellish the problems that
Hampton’s blood drives created during the period that Hampton was on medical leave. His
suggestion that because Hampton had not fully confirmed certain of her drives that, she had
engaged in stealing, cheating, and fraud was, in my view, certainly not justified and, frankly,
“way over the top.”
Regarding the difficulties encountered with Hampton’s blood drives while she was on
medical leave, I believe that some of those problems resulted from an intentional failure on the
part of Arriaga to follow through and process those drives. Mitchell credibly testified that Arriaga
seemed interested in building a case against Hampton. She attempted to do so by neglecting
Hampton’s drives. While Hampton’s production was low and she certainly was not a model
employee, I believe that she credibly testified that had she not been on medical leave, she
would have appropriately finalized those drives and brought them to a successful conclusion.
Further, I believe that Hampton credibly testified regarding the scheduling of blood drives
into the Hemasphere system. Her testimony was, for the most part, supported by the other
DRRs that even after drives were placed into Hemasphere there could be significant changes
made to those drives. It appears from the testimony of Erna Goldkuhl, senior manager
acquisition planning and scheduling, that the entire scheduling system was in a state of flux at
the time of the booking meeting in Tucson in July 2010. Her testimony that the DRRs were
using the calendar to “hold” anticipated drives was very similar to the position taken by Hampton
and her fellow DRRs. The issue of whether drives placed into the Hemasphere system were
real drives or “phantom” drives is really just a matter of semantics. In actual practice, drives
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placed into Hemasphere were subject to changes, which changes were in fact frequently made.
Management understood this, and while the Respondent was attempting to institute changes to
make the placement of drives into Hemasphere more definite, those changes had not yet been
fully implemented.
Thus, it seems that Hampton’s conduct in scheduling blood drives in July and August,
prior to going on medical leave, did not deviated from the actual practice at the time. Had she
not been on medical leave, she would have had the opportunity to finalize those drives, and
hopefully bring them to a successful completion. Instead, she was left to rely on the Phoenix
staff to process and complete her drives. Unfortunately, Arriaga was not as interested in
successfully completing Hampton’s drives as she was in making Hampton look bad by not
processing those drives. She was then in a position to use the problems that developed in
those drives as a basis for recommending that Hampton be terminated.
The credible evidence shows that Arriaga’s interest in having Hampton terminated was
really based on her resentment towards Hampton’s effort to lead the DRRs into complaining
about Arriaga’s abusive conduct. As Hampton credibly testified, only shortly prior to going on
medical leave, Arriaga orally reprimanded Hampton for gossiping and talking about Arriaga in
the break room with the other office employees. Since Arriaga did not testify, Hampton’s
contention that Arriaga’s animosity towards her was due to her protected concerted activity
remained unrebutted. Unfortunately for Hampton, Meketa, who also harbored animus towards
her protected activity, was very receptive to Arriaga’s complaints about the problems that
developed with Hampton’s blood drives while she was on medical leave. In any event, as I
have noted, I believe that the Respondent’s stated reasons for Hampton’s termination, as
expressed by Meketa, were merely a pretext for the true reason, that being her concerted
activity.
The Respondent argues that as it fired Arriaga on March 25, 2011, it must not have
harbored any animosity towards Hampton for earlier making complaints about her. The
Respondent points out that of all the DRRs who ever complained about Arriaga, specifically
Brown, Holverson, Mitchell, Hampton and Greathouse, the only employee who was terminated
was Hampton. However, I reject this rationalization.
Arriaga was by all accounts a very bad supervisor. The Respondent does not deny this.
In fact, as noted above, Meketa placed Arriaga on a PIP on August 10, 2010, as a result of the
events surrounding her August “blow-up.” It was those same supervisory deficiencies that
ultimately led to her termination. However, that does not change the fact that Meketa knew that
Hampton was the leader in the effort by the DRRs to force management to do something about
Arriaga’s abusive behavior. His comment on several occasions that Hampton was “stirring the
pot” was proof that not only did he have knowledge of her activities, but that he strongly
disapproved of them. Further, it does not change the fact that Arriaga appears to have “set up”
Hampton for termination by failing to properly process her blood drives while she was on
medical leave. Arriaga shared Meketa’s hostility towards Hampton because of her open efforts
to mobilize the other DRRs and pressure management to do something about Arriaga’s abusive
conduct. It was that protected concerted conduct by Hampton that led Meketa to take action
and terminate Hampton as she returned from medical leave. While Meketa ultimately fired
Arriaga in March 2011, that was approximately four months after Meketa had relied, in part, on
Arriaga’s recommendation to fire Hampton.
