NOTICE: This
opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive
Secretary, National Labor Relations Board,
Fortuna Enterprises, L.P. a
April 30, 2009
DECISION AND ORDER REMANDING
By Chairman Liebman and Member Schaumber
On October 21,
2008, Administrative Law Judge John J. McCarrick issued the attached
decision. The Respondent filed exceptions and a supporting brief, and the Charging Party filed cross-exceptions
and a supporting brief. The General Counsel and the Charging Party each
filed an answering brief to the Respondent’s exceptions.
The National Labor
Relations Board[1] has considered the decision and the record
in light of the exceptions and briefs and has decided to affirm the judge’s
rulings, findings,[2] and conclusions[3] as modified below, and to adopt the
recommended Order as modified.[4]
The unfair labor
practice issues in this case arose during the
However, we find that the judge’s decision does not provide
an adequate basis for review of his finding that the Respondent’s banquet chef,
Pablo Burciaga, violated Section 8(a)(1) by physically pushing employees Herman
Chan, Antonio Campos, and Juan Banales away from employees engaged in protected
concerted activity, and by pushing his finger into the chest of employee Mike
Kaib when Kaib protested Burciaga’s action.
That finding is apparently based on the testimony of
The judge discredited Burciaga’s denials of physical
contact with employees because the notes of Vasquez’ version contradicted that
testimony. The judge did not make any
express findings with respect to the credibility of
The National Labor Relations Board adopts the recommended
Order of the administrative law judge as modified below and orders that the Respondent,
Fortuna Enterprises, L.P. a Delaware Limited Partnership d/b/a/ The Los Angeles
Airport Hilton Hotel and Towers,
1. Delete paragraph 1(c) and reletter subsequent paragraphs accordingly.
2. Substitute the attached notice for that of the administrative law judge.
It is further ordered that the consolidated complaint allegation that the Respondent violated Section 8(a)(1) of the Act by physically pushing and touching employees for engaging in protected concerted activities is severed from this case and remanded to the administrative law judge for further appropriate action consistent with this decision.
It is further ordered that the judge shall prepare
and serve on the parties a supplemental decision containing credibility resolutions,
findings of fact, conclusions of law, and a recommended Order, as appropriate
on remand. Following service of the supplemental decision
on the parties, the provisions of Section 102.46 of the Board’s
Rules and Regulations shall be applicable.
Dated,
Wilma B. Liebman, 
Chairman
Peter C. Schaumber, Member
(seal) National
Labor Relations Board
APPENDIX
Notice To Employees
Posted by Order
of the
National Labor Relations
Board
An Agency of the
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice.
federal law gives you the right to
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
We will not suspend you or issue you written warnings because you engage in union or other protected concerted activities.
We will not interrogate you about your union and other protected concerted activities.
We will not threaten you with violence if you engage in protected concerted activity.
We will not deny you access to our facility and threaten you with trouble if you enter the hotel because you wear union insignia.
We will not threaten you with suspension or unspecified reprisals if you participate in union or protected concerted activity.
We will not in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed to you by Section 7 of the Act.
We will make whole the below-named employees for any loss of wages and benefits, with interest, that they suffered as a result of their suspensions:
Juan Jimenez Josefina
Castillo
Silviano Castillo Juana
Agustin Vega Juliete
Cabrera
Juan Vizuete Kathy
Andrade
Marco Zamudio Lazaro
Orellana
Rosario Mendoza Lazaro Soto
Alejandra Chamorro Lenardo Reynoso
Alicia Huizar Lidia
Zavala
Benjamin Lopez Lilia
Magallon
Francisco Diaz Lillian
Alcantara
Miguel Vargas Manuel
Alvarez
Patricia Simmons Maria Ceja
Raul Gonzalez Maria
Hernandez
Rigoberto Gomez Maria
Wilfredo
Alberto Barajas Maria
Osuna
Richard Acosta Marina
Rivera
Samuel Zambrano Raquel
Benitez
Cliff Lai Reyna Vasquez
Adela Barrientos Rigoberto
Matamoros
Amelia Luna Rolando
Romero
Ana Flamenco
Blanca De la Torre Rosie Delgado
Christopher Fawcett Ruben
Can
Claudina Colomer Silvia
Alvarez
Edith Garcia Susana
Argumedo
Estela Cabreras Victor
Salgero
Eva Pulido Zulma
Jurado
Fernando Gutierrez Concepcion
Ortiz
Gloria Saldana Jose
Luis Garcia
Guadalupe Perez Jose Molina
Immacula Rene Maria
Letona
Isabel Brentner Mauricio
Hernandez
Ivan Gomez Fernando
Vasquez
Jaime Chamul Fidel
Andrade
Joanna Gomez Nieves
Contreras
Jose Ayala Ricardo
Chapa
We will, within 14 days from the date of this Order, remove from our files any reference to the unlawful suspensions of the above named employees as well as the unlawful written warnings of Nathalie Contreras, Patricia Simmons, Isabel Brentner, Lilia Magallon, Joanna Gomez, and Isabel Salinas and, we will, within 3 days thereafter, notify each of them in writing that this has been done and that the suspensions or written warnings will not be used against them in any way.
Fortuna Enterprises, L.P. a
Rudy L. Fong-Sandoval, Esq. and Nathan Laks, Esq., for the General Counsel.
Stephen R. Lueke, Esq. and Steven M. Kroll, Esq. (Ford and Harrison, LLP),
of
Eric B. Myers, Esq. (
DECISION
John J. McCarrick, Administrative Law Judge. This
case was tried in
The consolidated complaint and compliance specification (the complaint)
alleges that Fortuna Enterprises, LP, a Delaware Limited Partnership d/b/a/ the
Los Angeles Airport Hilton Hotel and Towers (Respondent) violated Section
8(a)(1) of the National Labor Relations Act (the Act), by suspending 77 employees
for engaging in a work stoppage; by interfering with an employee’s right to
engage in union activity by ordering the employee to take a break earlier than
scheduled; by interrogating employees regarding their union or protected
concerted activity; by coercing employees; by physically touching and pushing
them for engaging in union or protected concerted activity; by threatening
employees with violence if employees engaged in union or protected concerted
activity; by threatening employees with trouble for wearing union paraphernalia;
by threatening employees with suspension if they engaged in union or protected
concerted activity; and by denying employees access to the Respondent’s
facility to engage in union or protected concerted activity.
It is alleged that Respondent violated Section 8(a)(1) and (3) of the
Act by disciplining employees Nathalie Contreras, Isabel Brentner, Lillia
Magalon, Isabel Salinas, Patricia Simmons, and Joanna Gomez for engaging in
union and other protected-concerted activities.
The compliance specification alleges that the 77 employees suspended on
or about May 11, 2006, are owed backpay as set forth in appendix A to the
complaint in the total sum of $36,067.93.
Respondent filed a timely answer to the complaint stating it had
committed no wrongdoing. While denying
any wrongdoing or that the 77 employees are entitled to backpay, Respondent
admitted that the amounts of backpay as set forth in the compliance specification
are correct.
Upon the entire record herein, including the briefs from the counsel
for the General Counsel (CGC), the Charging Party, and Respondent, I make the
following2
Respondent admitted it is a
Based upon the above, Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
Respondent admitted and I find that UNITE HERE Local 11 (the Charging
Party) is a labor organization within the meaning of Section 2(5) of the Act.
iii. the
alleged unfair labor practices
Respondent owns and operates the Los Angeles Airport Hilton Hotel and
Towers, located at 5711 West Century Boulevard,
1. The incident involving
front desk employee
Ihab Judeh
Complaint paragraph 7 alleges that in or around March 2006 Ava
Hirschsohn (Hirschsohn) and Erik Burkhart (Burkhart) interfered with employees’
rights to engage in union activity by preventing an employee from engaging in a
scheduled union demonstration.
Ihab (Darren) Judeh (Judeh) was employed by Respondent as a customer
service agent at the front desk until August 2007 when he resigned to attend
college. In early March 2006, the
Charging Party was engaged in a picket line in front of Respondent’s facility
at noon. Judeh planned to participate in
this picket line during his 30-minute noon lunchbreak, which had been scheduled
by his supervisor for 12 p.m. Before his
lunchbreak at about 11:45 a.m., fellow customer service agent Teresa returned
from her break and told Judeh to take his lunchbreak. Judeh replied that he wanted to take his
break at noon. At about this time Judeh’s
supervisor, Pilar, approached him and said, “Darren, I heard there’s a problem
with your break.” Judeh replied that
there was no problem but that he wanted to take his break at noon as it had
been scheduled. Pilar asked Judeh if he
could take the break now. Judeh said no,
he wanted to take the break at noon. A
minute later, Hirschsohn came up to Judeh and told him to go on his break. Judeh said he would take his break as
scheduled at noon. Hirschsohn said Judeh
was affecting business and he should go on his break right now. Judeh asked how he was affecting business
since there was low occupancy in the hotel and it was slow. Hirschsohn said she wanted no further discussion
and told Judeh to take his break now.
