DH Long Point Management LLC dba Terranea Resort

National Labor Relations Board - Board Decisions

Feb 3, 2020

369 N.L.R.B. 18 (N.L.R.B. 2020)

369 NLRB No. 18
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
DH Long Point Management LLC and UNITE HERE
Local 11. Case 31‒CA‒226377
February 3, 2020
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN AND
EMANUEL
On June 21, 2019, Administrative Law Judge Jeffrey D.
Wedekind issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General Coun-
sel and the Charging Party filed answering briefs, and the
Respondent filed a reply brief.
The National Labor Relations Board has considered the
decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions and to adopt the recommended Or-
der as modified.2
ORDER
The National Labor Relations Board adopts the recom-
mended Order of the administrative law judge as modified
below and orders that the Respondent, DH Long Point
Management, LLC, Rancho Palos Verdes, California, its
officers, agents, successors, and assigns, shall take the ac-
tion set forth in the Order as modified.
1. Substitute the following for paragraph 1(b).
“(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.”
2. Substitute the following for paragraph 2(g).
“(g) Within 14 days after service by the Region, post at
its facility in Rancho Palos Verdes, California copies of
the attached notice, in English and Spanish, marked ‘Ap-
pendix.’3 Copies of the notice, on forms provided by the

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stand-
ard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis for
reversing the findings.
In adopting the judge’s finding that Freddy Lovato did not exercise
independent judgment in directing employees and was not a supervisor
within the meaning of Sec. 2(11) of the Act, we find it unnecessary to
rely on the judge’s citation to Hobson Bearing International, Inc., 365
NLRB No. 73 (2017). In adopting the judge’s finding that the Respond-
ent knew about Lovato’s union and other protected activities, we find it
unnecessary to rely on the judge’s statement that the Respondent’s hu-
man-resources chief implicitly admitted that she knew about Lovato’s
May 2, 2018 union activities. Finally, in adopting the judge’s finding of
Regional Director for Region 31, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 consec-
utive days in conspicuous places including all places
where notices to employees are customarily posted. In
addition to physical posting of paper notices, the 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 com-
municates with its employees by such means. Reasona-
ble steps shall be taken by the Respondent to ensure that
the notices are not altered, defaced, or covered by any
other material. If the Respondent has gone out of busi-
ness or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own ex-
pense, a copy of the notice to all current employees and
former employees employed by the Respondent at any
time since June 2, 2018.”
3. Substitute the attached notice for that of the admin-
istrative law judge.
Dated, Washington, D.C. February 3, 2020
______________________________________
John F. Ring, Chairman
______________________________________
Marvin E. Kaplan, Member
________________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
union animus, we find it unnecessary to rely on Resort President Terri
Haack’s correspondence with city officials or on the judge’s statement
that “[i]ndeed, as noted in [NLRB v. RELCO Locomotives, Inc., 734 F.3d
764 (8th Cir. 2013)] and Wright Line, [251 NLRB 1083 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982),] the
Board has consistently held that antiunion statements may be relied on
as background evidence of animus even if they were not unlawful.”
2 We shall modify the judge’s recommended Order to conform to the
remedy section of his decision and to the Board’s standard remedial lan-
guage, and we shall substitute a new notice to conform to the Order as
modified.
3 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
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 vi-
olated 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 bene-
fit and protection
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT discipline, discharge, or otherwise dis-
criminate against you for engaging in union activities or
other protected concerted activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, within 14 days from the date of the Board’s
Order, offer Freddy Lovato full reinstatement to his for-
mer job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
any other rights or privileges previously enjoyed.
WE WILL make Freddy Lovato whole for any loss of
earnings and other benefits resulting from his discharge,
less any net interim earnings, plus interest, and WE WILL
also make him whole for reasonable search-for-work and
interim employment expenses, plus interest.
WE WILL compensate Freddy Lovato for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, and WE WILL file with the Regional Director for
Region 31, within 21 days of the date the amount of back-
pay is fixed, either by agreement or Board order, a report
allocating the backpay award to the appropriate calendar
years.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlawful
June 2, 2018 final written warning issued to Freddy Lov-
ato and the August 13, 2018 termination of his employ-
ment, and WE WILL, within 3 days thereafter, notify him in
writing that this has been done and that the final written
warning and the termination will not be used against him
in any way.
DH LONG POINT MANAGEMENT, LLC
The Board’s decision can be found at
www.nlrb.gov/case/31-CA-226377 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273‒1940.
Marissa Dagdagan, Esq., for the General Counsel.
Paul Rosenberg, Esq. and Nancy Inesta, Esq. (Baker & Hostetler
LLP), for the Respondent Company.
Jeremy Blasi, Esq. and Charles Du, Esq., for the Charging Party
Union.
DECISION
JEFFREY D. WEDEKIND, ADMINISTRATIVE LAW JUDGE. For ap-
proximately 9 years, Freddy Lovato worked in the kitchens at the
Terranea Resort in Rancho Palos Verdes, California. He began
in May 2009 as a cook II, was promoted to a cook I in March
2010, and was promoted again to the position of junior sous chef
in July 2010. He continued in that position for the next 8 years
without incident (aside from a verbal warning in 2012 for not
taking a break on time).
However, in October 2017, Lovato began openly and actively
supporting an employee campaign to obtain representation by
UNITE HERE Local 11 and to improve working conditions at
the resort. He was a member of the union organizing committee.
He spoke to the press and was quoted by several news outlets in
October and December 2017 (Bloomberg, Eater Los Angeles,
LAist, and the Los Angeles Times) describing the “terrible”
working conditions in “the back of the house” and the resort’s
alleged violations of wage and hour laws and exploitation of for-
eign interns. He also participated in several union and/or em-
ployee delegations, including two that attempted to meet with the
resort’s president in October 2017 and March 2018, and a third
that submitted a petition to the City in early May 2018 in support
of a local ballot initiative to require the resort and other large
hospitality employers to pay a $15/hour minimum wage.
Several weeks later, on June 2, 2018, Lovato was issued a “fi-
nal written warning”—his first discipline in 6 years—assertedly
because he failed to ensure that the sauce on a guest’s mac and
cheese dish was gluten-free as ordered. And a few months later,
on August 13, he was terminated, assertedly because he at-
tempted to wash off and reuse a large batch of 50 fried chicken
wings after the guests belatedly changed their order to a different
sauce, and because he subsequently left the wings uncovered in
the cooler and failed to throw them out as instructed by the chef
de cuisine.
DH LONG POINT MGMT., LLC 3
The General Counsel alleges that both the final written warn-
ing and the termination were unlawful; that the Respondent
Company1 disciplined and discharged Lovato for the asserted
reasons because he was a prominent and outspoken supporter of
the union campaign and improving employee working condi-
tions at the resort, in violation of both Section 8(a)(1) and Sec-
tion 8(a)(3) of the National Labor Relations Act.2
The Company denies the allegations. It contends that junior
sous chef is a supervisory position and that Lovato was therefore
not even an employee protected by the Act. Alternatively, it con-
tends that Lovato’s union or protected concerted activities had
nothing to do with the final written warning and the termination;
that Lovato was lawfully disciplined and discharged solely be-
cause of his poor work performance and insubordination as
stated in the June and August 2018 disciplinary notices.
A hearing to address these allegations and defenses was held
on April 2–5, 2019, in West Los Angeles. The General Counsel,
the Union, and the Company thereafter filed briefs on May 23,
2019. As discussed below, the allegations are supported by a
preponderance of the credible evidence.3
I. BACKGROUND
The Terranea Resort includes a 600-room hotel and numerous
restaurants (Mar’sel, Nelson’s, Bashi, Catalina Kitchen, Solviva,
The Grill, and Cielo Point), each of which has its own menu,
kitchen, and operating procedures. There is also a separate ban-
quet kitchen, which prepares food for large events, and an adja-
cent “in-room dining” (IRD) kitchen that is open 24 hours a day
and prepares food ordered off the room service menu. The IRD
kitchen also prepares food for Sea Beans, a coffee bar at the re-
sort, and the Lobby Bar & Lounge.
Bernard Ibarra, the executive chef and vice president of culi-
nary experience, oversees all of the resort’s kitchens. Each
kitchen also has a chef de cuisine and sous chef, which all parties
agree are likewise management positions. Below them in each
kitchen, by order of rank, are a junior sous chef, cooks I, II, and
III, cook-interns who recently completed culinary school, and
helpers provided by a temp agency when needed. (Tr. 596–599,
608, 655–656, 669, 730, 734.)
Following his promotion to junior sous chef, Lovato initially
worked at Nelson’s and/or Catalina Kitchen. However, he trans-
ferred to the IRD kitchen in or about 2012, where he continued
for the next 6 years until his August 2018 discharge. At the time
of the alleged unlawful disciplinary actions, the sous chef in the
IRD kitchen was Efren Ruano, and the chef de cuisine, the top