As I find that the Respondent’s defense is a pretext, it is, therefore, appropriate to infer
that the Respondent’s true motive in terminating Hampton was unlawful. Williams Contracting,
Inc., 309 NLRB 433 fn. 2 (1992); Limestone Apparel Corp., 255 NLRB 722 (1981), enfd. 705
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F.2d 799 (6th Cir. 1982); Shattuck Deann Mining Corp., v. NLRB, 326 F.2d 466, 470 (9th Cir.
1966). I find that the real motive behind the Respondent’s conduct in terminating Hampton was
in retaliation for her protected concerted activity in complaining to fellow employees and
management about Arriaga’s abusive behavior.
Accordingly, I find that the Respondent has violated Section 8(a)(1) of the Act by
discharging Lois Hampton on November 29, 2010, as alleged in complaint paragraphs 4(c), (d),
and 5.
C. Agreement and Acknowledgement of Receipt of Employee Handbook Form
As noted above, following their receipt of an employee handbook, the Respondent’s
employees were required to sign a document entitled “AGREEMENT AND
ACKNOWLEDGEMENT OF RECEIPT OF EMPLOYEE HANDBOOK.” By that
acknowledgement form, employees acknowledge receipt of, and agree to abide by, the rules set
forth in the handbook. Among other matter, the acknowledgement form attempts to define an
“at-will” employment relationship. In that definition is contained the following language: “I
further agree that the at-will employment relationship cannot be amended, modified or altered in
any way.” (G.C. Ex. 4, 37, 38.) The General Counsel contends that the Respondent violated
the Act by maintaining and requiring employees to sign an acknowledgement form containing
the above cited language, which is alleged to be overly-broad and discriminatory. Counsel for
the Respondent denies that the cited language is unlawful, but, in any event, argues that the
matter is now moot, as the alleged unlawful language has now been removed from the
acknowledgement form.
In determining whether the existence of specific work rules violates Section 8(a)(1) of the
Act, the Board has held that, “the appropriate inquiry is whether the rules would reasonably tend
to chill employees in the exercise of their Section 7 rights.” Lafayette Park Hotel, 326 NLRB
824, 825 (1998), enfd. 203 F.3d 52 (D.C. Cir. 1999). Further, where the rules are likely to have
a chilling effect on Section 7 rights, the Board may conclude that their maintenance is an unfair
labor practice, even absent evidence of enforcement.” Id. See also, Blue Cross-Blue Shield of
Alabama, 225 NLRB 1217, 1220 (1976).
The Board has further refined the above standard in Lutheran Heritage Village-Livonia,
343 NLRB 646, 646 (2004), by creating a two-step inquiry for determining whether the
maintenance of a rule violates the Act. First, if the rule expressly restricts Section 7 activity, it is
clearly unlawful. If the rule does not, it will none-the-less violate the Act upon a showing that:
“(1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the
rule was promulgated in response to union activity; or (3) the rule has been applied to restrict
the exercise of Section 7 rights. Id. At 647; See Northeastern Land Services, Ltd., 352 NLRB
744 (2009) (applying the Board’s standard in Lutheran Heritage Village, supra at 647).
Regarding the acknowledgement form language in issue, it is somewhat questionable as
to whether that language expressly restricts Section 7 activity. After all, the phrase in question
does not mention union or protected concerted activity, or even the raising of complaints
involving employees’ wages, hours and working conditions. However, in my view there is no
doubt that “employees would reasonably construe the language to prohibit Section 7 activity.”
(Lutheran Heritage Village-Livonia).
As counsel for the General Counsel correctly points out in her post-hearing brief, the
signing of the acknowledgement form is essentially a waiver in which an employee agrees that
his/her at-will status cannot change, thereby relinquishing his/her right to advocate concertedly,
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whether represented by a union or not, to change his/her at-will status. For all practical
purposes, the clause in question premises employment on an employee’s agreement not to
enter into any contract, to make any efforts, or to engage in conduct that could result in union
representation and in a collective-bargaining agreement, which would amend, modify, or alter
the at-will relationship. Clearly such a clause would reasonably chill employees who were
interested in exercising their Section 7 rights.