Next Burhart approached Judeh and said he had heard there was a problem
with Judeh’s break. Judeh said they want
me to take my break now but I was planning to take my break at noon as
scheduled. Judeh said he thought the
reason that they wanted him to take his break early was because they were
trying to prevent him from going to the picket march. Burkhart said, “Darren, take your break right
now and don’t cause any problems.” It
was 11:55 a.m. when Judeh took his lunchbreak.
He participated in the picketing in front of the hotel for about 20
minutes.
The Respondent’s break policy for front desk employees in March 2006
was for the supervisor to assign breaks to employees at the beginning of the
shift. According to Burkhart, prior to
January or February 2006, Respondent had a written break schedule policy that
provided desk clerks to take their break according to a fixed schedule. Burkhart claims to have modified this
schedule without putting it into writing to provide that front desk clerks take
their breaks according to the guests’ needs.
Burkhart had no information as to how this policy was communicated to
the front desk clerks. According to
Judeh, on March 6 or 7, 2006, he was assigned a breaktime of 12 noon. According to Hirschsohn, on March 10, 2006,
the hotel was particularly busy due to an arriving group of guests and this was
the reason Judeh had to take his break early.
However, Hirschsohn was unable to provide any details about when the
guests were to arrive, how many were due to arrive around noontime, or whether
the hotel was busy at noontime on either March 6, 7, or 10, 2006. Burkhart testified that the need for Judeh to
take his break early was due to the fact that another front desk clerk had just
returned from her break.
There is no evidence that Supervisors Pilar, Hirschshon, or Burkhart
had any knowledge that Judeh planned to participate in the union picket line on
either March 6, 7, or 10, 2006, at the time the issue first arose and until
Judeh volunteered that he was going to participate in the picket line at about
11:50 a.m.
Despite the conflicting reasons Hirschsohn and Burkhart gave for
requiring Judeh to take his break ahead of schedule, there is no evidence that
any supervisor knew that Judeh planned to take part in the union picket line at
the time he was requested to take his break early. In the absence of such knowledge, Respondent
can not have attempted to interfere, restrain, or coerce Judeh in the exercise
of his rights to engage in union activity.
I will dismiss this portion of the complaint.
2. The March 3, 2006
interrogation of Molina
Complaint paragraph 8 alleges that on or about March 3, 2006, Sous Chef
Clifton Hibbert interrogated an employee about a union meeting.
Alberto Barajas (Barajas) works for Respondent as a cook. Barajas’ supervisors included Sous Chef
Clifton Hibbert (Hibbert). On March 2,
2006, Barajas went to a meeting held by the Charging Party with other employees
of Respondent including cook Ricardo Molina (Molina). At work the next day in the presence of
Barajas, Hibbert asked Molina, “How was the meeting yesterday? Did you go to
the meeting?”3 Molina did not respond.
Asking employees about their attendance at union meetings has been held
to constitute coercive interrogation in violation of Section 8(a)(1) of the
Act. Metropolitan
Regional Council, 352 NLRB 701 (2008); Nanticoke
Homes, Inc., 261 NLRB 736 (1982). Hibbert’s
interrogation of Molina was coercive interrogation and violated Section 8(a)(1)
of the Act.
3. The coercive
pushing of employees by Banquet
Chef Pablo Burciaga.
Complaint paragraph 9 alleges that in March or April 2006 Banquet Chef
Pablo Burciaga coerced employees by physically pushing them back toward their
workstations during an employee meeting to meet with Managers Manny Collera and
Efren Vasquez.
In April 2006, a meeting of about 18 employees took place in the
kitchen area at Respondent’s facility with Manny Collera (Collera) assistant
director of food and beverage and Restaurant Manager Efren Vasquez
(Vasquez). This was a regularly
scheduled preshift meeting of the servers called by Collera and Vasquez. At this meeting the employees sought
permission to place a piggy bank in the kitchen and dining areas so employees
could contribute for the purchase of kitchen equipment. According to cooks Antonio Campos (
It is clear that the employees gathered in the kitchen area of the
hotel were engaged in protected-concerted activity for the purpose of seeking
funds to purchase needed kitchen equipment.
While the employees were not in their work areas and not on break, the
record establishes that employees regularly moved around in the kitchen and
spoke about nonwork-related subjects.
Further, Burciaga’s conduct went beyond any legitimate efforts to
persuade employees to return to work.
The Board has found that acts of physical touching of employees while
engaged in protected-concerted activity, including pushing, grabbing an
employee’s arm and shaking a fist at an employee may violate Section 8(a)(1) of
the Act. Impressive Textiles, Inc., 317 NLRB 8, 13 (1995); Kenrich Petrochemicals, 294 NLRB 519,
535 (1989); Rike’s a Division of
Federated Department Stores, 241 NLRB 240, 252 (1979). Here, in order to prevent
4. The threat to employee
Complaint paragraph 10 alleges that in March or April 2006 Banquet Chef
Pablo Burciaga threatened an employee, who had participated in a meeting with Managers
Collera and Vasquez, that if he saw employees standing near the employee’s workstation
he would use violence against the employees.
About 30 minutes after Burciaga had pushed employees back to their workstations
in April 2006, Burciaga went to
The Board has found statements threatening physical harm for engaging
in protected activity violate Section 8(a)(1) of the Act. Indeed a company owner who told an employee
who had filed an unfair labor practice charge over his suspension: “This isn’t a threat, but I want to
kick your ass,” violated Section 8(a)(1) of the Act. Cox Fire Protection, 308 NLRB 793 (1992). In this case, Burciaga threatened to “fire
employees to shits” along with
5. The April 2006
Chriss Draper interrogation
and threat
Complaint paragraph 11 alleges that in April 2006 Guest Services
Manager Chriss Draper (Draper) interrogated an employee about her participation
in an employee meeting and paragraph 13 alleges that in April 2006 Draper
threatened an employee that participating in union activity could get the employee
in trouble.
According to parking cashier Concepcion Jasmine Ortiz (Ortiz) in April
2006 she had attended a meeting with 15–20 employees
in the kitchen area of Respondent’s hotel.
The purpose of the meeting was to talk to the kitchen manager about a
poster offering a reward to find out who was damaging the kitchen.
About 3 days later,5 Ortiz
was approached by Draper and they went to Draper’s office. Draper asked Ortiz if she had attended the
meeting in the kitchen. When Ortiz said
she had, Draper asked Ortiz why she had attended. Ortiz said she was the leader
of the
The only credible evidence concerning this allegation is that Draper
asked Ortiz if she had attended a kitchen meeting. This conversation took place in Supervisor
Draper’s office at the time he was giving Ortiz a warning for participating in
the very protected, concerted activity he questioned her about. Under all of these circumstances, I find that
the interrogation was coercive under the test set forth by the Board in Rossmore House, 269 NLRB 1176
(1984). Draper’s questioning violated
Section 8(a)(1) of the Act. However, I
find no probative evidence to support complaint paragraph 13 and I will dismiss
that portion of the complaint.
6. The April 2006 interrogation
by Executive
Chef Rolf Jung
Complaint paragraph 12 alleges that Executive Chef Rolf Jung (Jung)
interrogated an employee about what he would do in the event of a strike.
According to cook
Jung admitted that in response to
7. The April 21,
2006 union paraphernalia issues
Complaint paragraph 14(a) alleges that on April 21, 2006, security guard
Daisy Argueta (Argueta) blocked employee access to the hotel because the employees
were wearing union T-shirts and complaint paragraph 14(b) alleges on the same
date Argueta threatened employees with problems if they entered the hotel wearing
union T-shirts.
In the spring of 2006, Respondent’s on-call banquet server Ana Maria
Mendez (Mendez) went to the hotel to pick up her paycheck. Mendez entered the hotel through the loading
dock to go to Banquet Manager Charles Perera’s office where she usually
received her check. Mendez was with
employee Beatrice Reyes (Reyes) and Mike (last name unknown). Both Reyes and Mendez were wearing union T-shirts
with 2-1/4-inch red lettering that said “UNITE HERE” across the front of the T-shirt. When attempting to enter the hotel at the
loading dock, security guard Argueta stopped Mendez, Reyes, and Mike and said
they could not enter the hotel wearing the union T-shirts. Argueta added that if they didn’t want to
have any problems that they should stay out of the hotel with the T-shirts on
and to take them off. While Argueta
continued to bar the door through which the employees attempted to enter, after
a few minutes the employees entered the hotel while still wearing the T-shirts
at another door 10 to12 yards away from Argueta. In the past, both Mendez and Reyes had
entered the hotel while off duty wearing clothing without union logos.