1 The Respondent, DH Long Point Management LLC, operates the
resort.
2 The initial and amended charges were filed on August 24 and Oc-
tober 4, and the complaint issued on December 28, 2018. The Board’s
jurisdiction is uncontested and established by the admitted factual alle-
gations.
3 Citations to the record are included to aid review and are not neces-
sarily exclusive or exhaustive. In making credibility findings, all rele-
vant factors have been considered, including the interests and demeanor
of the witnesses; whether their testimony is corroborated or consistent
with the documentary evidence and/or the established or admitted facts;
inherent probabilities; and reasonable inferences that may be drawn from
the record as a whole. See, e.g., Daikichi Corp., 335 NLRB 622, 623
(2001), enfd. 56 Fed. Appx. 516 (D.C. Cir. 2003); and New Breed
manager in the kitchen, was Mona Guerrero. Guerrero had pre-
viously been promoted into the same position at Nelson’s but
transferred to the IRD kitchen at the end of 2017 or beginning of
2018. Also working in the IRD kitchen were 9 or 10 cooks, 5 or
6 cook-interns, and 2 helpers.4
Guerrero and/or Ruano set the weekly work schedule for Lov-
ato and the other IRD kitchen workers, assigning each to one or
more of the four daily shifts (breakfast, lunch, dinner, and over-
night). Lovato was always scheduled to work the dinner shift
(2–10:30 p.m). Guerrero and Ruano typically began work be-
tween 9 am and noon and worked at least 10 hours. One or both
of them always worked on the same days as Lovato and were
present during most of his shift.5
Guerrero and/or Ruano also assigned Lovato and the other
IRD kitchen workers to a particular station in the kitchen based
on an assessment of each person’s skills and experience. Lovato
and the cooks and cook-interns were assigned to one of the three
sections on “the line”: the hot side, the fryer, or the cold side.
Lovato and the other more experienced cooks (I or II) were as-
signed to the hot side, which cooks the more expensive protein
dishes. Less experienced cooks were assigned to the cold side,
which cooks pizzas and makes salads, cold sandwiches, appetiz-
ers, and desserts. (Tr. 37–38, 49–50, 55, 152, 641, 741, 805.)
Lovato and the other cooks on the line received food orders
on tickets that were typed into a computer by room service per-
sonnel and printed out on one of the kitchen’s two printers. De-
pending on their station, they then cooked or prepared whatever
hot and/or cold dishes were on the ticket. Whoever prepared the
dishes then placed them in a window on a long counter that runs
along the line for the servers to pick up and deliver to the rooms.
During a “rush” (a very busy period during a shift), Guerrero,
Ruano, or a room service manager usually acted as an expediter
or “expo” by standing on the other side of the window/ counter
and making sure the dishes were prepared and organized cor-
rectly according to the ticket order and the resort’s standards.
However, during other periods or if none of these individuals
were available, it was up to those working on the line and the
servers to make sure the dishes were correct. (Tr. 36–41, 231,
671, 701–709, 803–804, 817–818.)
II. WHETHER LOVATO WAS A SUPERVISOR
Section 2(11) of the Act, 29 U.S.C. § 152, defines a supervisor
as
any individual having authority, in the interest of the employer,
to hire, transfer, suspend, lay off, recall, promote, discharge,
Leasing Corp. v. NLRB, 111 F.3d 1460, 1465 (9th Cir.), cert. denied 522
U.S. 948 (1997).
4 See GC Exhs 2, 9; R. Exh. 5; and Tr. 156–159. Executive Chef
Ibarra usually began work at 6:30 am and stayed until about 9 pm. Alt-
hough he had an office near the IRD kitchen, he only spent about 60
percent of his time in it, and as indicated above he also had to oversee all
the other kitchens. (Tr. 612, 625, 660–661, 679.)
5 See GC Exh. 9; R, Exhs. 3 (“Culinary Weekly Leadership” sched-
ule), 5, 30; and Tr. 42, 60. Like Lovato, neither Guerrero nor Ruano
typically worked during the overnight shift and early breakfast shift
(10:30 p.m.–9 a.m.). Thus, the record indicates that no one in the IRD
kitchen “leadership” was present in the kitchen to oversee the cooks and
other employees during that time.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
assign, reward, or discipline other employees, or responsibly to
direct them, or to adjust their grievances, or effectively to rec-
ommend such action, if in connection with the foregoing the
exercise of such authority is not of a merely routine or clerical
nature, but requires the use of independent judgment.
The burden is on the party asserting 2(11) supervisory status to
establish by a preponderance of the evidence that the individual
has the authority to perform or effectively recommend at least
one of these listed actions. NLRB v. Kentucky River Community
Care, Inc., 532 U.S. 706, 710 (2001); and Entergy Mississippi,
Inc., 367 NLRB No. 109, slip op. at 2 (2019).
Here, there is no contention or evidence that the junior sous
chefs in the IRD and other kitchens had the 2(11) authority to
hire, transfer, suspend, lay off, recall, promote, discharge, as-
sign,6 reward,7 discipline, or adjust grievances of cooks or other
kitchen employees during the relevant period. Nor is there any
contention or evidence that they had the 2(11) authority to effec-
tively recommend such actions. Indeed, there is no evidence that
they were even consulted or asked to provide an evaluation or
other input with respect to any of these types of actions.
Rather, the Company’s sole contention is that the IRD and
other junior sous chefs had the 2(11) authority to responsibly di-
rect cooks and other kitchen employees. In support, it cites a
variety of documentary and testimonial evidence, including the
junior sous chef position description, testimony by Ibarra, Guer-
rero, Lovato himself, and other junior sous chefs and cooks about
the junior sous chef’s authority, performance evaluations and as-
sessments of junior sous chefs, and certain secondary or circum-
stantial indicia of supervisory status.
As discussed below, however, none of this evidence, either
individually or in combination, satisfies the Company’s burden
of proof.
A. The Junior Sous Chef Position Description
The junior sous chef position description in effect during the
relevant period stated, among other things, that junior sous chefs
had “the opportunity” to “supervise [and] coordinate . . . activi-
ties of cooks and other kitchen personnel,” and the “responsibil-
ities” of “guiding and supporting the team”; that the “scope” of
their position included “oversee[ing] Terranea Resort culinary

6 The Company introduced a transcript of a September 15, 2016 dep-
osition Lovato gave in an unrelated third-party lawsuit where he testified
that he was an “entry level supervisor” who “help[ed]” his chef “super-
vise” the kitchen staff, and that he had the authority in 2014 to grant a
cook’s request to leave early (R. Exh. 4, pp. 7, 30–33). The Company
also elicited testimony from Lovato on cross-examination that, during
the relevant period here (from October 2017 until his August 2018 ter-
mination), cooks or other kitchen employees would sometimes ask him
if they could leave early if business was slow and the chef de cuisine and
sous chef were not around (Tr. 192–193). However, the Company’s
posthearing brief cites this as evidence of responsible direction rather
than assignment of employees. In any event, Lovato did not testify that
he still had the authority to grant such requests during the relevant period
(Company counsel never asked him). Further, as discussed above, the
record indicates that Guerrero and/or Ruano were always scheduled to
work on the same days as Lovato, and were present during most of his
dinner shift, including the rush period. The Company presented no evi-
dence that Lovato’s decision would have been more than “routine or cler-
ical in nature” and required “independent judgment” within the meaning
operations” and “[being] responsible for leadership of direct re-
ports and all of their employees”; and that the “activities” of their
position included “provid[ing] essential hands on leadership to
ensure functional food & beverage operations.” (R. Exh. 7.)
However, the Board has consistently held that such “paper”
authority is insufficient by itself to establish actual supervisory
authority under Section 2(11). See Chi Lakewood Health, 365
NLRB No. 10, slip op. at 1 fn. 1 (2016), and cases cited there.
See also Beverly Enterprises-Massachusetts, Inc. v. NLRB, 165
F.3d 960, 962–964 (D.C. Cir. 1999).
B. Testimony Regarding the Authority of Junior Sous Chefs
As discussed above, like the cooks, the junior sous chef was
assigned to a station on the line in the IRD kitchen and cooked
dishes throughout the scheduled shift. However, Ibarra testified
that when both the chef de cuisine and the sous chef were not
around—i.e., when they were off or were doing other tasks in the
office such as making menu changes, ordering supplies, or per-
forming administrative work—the junior sous chef became “the
person in charge.” This meant that, in addition to cooking, he
was expected to “monitor” the line, make sure the cooks made
the dishes correctly, and direct them to remake a dish if they
failed to do so. (Tr. 605–607, 610.) Guerrero testified that when
both she and Ruano were not around the junior sous chef could
also move a cook to a different station “on the fly” if the kitchen
was “going down” during a rush (Tr. 796–798, 820).
Lovato and other junior sous chefs gave similar testimony.
Lovato confirmed that he was “in charge” when Guerrero and
Ruano were not there, and that he had to “keep an eye on the
line” and would correct mistakes if he caught them.8 Francisco
Santos, who worked as a junior sous chef in the banquet/main
kitchen, testified that he was “the one to oversee . . . the opera-
tion” when the chef de cuisine and sous chef were not there (Tr.
456). And Pablo Noh, who worked as a junior sous chef at Nel-
son’s until January 2019, testified that he was one of “the kind
of managers” and the “third person in charge” after the chef de
cuisine and sous chef (Tr. 367–368). See also the testimony of
Jose Flamenco, who worked as a cook II in the IRD kitchen, Tr.
249 (chef de cuisine, sous chef, and junior sous chef are the three
supervisors in the kitchen); and Gary Landsberg, who worked as
of Sec. 2(11) in these circumstances. Accordingly, the Company failed
to establish that Lovato had supervisory authority on this basis. See Hob-
son Bearing International, 365 NLRB No. 73, slip op. at 22 (2017); and
Community Education Centers, Inc., 360 NLRB 85, 94 (2014).
7 Chef de Cuisine Guerrero testified that junior sous chefs could “ver-
bally reward” employees (Tr. 816). However, the Company’s posthear-
ing brief does not rely on this testimony. In any event, the mere ability
to orally praise or compliment an employee’s work is insufficient to es-
tablish 2(11) supervisory authority. Indeed, even the authority to issue
written evaluations is insufficient to establish 2(11) supervisory status
absent evidence that the evaluations affect the wages or job status of the
evaluated employees. See Willamette Industries, Inc., 336 NLRB 743
(2001); and Harborside Healthcare, Inc., 330 NLRB 1334 (2000), and
cases cited there.
8 Tr. 34, 153, 163–165, 175. See also Lovato’s prior deposition testi-
mony, discussed in fn. 9, above, R. Exh. 4, at pp. 12, 30 and 33 (it was
his decision whether to allow a cook to leave early in 2014 because he
was the cook’s “supervisor”)
DH LONG POINT MGMT., LLC 5
a cook II at Mar’sel until March 2018 (Tr. 285–286, 333–334)
(he reported to the junior sous chef “in some capacity,” who
would sometimes tell him what to do).9
There is insufficient evidence, however, that such direction
required “independent judgment” within the meaning of Section
2(11). The Board has held that judgment is not independent
within the meaning of that provision if it is “dictated or con-
trolled by detailed instructions, whether set forth in company
policies or rules [or] the verbal instructions of higher authority.”
Oakwood Healthcare, Inc., 348 NLRB 686, 693 (2006). Con-
sistent with Section 2(11), this interpretation distinguishes “true
supervisors who exercise ‘genuine management prerogatives’
with ‘straw bosses, leadmen, [and] set-up men,’ who are still en-
titled to the Act’s protections despite the exercise of ‘minor su-
pervisory duties[,]’ NLRB v. Bell Aerospace Co., 416 U.S. 267,
280–81 [ ] (1974),” and “faithfully implements the Supreme
Court’s guidance” in NLRB v. Kentucky River Community Care,
532 U.S. at 714, that “‘detailed orders and regulations issued by
the employer’ might preclude a finding of independent judg-
ment.” NLRB. v. Sub Acute Rehabilitation Center at Kearny,
LLC, 675 F. Appx. 173, 177 (3d Cir. 2017).
Executive Chef Ibarra testified that the IRD junior sous chef
had no involvement in creating the room service menu, selecting
the ingredients for each dish, establishing the steps for preparing
each dish, or determining how the dish should taste or look on
the plate. Ibarra testified that only he, the IRD chef de cuisine
and sous chef did so; that they were “very precise” about it; and
that the cooks, including the junior sous chef, were required to
follow the “standard” or “template” they created.10 Further,
Guerrero testified that the junior sous chef would only move a
cook to a different station in a crunch who was already known to
have the experience to work at that station.
There is also insufficient evidence that the IRD junior sous
chef “responsibly” directed other cooks in preparing dishes
within the meaning of Section 2(11). Responsible direction
means not only being able to take action to ensure tasks are per-
formed correctly by an employee, but also being accountable for
that performance, i.e., there is a prospect of material conse-
quences to the alleged supervisor if the employees he/she directs
do not perform their tasks correctly. Oakwood Healthcare, 348