The Respondent never really tries to justify the clause in question. In his post-hearing
brief, counsel merely argues that as Hampton was permitted, upon objecting to the language, to
cross-out certain language from the acknowledgement form prior to signing it, therefore, it could
not have restricted her Section 7 activity. However, in my view this argument misses the point.
The Board has held that the simple maintenance of such language would reasonably restrict
employees in the exercise of their Section 7 rights, even absent any effort to enforce that
language. Lafayette Park Hotel, supra; Blue Cross-Blue Shield of Alabama, supra. Accordingly,
I must conclude that the above cited language in the acknowledgement form constitutes a
violation of Section 8(a)(1) of the Act, as alleged in complaint paragraphs 4(a) and 5. Still, there
remains the argument of counsel for the Respondent that this issue is now moot, by virtue of the
Respondent having removing the offending language.
According to the testimony of Linda Filep, she sent to the Respondent’s managers by
email dated September 19, 2011, a memorandum attaching a new acknowledgement form and
“updated statement” regarding at-will employment, which “replace[d]” the at-will employment
policy set forth in the employee handbook. (emphasis as is reflected in the email) Filep testified
that the memorandum and form were to be distributed by the Respondent’s managers to all
employees, who were then to sign the acknowledgement form and return it to the human
resources department. The attached new acknowledgement form did not contain the language
that the General Counsel contends was unlawful. (Res. Ex. 25.)
The Respondent continues to deny that the cited language in the original
acknowledgement form was in any way unlawful, and contends that the language was deleted
out of “an abundance of caution.” In any event, counsel for the Respondent argues that as the
alleged offending language has now been deleted, the allegation in the complaint dealing with
this alleged unlawful language is now moot.
In “certain circumstances an employer may relieve himself of liability for unlawful
conduct by repudiating the conduct.” Passavant Memorial Hospital, 237 NLRB 138, 138 (1978).
In order to be effective, the “repudiation must be ‘timely,’ ‘unambiguous,’ ‘specific in nature to
the coercive conduct,’ and ‘free from other proscribed illegal conduct.’” Id. (citing Douglas
Division, The Scott & Fetzer Co., 228 NLRB 1016 (1977), and cases cited therein at 1024).
“Furthermore, there must be adequate publication of the repudiation to employees involved.”
Passavant Memorial, 237 NLRB at 138. “And finally, the Board has pointed out that such
repudiation or disavowal of coercive conduct should give assurances to employees that in the
future their employer will not interfere with the exercise of their Section 7 rights.” Id, at 138-39.
In Passavant, the employer published at statement in its employee newsletter to clarify
unlawful threats it made to employees. Id., at 138. The Board noted several reasons why the
employer’s newsletter publication “was ineffective to relieve [it] of liability and to obviate the
need for further remedial action, including: 1) the attempted disavowal appeared only once in an
employee newsletter; 2) it was uncertain that all employees were adequately informed of the
retraction; and 3) the employer failed to show it made any additional efforts to communicate its
disavowal. Further, the Board noted that “most importantly, [the] statement did not assure
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employees that in the future [the employer] would not interfere with the exercise of their Section
7 rights by such coercive conduct.” Id., at 138-39.
In the matter at hand, I am of the view that the Respondent’s dissemination to its
employees of a “updated statement,” which “replaced” the offending at-will employment
language in its acknowledgement form did not relieve it of liability. It certainly was not timely.
The Respondent’s answer admits that since on or about October 12, 2010, the language in
question has been contained in the acknowledgement form that employees are expected to
sign. Yet, it was not until September 19, 2011, almost one year later, and after the issuance of
the complaint, that the Respondent took efforts to remove the offending language.
Further, it does not appear that employees were given any assurances that their Section
7 rights would not be interfered with in the future, or even that they were adequately informed of
the retraction. With the exception of Filep’s memorandum, there is no evidence that the
Respondent made any efforts to communicate its disavowal to its employees. As the
Respondent has continued to insist that the original language in the acknowledgement form was
not in violation of the Act, its retraction does not serve as sufficient assurance to its employees
that in the future the Respondent will respect their right to engage in Section 7 activity.