Limiting access of off-duty employees to an employer’s facility because
of an employee’s union activities violates Section 8(a)(1) of the Act. Mediplex
of
Respondent contends that because Mendez and Reyes entered the hotel
wearing the union shirts after a brief period, that there is only a de minimus
violation. Respondent’s reliance on Yellow Ambulance Service, 342 NLRB 804,
810 (2004), is misplaced. In Yellow Ambulance Service, the General
Counsel was unable to show how the impact of requiring a new employment application from union supporters
desiring to switch from full-time to part-time status adversely affected employees in any
material way. Here, the security guard’s
unsuccessful attempt to bar employees who were displaying union shirts from
entering the hotel, does not establish that her threats and attempts to preclude
employees from gaining access were not coercive and chilling of the employees’
Section 7 rights. I find that Respondent
violated Section 8(a)(1) of the Act by barring employees from entering its
facility for wearing union shirts and by threatening employees if they entered
the hotel wearing union shirts.
8. The May 11, 2006
Chriss Draper threat
of suspension
Complaint paragraph 15 alleges that on May 11, 2006, Draper threatened
an employee with suspension if she went to an employee meeting in the cafeteria.
Whitney Johnson (Johnson) was employed by Respondent as a valet parking
cashier. On May 11, 2006, at about 8
a.m. Johnson was told by her supervisor, Jose Moran, that the
Threats of discipline for engaging in protected activity violate
Section 8(a)(1) of the Act. Johnnie Johnson Tire Co., 271 NLRB 293,
296 (1984). Draper’s threat to Johnson
that she would be suspended if she joined her fellow employees’ in their
protected, concerted work stoppage violated Section 8(a)(1) of the Act.
9. The May 11, 2006
Rogelio de la Rosa threat
of suspension
Complaint paragraph 16 alleges that on May 11, 2006, Chief Steward
Rogelio de la Rosa threatened an employee with suspension if the employee left
the hotel in support of an employee walkout.
Fidel Andrade (Andrade) was employed by Respondent as a cafeteria
cook. On May 11, 2006, Andrade was present
in the employee cafeteria during the employee work stoppage. It is uncontroverted that Andrade’s
supervisor, Chief Steward Rogelio de la Rosa (De la Rosa), told Andrade that he
was not supposed to be in the cafeteria, that he was way over his breaktime and
that he should go back to work. Andrade
replied that if the employees were sent home, he was going to go with
them. Later, De la Rosa returned to the
cafeteria and found Andrade still there with other employees. De la Rosa told Andrade that if he saw him in
the cafeteria again he was going to have to suspend him.
As noted above, threats of discipline for engaging in protected
activity violate Section 8(a)(1) of the Act.
Johnnie Johnson Tire Co., 271
NLRB 293, 296 (1984). De la Rosa’s
threat to suspend Andrade for joining fellow employees’ protected-concerted
work stoppage violated Section 8(a)(1) of the Act.
10. The May 11, 2006
Ana Samayoa threat
of suspension
Complaint paragraph 17 alleges that on May 11, 2006, Director of
Housekeeping Services Ana Samayoa (Samayoa) threatened employees with suspension
for engaging in union or other protected concerted activity.
On May 11, 2006, housekeeping employees Dolores Hernandez (Hernandez)
and St. Wenceslaus Lawrence (Lawrence) were in the employee cafeteria with at
least 45 other employees who had gathered to question Respondent’s management
about a fellow employee’s recent termination.
It is undisputed that just before 9 a.m., during the course of the
meeting, Samayoa told
At about 8:07 a.m., Hernandez took his 30-minute break in the
cafeteria. At about 8:30 a.m.,10 Samayoa told Hernandez and other
employees that they were suspended.
Later, at about 8:37 a.m., Hernandez punched back in after his 30-minute
break but returned to the cafeteria rather than to work because Samayoa had
suspended him.
There is no dispute that Samayoa at the direction of Trobaugh began
suspending employees at about 9 a.m. However,
the record is devoid of any evidence that Samayoa threatened Hernandez with
suspension. Rather, the record reflects
that Hernandez along with all the other employees in the cafeteria was told
they were suspended. I do not find that
Hernandez was threatened with suspension.
On the other hand the record is clear that Samayoa threatened Lawrence,
who was still on his break, with suspension if he continued to stay in the
cafeteria with his fellow employees.
This threat of discipline for engaging in protected, concerted activity
violates Section 8(a)(1) of the Act.
11. The June 2006
Banquet Manager Charles
Perera threat
Complaint paragraph 19 alleges that in June 2006 Banquet Manager
Charles Perera (Perera) threatened an employee with problems if the employee
were to talk about the
In June 2006, on-call banquet service employee Beatrice Reyes (Reyes)
had a conversation with her supervisor, Perera, in his office. Perera told Reyes he wanted to tell her
something as friends. Perera said that
he did not have any problems with Reyes because she was a good worker but, if
she did not want to have problems that it would be better if she did not talk
about the
In Teledyne Advanced Materials,
332 NLRB 539 (2000), the Board found that a supervisor’s warning, “not to talk to anyone about the Union or to
anyone who was involved with the Union and that they could be written up if
they were caught talking about the Union.” violated Section 8(a)(1) of the
Act. Respondent contends that the
conversation between Reyes and Perera was a friendly and casual conversation
that does not constitute an unlawful interrogation under Sunnyvale Medical Clinic, Inc., 277 NLRB 1217 (1985). Unlike the facts in Sunnyvale Medical Clinic, here there was an implied threat by
Perera to Reyes that if she talked about the
12. The May 11, 2006
suspension of 77 employees
Complaint paragraph 6, as amended, alleges that on May 11, 2006,
Respondent suspended 77 employees for engaging in and to discourage them from engaging
in protected concerted activity.
On May 10, 2006, waitress Patricia Simmons (Simmons) learned that
fellow employee Sergio Reyes (Reyes) had been suspended. That day Simmons went to the union office and
spoke with fellow employees about what had happened to Reyes. Simmons expressed concern that Reyes had been
suspended because he was prounion. After
contacting a number of coworkers, it was agreed that the employees would meet
in Respondent’s cafeteria the next day at 8 a.m. and speak with management
about Reyes’ suspension. On May 11,
2006, the servers and bus service employees took their breaks at 8 a.m. and,
with about 75–100 of Respondent’s employees began gathering in the employee
cafeteria, where employees usually took their breaks, and met with Respondent’s
general manager, Grant Coonley (Coonley) about the recent termination of employee
Sergio Reyes.
According to Waiter Miguel Vargas (Vargas) between 8:15 and 8:30 a.m.,
he told Samayoa that she needed to locate Coonley and have him come and speak
to the gathered employees about suspended employee, Reyes. Samayoa said she would try.11
Vargas was concerned about the time because his break was nearly
over. According to Vargas, at about this
time Samayoa told employees if they did not return to work they would be
suspended. According to Simmons, at
about 8:15 a.m. Samayoa asked employees if they were on break and if not, they
needed to punch out or be suspended.
According to Alberto Barajas, at about 8:20 a.m. Samayoa told employees
to go back to work or they would be suspended and at 8:25 a.m. Samayoa
told Barajas he was suspended.12
According to lobby attendant Lilia Magallon, between 8:45 and 9 a.m.
Samayoa came to the cafeteria and said if you are going to, work, if not punch
and leave. About 5 to10 minutes later
Samayoa returned and repeated employees were to punch in or leave.
At 8:30 a.m. Vargas punched in to work from his break. Between 8:30 and 9 a.m. Samayoa returned
and told the employees to punch in or go home and if they did not return to
work; she would contact the police.
Vargas told Samayoa and Graham Taylor the director of security to
contact Coonley and not harass his fellow employees. Another attempt was made to contact
Coonley.
Samayoa returned to the cafeteria between 9 and 9:30 a.m. and asked
employees what they wanted. Vargas told
her the employees wanted to talk about Reyes’ suspension and asked if Coonley
had been contacted. Later, Vargas asked
Chief Steward Rogelio de la Rosa to contact Coonley or Director of Food and
Beverage Tom Cook and communicate that the employees wanted to return to work.
After not getting any response, between 9–9:30 a.m. the employees
formed a committee of 8–10 employees, including Barajas, to tell Respondent
that they wanted to return to work.13 The committee went to the kitchen area and
spoke first with Supervisor David Aragon (Aragon). Vargas told
A few minutes later, Executive Chef Rolf Jung approached the employees
and told employees Alberto Barajas and Richard Acosta that they were suspended. Later, Assistant Director of Food and
Beverage Manny Collera, Samayoa, Director of Security Taylor, and a police
officer approached the committee. Vargas
told them that the employees wanted to return to work. Collera said the employees could not return
to work since they were suspended.
Vargas asked if everyone was suspended and Collera replied yes. Samayoa said that everyone was suspended
pending investigation. Vargas told
Samayoa that they needed to tell the employees in the cafeteria that they had
been suspended and Samayoa said that that was alright. In the cafeteria at about 10:15 to 10:30
a.m., Vargas told the gathered employees that they had all been suspended
pending investigation and that all employees had to leave the hotel. Between 10:30 and 10:45 a.m., all of the
employees left the cafeteria.