9 At the General Counsel’s request, I permitted Landsberg to testify
by videoconference from the Board’s regional office in Philadelphia.
Although the Company objected, I found that the General Counsel’s mo-
tion set forth “good cause based on compelling circumstances” under
Sec. 102.35(c) of the Board’s Rules; specifically, that Landsberg cur-
rently lived and worked as a restaurant line cook in that city; that his
corroborating testimony was necessary to prove the complaint allega-
tions; that he might be unable to travel to Los Angeles for the hearing
due to the additional time it would require him to be away from his job;
that he would most likely be precluded from testifying if he was not per-
mitted to do so by videoconference; and that videoconferencing was the
only certain means of securing his testimony. I also found that the Gen-
eral Counsel’s motion set forth “the conditions in place to protect the
integrity of the testimony” and the “appropriate safeguards” that would
be implemented as required by Sec. 102.35(c)(1) and (2). See my March
29, 2019 order.
10 See also Guerrero’s testimony, Tr. 815 (she would ask “everybody”
in the kitchen for input on the menu, including but not limited to the
NLRB at 691–692; and Golden Crest Healthcare Center, 348
NLRB 727, 731 and fn. 13 (2006). See also UPS Ground
Freight, Inc. v. NLRB, 921 F.3d 251, 255 (D.C. Cir. 2019).
The Company attempted to establish that the IRD junior sous
chef could be held accountable for the performance of other
kitchen staff by introducing a “memo to file” regarding Lovato
that Guerrero wrote in early July 2018 and emailed to Ibarra and
Anita Kwok, the resort’s chief of “people services” a/k/a human
resources (HR). The memo stated:
I am writing this not as a disciplinary notice, but to clarify some
concerns that have recently been brought to my attention and
to note the disciplinary actions that may transpire from these
issues if the behavior continues.
The memo then summarized a conversation she had with Lovato
on July 7 about the previous evening’s service. The memo stated
that she expressed “concern” with the “lack of leadership” and
“initiative to guide the team” he displayed during the “much dis-
organized evening of service,” and the “hope” that he “will be
able to provide leadership, guidance, and supervision to our
team” moving forward. (R. Exh. 21.)
However, the memo did not set forth any further details re-
garding the “disorganized evening of service.” Neither did
Guerrero in her hearing testimony, except that “it was kind of a
cluster that night” and Lovato’s station “crumbled” (Tr. 775).
Further, Executive Chef Ibarra, who supervised Guerrero, tes-
tified that he did not believe the evening service on July 7 war-
ranted disciplining Lovato, and that he told Guerrero so. Ibarra
testified that “we do a lot of lecturing and coaching,” and that
Guerrero’s conversation with Lovato was just a coaching. (Tr.
645–646.)
Moreover, Guerrero acknowledged that, aside from the June
2018 final written warning to Lovato for failing to ensure that a
mac and cheese order was gluten-free, she could not identify any
example during her 5 years as a chef de cuisine where a junior
sous chef in any of the resort’s kitchens was disciplined for the
poor performance of other kitchen staff. Neither could Ibarra,
who had been the resort’s executive chef for 6 years, nor Kwok,
who had been the HR director or senior director since 2015.11
junior sous chef, but she created the room service menu in collaboration
with Ibarra and Ruano, and she and Ibarra made the final decision).
11 See Tr. 692, 695–697 (Ibarra); 818 (Guerrero); and 842–843, 864,
871 (Kwok). The Company argues that a written warning Banquet
Kitchen Junior Sous Chef Santos received in November 2018 for serving
undercooked/raw chicken (GC Exh. 21, p. 12) is such an example. When
questioned at the hearing, Santos testified that he had, in fact, been dis-
ciplined on that occasion for someone else’s mistake (Tr. 475–476, 480).
However, when asked to explain exactly what happened, Santos testified
that he was the only person responsible for the event that day; that he
personally heated up the chicken in the oven and plated it; and that he
didn’t check to make sure the chicken was fully cooked because he
thought it had been fully cooked the day before per the usual practice
(Tr. 476). Santos’s description of the incident is consistent with the sum-
mary description in the written warning and was not controverted. Thus,
when he testified that he had been disciplined for someone else’s mistake
on that occasion, he was obviously referring to the failure of someone to
fully cook the chicken the day before, not the mistake of someone under
his direction on the day the chicken was served.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
As for Lovato’s June 2018 final written warning, the testi-
mony is conflicting about why it was issued. Although Guerrero
and Ibarra testified that Lovato was disciplined for failing to en-
sure that the other hot-side cook (Jose Flamenco) made the glu-
ten-free mac and cheese dish correctly, Kwok—who Ibarra con-
sulted and who wrote the summary “description of situation” on
the disciplinary notice—testified that she thought that both Fla-
menco and Lovato had made the mac and cheese dish incor-
rectly.12 Thus, even assuming the June 2018 final written warn-
ing to Lovato was nondiscriminatory and lawful (which, as dis-
cussed below, is contrary to the weight of the evidence), it is not
a clear example of a junior sous chef being disciplined solely for
the poor performance of others.
Accordingly, the Company failed to establish by a preponder-
ance of the evidence that there was a prospect of discipline to
Lovato or other junior sous chefs for failing to ensure that other
kitchen staff performed their tasks well or correctly. See Entergy
Mississippi, 367 NLRB No. 109, slip op. at 2–3 (“Supervisory
status is not proven where the record evidence ‘is in conflict or
otherwise inconclusive.’”), quoting Phelps Community Medical
Center, 295 NLRB 486, 490 (1989).
C. Performance Evaluations and Assessments of Junior Sous
Chefs
The record also includes a number of performance evaluations
or assessments that management completed over the years for
Lovato and Santos, who as indicated above worked as a junior
sous chef in the banquet/main kitchen. Three of the Lovato eval-
uations or assessments commented that he needed to “take con-
trol of the kitchen more” (Nelson’s-Catalina Kitchen July 2011);
to “show more initiative in organization of kitchen” and “more
leadership” (IRD Kitchen July 2015); and to “[m]ake sure
WHOLE team is set for the shift” and “be more engaging and
show your presence as a manager” (IRD Kitchen May 2018) (GC
Exhs. 3, 5; R. Exh. 22).13 Several of the Santos evaluations sim-
ilarly commented that he needed to “work on being a leader and
giving Associates directions” (July 2013); to exercise “more of
a leadership role” (August 2014); to “understand[] his role as a
supervisor,” “grow and develop more as a supervisor,” and “del-
egate simple task[s]” to . . . cook [III] and helpers” (July 2015);
and to “guide our staff to success” and learn “to organize the staff
and execute orders accordingly” (Dec. 2017). (R. Exhs. 8–11).
The Company contends that these negative comments like-
wise show that Lovato and the other junior sous chefs were ac-
countable for the performance of the other kitchen staff. How-
ever, as indicated above, such negative comments are not alone

12 See Tr. 638–639, 723 (Ibarra), 757, 760 (Guerrero), and 868–869
(Kwok). The description Kwok wrote is set forth infra.
13 Although the May 2018 assessment contained no title, Guerrero tes-
tified that it was a “PIP” (performance improvement plan). See Tr. 729–
732, 735.
14 As noted by the Company, the Board in Golden Crest indicated that
material adverse consequences could include, not only being disciplined,
but being denied a merit increase, bonus, or promotion. See 348 NLRB
at 731 n. 13. It is unclear, however, whether the Board meant to include
any type of promotion, i.e., not only a promotion that involves a change
in title and increase in pay, but also a promotion that additionally in-
volves a substantial change or increase in job duties and authority (such
as a promotion from junior sous chef to sous chef). Nevertheless, as
sufficient to establish accountability; rather, the Company must
show that Lovato or Santos suffered or might have suffered ma-
terial adverse consequences as a result. See Golden Crest
Healthcare Center, 348 NLRB at 731–732.
The Company argues that the potential for such adverse con-
sequences is shown by the fact that Lovato was never promoted
to a sous chef position. See Lovato’s testimony, Tr. 47 (he ap-
plied for a sous chef position but was never called for an inter-
view).14 However, the Company never presented any direct ev-
idence that this was or might have been due to Lovato’s inade-
quate direction of the other kitchen staff. Nor does the record as
a whole support an inference of such a cause and effect. As in-
dicated above, only three of Lovato’s junior sous chef evalua-
tions or assessments between July 2010 and August 2018 in-
cluded such negative comments, in 2011, 2015, and 2018. And
the record does not reveal when or how many times Lovato ap-
plied for a sous chef position.15
Further, the standard evaluation form that the Company used
for Lovato and the other junior sous chefs did not even include
directing the kitchen staff as a performance factor. Rather, the
above-quoted negative comments were variously included under
such factors as “Knowledge of Job,” “Working Relationships
and Cooperation,” and “Dependability.”16
Moreover, similar negative comments were included in Lov-
ato’s previous evaluations in October 2009 and June 2010, when
he was still a cook II or I. See GC Exhs. 6, 7 (“He needs to push
the younger cooks around him to do more and take more initia-
tives,” and “needs to improve his leadership”). Yet, he was pro-
moted to junior sous chef anyway shortly thereafter.
Thus, as with the prospect of discipline, the Company failed
to establish that there was a real—i.e., more than “merely spec-
ulative” (Golden Crest, 348 NLRB at 731)—prospect of being
denied a promotion or suffering other material adverse conse-
quences for failing to adequately direct the staff.
D. Secondary or Circumstantial Indicia of Supervisory Status
The Company does not dispute that Lovato and other junior
sous chefs were required to clock in and were paid by the hour
like other employees rather than a salary like the chef de cuisine
and sous chef; that they received the same benefits as employees
and were not eligible for bonuses like the chef de cuisine and
sous chef; and that they did not attend management or supervi-
sory meetings and were denied access to certain “salaried man-
ager” only areas like the Culinary Room (Tr. 51, 56, 84, 687,
812; GC Exh. 8). However, it argues that certain other “second-
ary indicia” support a finding that Lovato and the other junior
neither the General Counsel nor the Union argues for distinguishing be-
tween types of promotions, I have assumed for purposes of this decision
that being denied either type may be evidence of accountability.
15 The record indicates that the IRD sous chef position was vacant
from about Labor Day (Sept. 5) 2016 to about Labor Day (Sept. 4) 2017.
See Tr. 46, 228. Lovato’s two evaluations prior to or during this period,
in July 2015 and August 2017, rated him average, above average, or out-
standing on all the listed performance factors and did not include nega-
tive comments of the type quoted above. See GC Exhs. 2, 3. (The record
does not include a 2016 evaluation.)
16 The above-quoted comments in Guerrero’s May 2018 assessment
or “PIP” were included under the headings “Projects” and “Opportuni-
ties.”
DH LONG POINT MGMT., LLC 7
sous chefs were supervisors. Specifically, it cites Ibarra’s un-
controverted testimony that, like the chefs de cuisine and sous
chefs, junior sous chefs were given an email address and wore
black pants and a jacket with their name embroidered on it, rather
than blue and white checkered pants and a plastic nametag like
the cooks (Tr. 608, 655–656). It also cites the previously dis-
cussed testimony by
Lovato and other junior sous chefs and cooks regarding their
perception of the junior sous chefs’ supervisory status and/or au-
thority.17
However, such secondary or circumstantial indicia cannot es-
tablish 2(11) supervisory status where there is insufficient evi-
dence that the subject individual actually has the authority to per-
form or effectively recommend one or more of the specific ac-
tions listed in that section. See, e.g., Sam’s Club, 349 NLRB
1007, 1014 (2007); Webco Industries, 334 NLRB 608, 610
(2001), enfd. 90 Fed. Appx. 276, 282 (10th Cir. 2003); and NLRB
v. Dole Fresh Vegetables, Inc., 334 F.3d 478 (6th Cir. 2003). As
discussed above, the Company failed to establish that the IRD
and other junior sous chefs have any such authority.
III. WHETHER LOVATO WAS UNLAWFULLY DISCIPLINED AND
DISCHARGED
A. The June 2 Final Written Warning
(The Gluten-Free Mac and Cheese Incident)
1. Factual background
Over the years, the IRD kitchen frequently received special
orders from guests with gluten, dairy, nut, and other allergies or
sensitivities. The kitchen accommodated such special orders by
offering to prepare certain dishes without the offensive ingredi-
ent. For example, it offered a gluten-free pizza and a gluten-free
mac and cheese. The former required substituting a frozen pre-
made gluten-free pizza crust and using fresh sauce and cheese
from a previously unopened container or bag to avoid cross-con-
tamination. The latter required substituting both a gluten-free
pasta and a gluten-free cheese sauce prepared à la minute (on the
spot) with cheddar cheese and cream, as the regular sauce had a
roux (mixture of butter or oil and flour) in it.18
There were occasionally incidents prior to 2018 where guests
complained that a special order was not prepared allergen-free as
requested. Following such incidents, or if a VIP with allergies