The Respondent has fallen far short of meeting its burden of establishing effective
repudiation of the unlawful language in the acknowledgement form. Passavant Memorial, supra
at 138-139. Accordingly, having found that the Respondent violated Section 8(a)(1) of the Act
by maintaining the unlawful language in the acknowledgement form, it must effectively remedy
that violation as provided for below in the remedy and order sections of this decision.
Conclusions of Law
1. The Respondent, American Red Cross Arizona Blood Services Region, is an
employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. By the following acts and conduct the Respondent has violated Section 8(a)(1) of the
Act:
(a) Maintaining an overly-broad and discriminatory provision in its “Agreement and
Acknowledgement of Receipt of Employee Handbook” form, which it requires its employees to
sign, and which provision contains within it the following language: “I further agree that the at-
will employment relationship cannot be amended, modified or altered in any way;” and
(b) Discharging its employee Lois Hampton because she engaged in protected
concerted activity.
3. The above unfair labor practices affect commerce within the meaning of Section 2(6)
and (7) of the Act.
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 evidence having established that the Respondent discriminatorily discharged its
employee Lois Hampton, my recommended order requires the Respondent to offer her
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immediate reinstatement to her former position, displacing if necessary any replacements, or if
her position no longer exists, to a substantially equivalent position, without loss of seniority and
other privileges previously enjoyed. My recommended order further requires that the
Respondent make Hampton whole for any loss of earnings, commissions, bonuses, and other
benefits suffered as a result of the discrimination against her. Backpay shall be computed in
accordance with F.W. Woolworth, Co., 90 NLRB 289 (1950), with interest as prescribed in New
Horizon for the Retarded, 283 NLRB 1173 (1987), plus daily compound interest as prescribed in
Kentucky River Medical Center, 356 NLRB No. 8 (2010), enf. Denied on other grounds
sub.nom., Jackson Hospital Corp. v NLRB, 647 F.3d 1137 (D.C. Cir. 2011).12
The recommended order further requires the Respondent to expunge from its records
any reference to the discharge of Hampton, and to provide her with written notice of such
expunction, and to inform her that the unlawful conduct will not be used as a basis for further
personnel actions against her. Sterling Sugars, Inc., 261 NLRB 472 (1982). Further, the
Respondent must not make reference to the expunged material in response to any inquiry from
any employer, employment agency, unemployment insurance office or reference seeker, or use
the expunged material against Hampton in any other way.
Also, having found that a provision in the Respondent’s “Agreement and
Acknowledgement of Receipt of Employee Handbook” form contains language that is overly-
broad and discriminatory, as referenced above, the recommended order requires that the
Respondent revise or rescind the unlawful language, and advise its employees in writing that
said provision has been so revised or rescinded.
The Respondent shall be required to post a notice that assures its employees that it will
respect their rights under the Act. In addition to physically posting of paper notices, notices
shall be distributed electronically, such as by email, posting on an intranet or internet site,
and/or other electronic means, if the Respondent customarily communicates with its employees
by such means. J. Picini Flooring, 356 NLRB No. 8 (Oct. 22, 2010).
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended13
ORDER
The Respondent, American Red Cross Arizona Blood Services Region, its officers,
agents, successors, and assigns, shall

12 In the complaint, the General Counsel requests as part of a remedy for the Respondent’s
unfair labor practices “an order requiring reimbursement by the Respondent of amounts equal to
the difference in taxes owed upon receipt of a lump-sum payment and taxes that would have
been owed had there been no discrimination and that the Respondent be required to submit the
appropriate documents to the Social Security Administration so that when backpay is paid, it will
be allocated to the appropriate periods.” However, counsel for the General Counsel cites no
Board authority for such an extraordinary remedy. As I am unaware of any such authority, I
hereby decline to order such a remedy, or to deviate from that which is standard is such cases.