According to Samayoa, on May 11, 2006, she first got to the employee
cafeteria at about 8:13 a.m. with Assistant Director of Housekeeping Jose Cano
(Cano). Night Manager/Security
Supervisor Luis Gallardo (Gallardo) told Samayoa the employees wanted to talk
with Cook or Coonley. At about 8:15 a.m.
Simmons told Samayoa the employees were waiting for Cook to come to the
cafeteria. At about 8:18 a.m., Samayoa
left the cafeteria and returned at 8:23 a.m.
At 8:29 a.m., Samayoa went into the seating area of the cafeteria and
spoke with Gallardo who relayed a message from Director of Human Resources Sue
Trobaugh (Trobaugh). At about 8:31 a.m.,
Samayoa told the employees in the cafeteria to go back to work if they were not
on a break. Vargas said the employees
were not moving and they wanted to speak to Coonley or Cook. Samayoa said Coonley was not in the hotel and
Vargas replied they needed to speak with Cook.
At 8:35 a.m., Samayoa left the cafeteria. At 8:44 a.m., Samayoa returned to the
cafeteria with Cano and Gallardo.
Samayoa told the employees if they were not on break to go back to
work. Employees responded they were not
going anywhere. Samayoa repeated several
times that if employees were not on break to go back to work; if they did not
go back to work to clock out and go home.
Vargas responded that the employees were not going anywhere. At about 8:53 a.m., Samayoa went back into
the cafeteria with Cano and Gallardo.
Samayoa said if the employees were not on break to go back to work and
if they did not return to work they would be suspended one by one. Gallardo began writing down employees’ names.
At 9:07 a.m. Chief of Security Graham Taylor (Taylor) told employees
that if they were suspended they could not remain in the cafeteria. Vargas said the employees were not leaving. As shown on the security video,14 at 10:15 a.m. the employee committee
left the cafeteria. At 10:30 a.m.,
Samayoa told Brentner and two others in the cafeteria that they were suspended. At 10:40 a.m.,
According to Gallardo, around 8:05–8:15 a.m. he heard over his radio
that Samayoa needed help in the employee cafeteria. Gallardo claims employees were yelling and
screaming. Gallardo met with Samayoa and
Samayoa told employees if they were not on break to go back to work. Several employees including Vargas said they
were waiting to meet with Cook or Coonley.
At 8:33 a.m., Gallardo got a call in the kitchen from Trobaugh who said
to tell Samayoa to inform the employees
if they were not on break to go back to work.
Samayoa told employees if they were not on break they had to return to
work. If they did not return to work
they had to swipe out and go home.
Gallardo again spoke with Trobaugh who told him to tell Samayoa to tell
the employees if they were not on break to go to work and if not they should
swipe out, and be suspended pending investigation. Gallardo gave this message to Samayoa who
repeated it to the employees. The
employees refused to leave so once again Gallardo spoke with Trobaugh on the
phone. Trobaugh told Gallardo to tell
Samayoa to tell employees the same message and to suspend employees one by
one. Samayoa relayed the message and began
asking employees if they were returning to work. Gallardo wrote employees names down who were
suspended.15 At about 9 a.m.,
Contrary to Respondent’s assertions there is no evidence that the
employee meeting in the cafeteria prevented any employees from getting food
service or coffee.16 During the walkout, the restaurants were
serviced by 15–20 members of Respondent’s hotel staff including restaurant
managers and other management staff.
Respondent’s argument that the walkout adversely impacted its ability
to clean guest rooms is likewise unsupported by the record. As half of the employees suspended were
employed in housekeeping services, there were some rooms that were not cleaned
the day of the work stoppage, however, there is no evidence as to how many rooms
were not cleaned.17
Both the General Counsel and the Charging Party take the position that
the employees who gathered in the cafeteria on May 11, 2006, were engaged in an
on the job work stoppage that is protected under the Act. Respondent contends that the work stoppage
was unprotected under the Act.
For over four decades it has been settled that an in-plant work
stoppage by unrepresented employees may be protected-concerted activity under
the Act even though no specific demand is made.
In NLRB v. Washington Aluminum
Co., 370 U.S. 9 (1962), the Supreme Court upheld a Board decision finding
that an employee walkout, protesting the extreme cold conditions of their
workplace, was protected, concerted activity although the employees made no
specific demand upon the employer to remedy the lack of heat.
Recently in Quietflex Mfg. Co.,
344 NLRB 1055 (2005), a divided three-member panel of the Board found that an employer
lawfully discharged 83 employees who engaged in a peaceful 12-hour work stoppage
in the employer’s parking lot to protest working conditions. The Board cited 10 factors to weigh in
striking a balance between employees Section 7 rights and the private property
rights of employers:
(1) the reason the employees have stopped working.
(2) whether the work stoppage was peaceful.
(3) whether the work stoppage interfered with production, or deprived the employer access to its property.
(4) whether employees had adequate opportunity to present grievances to management.
(5) whether employees were given any warning that
they must leave the premises or face discharge.
(6) the duration of the work stoppage.
(7) whether employees were represented or had an established grievance procedure.
(8) whether employees remained on the premises beyond their shift.
(9) whether the employees attempted to seize the employer’s property.
(10) the reason for which the employees were ultimately discharged.
In Quietflex, supra at 1056, the Board did
not give controlling weight to any one factor and noted:
As the Board stated in
In striking the balance in favor of private property rights in Quietflex, first the Board found the
following factors in favor of Section 7 rights: the employees stopped working
to protest working conditions; the work stoppage was peaceful; production was
not seriously affected; the employer was not deprived of access to its
property; the employees were unrepresented; there was no established grievance
procedure; and the employees did not seize or destroy the employer’s property. The Board then found that the employer’s
private property rights outweighed Section 7 rights based on the following factors:
the work stoppage lasted 12 hours; the employees presented their grievances to
management, although not all of their demands were met; the employees were told
after over 11 hours of protest that they had to leave the premises by 7 p.m. or
face discharge; and the employees were fired for not leaving the employer’s
property rather than for engaging in protected-concerted activity.
In striking this particular balance the Board majority reasoned, “However, after many hours of
protest, the employees’ continued presence on the Respondent’s property no
longer served an immediate protected interest, and the Respondent was entitled
to assert its private property right.”18
I will consider each of the 10 Quietflex
factors in striking a balance between Respondent’s property rights in its
cafeteria and the employees’ Section 7 rights to engage in joint action for
their mutual aid and protection.
First, it is clear that the employees were engaged in protected, concerted
activity in gathering to protest the suspension of a fellow employee. The Board has long held that employee
protests regarding employee discipline are protected even if the discipline was
lawful. Pepsi Cola Bottling
Second, there is no dispute as to the peacefulness of the employee work
stoppage.
Third, there is no evidence, as noted above, that the employee work
stoppage interfered with production, or deprived the employer of access to its
property, including the cafeteria. The
record is devoid of evidence that hotel guests were not served food, had clean
rooms available or that other employees were denied access to the
cafeteria. Further, it is not considered
an interference with production where employees do no more than withhold their
own labor as was the case here. Quietflex, supra at fn. 6.
Fourth, at no time were the striking employees given an opportunity to
present their grievances concerning the suspension of Reyes to Respondent’s
management as neither of the managers the employees asked to speak to chose to
be present. The record establishes that
as early as 8:15 a.m. employees told supervisors and agents of Respondent that
they wanted to speak to Coonley or Cook about the Reyes suspension. Even assuming for the sake of argument that
the gathered employees did not tell Samayoa why they wanted to speak to Coonley
or Cook, it is irrelevant as neither Cook nor Coonley chose to listen to their
employee grievances. That Respondent’s
privacy policy may have prevented managers from discussing with employees the
details of the Reyes suspension is likewise irrelevant, since it is the
presentation of the employees’ grievance to management that was the immediate protected interest. As long as management refused to provide the
employees with an opportunity to present their grievance, it continued to be an
immediate protected interest.
Fifth, the employees were told that they should return to work and
later were told that if they did not return to work they had to leave the
Respondent’s facility or face suspension.
There is some disagreement as to the precise time employees were given
these warnings. However, there is no
dispute that employees began gathering in the employee cafeteria at about 8
a.m. in order to present their grievance concerning the Reyes discharge to
management. Using Respondent’s timeline,
based upon the security tapes, at 8:26 a.m. Samayoa told employees if they were
not on break to return to work, at 8:32 a.m. Samayoa told employees to return
to work or clock out and go home and at 8:57 a.m. Samayoa told employees if
they did not return to work or go home they would be suspended. Samayoa began suspending employees, an hour
after the employees first gathered to present their grievance. At about 10:15 a.m., having failed to meet
with management to present their grievances, a group of employees went to speak
with Cook for the purpose of telling management that the employees wanted to
return to work. Instead the employees
were told they had been suspended and were told it was alright if they returned
to the cafeteria to tell employees they had all been suspended.