17 The Company’s posthearing brief also cites evidence indicating that
Lovato is often the only chef on duty during the last hour or two of his
dinner shift. However, as previously noted (fn. 5), the record also indi-
cates that there is typically no IRD kitchen chef whatsoever (chef de cui-
sine, sous chef, or junior sous chef) during the entire overnight shift and
early breakfast shift.
18 See R. Exh. 19 (IRD menu allergen chart that lists which items con-
tain common allergens and whether the allergens could be omitted from
the order); and Tr. 72–75, 82, 210, 212, 256, 610–616, 753. See also fn.
39, infra.
19 The record is unclear whether pizza toppings such as pepperoni con-
tained gluten. However, the IRD menu allergen chart discussed above
(R. Exh. 19) specifically indicated that a “pepperoni pizza” could be pre-
pared gluten-free.
was a guest, the IRD chef de cuisine at the time would remind
the kitchen staff during the regular preshift lineups that they
needed to be vigilant and take precautions to avoid cross-con-
tamination, including using clean gloves, pans, utensils, and sur-
faces in preparing the special order. (Tr. 73–75.) There is no
evidence that any kitchen staff were disciplined following those
incidents, however.
A few allergy-related incidents also occurred in 2018 between
January, when Guerrero transferred into the IRD kitchen, and
August, when Lovato was terminated. The first occurred on May
19, about a week before the subject mac and cheese incident, and
involved an order for a gluten-free pizza. The second was the
gluten-free mac and cheese incident on May 25. The third oc-
curred a month later on June 29 and involved a guest with a pine-
apple allergy who ordered a pineapple-free fruit dish.
a. The previous May 19 pizza incident
The previous incident involving the gluten-free pizza occurred
late Saturday afternoon, between 4:45 and 5 pm. Both Guerrero
and Ruano were working that day and Guerrero was moving
around the kitchen at the time (R. Exh. 5; Tr. 806). Lovato was
also working (R. Exh. 25).
At 4:52 pm a ticket came in for various items, including a glu-
ten-free pepperoni pizza, sliders, a vegan burger, a house salad,
and brownies.19 Per the usual practice, the ticket emphasized the
special pizza order by stating “Gluten Free” underneath it multi-
ple times. It also added, “SEVERE WHEAT GLUTEN
ALLERGY,” indicating that the gluten allergy was particularly
severe. (R. Exh. 26.)
A cook proceeded to make the pizza, and Guerrero, who was
in the window, made sure it was set aside for the server to deliver
to the guest. Unfortunately, however, later that evening the man-
ager on duty received a report that the guest had suffered an al-
lergic reaction and had been transported to the local hospital by
paramedics. The child’s father also complained to the front desk
the following morning, stating that his son “could have died”;
that his family was “traumatized”; and that he “highly doubted”
that proper precautions were taken in preparing the meal.20
The incident was reported to Executive Chef Ibarra and others
in the “Terranea Leadership Group” later that morning. Ibarra
subsequently spoke to Guerrero and Ruano about it, and con-
cluded that, at the very least, some cross-contamination had oc-
curred in making the pizza.21 However, he decided not to issue
20 Jt. Exh. 5; GC Exh. 19. The record does not reveal whether the
family subsequently sought compensation from the resort for medical
expenses or other damages.
21 To the extent Guerrero’s and Ibarra’s testimony is inconsistent with
this finding, it is discredited. Guerrero testified that she was on the line
when the ticket came in; that she witnessed the cook make the gluten-
free pizza properly; and that the cook confirmed that he made it properly
when she questioned him later (Tr. 752–753, 804). And Ibarra testified
that he relied on Guerrero’s account because it “was pretty factual” and
“straight to the point” and he “had no reason to believe that what she told
me was not the truth” (Tr. 699). But, when she was asked to identify
who the cook was, Guerrero claimed that she could not remember, even
after being shown the work schedule for that evening (R. Exh. 5). In
fact, she testified that it could have been “anybody” on the line, even
Lovato. (Tr. 805–806.) It is highly unlikely that Guerrero could have
forgotten who the cook was under the circumstances. As discussed
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
any type of discipline to anyone. Instead, he directed Guerrero
and Ruano to remind the kitchen staff about the standard operat-
ing procedures for allergen-free orders during the preshift
lineups.22
b. The May 25 mac and cheese incident
As indicated above, the second incident involving the subject
gluten-free mac and cheese order occurred just 6 days later, on
Friday May 25. It was early in the evening, between 6:15 and
6:30 pm, and the IRD kitchen was very busy. Lovato was work-
ing the hot-side grill and oven as usual. Next to him, about 5–8
feet down the line working the stove and sauté station, was Jose
Flamenco. Flamenco was an experienced cook II who had
worked the hot-side with Lovato for several years, helped train
the newer cooks, and prepared gluten-free orders every day. Un-
like Lovato, however, he had not publicly supported the union
and was not considered a union supporter by management.23
Both Chef de Cuisine Guerrero and Sous Chef Ruano were
also working. However, neither was overseeing the line at the
time. Guerrero was in the kitchen office working on menu
changes for the Lobby Bar. And Ruano was in the back helping
her with recipes for the new menu items. No room service man-
ager was around to expedite either. (R. Exh. 5; Tr. 209, 232,
745).
At 6:22 pm, a ticket came in ordering numerous items, includ-
ing a gluten free mac and cheese, two regular mac and cheeses,
an avocado grilled cheese, a BLTA, a burger, and three orders of

above, it was an unforgettable incident; a child was transported by para-
medics to the hospital and reportedly almost died. Further, Guerrero
claimed to have personally watched the cook make the pizza, and to have
questioned him about it after learning of the child’s hospitalization. In-
deed, she claimed to remember very specific details about what she ob-
served. See Tr. 752–753 (“I saw [the pizza] being prepared . . . off to the
side on another table”; “I remember seeing a bag of cheese” and a new
container of pizza sauce; and “when it came up to the window, we set it
aside [where] the server’s going to pick it up.”) Moreover, it is also
highly unlikely that the pizza was made by Lovato. As discussed above,
pizzas were made on the cold side and there is no evidence that Lovato
even knew that the incident occurred at the time. (Lovato himself testi-
fied that he only later heard about the incident from room service man-
agers, and he did not know what day it occurred or that he was working
that day. See Tr. 79–80, 203–204.) Finally, it is also highly unlikely
under the circumstances that Guerrero would not remember that Lovato
made the pizza if, in fact, he had done so. In sum, Guerrero’s testimony
was wholly unbelievable. And given the obvious relevance of the inci-
dent to determining whether Lovato was disparately treated for the sub-
sequent mac and cheese incident, it is reasonable to infer that her testi-
mony was intended, not only to prevent the General Counsel and the Un-
ion from identifying and questioning the cook who made the pizza, but
to falsely suggest that Lovato himself might have made it.
There are also good reasons to disbelieve Ibarra’s testimony about
what Guerrero said had happened and/or whether he believed her. For
example, although Ibarra testified that he had no reason to doubt what
Guerrero told him, there were clearly grounds to do so, including not
only the guest’s report and apparently strong belief about what had hap-
pened, but also the fact that Guerrero, as the manager overseeing the
kitchen at the time, obviously had a personal and professional interest in
absolving the kitchen of culpability. Moreover, at another point in his
testimony Ibarra seemed to falsely cast blame on the guest. See Tr. 621
(testifying that the guest had not been “firm” in “stating that [the pizza]
had to be totally segregated when the food was delivered”). As indicated
fries. Again, the ticket highlighted the special mac and cheese
order by stating “Gluten Free” several times underneath it. It
also stated “Allergy” several times to emphasize that the guest
actually had an allergy to gluten. (R. Exh. 24; Tr. 747–748.)
It was Flamenco’s job to make all three mac and cheese orders
at the stove and sauté station, including the gluten-free one, and
he did so. He then placed them in the window on the counter for
the server to take along with the other items on the ticket. Lov-
ato, who was busy at the grill and oven preparing other orders,
did not work on or handle the gluten-free mac and cheese dish in
any way. (Tr. 82– 83, 258, 264–266, 760.)
Sometime later, the front house manager received a call from
the mother of the child who had ordered the gluten-free mac and
cheese. She reported that her daughter began vomiting after eat-
ing it. The manager apologized and asked if her daughter needed
medical assistance. She said no, was forgiving about the matter,
and accepted the manager’s offer to comp the room service bill.
(Jt. Exh. 3.)
The manager notified Guerrero of the call shortly after, and
Guerrero went to the line to look at the ticket and speak with
Lovato and Flamenco about it. Her conversation with them was
very short, about 30–45 seconds, and she asked only two ques-
tions. Her first question was whether Flamenco had used the
gluten-free pasta, which was a different shape than the regular
kind. Flamenco said he had and showed her the separate pot and
water he had used to boil it. Guerrero then asked what else could
have been the cause of the daughter’s reaction. Lovato replied,
above, the ticket shows that the guest had, in fact, notified room service
that the child had a “SEVERE WHEAT GLUTEN ALLERGY.”
Accordingly, the opposite of Guerrero’s and Ibarra’s testimony is in-
ferred: that no discipline was issued despite their belief that the kitchen
had failed to take sufficient precautions to avoid cross-contamination or
to otherwise ensure that the pizza was made gluten-free. See Ozark Au-
tomotive Distributors, Inc. v. NLRB, 779 F.3d 576, 585 (D.C. Cir. 2015);
and NLRB v. Howell Chevrolet, 204 F.2d 79, 86 (9th Cir.) affd. 346 U.S.
482 (1953) (where witnesses are discredited, the trier of fact may find,
not only that their testimony was untrue, but that the truth is the opposite
of their testimony).
22 Ibarra’s testimony about management’s subsequent measures to
make sure the staff were reminded of the standard procedures for aller-
gen-free orders was elicited by the Company itself on direct examination.
It has not been relied on by the General Counsel or the Union in their
posthearing briefs, or here, as additional evidence that the kitchen had
failed to follow the standard procedures in making the gluten-free pizza.
See FRE 407, Subsequent Remedial Measures.
23 See R. Exhs. 5, 24; and Tr. 81, 157, 166, 207–208, 247–252, 255–
256, 259, 266–267, 806, 853–858. Contrary to Lovato and Flamenco,
Guerrero testified that it was “later in the evening” and was not particu-
larly busy at the time because the dinner rush typically occurs “kind of
early” (Tr. 821). However, her testimony was not corroborated by Ru-
ano, whom the Company did not call to testify, the room service man-
ager, who was also not called to testify, or any other manager. Moreover,
it was inconsistent with the documentary evidence. The ticket for the
mac and cheese order (R. Exh. 24), which Guerrero testified she in-
spected after the incident (Tr. 746), shows that it came in at 6:22 pm.
Thus, this appears to be another example where Guerrero gave false tes-
timony; this time both to explain why she and Ruano were not in the
window and to suggest that any error that occurred in making the gluten-
free mac and cheese dish was more egregious because the kitchen was
not particularly busy at the time. See also fn. 21, above.
DH LONG POINT MGMT., LLC 9
“Oh, the cheese sauce, it has a roux in it.” And Flamenco did
not follow up or say anything indicating that he had substituted
a gluten-free sauce. Guerrero therefore concluded that Flamenco
must have forgotten to do so, and she ended the conversation and
returned to her office.24
Shortly thereafter, beginning around 9 pm, Guerrero sent a se-
ries of emails to Executive Chef Ibarra describing the incident.
She told him about the child’s order for a gluten-free mac and
cheese; that Lovato and Flamenco were on the line at the time;
and that “the cheese sauce which has a roux, was given to the
server which the server took to the guest.” She told him that
neither she nor Ruano were in the window at the time and that
she had let Ruano know that one of them needed to be there in
the future “especially for all the tickets with allergies.” She said
she had “reminded [Lovato] that he also needs to be watching
out for these mistakes.” (Jt. Exh. 3; Tr. 746, 750.)
Ibarra was upset when he read Guerrero’s emails, and asked if
she and Ruano had talked about “allergies/sop” during the IRD
kitchen preshift lineup. Guerrero replied that they had. Ibarra
also subsequently reviewed the house manager’s May 25 notes
about the mother’s report and discussed the matter further with
both Guerrero and HR Chief Kwok. All three agreed that both
Flamenco and Lovato should be disciplined for the incident. Spe-
cifically, Ibarra and Guerrero agreed that Flamenco should be
disciplined for failing to make the gluten-free mac and cheese
dish gluten-free; and that Lovato should be disciplined for failing
to ensure that Flamenco made the dish gluten-free. As for Kwok,
as previously discussed, she incorrectly thought that both Lovato
and Flamenco had made the mac and cheese dish. (Jt. Exh. 3; Tr.
635, 638–639, 664, 703, 757–760, 773, 844, 868–871.)
On May 29, Ibarra forwarded to Kwok both the manager’s re-
port and Guerrero’s emails to assist in drafting the disciplinary
notices. Kwok emailed Ibarra and Guerrero a draft written warn-
ing for Lovato later that day, stating that they could use the same
draft for Flamenco by swapping his name. Kwok also stated that,
while the draft for Lovato was prepared as a written warning, she
would leave it up to them to decide whether to raise it to a final
written warning. (Jt. Exh. 3; R. Exh. 20; Tr. 635.)
Ibarra and Guerrero did, in fact, decide to change the draft to
a final written warning for Lovato. They presented the com-
pleted “Progressive Disciplinary Notice” to him a few days later,
on June 2, in Ibarra’s office. Except for substituting “final writ-
ten warning,” the completed notice was identical to that drafted
by Kwok. Under “Description of Situation,” the notice stated:

24 See Guerrero’s testimony, Tr. 744–745, 749–750, 808. There are
some reasons to doubt Guerrero’s account. For example, it suggests that,
despite being the IRD chef de cuisine, she did not know or recall that the
regular cheese sauce contained a roux until Lovato mentioned it. See
also fns. 21 and 23, above. However, Flamenco and Lovato failed to
demonstrate a good or consistent recollection of the short conversation
or offer an alternative version of what was said. Flamenco recalled that
Guerrero had called both him and Lovato to the office that evening and
told them that the child got sick, but he could not remember whether he
told Guerrero his version of what happened or exactly what else was said
(Tr. 257–258, 265). Lovato, on the other hand, testified that he did not
recall Guerrero even talking to him about the incident that evening (Tr.
208, 239). Further, there is nothing else in the record that might explain
how Guerrero came to the conclusion that the order was made with
On Friday, May 25th, the Resort received a complaint in which
a child of a guest had been violently ill. The guest had ordered
mac n cheese which was to be gluten-free due to her Celiac
disease. It was discovered that the pasta used was gluten-free
but the cheese sauce was not. The child had an allergic reaction
and began to vomit. As a chef, it is your responsibility to know
all the ingredients used in a dish and to ensure allergy requests
such as gluten-free, nut-allergy, dairy-allergy, are adhered to.
This situation caused a child to become ill, jeopardized her
health, and the outcome could have been far worse. Based on
the severity of your actions, this documentation serves as a final
written warning. Any future infractions may result in further
disciplinary action up to and including termination.
In addition, under “Solution–Desired Behavior/Performance,”
the notice stated, “When you are unsure of the dish and its inter-
action with an allergy, you can always go to another Chef to get
guidance.” Finally, the notice indicated that Lovato had not re-
ceived any prior discipline for the same offense.
Lovato told Ibarra and Guerrero that he disagreed with the dis-
ciplinary notice. He explained that he was busy that evening,
there was a rush, and none of the managers were around to check
the food on the line. He also wrote the following on the notice
under “Associate Comments:”
That night there was like 3 to 4 manager[s] on charge on my
department, I’m at the bottom of level—no any higher manager
check[ed] this dish or communicate[d] any extra warning about
this special order.
However, Guerrero told Lovato that he was responsible because
he was the junior sous chef and working that day. And Lovato
ultimately signed the notice. (Jt. Exh. 1; Tr. 78–79, 640, 759,
771–772.)
The same day, Ibarra and Guerrero also gave Flamenco a pro-
gressive disciplinary notice. However, it was only a written
warning rather than a final written warning. Other than substi-
tuting “Cook II” for “chef,” the notice was otherwise essentially
the same as the one given to Lovato. It contained the same “De-
scription of Situation” and “Solution—Desired Behavior/ Per-
formance,” and likewise indicated that Flamenco had no prior
discipline for the same offense.
Like Lovato, Flamenco signed the disciplinary notice. How-
ever, unlike Lovato, he did not protest, offer an explanation, or
write anything under “Associate Comments.”25
gluten-free pasta but not gluten-free sauce. Accordingly, Guerrero’s tes-
timony in this respect has been credited.
25 See Jt. Exh. 4; and Tr. 642–643 (Ibarra), 773 (Guerrero). Flamenco
testified that he actually made the entire mac and cheese dish gluten-free,
including the cheese sauce using cream and cheese; that he placed it in
the window on the counter separate from the other mac and cheese
dishes; and that the server must have taken the wrong order (Tr. 256–
259, 268–271). He also testified that he tried to tell Guerrero this when
he was given the written warning but she was very upset and didn’t want
to hear about it (Tr. 258). However, there are several problems with this
testimony. First, there is no corroborating evidence that Flamenco pre-
pared and substituted the gluten-free cheese sauce on the dish. Lovato
testified that he recalled seeing Flamenco making the pasta but not the
cheese sauce (Tr. 208). Second, as previously discussed, Flamenco
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
c. The subsequent June 29 pineapple incident
The third incident involving the pineapple allergy occurred
about a month later, on June 29. It was a Friday afternoon. All
three IRD chefs, Guerrero, Ruano, and Lovato were working that
day. However, Guerrero testified that she was not overseeing the
line or expediting at the time, and the record does not reveal
where Ruano and Lovato were or what they were doing.26
At about 4 p.m. a ticket came into the kitchen that included an
order for a fruit dish without pineapple. The ticket clearly stated
that pineapple had to be omitted because the guest had an “al-
lergy” to it.
A Cook III-intern, Colin Lindayao, was working the cold side
at the time and it was his job to make the fruit dish. He did so,
and a server delivered it to the room. Shortly after, Guerrero re-
ceived a report that the dish was not made without pineapple as
requested. Fortunately, however, the guest noticed that the dish
contained pineapple and did not ingest it. Guerrero subsequently
spoke to Lindayao and he admitted that he saw that the guest was
allergic to pineapple but forgot to omit it when he made the dish.
Lindayao was issued a verbal warning, the lowest level of dis-
cipline, later the same day. Under “Description of Situation,” the
disciplinary notice stated:
Colin was working in the pantry of In Room Dining kitchen at
approximately 4 pm when a ticket was produced for a guest
with an allergy to pineapple. The ticket clearly stated allergy,
Colin claimed he saw the allergy and that he forgot when he
served the fruit with the pineapple. The fruit went out to the
room and the guest actually caught the fruit before it was in-
gested.
Under “Solution–Desired Behavior/Performance,” the notice
stated, “Colin needs to be focused and aware of all and any food
being prepared and leaving his station at all times.” The notice
did not indicate whether he had been previously disciplined for
the same offense.
Lindayao signed the notice and did not write anything on it
under “Associate Comments.”27
2. Legal analysis
The parties agree that the proper analytical framework for de-
termining whether the June 2, 2018 final written warning to Lov-
ato was unlawful is set forth in Wright Line, 251 NLRB 1083,
1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982). Under that framework, the General Counsel
must prove by a preponderance of the direct and/or circumstan-
tial evidence that an employee’s union or protected activity was
a substantial or motivating factor for the adverse employment
action. The General Counsel can make a sufficient initial