13 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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1. Cease and desist from:
(a) Maintaining or enforcing an overly-broad and discriminatory provision in its
“Agreement and Acknowledgement of Receipt of Employee Handbook” form, which it requires
its employees to sign, and which provision contains within it the following language: “I further
agree that the at-will employment relationship cannot be amended, modified or altered in any
way;”
(b) Discharging or otherwise discriminating against any of its employees because they
engaged in protected concerted activities; and
(c) In any like or related manner, interfering with, restraining or coercing its employees in
the exercise of the rights guaranteed to 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 of the Board’s Order, revise or rescind its “Agreement and
Acknowledgement of Receipt of Employee Handbook” form, which it requires its employees to
sign, and which has a provision containing within it the following language: “I further agree that
the at-will employment relationship cannot be amended, modified or altered in any way.” To the
extent that said cited language has already been removed from the provision, the Respondent
shall so notify its employees;
(b) Within 14 days of the Board’s Order, offer Lois Hampton 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;
(c) Make Lois Hampton whole for any loss of earnings, commissions, bonuses, and
other benefits suffered as a result of the discrimination against her, in the manner set forth in the
remedy section of this decision;
(d) Within 14 days of the Board’s Order, remove from its files any reference to the
unlawful discharge of Lois Hampton, and within 3 days thereafter, notify her in writing that this
has been done, and that her discharge will not be used against her as the basis of any future
personnel actions, or referred to in response to any inquiry from any employer, employment
agency, unemployment insurance office, or reference seeker, or otherwise used against her;
(e) 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;
(f) Within 14 days after service by the Region, post at its facilities in Phoenix and
Tucson, Arizona, copies of the attached notice marked “Appendix.”14 Copies of the notice, on

14 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
Continued
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forms provided by the Regional Director for Region 28, 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, and/or other electronic
means, if the Respondent customarily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to ensure that the notices are not 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 either of the two facilities in
Phoenix and Tucson, Arizona 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 October 12, 2010; and
(g) 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 at Washington, D.C., February 1, 2012.
_______________________
Gregory Z. Meyerson
Administrative Law Judge
_________________________
National Labor Relations Board.”
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
You have the right to join with your fellow employees in protected concerted activities.
These activities include discussing working conditions among yourselves, forming a
union, and making common complaints about your wages, hours, and other terms and
conditions of employment, including complaints to management regarding abusive
behavior by supervisors.
WE WILL NOT do anything that interferes with these rights. Specifically:
WE WILL NOT maintain or enforce in our “Agreement and Acknowledgement of Receipt of
Employee Handbook” form, which form we require you to sign, a provision that contains within it
the following language: “I further agree that the at-will employment relationship cannot be
amended, modified or altered in any way.”
WE WILL NOT discharge you because you engaged in protected concerted activities, including
by communicating with fellow employees concerning common complaints regarding your
wages, hours, and terms and conditions of employment, which includes making complaints to
management regarding abusive behavior by supervisors.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Federal labor law.
WE WILL revise or revoke from our “Agreement and Acknowledgement of Receipt of Employee
Handbook” form, which form we require you to sign, a provision that contains within it the
following language: “I further agree that the at-will employment relationship cannot be amended,
modified or altered in any way,” and WE Will furnish you with written notice that the cited
language has been rescinded, and furnish you with a revised document that does not contain
that cited language.
WE WILL within 14 days of the Board’s Order, offer Lois Hampton full reinstatement to her
former position or, if that position no longer exists, to a substantially equivalent position, without
prejudice to her seniority or any other rights or privileges previously enjoyed.
WE WILL make Lois Hampton whole for any loss of earnings, wages, commissions, bonuses,
and other benefits suffered as a result of the discrimination against her, less any net interim
earnings, plus interest, compounded on a daily basis.
WE WILL within 14 days from the date of the Board’s Order, remove from our files any and all
records of the discrimination against Lois Hampton, and WE WILL within 3 days thereafter,
notify Lois Hampton in writing that we have taken this action, and that the material removed will
not be used as a basis for any future personnel action against her or referred to in response to
any inquiry from any employer, employment agency, unemployment insurance office, or
reference seeker, or otherwise used against her.
AMERICAN RED CROSS ARIZONA BLOOD
SERVICES REGION
(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.
2600 North Central Avenue, Suite 1800
Phoenix, Arizona 85004-3099
Hours: 8:15 a.m. to 4:45 p.m.
602-640-2160.
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, 602-640-2146.