Sixth,
the work stoppage was barely an hour old before Samayoa began suspending
employees for failure to return to work or go home. The work stoppage was just over 2 hours old
when employees indicated they would return to work but were refused because
they had been suspended. Finally, the
work stoppage was under 3 hours old when all employees vacated Respondent’s
premises. See City Dodge Center, supra at fn. 5 (stoppage protected
where all employees left the plant within 2 hours); Golay & Co.,
supra at fn. 6 (protected stoppage lasted 1-1/2–2
hours); Liberty Natural Products,
supra at fn. 10 (protected stoppage lasted 15–30
minutes); Central Motors Corp., 269
NLRB 209 (1984) (“short-lived” stoppage was found protected); Kenneth Trucks
of
Seventh, there is no argument that Respondent’s employees were
unrepresented. However, Respondent
contends that there was an established grievance procedure, its “open door
policy.” The “open door policy” is found
in Respondent’s team member handbook at page 16.19
The policy states:
A team member should
always attempt to work out problems with hi/her immediate supervisor. If the issue or problem remains unsolved, the
team member can seek assistance from his/her department manager, the Director
of Human Resources and the General Manager.
Respondent also presented anecdotal examples of individual employees
bringing their individual concerns concerning equipment to their supervisors’ attention
for resolution. However, the Board found
a similar “open door policy” in HMY
Roomstore, Inc., 344 NLRB 963 (2005), addressed only individual complaints
and not group grievances like the one presented in the instant case.
Eighth, there is no evidence that employees remained on Respondent’s
premises beyond their shift.
Ninth, there is no evidence that the employees attempted to seize
Respondent’s property. There is no
evidence that the employees gathered in the cafeteria prevented either management
or other nonstriking employees from using the cafeteria. The employees left peacefully after 2 hours
and 45 minutes when Respondent refused to allow them to return to work.
Tenth, the suspension notices20
issued to employees note:
On Thursday, May
11, 2006 you were asked to go back to work or clock out and go home at least
three times by a hotel manager. You
refused to do either of these. You were
then suspended pending investigation for insubordination due to you refusal to
abide by a reasonable request from a manager.
At the time employees were told to go back to work or go home, the work
stoppage was less than an hour old. When
employees refused to leave, suspensions immediately took place. However, at the time the suspensions were announced
only an hour had elapsed from the time the work stoppage had commenced. At the time employees were told to go home or
be suspended, the employees were still engaged in a protected activity.
In considering all 10 Quietflex
factors, I find that the balance falls on the side of employees’ right under
Section 7 of the Act. The employees
withheld their labor in protest of discipline given to a fellow employee and
thus engaged in protected-concerted activity.
The employees took this action in the context of having no collective-bargaining
representative to assist them and in the absence of an effective employer grievance
procedure that addressed group grievances.
The work stoppage itself was peaceful and did not interfere with the operation
of the hotel or Respondent’s property, unlike a prolonged sit down strike in a
production area. Moreover, Respondent
was nonresponsive to the employees’ grievance, choosing to ignore the employees’
attempts to speak with management. The
work stoppage was of short duration, lasting less than an hour before
Respondent warned employees that they had to return to work, go home or be suspended. Employees were suspended less than hour after
the work stoppage began. After their attempts
to return to work were rebuffed at 10:15 a.m., no employee remained on
Respondent’s property after their shift or attempted to seize Respondent’s
property. Finally, given the fact that
employees were engaged in protected activity at the time they were suspended and that the employees’ continued
presence on the Respondent’s property at the time of their suspension still
served an immediate protected interest, as management had yet to hear and
consider the employees’ grievance, the Respondent was not yet entitled to
assert its private property right. Accordingly,
Respondent had no valid reason to suspend its employees other than for the assertion
of their rights guaranteed under Section 7 of the Act.
I find that in suspending 77 of its employees for 5 days, Respondent
violated Section 8(a)(1) of the Act as alleged.
1. The August 24,
2006 warning of Nathalie Contreras
Complaint paragraphs 20, 23, and 24 allege that on August 24, 2006,
Respondent issued employee Nathalie Contreras (Contreras) a written warning because
she placed posters in the employee cafeteria protesting insults front desk
employees had received from hotel guests and managers in violation of Section
8(a)(1) and (3) of the Act.
Guest Services Agent Contreras worked at Respondent’s front desk
checking guests in and out of the hotel.
Contreras engaged in various union activities including attending a union
sponsored meeting on January 30, 2006, in the hotel basement in front of the human
relations office where all the employees wore Unite
Here T-shirts. The employees
advised a security guard who was present in front of the human relations office
that the employees were there to announce that they were there to tell
management that they were organizing a union.
A day or two later, Contreras met with Hirschsohn and told her that she
was a member of the union organizing committee.
Contreras also participated in a March 2006 meeting of 8–10 employees
who went to speak with Eric Burkhart about an employee who had participated in
a union picket line and had recently been fired. Burkhart told the employees they were not
supposed to be at his office since it was not a work area. Contreras said Burkhart had an open door policy
but Burkhart pointed to the employees and told them to get back to work as his
area was not a work area.
In the past, hotel guests had sworn at Contreras and she had complained
to Burkhart but according to Contreras he had not resolved the situation. In 2006, a hotel guest had called Contreras a
“bitch” and she immediately complained to Burkhart who came out to the front
desk and while apologizing to the customer for the inconvenience of not getting
the room he wanted, did not confront the guest about the name he had called
Contreras. On another occasion a guest
called Contreras a “crack head” and Burkhart did not confront the guest but
thought the comment was funny. This
situation had happened in the past to Contreras and other front desk employees.
After discussing the hotel guests’ harassment of employees by her
coworkers, in order to protest her treatment by hotel guests, on August 24,
2006, Contreras and coworkers put up four 30-inch by 27-inch posters21 in the employee cafeteria without
management’s permission. The posters depicted
Guest Services agents of Respondent.
During her lunchbreak on August 24, 2006, Contreras made a presentation
to 15–20 coworkers in the cafeteria.
Contreras said she was putting up the posters because she had been
called names by hotel guests. Other
employees said they too had been called inappropriate names by hotel
guests. Included among the terms written
on the posters were: bitch, idiot, sexy, cry baby, crack head, ignorant,
stupid, moron, hottie, and incompetent.
According to Contreras, in the past there had been other posters on the
cafeteria walls depicting holidays or themes such as the Fourth of July or
Cinco de Mayo.
On August 28, 2006, Contreras was called to Trobaugh’s office where she
was told that her posters violated Respondent’s harassment free workplace policy
Contreras then received a written warning22
for posting information that violated that policy. The warning provided in part:
On Thursday,
August 24, 2006, Nathalie posted unauthorized information in the cafeteria that
violates the hotel’s ‘Harassment Free Workplace Policy.’ Specifically, Nathalie displayed a posting
containing several offensive words, including ‘bitch,’ ‘Sexy’ and ‘
Respondent’s harassment
free workplace policy23 provides
in pertinent part:
The conduct
prohibited by this policy includes all unwelcome conduct, whether verbal,
physical, or visual, that is based upon a person’s protected status, such as
sex, color, race, ancestry, religion, national origin, age, disability, medical
condition, martial [sic] status, veteran status, citizenship status, sexual
orientation, or other protected group status or upon the protected status of
the person’s relatives, friends, or associates.
The conduct
forbidden by this policy specifically includes, but is not limited to: (a)
epithets, slurs, negative stereo-typing, or intimidating acts that are based on
a person’s protected status; and (b) written or graphic material circulated
within or posted with in the workplace that shows hostility toward a person
because of his or her protected status.
Sexual harassment is
a problem that deserves special mention.
Unwelcome sexual advances, requests for sexual favors and other verbal,
physical or visual conduct based on sex constitutes harassment when (a)
submission to the conduct is made as a condition of employment, (2) submission
to or rejection of the conduct is used as a basis for an employment decision,
or (3) the conduct creates an intimidating, hostile or offensive working environment.
Sexual harassment
includes conduct based on sex, whether directed towards a person of the opposite
or same sex. Sexual harassment is not
limited to explicit demands for sexual favors.
It also may include such actions as (1) sex-oriented verbal kidding,
teasing or jokes; (2) repeated sexual flirtations, advances or propositions;
(3) continued or repeated verbal abuse of a sexual nature; (4) graphic or
degrading comments about an individual or his or her appearance; (5) the
display of sexually suggestive objects or pictures; (6) subtle pressure for
sexual activity; and (7) physical contact such as patting, hugging, pinching,
or brushing against another person’s body.
According to Trobaugh, she felt the words contained on Contreras’
posters, including the terms bitch, sexy, and hottie were inappropriate and
violated the hotel’s harassment free workplace policy.