didn’t tell Guerrero that he prepared and substituted a gluten-free cheese
sauce on the dish when she asked him and Lovato about the order that
same evening. Rather, when Lovato mentioned that the regular cheese
sauce had gluten in it, Flamenco remained silent. Third, as indicated
above, Flamenco also didn’t write any alternative version or explanation
on the disciplinary form under “Associate Comments.” Accordingly,
Flamenco’s foregoing testimony has not been credited.
26 R. Exh. 30; Tr. 793. As previously noted, the Company did not call
Ruano to testify. Lovato was never asked at the hearing if he was aware
of the pineapple incident or where he was at the time.
showing in this regard by demonstrating that the employee en-
gaged in union or protected activity and the employer knew or
suspected it, and that the employer had animus against the union
or protected activity. If the General Counsel makes the required
initial showing, the burden shifts to the employer to establish by
a preponderance of the evidence that it would have taken the
same adverse action against the employee even absent his/her
union or protected activity. See Shamrock Foods Co., 366 NLRB
No. 117, slip op. at 26–27 (2018); East End Bus Lines, Inc., 366
NLRB No. 180, slip op. at 1 fn. 7 (2018); and American Red
Cross Missouri-Illinois Blood Services Region, 347 NLRB 347,
349 (2006), and cases cited there.
a. Lovato’s union and protected activities
It is undisputed that Lovato participated in the following union
and other activities to improve working conditions at the resort
prior to the June 2 final written warning.
Union organizing committee. Lovato began attending union
meetings in the summer of 2017 and became a member of the
union organizing committee (Tr. 57, 69 331, 392).
Public announcement of union campaign. The union organ-
izing campaign was publicly announced at the resort on October
19, 2017. Approximately 200 employees, union organizers, and
union members from other hotels gathered in one of the resort’s
public parking lots and marched, passed out union flyers, and
chanted union slogans. Lovato joined the marchers and also later
attended a press conference in one of the parking lots. (CP Exhs.
5, 10; Tr. 58, 145–146, 200, 321–322, 339–340.)
First delegation to meet with the resort’s president. On the
same day, about 35 of the participants, including Lovato, formed
a delegation to try and meet with the resort’s president, Terri
Haack, and request that management stay neutral during the un-
ion campaign. They did not get beyond the reception area outside
Haack’s office or get to see her. However, before leaving the
building Lovato and several other employees spoke about why
they were supporting the campaign. (Tr. 58–63, 323–324, 345,
394–395, 499–500, 526–527.)
Press interviews and news articles. Lovato was one of only a
few employees who talked to the press about the union campaign
and working conditions at the resort. And he was the only em-
ployee still working at the resort in May 2018 who was quoted
in multiple news articles. Three of the articles were published on
October 19, 2017, by Bloomberg, Eater Los Angeles, and LAist.
A fourth article was published on December 27, 2017 by the Los
Angeles Times. (GC Exhs. 11–14; Tr. 69, 502, 520–525.)
The Bloomberg Business article was titled, “Who’s the Boss?
Union Organizers Target Private Equity Owners,” and included
a large picture of the resort. It described the employees’ plans to
27 R. Exh. 29; Tr. 791–792. The record does not reveal whether
Lindayao was a union supporter or whether the Company knew or sus-
pected he was. The record is also unclear regarding who, other than
Guerrero, was involved in the decision to issue him a verbal
warning. Company counsel, who introduced the evidence, never
questioned Ibarra and Kwok about the incident. As for Guerrero, she
admitted that she didn’t email Ibarra about the incident but testified that
she “believe[d]” she had spoken with him about it (Tr. 825–826). She
also twice testified that “we” decided to issue the verbal warning, but she
did not identify who “we” referred to (Tr. 792).
DH LONG POINT MGMT., LLC 11
unionize and to file a class-action lawsuit against the resort al-
leging, among other things, that they were unlawfully denied rest
breaks and pay for overtime and the extra hour it took to ride a
company shuttle between the resort and the distant employee
parking lot. The article also discussed the Union’s plans to op-
pose a tax-assessment appeal by the resort and to bring the em-
ployees’ grievances to the attention of the private equity firm as-
sociated with the resort’s operating company. It included com-
ments from the Union’s co-president and from a management-
side attorney/former NLRB Board member. It also included a
prepared statement issued by the resort stating that it strictly ad-
hered to and abided by all labor laws. Finally, it closed with the
following comments by Lovato, the only employee identified by
name and quoted in the article:
“Everything looks so beautiful in front of the house, but if you
go in back of the house, where we are, it's terrible,” said Terra-
nea cook Freddy Lovato, who's worked at the resort for nine
years. With customers living it up while employees toil, he
said, “I always picture the 'Titanic' movie.” [GC Exh. 11.]
The Eater Los Angeles article was titled “Terranea Workers
Allege Wage Theft Violations in Class Action Lawsuit,” and
also included a picture of the resort. It reported that the employ-
ees had filed a class action lawsuit against the resort alleging var-
ious wage theft violations, including denial of meal and rest
breaks and failure to pay for full hours worked. It included com-
ments by Lovato and another employee, Galen Landsberg, who
was a cook II in the resort’s Mar’sel restaurant at the time but
subsequently left in March 2018, before the alleged unlawful
events here. The article quoted Lovato first, in the second para-
graph of the article, stating:
According to Terranea employee Freddy Lovato, the kitchen is
“incredibly busy and we are regularly not permitted to take
breaks.”
Like the Bloomberg story, the article also included a prepared
statement from the resort stating that it strictly adhered to and
abided by all labor laws. (GC Exh. 12.)
The LAist article was titled, “Workers At Luxury Rancho Pa-
los Verdes Resort Sue Over Alleged Wage Theft Violations,”
and also included a large picture of the resort. Like the Eater Los
Angeles story, the article reported on the class action lawsuit
filed on behalf of resort employees and included comments by
Lovato and Landsberg. The article reported Lovato’s comments
first, in the third and fourth paragraphs of the article:
“I am proud of the work my coworkers and I do to provide ex-
cellent service for our guests and to make this resort success-
ful,” Freddy Lovato, a cook who works in a kitchen preparing
food for room service, the lobby bar, and Terranea's Sea Beans
cafe, said in a statement. “But behind the scenes there are prob-
lems with the way we workers are being treated. And that is
why I am speaking out.”
Lovato alleges that the resort denies him and other workers the
10-minute rest breaks they are legally allowed, saying, “I know
the law says that we are supposed to be able to take two ten-
minute rest breaks when we work an eight-hour shift. But that
is not the reality. The company also does not provide workers
like me with the pay it is supposed to provide when we can't
take these breaks.”
Like the other stories, the article also included a statement from
the resort that it adhered to and abided by all labor laws. (GC
Exh. 13.)
The subsequent December 27 LA Times article was titled,
“Complaint accuses luxury Terranea Resort of human trafficking
violations, exploiting foreign interns.” It reported that the Union
had filed a complaint the previous week with the U.S. State De-
partment on behalf of two former cook-interns from India alleg-
ing that the resort’s use of foreign interns violated the J-1 cultural
and educational exchange visa program and human trafficking
and labor laws. The article included comments by the former
interns and the Union’s attorney. It also included the following
comments by Lovato, the only current employee identified and
quoted in the article:
Lead cook Freddy Lovato, 45, said he noticed when interns be-
gan filling full-time entry-level cook positions. Now, he esti-
mates that interns fill at least 60% of those positions overall.
Lovato works in the room service kitchen, where he met [the
two foreign interns]. He has 20 years cooking experience and
has been with Terranea since it opened in 2009.
He said the interns' lack of experience and training can make
his job more difficult, especially because they leave just as
they're getting better. “We train them fast because we also have
our own duties,” he said.
Finally, the article also included a statement from the resort’s
spokeswoman that the allegations were “baseless.” (GC Exh.
14.)
Delegation to the HR Office. On November 28, 2017, Lovato
participated in a delegation of about 5–10 employees on the un-
ion organizing committee that went to the HR office during a
break to ask for their personnel files. The receptionist told them
they had to each fill out and sign a “Request to Inspect Personnel
Records” form. Lovado did so and then returned to work. (GC
Exh. 10; Tr. 64–66, 397.)
Second delegation to meet with the resort’s president. On
March 17, 2018, Lovato participated in a delegation of a few em-
ployees on the union organizing committee that went to the HR
office to schedule an appointment to meet with President Haack.
They wanted to speak to Haack because they had heard she was
meeting with the CEO of another hotel where there was likewise
a union campaign underway. Kei Eusebio, a senior HR manager,
informed them that Haack was not available. A few days later,
on March 20, Eusebio approached Lovato in the kitchen and
asked if the group would meet with Haack that evening. How-
ever, the other members of the delegation were not present, so
the meeting did not occur. (GC Exh. 18; Tr. 66–68, 398.).
Delegation to City Hall. On May 2, 2018, a union delegation
went to the Rancho Palos Verdes city hall to deliver several thou-
sand signatures that had been collected on a petition. The peti-
tion called for a local ballot initiative to enact an ordinance re-
quiring large hospitality employers in the city such as Terranea
to pay employees a $15/hour minimum wage and to provide
panic buttons for those working in housekeeping or other iso-
lated areas. Although the delegation included a number of union
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
organizers and activists, Lovato was the only Terranea employee
in the group. Unlike other union supporters, he was off work that
day. (GC Exh. 15; Tr. 68–70, 513–515.)
The General Counsel’s complaint alleges that all of Lovato’s
foregoing activities between mid-October 2017 and early May
2018 constituted protected concerted activities under the Act.
And Board precedent supports the allegations. See North West
Rural Electric Cooperative, 366 NLRB No. 132, slip op. at 1 n.
1, and 12–15 (2018); Allstate Insurance Co., 332 NLRB 759 n.3,
767 (2000); Alaska Pulp Corp., 296 NLRB 1260 (1989), enfd.
944 F.2d 909 (9th Cir. 1991); and Roure Bertrand Dupont, Inc.,
271 NLRB 443, 444, 448–449 (1984), and cases cited there. Fur-
ther, the Company’s posthearing brief does not argue otherwise,
i.e., it does not contend that any of Lovato’s foregoing activities
were not concerted or protected under the Act or that Lovato said
or did anything in particular during those activities that exceeded
the bounds of protected conduct.28
b. The Company’s knowledge or suspicion of Lovato’s union
and protected activities
Chef de Cuisine Guerrero and HR Chief Kwok admitted that
they knew Lovato supported the Union prior to issuing him the
final written warning. Both testified that they either saw him or
were aware that he was with the other union supporters on Octo-
ber 19, 2017.29 Kwok also testified that she read the December
2017 LA Times article quoting Lovato regarding the resort’s use
of foreign interns, and that the other three October 2017 articles
quoting Lovato were likewise circulated to the Leadership
Group, including President Haack and Executive Chef Ibarra,
and discussed at their weekly senior management meetings (Tr.
876, 879–881). In addition, as the head of HR, Kwok likely
would have been aware of Lovato’s documented visits to the HR
office with other union supporters in November 2017 and March
2018 to obtain the personnel files of the union organizing com-
mittee members and to schedule a meeting with Haack.30 And
Kwok did not specifically deny that she was aware that Lovato
went to City Hall with the Union on May 2, 2018 to deliver the
petition for the ballot initiative. See Tr. 852 (“Q [by company
counsel]. “[W]ere you aware that Mr. Lovato went to City Hall?
He spoke about a ballot ordinance.” A. I don’t believe I was
aware of him speaking.”).31 See also GC Exh. 15 (series of
emails between city officials and Haack in February, March,