The General Counsel contends that Contreras’ conduct in putting up the
posters was both union and protected, concerted activity. Respondent argues that since it properly
disciplined Contreras for violating Respondent’s harassment policy, she was not
engaged in protected, concerted activity.
In Meyers Industries, 268 NLRB 493, 497
(1984) (Meyers I), and Meyers Industries, 281 NLRB 882 (1986) (Meyers II), the Board defined when an
individual engages in concerted activity for other mutual aid or
protection. The Board in Meyers I stated:
In general, to find an employee’s
activity to be ‘concerted,’ we shall require that it be engaged in with or on
the authority of other employees, and not solely by and on behalf of the
employee himself. Once the activity is found to be concerted, an 8(a)(1) violation
will be found if, in addition, the employer knew of the concerted nature of the
employee’s activity, the concerted activity was protected by the Act, and the
adverse employment action at issue (e.g., discharge) was motivated by the
employee’s protected concerted activity. [Meyers
Industries, 268 NLRB 493, 497 (984).]
In Meyers II, the Board emphasized that its
definition of concerted activity included individual activity where, “individual
employees seek to initiate or to induce or to prepare for group action, as well
as individual employees bringing truly group complaints to the attention of management.” Meyers
Industries, 281 NLRB at 887.
Employees do not
have to accept the individual’s call for group action before the invitation
itself is considered concerted. Whittaker Corp., 289 NLRB 933, 934
(1988); El Gran Combo, 284 NLRB 1115
(1987). The Board in Meyers II held that, “the activity of a
single employee in enlisting the support of his fellow employees for their
mutual aid and protection is as much ‘concerted activity’ as is ordinary group
activity.” Owens-Corning Fiberglass Corp. v. NLRB, 407 F.2d 1357, 1365 (4th
Cir. 1969).
Once the General
Counsel has established its prima facie case under Meyers I and II, the burden shifts to the respondent to show that
the same action would have taken place in any event. Wright
Line, 251 NLRB 1083, (1980).
Contreras joined with her fellow employees to protest what they
perceived as Respondent’s failure to protect them from unwanted harassment from
hotel guests by putting up posters in the employee cafeteria during their
breaktime depicting front desk workers.
The posters contained inappropriate names front desk clerks had been
called by hotel guests and the posters encouraged other employees to write on
the posters inappropriate names they had been called by guests. Clearly, Contreras and her fellow employees
were engaged in protected, concerted activity.
It is likewise clear that Respondent issued discipline to Contreras for
engaging in protected activity, i.e., joining with coworkers in protesting
being called inappropriate names by hotel guests. Thus, the General Counsel has established a
prima facie case under Meyers. The question remains was Contreras validly
disciplined because she violated Respondent’s harassment policy.
Respondent essentially takes the position that it is a violation of its
harassment policy for coworkers to communicate with one another or with management
about harassment to which they have been subject. There is no evidence that Contreras used any
of the terms listed on the posters against another employee or that any
employee complained about the posters. Respondent
would have to torture its own definition of sexual harassment in subparagraph
four of its harassment free workplace policy in order to conjure up a violation
by Contreras. It turns the harassment
free workplace policy on its head to suggest that Contreras and others, who
were victims of sexual harassment by hotel guests and managers who took no
action, somehow violated the policy themselves by communicating with one
another about the harassment.
Respondent contends that it has uniformly applied the harassment free
workplace policy and disciplined other employees who violated the policy.
However, the examples24 cited by Respondent are clearly inapposite
as they apply to situations where one employee directed foul language or
threats against another employee. Here,
Contreras never directed inappropriate language toward another employee but
rather communicated that such comments had been directed toward her and other
employees by hotel guests.
I find that the application of Respondent’s harassment free workplace
policy in Contreras’ discipline was a pretext for retaliating against her
protected, concerted activity.
I find further that Respondent violated Section 8(a)(1) of the Act in
disciplining Contreras. However, I find
no violation of Section 8(a)(3) of the Act, as the discipline was motivated
only by Contreras’ protected, concerted activity that was independent of her
union activity.
2. The June 2006 warnings
to employees
Complaint paragraph 21 alleges that on June 7, 2006, Respondent issued
written warnings to employees Isabel Brentner (Brentner), Lilia Magallon (Magallon),
Isabel Salinas (Salinas), and Joanna Gomez (Gomez) and complaint paragraph 22 alleges
that on June 10, 2006, Respondent issued a written warning to employee Patricia
Simmons (Simmons) because the employees engaged in union and other protected
concerted activities.25
Simmons had openly participated in union meetings at the Hotel,
including the January 30, 2006 meeting at the human resources office where
employees gathered to tell Respondent they wanted union representation, and in
the May 11, 2006 employee cafeteria work stoppage. There is no dispute that Respondent was aware
that Simmons was a union supporter.
On the weekend of June 2–4, 2006, the California Teachers Association
(CTA) was conducting a meeting at Respondent’s facility. In addition to other facilities, CTA was
using two of Respondent’s ballrooms on the hotel lobby level, including the
International Ballroom. On June 2, 2006,
Simmons, a waitress in one of Respondent’s restaurants, was asked by CTA to
speak to its members gathered in the International Ballroom about the suspension
of Respondent’s employees on May 11, 2006.
Simmons agreed to speak if it was while on her break.
On June 3, 2006, while on her lunchbreak, Simmons addressed the CTA
members gathered in the International Ballroom for about 10 minutes. Simmons explained that Respondent’s employees
had been suspended on May 11, 2006, because they wanted to ask management about
a coworker who had been fired. There
were hundreds of CTA members in the ballroom but Simmons did not see Magallon
or
After she punched back in to work, Simmons met Collera and Cook. Cook asked Simmons where she had been. Simmons said she had been on break. When Cook asked where she had been, Simmons
said she was in the International Ballroom at the CTA convention. Cook said she was not supposed to be
there. When Simons asked why not Cook
replied that it was hotel policy that she could take a break only in the employee
cafeteria. Simmons told Cook that over
the past 20 years she had been in other guest events in the hotel’s ballrooms
including AMMA. Simmons said she had
never been told by a supervisor not to attend guest events at the hotel.
On June 10, 2006, Simmons received a written warning that states:26
On Saturday, June 3,
2006, you were seen in an inappropriate area of the Hotel (International Ballroom)
while on your break.
The hotel’s Team
Member Handbook specifically states that it is a violation of company policy
for being in an unauthorized or non-designated work or guest areas [sic] during
scheduled work periods, or on your days off, without your supervisor’s or
management’s specific authorization.
Prior to May 4, 2006, Respondent’s policy concerning use of Hotel
facilities by its employees was set forth in its team member handbook.27
The policy stated:
TEAM MEMBERS ON
PREMISES
Only those team
members scheduled for work are authorized to be on Hotel property. You should arrive on property no more than 30
minutes prior to the start of your shift, and must leave the property within 30
minutes from the end of your shift. The
only exceptions to this rule are for situations in which you are picking up
paychecks, or coming in at the request of your team leader or Human Resources.
USE OF PUBLIC
AREAS
During working
hours, team members are not permitted to use the public areas of the Hotel,
unless specifically assigned. These
areas include, but are not limited to: guest elevators, the lobby, and banquet
and guest rooms. Unless you have been
assigned to be in a public area, your presence there is unauthorized.
On May 4, 2006,
Respondent issued a revised policy dealing with employees’ use of hotel
facilities when off duty.28 The policy provides:
Use of Location
Facilities by Off-Duty Team Members
Team members who
are “off duty” (i.e., time which a team member is not being compensated to
perform job duties, or on a bona fide rest period) may not enter or remain in
the hotel’s working areas, except for one of the following reasons:
Paycheck pick-up
Attendance at a
department meeting (paid time)
Attendance regarding
their employment (i.e. benefits, disciplinary meeting)
Attendance at a
Hilton-sponsored team member function
Team members are
requested to provide advance notice to the hotel’s senior manager or his or her
designee of attendance at any non-Hilton sponsored function. Team members are asked to provide as much
advance notice as possible for legitimate business reasons.
. . . .
This policy does
not prevent off-duty team members from enjoying, as a guest, the Hotel’s
facilities such as the restaurant.
However, for security and other business reasons, team members are
requested to provide advance notice to and obtain the approval of the Hotel’s
senior manager prior to such use.
On June 3, 2006, lobby attendant Lilia Magallon (Magallon) worked the
7 a.m. to 3:30 p.m. shift, cleaning the lobby area, including the area
outside the International Ballroom. Magallon
testified that at no time on June 3, 2006, did she enter the International
Ballroom while CTA was conducting a meeting.
Respondent stipulated that it knew of Magallon’s union activities and
Magallon participated in the May 11, 2006 work stoppage and a February 2006
meeting with Coonley in the housekeeping department where she spoke to Coonley
about union representation.
On June 7, 2006, Magallon received a written warning from Samayoa for
being in an inappropriate area of the hotel while during working hours while
not on her break.29 During the meeting with Samayoa where she was
given the warning, Magallon denied being in the International Ballroom on June
3 but said that she was cleaning the trash cans outside the International
Ballroom on June 3.
Izabel (Segunda) Brentner (Brentner) was working as a lobby attendant
on June 3, 2006. Her duties include
cleaning the International Ballroom as needed.
Brentner openly participated in the May 11, 2006 work stoppage as well
as the January 30, 2006 employee meeting at the human resources office to
demand union representation. While on
her lunchbreak on June 3, 2006, Brentner was asked by the CTA to address its
membership in the International Ballroom.
Brentner spoke to the CTA group for about 15 minutes and thanked them for
donations they had given to the 77 employees Respondent had suspended on May
11, 2006. Brentner saw neither coworker
Juana Salinas nor Lilia Magallon in the International Ballroom when she
spoke. Brentner returned to work at
about 11:30 a.m.
On June 7, 2006, Brentner received a written warning30 from Samayoa for being in an
inappropriate area of the hotel (International Ballroom) on June 3, 2006,
during working hours when not on a break.
(4) The
Respondent’s lobby attendant, Juana Isabel Salinas (
Respondent’s public area attendant, Joanna Gomez, also received a
written warning32 for being in the
International Ballroom on June 3, 2006, during working hours when not on a
break. Gomez did not testify and there
is no evidence of her protected, concerted activity, although she was suspended
for engaging in the May 11, 2006 work stoppage.33
Respondent stipulated to knowledge of Gomez’ union activity.
(6) Respondent’s investigation
Respondent’s assistant director of human relations, Rochelle Romo
(Romo), reviewed the security tape from June 3, 2006, in and around the International
Ballroom. After reviewing the tapes,
Romo gave a summary to Trobaugh of her investigation. Based on the tapes, Respondent issued the written
warnings to Gomez, Magallon, and
Trobaugh testified that Respondent has previously disciplined employees
for being in unauthorized areas of the hotel.34 One employee was disciplined in 2005 for
driving a hotel shuttle van to an unauthorized location for personal use, two employees
were disciplined in 2005 for using the hotel pool while off duty and another
employee was disciplined in July 2006 for collecting cans and bottles in unauthorized
areas of the hotel.
The General Counsel contends that Respondent violated Section 8(a)(1)
and (3) of the Act by disciplining Brentner, Magallon, Salinas, Gomez, and
Simmons and disparately enforced its use of location facilities policies
concerning presence of off-duty employees in working areas of the hotel as a result
of their union and protected concerted activity.
The Charging Party argues that Respondent violated Section 8(a)(1) of
the Act in disciplining Simmons in applying
its use of location facilities policy to preclude Simmon’s solicitation of
support from the CTA. The Charging Party
also takes the position that Respondent violated Section 8(a)(3) of the Act in
disciplining Brentner, Magallon,
Respondent denies it violated Section 8(a)(1) or (3) of the Act and
issued discipline pursuant to its consistently applied policies which Brentner,
Magallon,
Soliciting support or sympathy from the general public in furtherance
of issues involving terms and conditions of employment is activity protected by
Section 7 of the Act. Alaska Pulp Corp., 296 NLRB 1260 (1989).
As noted above, the Board has found that once an individual has engaged
in protected-concerted activity, an 8(a)(1) violation will be found if the employer
knew of the protected-concerted activity and the discipline was caused by the employee’s
protected, concerted activity. Meyers I and
II, supra.
Once the General
Counsel has established its prima facie case under Meyers I and II, the
burden shifts to the Respondent to show that the same action would have taken
place in any event. Wright Line, 251 NLRB 1083 (1980).
In order to find a violation of Section 8(a)(3) of the Act, the General
Counsel has the initial burden of establishing that union activity was a
motivating factor in Respondent’s action alleged to constitute discrimination
in violation of Section 8(a)(3) of the Act.
The elements required to support such a prima facie violation of Section
8(a)(3) are union activity, employer knowledge of the activity, and a
connection between the employer’s antiunion animus and the discriminatory
conduct. Once the General Counsel has established its prima facie case, the
burden shifts to Respondent to show that it would have taken the disciplinary
action even in the absence of protected activity. Wright
Line, 251 NLRB 1083 (1980).
Motive or animus may be inferred
from all of the circumstances in the absence of direct evidence. A blatant disparity is sufficient to support
a prima facie case of discrimination. Flour Daniel. Inc., 304 NLRB 970
(1991). As stated by the Board: “A
pretextual reason, of course, supports an inference of an unlawful one.” Keller Mfg. Co., 237 NLRB 712, 717
(1978).
The disparate nature of discipline,
the unprecedented scope of an investigation, the absence of a cogent reason for
conducting such an investigation, and the failure to afford a discriminatee any
opportunity to answer the allegations raised by the investigation are factors
that have repeatedly been found adequate to infer discriminatory
motivation. Tubular Corp. of
It is clear that both Brentner and Simmons were engaged in protected, concerted
activity at the time they addressed members of the CTA in Respondent’s International
Ballroom concerning the May 11, 2006 work stoppage and suspension of
employees. Respondent was aware that
both that both Brentner and Simmons were present at the CTA meeting but there
is no evidence that Respondent knew that Brentner, Simmons, Magallon, Salinas,
or Gomez either addressed the CTA, knew what they said, or knew that they had
participated in the CTA meeting in any way.35 There is nothing on the face of the written
warnings each of the employees received that suggests the discipline was for
speaking to the CTA rather than for being in an unauthorized part of the
hotel. Respondent was aware that all
five employees participated in the May 11, 2006 work stoppage, although none
played a prominent role. I find there is
no evidence Respondent had knowledge the five employees engaged in protected, concerted
or union activity on June 3, 2006, and that their May 11, 2006 protected, concerted
activity played no role in their June 2006 discipline.
Respondent has stipulated that it was aware that all five employees
disciplined had engaged in union activity.
The General Counsel contends that Respondent’s discriminatory motive is
supplied by Respondent’s failure to adequately investigate the employees’
alleged misconduct by failing to interview them and by discriminatorily
applying its new use of location facilities policy.
With respect to the General Counsel’s first contention, while Simmons
and Brentner admitted they were at the CTA meeting in the International Ballroom,
a further investigation into their presence would have revealed that they were
there at CTA’s invitation. The
investigation into Magallon,
With respect to the discriminatory application of the use of location
facilities policy, the General Counsel contends that Respondent has allowed employees
to attend other functions in its ballrooms and under its new use of location
facilities policy off-duty employees are not required to have management’s permission
to use the hotel’s facilities, as guests.
The record establishes that prior to June 2006, Respondent’s employees
had attended functions conducted by other organizations in the hotel ballrooms
including AMMA, Conscious Life Expo, and the Emerald Ball without
discipline. According to Respondent,
employee attendance was permitted because the outside organizations had told
Respondent they would permit Respondent’s employees to attend and Respondent
had assented to their employees’ presence.
However, in this case CTA not only assented to Simmons and Brentner’s
presence, it invited them to attend and address its meeting. A cursory investigation into the events would
have disclosed that Simmons and Brentner had CTA’s permission to attend their
meeting and thus were CTA’s guests. The
uneven enforcement of Respondent’s policy likewise shows disparate enforcement
of its policy. Thus, while Respondent
cited four examples of enforcement of its policy for being in unauthorized
areas of the hotel, two disciplines involved being in an unauthorized area, the
hotel pool, one discipline was for personal use of a hotel shuttle and the
other was for collecting cans. Yet, in
2006 Respondent knowingly tolerated violation of its use of public areas policy
when it knew employees were using public restrooms near the lobby café. No investigation was conducted and no
discipline issued. Moreover, the
language itself of Respondent’s amended use of public areas policy did not
require management’s permission for off duty employees to use public areas of
the hotel as guests or to attend non-hotel functions. The new policy only requests employees to
seek advanced permission of management.
It is apparent that Respondent’s application of its new use of location
facilities by off-duty team members policy was disparately applied and was used
as a pretext to discipline its employees it knew had engaged in union
activity. Respondent’s investigation
into violation of its policy did not attempt to elicit the employees’ version
of facts which would have disclosed that Simmons and Brentner had CTA’s
permission to attend the meeting, consistent with Respondent’s policy that no
longer required advanced permission of management to attend outside
functions. Interviews with Magallon,
I find that Respondent issued written warnings to Simmons, Brentner,
Magallon, Salinas, and Gomez in violation of Section 8(a)(3) of the Act but in
the absence of knowledge of their protected, concerted activity did not violate
Section 8(a)(1) of the Act.
The parties stipulated at the hearing that the backpay amounts set
forth in appendixes A and B of the complaint were correct.37
However, with respect to employee Melvin Sampole, Respondent had
rescinded his suspension and made him whole.
I find the
backpay claims to be supported by the record.