28 In its answer to the complaint, the Company stated that it “lack[ed]
sufficient information to admit or deny the allegations,” which operated
as a denial under Sec. 102.20 of the Board’s Rules. However, the Com-
pany certainly had sufficient information by the end of the hearing to
dispute the allegations, yet as indicated above it did not do so in its
posthearing brief.
29 Tr. 786, 814, 820, 851–852. Indeed, Kwok demonstrated an impres-
sive knowledge and memory of who participated in the October 19
demonstration and/or supported the Union. See Tr. 853–858 (identifying
by name 15 such individuals who were still employed at the resort).
30 After Kwok admitted that she was aware that Lovato participated in
the October 19, 2017 march, company counsel vaguely asked if she was
also aware whether Lovato had participated in “other delegations” (Tr.
852). Kwok testified she was not. However, counsel did not specifically
ask Kwok if she was aware of Lovato’s visits to the HR office in No-
vember 2017 and March 2018. And as discussed, infra, Kwok subse-
quently admitted, at least implicitly, that she was aware that Lovato went
April, and early May 2018 indicating that the city officials and
others were keeping Haack informed about the Union’s petition
drive and that Haack was also informed when the petition was
delivered to City Hall on May 2).32
As for Executive Chef Ibarra, he was initially evasive and in-
consistent when asked whether he knew Lovato participated in
the October 2017 demonstration and supported the union. See
Tr. 643 (“Q [by company counsel]. [A]t the time of [the mac and
cheese incident], did you know that Mr. Lovato was a supporter
of the Union? A. You know no. And I knew he had sympathetic
views. I don’t talk to anybody about that. That never came to
me. I don’t know who’s pro except for Mr. Santos.33 That’s the
only one I knew.” . . . Q. Okay. Did you ever see whether [Lov-
ato] participated in any of the demonstrations the Union con-
ducted? A. I re – I might have, yeah. I might have, yeah. Yeah.
Yeah.”).34 However, like Kwok, Ibarra admitted on cross-exam-
ination that the October and December 2017 news articles quot-
ing Lovato were emailed to him and others in the Leadership
Group. He also admitted that he read at least some of the articles,
including those about the class-action wage and hour lawsuit and
the J-1 cook-interns. Finally, he also admitted that the union
campaign and related activities were discussed among the Lead-
ership Group at weekly senior management meetings. (Tr. 673–
678, 721).
The foregoing direct and circumstantial evidence is sufficient
to establish that the Company—including specifically Haack
(the highest-ranking onsite manager) and Kwok, Ibarra, and
Guerrero (the three managers admittedly involved in disciplining
Lovato)35—knew or suspected that Lovato engaged in the union
and other protected concerted activities described above and was
one of the most active union supporters.
c. The Company’s animus against the union and protected ac-
tivities
Within a few weeks after the union organizing campaign was
announced, the Company began holding a series of mandatory
antiunion meetings with employees in each kitchen or depart-
ment. Senior company managers, including President Haack, ex-
pressed strong opposition to the union at the meetings. (Tr. 310,
328–329, 430.) Indeed, Haack told the banquet kitchen employ-
ees at one such meeting in March or April 2018 that the Union
to City Hall with the Union in early May 2018 to deliver the petition for
the ballot initiative.
31 Kwok’s belief was correct; Lovato was present but did not speak
when the petition was delivered to City Hall (Tr. 69–70).
32 The Company did not call Haack to testify.
33 As previously discussed, Francisco Santos was a junior sous chef in
the banquet kitchen. Like Lovato, he was one of the most active union
supporters (Tr. 525).
34 Both Lovato and former Cook II Landsberg credibly testified that
they saw Ibarra outside watching the marchers. Lovato also credibly tes-
tified that he saw someone he identified as a manager taking photos or
filming the smaller delegation when it was inside the office reception
area, and that he later saw the manager apparently showing the photos or
video to Ibarra outside. (Tr. 61–63, 137, 324.)
35 There is no apparent dispute, and the record as a whole establishes,
that all four are supervisors and/or agents of the Company as defined in
Sec. 2(11) and (13) of the Act.
DH LONG POINT MGMT., LLC 13
would get in “over my dead body.”36 The Board has held that
such a statement by a high-level manager constitutes an unlawful
threat of futility in violation of Section 8(a)(1) of the Act and
demonstrates an employer’s union animus. See Montgomery
Ward & Co., 316 NLRB 1248, 1249, 1255 (1995), enfd. per cu-
riam 97 F.3d 1148 (4th Cir. 1996); and South Nassau Communi-
ties Hospital, 262 NLRB 1166, 1175 (1982).37
Haack also expressed strong opposition to the Union’s ballot
initiative for a $15 minimum wage and panic buttons. She even
contacted the mayor and other city officials in April 2018 and
asked if they could stop the Union and its supporters from solic-
iting city residents to sign the petition at a local public event
(Whale of the Day Festival) that was being held about a mile
from the resort. (The city officials responded that they were un-
able to do so.) See GC Exh. 15. Cf. Chelsea Homes, 298 NLRB
813 n. 2 (1990); and Gainesville Mfg. Co., 271 NLRB 1186,
1188 (1984) (an employer violates Section 8(a)(1) of the Act by
calling the police to prevent union supporters from engaging in
handbilling on public property). Thus, the evidence establishes
that the Company likewise had animus against that activity. Cf.
Pacific Beach Hotel., 361 NLRB 709, 746, 752 (2014) (em-
ployer’s animus was demonstrated by its numerous unfair labor
practices, including attempting to prevent a union organizer from
handbilling on a public sidewalk).
Although there is no evidence that Haack was directly in-
volved in issuing the June 2, 2018 final written warning to Lov-
ato, this makes no difference. As indicated above, both Ibarra
and Kwok admitted that the union campaign was discussed at
weekly senior management meetings. Ibarra also admitted that
Haack repeatedly expressed her unhappiness about and opposi-
tion to the union campaign at the meetings (Tr. 676–678, 721).
Further, as indicated above, Haack was the highest onsite

36 See Santos’s testimony, Tr. 429–431. With respect to the timing of
the meeting, see also Santos’s testimony regarding his prior March 2018
trip to Pennsylvania with a union delegation to meet with the resort’s
investors (Tr. 400). Although Santos’s testimony regarding Haack’s
statement was not corroborated by other banquet kitchen employees
(none were called to testify by the General Counsel or the Union), it was
credible on its face and was not controverted by Haack (who as noted
above was not called to testify by the Company) or any other company
witness. Nor does the Company’s posthearing brief argue that it should
be discredited or discounted. While the brief argues that Santos was a
biased witness (citing his admission that the Union paid for his flight and
hotel when he joined the union delegation to Pennsylvania), it does so
only with respect to his testimony about poor safety and health practices
in the banquet kitchen. See Br. at 38 n. 19. Further, it repeatedly cites
and relies on Santos’s testimony as support for the Company’s positions
on other significant matters. See Br. at 8, 20–26.
37 Haack’s March/April 2018 statement is not alleged as an unfair la-
bor practice in the Union’s charges or the General Counsel’s complaint.
However, this did not preclude the Union from presenting testimony
about Haack’s unlawful statement as additional evidence of the Com-
pany’s antiunion animus and discriminatory motive for disciplining and
discharging Lovato. See, e.g., NLRB v. RELCO Locomotives, Inc., 734
F.3d 764 (8th Cir. 2013); and NLRB v. Wright Line, 662 F.2d 899, 907
n. 14 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). See also CSC
Holding, LLC, 365 NLRB No. 68, slip op. at 4 (2017); and Wilmington
Fabricators, 332 NLRB 57 n. 6 (2000). Indeed, as noted in RELCO and
Wright Line, the Board has consistently held that antiunion statements
may be relied on as background evidence of animus even if they were
manager of the resort and clearly spoke and acted on behalf the
Company. See Parsippany Hotel Management Co. v. NLRB, 99
F.3d 413, 423–424 (D.C. Cir. 1996). It may reasonably and ap-
propriately be inferred that other managers such as Ibarra, Kwok,
and Chef de Cuisine Guerrero acted consistent with the Com-
pany’s position or view. See NLRB v. RELCO Locomotives, Inc.,
734 F.3d 764, 782 (6th Cir. 2013) (CEO’s open hostility towards
unions could reasonably be imputed to other senior managers);
and Spurlino Materials, LLC v. NLRB, 645 F.3d 870, 878 n. 7
(7th Cir. 2011) (rejecting employer’s argument that General
Counsel failed to prove an 8(a)(3) discriminatory dispatching vi-
olation because the evidence only established that the general
manager had animus and not the dispatchers).
d. Circumstantial evidence of the Company’s animus and dis-
criminatory motive
There is also abundant circumstantial evidence of the Com-
pany’s animus and discriminatory motive.
Cursory investigation. An employer’s cursory investigation or
failure to seek an explanation from an employee before issuing
discipline may support an inference of animus and discrimina-
tory motive. See, e.g., Shamrock Foods, 366 NLRB No. 117,
slip op. at 28 (2018); and Golden State Foods Corp., 340 NLRB
382, 385 (2003). See also CC1 Ltd. Partnership v. NLRB, 898
F.3d 26, 33 (D.C. Cir. 2018). Here, as discussed above, Guer-
rero’s investigation lasted only about 30–45 seconds and con-
sisted of looking at the room service ticket and asking Flamenco
and Lovato only two questions: 1) whether Flamenco had used
gluten-free pasta, and 2) what else could have caused the guest’s
reaction. And while their responses indicated to Guerrero that
Flamenco had failed to substitute a gluten-free sauce, she never
inquired or investigated how busy Lovato was at the time or
not unlawful. Further, the Company was given adequate notice that the
Union would be presenting such evidence. Union counsel said so in his
opening statement (Tr. 20–22). And there was further discussion about
the matter in response to company counsel’s evidentiary objection early
on the second day of hearing, followed by a ruling that such evidence
was clearly relevant and admissible (Tr. 311–319).
The Union also introduced documentary evidence of unalleged state-
ments Haack made in posted letters to employees in 2018 and 2019 re-
garding the Union’s campaign for a consumer boycott of the resort. CP
Exhs. 7–9. See also, with respect to the boycott campaign, a March 23,
2018 company “union activity” report, CP Exh. 10 (three demonstrators,
including one employee, handed out flyers to incoming vehicles and
chanted “No respect, No peace. Don’t check in. Check out. Shame on
you, for staying here, shame on you”); and Tr. 347, 580. It also presented
uncontroverted evidence of unalleged antiunion conduct by other resort
managers and security guards (e.g., surveilling employees engaged in
prounion activity, telling employees not to talk about the union at work,
and prohibiting off-duty employees from handbilling around the resort),
at least some of which was included in prior union charges and settled
pursuant to a nonadmission informal settlement agreement (CP Exh. 10;
Tr. 310–311, 321–326). See St. Mary’s Nursing Home, 342 NLRB 979,
979–980 (2004), affd. 240 Fed. Appx. 8 (6th Cir. 2007), and cases cited
there (presettlement conduct may be used to show animus and a discrim-
inatory motive in a subsequent case, regardless of whether the settlement
reserved the right to do so). However, it is unnecessary to address this
additional evidence given the other direct and circumstantial evidence of
the Company’s animus and discriminatory motive discussed above.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
whether there were any other circumstances that would explain
why he did not see or ask whether Flamenco substituted a gluten-
free sauce. Nor did Ibarra. It was not until after they issued the
final written warning to Lovato that he was given an opportunity
to explain, and his explanation (that it was busy that evening,
there was a rush, and none of the kitchen or room service man-
agers were around to help check the food on the line) was sum-
marily rejected.
Failure to apply progressive discipline. An employer’s fail-
ure to apply its progressive disciplinary system may also support
an inference of animus and discriminatory motive. See, e.g.,
Aliante Casino & Hotel, 364 NLRB No. 78, slip op. at 1, 13
(2016); and E.R. Carpenter Co., Inc., 306 NLRB 878, 881
(1992). See also Fort Dearborn Co. v. NLRB, 827 F.3d 1067,
1075–1076 (D.C. Cir. 2016). Here, as indicated above, the Com-
pany had a multi-step progressive disciplinary system, including,
in order of severity, verbal warning, written warning, final writ-
ten warning, and termination.38 Yet, the Company immediately
issued Lovato a final written warning, bypassing the two previ-
ous steps, even though he had no prior discipline on his record at
the time. The only time he had been disciplined was a verbal
warning he received 6 years earlier, in 2012, for failing to take a
break on time, and that discipline was expunged from his record
6 months later (Tr. 30).
When asked by company counsel why Lovato was immedi-
ately issued a final written warning, Ibarra testified it was be-
cause “we almost killed somebody,” and that he wanted to send
“a strong enough message to make Lovato realize that we almost
killed someone” (Tr. 638, 665). Guerrero similarly emphasized
the severity of the incident, stating:
It was something so—such a careless mistake, and the severity
of it was—it was intense. I mean, a child got sick and it was
for something that—I mean, it was just—it's just so easy. It's
right there. You make the cheese sauce and you know what's
in there, and then you sold it. You knew—I mean, he knew
that he was selling something that was gluten-free; he made a
separate pasta for it, but yet then put the cheese—like, it was
just indescribable. Just felt very careless.
(Tr. 759). However, it was the prior pizza incident, not the mac
and cheese incident, where the guest reportedly almost died. Fur-
ther, it was not Lovato who made “such a careless mistake” in
preparing the mac and cheese dish, but Flamenco. And Guerrero