Conclusions of Law
1. Respondent
has been at all times material an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The Charging
Party is, and has been at all times material, a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent
violated Section 8(a)(1) of the Act by engaging in the following acts and
conduct:
(a) Suspending
77 employees for engaging in protected-concerted activities.
(b) Interrogating
employees about union and other protected-concerted activities.
(c) Physically
pushing and touching employees for engaging in protected, concerted activities.
(d) Threatening
employees with violence if they engaged in protected, concerted activity.
(e) Denying
access to Respondent’s facility and threatening employees with trouble if they
entered the hotel because employees wore union insignia.
(f) Threatening
employees with suspension if they participated in protected, concerted
activity.
(g) Issuing a
written warning to employee Nathalie Contreras for engaged in protected, concerted
activity.
(h) Threatening
an employee with unspecified reprisals if the employee engaged in union activity.
4. Respondent
violated Section 8(a)(1) and (3) of the Act by issuing written warnings to
Isabel Brentner, Lilia Magallon, Isabel Salinas, Joanna Gomez, and Patricia
Simmons for engaging in union activity.
5. The unfair
labor practices described above are unfair labor practices within the meaning
of Section 2(6) and (7) of the Act.
6. The
Respondent did not otherwise violate the Act as alleged in the consolidated complaint
and the remaining complaint allegations will be dismissed.
Having found
that the Respondent violated the Act as set forth above, I shall order that it
cease and desist there from and post remedial Board notices addressing the violations
found.
The Respondent having
discriminatorily suspended employees, they must make them whole for any loss of
earnings and other benefits, computed on a quarterly basis from date of discharge
to date of proper offer of reinstatement, less any net interim earnings, as prescribed
in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).
Upon the above
findings of fact and conclusions of law, and on the basis of the entire record,
I issue the following recommended38
ORDER
The Respondent
Fortuna Enterprises, L.P., a Delaware Limited Partnership d/b/a/ The Los
Angeles Airport Hilton Hotel and Towers,
1. Cease and
desist from
(a) Suspending
employees for engaging in protected-concerted activities.
(b) Interrogating
employees about union and other protected, concerted activities.
(c) Physically
pushing and touching employees for engaging in protected, concerted activities.
(d) Threatening
employees with violence if they engaged in protected, concerted activity.
(e) Denying
access to Respondent’s facility and threatening employees with trouble if they
entered the hotel because employees wore union insignia.
(f) Threatening
employees with suspension if they participated in protected, concerted
activity.
(g) Issuing
written warnings to employees for engaging in union and other protected, concerted
activities.
(h) Threatening
an employee with unspecified reprisals if the employee engaged in union activity.
(i) In any like
or related manner interfering with, restraining, or coercing employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the
following affirmative action necesary to effectuate the policies of the Act.
(a) Make
whole the individuals named below, by paying them the amounts following their
names, with interest to be computed in the manner prescribed in New Horizons for the Retarded, 283 NLRB
1173 (1987), minus tax withholdings required by Federal and State laws:
Juan Jimenez $696.19
Silviano Castillo 745.19
Agustin Vega 479.70
Juan Vizuete 513.44
Marco Zamudio 481.70
Rosario Mendoza 296.21
Alejandra Chamorro 194.40
Alicia Huizar 550.50
Benjamin Lopez 534.50
Francisco Diaz 642.37
Miguel Vargas 740.14
Patricia Simmons 743.51
Raul Gonzalez 544.13
Rigoberto Gomez 796.38
Wilfredo Matamoros 703.05
Alberto Barajas 599.42
Richard Acosta 584.37
Samuel Zambrano 579.21
Cliff Lai 446.93
Adela Barrientos 447.75
Amelia Luna 450.24
Ana Flamenco 450.24
Blanca De la Torre 432.14
Christopher Fawcett 429.75
Claudina Colomer 418.56
Concepcion Molina 450.24
Edith Garcia 432.14
Estela Cabreras 450.24
Eva Pulido 458.40
Fernando Gutierrez 437.80
Gloria Saldana 450.45
Guadalupe Perez 429.75
Immacula Rene 440.29
Isabel Brentner 467.10
Ivan Gomez 393.75
Jaime Chamul 416.25
Joanna Gomez 416.25
Jose Ayala 437.80
Josefina Castillo 474.22
Juana Salinas 474.22
Juliete Cabrera 447.75
Kathy Andrade 447.75
Lazaro Orellana 429.75
Lazaro Soto 474.22
Lenardo Reynoso 418.56
Lidia Zavala 418.56
Lilia Magallon 461.12
Lillian Alcantara 447.75
Manuel Alvarez 447.75
Maria Ceja 438.02
Maria Hernandez 418.56
Maria Martinez 440.44
Maria Nunez 471.60
Maria Osuna 458.40
Marina Rivera 432.14
Raquel Benitez 447.75
Reyna Vasquez 432.14
Rigoberto Matamoros 459.74
Rolando Romero 429.75
Rosa Vaca 422.59
Rosie Delgado 475.11
Ruben Can 440.16
Silvia Alvarez 447.75
Susana Argumedo 447.75
Victor Salgero 450.24
Zulma Jurado 422.59
Concepcion Ortiz 446.40
Jose Luis Garcia 499.27
Jose Molina 431.14
Maria Letona 422.45
Mauricio Hernandez 414.03
Fernando Vasquez 389.38
Fidel Andrade 457.48
Nieves Contreras 435.16
Ricardo Chapa 454.05
Total $36,052.74
(b) Within 14
days from the date of this Order, remove from its files any reference to the
unlawful suspensions of the above-named 76 employees, and the unlawful written
warnings of Nathalie Contreras, Patricia Simmons, Isabel Brentner, Lilia
Magallon, Joanna Gomez, and Isabel Salinas and within 3 days thereafter notify
the employees in writing that this has been done and that the suspensions and
warnings will not be used against them in any way.
(c) Within 14
days after service by the Region, post at its 5711 West Century Boulevard,
(d) 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.
It is further ordered that the consolidated complaint is dismissed
insofar as it alleges violations of the Act not specifically found.
Dated,
APPENDIX
Notice To
Employees
Posted
by Order of the
National
Labor Relations Board
An Agency of the
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.
Accordingly, we give our employees the
following assurances:
We will not do anything that interferes with these rights.
We will not suspend you or issue you written warnings because you
engage in union or other protected, concerted activities.
We will not interrogate you about your union and other protected, concerted
activities.
We will not physically push or touch you for engaging in protected, concerted
activities.
We will not threaten you with violence if you engage in protected, concerted
activity.
We will not deny you access to Respondent’s facility and threaten you
with trouble if you enter the hotel because you wear union insignia.
We will not threaten you with suspension or unspecified reprisals if
you participate in union or protected, concerted activity.
We will not in any like or related manner restrain or coerce you in the
exercise of the rights guaranteed to you by Section 7 of the Act.
We will make whole the below named employees for any loss of wages
and benefits, with interest, that they suffered as a result of their
suspensions:
Juan Jimenez Josefina
Castillo
Silviano Castillo Juana
Agustin Vega Juliete
Cabrera
Juan Vizuete Kathy
Andrade
Marco Zamudio Lazaro
Orellana
Rosario Mendoza Lazaro Soto
Alejandra Chamorro Lenardo Reynoso
Alicia Huizar Lidia
Zavala
Benjamin Lopez Lilia
Magallon
Francisco Diaz Lillian
Alcantara
Miguel Vargas Manuel
Alvarez
Patricia Simmons Maria Ceja
Raul Gonzalez Maria
Hernandez
Rigoberto Gomez Maria
Wilfredo
Alberto Barajas Maria
Osuna
Richard Acosta Marina
Rivera
Samuel Zambrano Raquel
Benitez
Cliff Lai Reyna Vasquez
Adela Barrientos Rigoberto
Matamoros
Amelia Luna Rolando
Romero
Ana Flamenco
Blanca De la Torre Rosie Delgado
Christopher Fawcett Ruben
Can
Claudina Colomer Silvia
Alvarez
Edith Garcia Susana
Argumedo
Estela Cabreras Victor
Salgero
Eva Pulido Zulma
Jurado
Fernando Gutierrez Concepcion
Ortiz
Gloria Saldana Jose
Luis Garcia
Guadalupe Perez Jose Molina
Immacula Rene Maria
Letona
Isabel Brentner Mauricio
Hernandez
Ivan Gomez Fernando
Vasquez
Jaime Chamul Fidel
Andrade
Joanna Gomez Nieves
Contreras
Jose Ayala Ricardo
Chapa
We will remove from our files any reference to the unlawful
suspensions of the above-named employees as well as the unlawful written
warnings of Nathalie Contreras, Patricia Simmons, Isabel Brentner, Lilia
Magallon, Joanna Gomez, and Isabel Salinas, and we will not make
reference to the suspensions or written warnings in response to any inquiry
from any employer, employment agency, unemployment insurance office, or
reference seeker and we will not use the permanently removed material against
you.
Fortuna Enterprises, L.P. a