38 See, e.g., Jt. Exh. 1; R. Exh. 31, p. 31; and Tr. 837. Suspension is
also a listed option on the progressive disciplinary form.
39 See also Tr. 760 (admitting she believed it was Flamenco who made
the mac and cheese); and R. Br. 35 n. 18 (“Ibarra and Guerrero made the
final decision and knew very well that Flamenco likely cooked the
dish.”). Moreover, as noted above, Guerrero herself apparently did not
know or recall at the time that the cheese sauce had gluten in it. Incred-
ibly, she also testified that the IRD kitchen did not even offer or make a
gluten-free cheese sauce; that the cooks had to use olive oil or butter on
the gluten-free pasta instead (Tr. 825). However, both Lovato and Fla-
menco testified otherwise. And Ibarra, who was exempt from the se-
questration order and heard their testimony, did not contradict it when he
was subsequently called by the Company to testify. See Tr. 722–723.
Further, the IRD menu allergen chart, which room service used when
taking orders, indicated that dairy could not be omitted from the mac and
cheese dish. Thus, Guerrero’s testimony that olive oil could be
knew it, both because it was Flamenco’s job to do so where he
was stationed and because Flamenco told her he did so when she
asked him that evening.39
As for HR Chief Kwok, she testified generally that there are
times when the Company will bypass the progressive discipli-
nary system (Tr. 837). However, she did not provide any con-
crete or comparable examples. Nor were any such examples oth-
erwise offered into evidence. Although the Company introduced
10 final written warnings issued to other resort employees in
2016, 2017, and 2018 (R. Exh. 37; Tr. 829), none of them in-
volved cooks or other kitchen workers. Further, one of the no-
tices indicated that the employee had received prior discipline
for the same offense, another did not indicate one way or the
other, and none of them indicated whether, like Lovato, the em-
ployees had no prior discipline on their record for any offense.
Disparate treatment. An employer’s disparate treatment of
union supporters may likewise support an inference of animus
and discriminatory motive. See Shamrock Foods Co., 366
NLRB No. 107, slip op. at 1 n. 1 (2018); and Cayuga Medical
Center at Ithaca, Inc., 367 NLRB No. 21, slip op. at 32–35
(2018), and cases cited there. See also Fort Dearborn, 827 F.3d
at 1075–1076. Here, as discussed above, Lovato was issued
more severe discipline than Flamenco, who was not a union sup-
porter, even though Ibarra and Guerrero knew that Flamenco was
the one who made the mac and cheese dish.
Ibarra and Guerrero testified that they decided to issue Lovato
more severe discipline because he was a junior sous chef
whereas Flamenco was a cook II, and he was responsible for
making sure the cooks performed their job properly (Tr. 638–
692, 773). However, as discussed above, Flamenco was an ex-
perienced cook II who had worked with Lovato on the hot side
for years, helped train the newer cooks, and made gluten-free
dishes every day. And the Company had never before disci-
plined a junior sous chef for failing to ensure that the cooks or
other kitchen employees performed their work properly.
Further, the record indicates that no one, neither cook nor
chef, was disciplined following the pizza incident just a week
earlier, even though the guest was transported to the hospital and
reportedly almost died, and even though, as found above, Ibarra
believed the IRD kitchen had failed to follow the proper proce-
dures to avoid cross-contamination.40
Finally, while an IRD cook was disciplined several weeks
later for failing to make a fruit dish pineapple-free as ordered by
substituted for cheese on a mac and cheese was also contrary to the doc-
umentary evidence. Finally, a “mac and cheese” without cheese would
be no mac and cheese at all.
40 Disciplining a cook or a manager following the pizza incident
would not necessarily have increased the Company’s risk of legal liabil-
ity to the guest. Any such discipline likely would have been excluded
from evidence in the legal proceeding, and thus could not have been used
against the Company, on the ground that it constituted a subsequent re-
medial measure under Cal. Evid. Code § 1151, the equivalent of FRE
407. See Fox v. Kramer, 22 Cal.4th 531, 545, 93 Cal.Rptr.2d 497, 994
P.2d 343 (2000). See also IVC US, Inc. v. Kinden Bulk Transportation
SW, LLC, 2017 WL 5203055, at *9 (N.D. Ga. April 4, 2017); Al-Turki v.
Robinson, 2015 WL 6464411, at *12 (D. Colo. Oct. 27, 2015); and
Mahnke v. Washington Metropolitan Area Transit Authority, 821
F.Supp.2d 125, 151–152 (D.D.C. 2011), and cases cited there.
DH LONG POINT MGMT., LLC 15
a guest with a pineapple allergy, he was only issued a verbal
warning. Guerrero testified that the lowest level of discipline
was issued because he was just a cook III-intern, and “it’s our
job to guide and lead and teach” (Tr. 792). However, the incident
plainly had nothing to do with a lack of guidance or training.
Guerrero testified that, like other cooks, the cook III-interns had
recently been instructed during preshift lineups regarding the
standard operating procedures for preparing allergen-free orders
(Tr. 826). And the cook III-intern who made the dish admitted
to Guerrero that he simply forgot to omit the pineapple.41
False or misleading testimony. False or misleading testimony
regarding the relevant facts and circumstances may also support
an inference of animus and discriminatory motive. See Shamrock
Foods, 366 NLRB No. 117, slip op. at 27–28 (2018); and Airgas
USA, LLC, 366 NLRB No. 104, slip op. at 3 (2018), enfd. 916
F.3d 555 (6th Cir. 2019), and cases cited there. Here, as dis-
cussed above, Ibarra was both evasive and inconsistent when
asked if he knew Lovato was a union supporter. Further, both he
and Guerrero exaggerated the seriousness of the mac and cheese
incident and Lovato’s role in it when asked why they had issued
him the final written warning. See also fns. 21 (discrediting
Guerrero’s and Ibarra’s testimony about the comparable pizza
incident) and 23 (discrediting Guerrero’s testimony about when
the mac and cheese incident occurred and how busy the kitchen
was at the time).
In sum, the General Counsel and the Union presented a strong
prima facie case that the Company harbored animus against the
union and protected concerted activities and seized upon the mac
and cheese incident as a pretext to issue a final written warning
to Lovato and thereby create the foundation to rid itself of one of
the Union’s most active and outspoken supporters.
e. The Company’s defenses
The Company argues that the foregoing evidence fails to
prove the alleged violation primarily for three reasons: 1) be-
cause Lovato was not given the final written warning for the mac
and cheese incident until over 7 months after he revealed that he
was a union supporter at the October 19, 2017 demonstration; 2)
because two other known union supporters who likewise partic-
ipated in the demonstration (Santos and Marta Castro) were
given a more favorable performance evaluation just 2 weeks later
and they and many others remain employed at the resort;42 and
3) because Ibarra and Guerrero had an honest belief that Lovato
was responsible for failing to ensure that Flamenco made the
mac and cheese gluten-free.
The Company’s first argument might have some force if Lov-
ato had not engaged in any further open union or other protected
concerted activities after October 19, 2017. See, e.g., Consoli-
dated Biscuit Co., 346 NLRB 1175, 1180 (2006) (timing of em-
ployee’s termination, 5 months after he last engaged in protected

41 As previously discussed, unlike with the pizza and mac and cheese
incidents, the guest caught the cook’s mistake and did not ingest the pine-
apple. And HR Chief Kwok testified that she would consider whether
anyone was injured in evaluating the level of discipline (Tr. 836–837).
However, unlike with the mac and cheese incident, there is no evidence
that Guerrero consulted Kwok with respect to the pineapple incident.
See also Tr. 833, 839 (not all disciplinary matters go through HR; man-
agers have the ability to issue discipline without consulting HR).
activity, did not support an inference of unlawful motive). How-
ever, as discussed above, the record shows that Lovato continued
to openly engage in a variety of union and protected activities up
until shortly before the final written warning, and that the Com-
pany knew or suspected that he engaged in those activities and
harbored strong animus toward such activities. Further, there is
substantial other circumstantial evidence of the Company’s dis-
criminatory motive.43
The Company’s second argument also fails. The Board has
repeatedly held that an otherwise well-supported showing of dis-
criminatory motivation is not disproved by the fact that the em-
ployer did not take similar actions against all known union sup-
porters. See Fresh & Green’s of Washington, D.C., LLC, 361
NLRB No. 35, slip op. at 1 n. 1 (2014); Volair Contractors, Inc.,
341 NLRB 673, 676 n. 17 (2004); and George A. Tomasso Con-
struction Corp., 316 NLRB 738, 742 (1995), and cases cited
there.
The Company’s third “honest belief” argument likewise pro-
vides no defense under the circumstances. See Fort Dearborn,
827 F.3d at 1076 (“A good-faith belief . . . is of little aid to an
employer where the discipline imposed by the company departs
from its policy or practice.”). See also Aston Waikiki Beach Ho-
tel, 367 NLRB No. 27, slip op. at 8 (2018), and cases cited there
(where the General Counsel establishes that the employer’s cited
reason for the adverse action was pretextual, the employer by
definition cannot meet its burden of showing that it would have
taken the same action even absent the employee’s union or pro-
tected activity).
Accordingly, a preponderance of the credible evidence estab-
lishes that the June 2 final written warning violated both Section
8(a)(1) and Section 8(a)(3) of the Act as alleged.
B. The August 13 Termination
(The Chicken Wings Incident)
1. Factual background
The subsequent chicken wings incident occurred about 2
months later, on August 8. It was a Wednesday, early in the
evening, and the kitchen was again very busy. Lovato was work-
ing the hot side as usual. Guerrero was expediting at the win-
dow.
At about 5:30 pm, Lovato was tossing a large batch of about
50 fried chicken wings in buffalo sauce for an order from the
Lobby Bar when Guerrero informed him that the guests had
changed their mind and wanted barbeque sauce. So he started
washing the buffalo sauce off with water. It was common for
cooks to wash off other proteins when the wrong sauce had been
used and Guerrero had a general practice of trying to save pro-
teins as they were relatively costly and she and other chefs de
cuisine received bonuses for keeping costs down. Further, he
didn’t think the guests would notice since the sauces contained
42 See R. Exhs. 11, 40; and Tr. 466, 853–858, 861–862.
43 The Company’s posthearing brief also argues (p. 31) that the fact
Lovato was not disciplined for the prior pizza incident shows that it was
not trying to punish Lovato for his union or other protected activities.
However, this argument merely perpetuates the fiction created by Guer-
rero’s false hearing testimony that Lovato might have made the pizza.
See fn. 21, supra.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
similar ingredients. His plan was therefore to wash the buffalo
sauce off, warm the wings back up in the fryer, and then toss
them in the barbeque sauce.
However, when Guerrero saw what Lovato was doing, she
told him to “get rid of” them and use fresh wings instead. She
felt it was inappropriate to rinse and reuse the wings because they
had breading on them that would absorb the water. Lovato there-
fore warmed up a fresh batch of 50 wings in the fryer (the wings
were already fully cooked). However, he did not throw out the
rinsed wings. He frequently provided leftover food to the over-
night cook to use in making meals for the employees on the over-
night shift, and he decided to do the same with the wings. So he
put them in a large bowl and placed them on a shelf in the walk-
in cooler. He left the bowl uncovered because he couldn’t find
the plastic wrap and the wings were still a little warm. He
planned to cover it later when he had a free moment.
However, about 30 minutes later, Guerrero went into the
cooler and noticed the uncovered bowl of wings. She touched
them and realized that they were the same rinsed wings that she
had told Lovato to get rid of. She took a picture of the wings to
document it. She then went out and asked Lovato if they were
the same wings. Lovato admitted that they were. Guerrero
therefore immediately threw them in the trash. (R. Exh. 28; Tr.
88–94, 113–114, 219–221, 241, 301–304, 405–407, 473, 685–
687, 715, 779–780, 811–812.)
The following afternoon, August 9, Guerrero sent an email to
Ibarra describing what had occurred, both that Lovato had tried
to rinse and reuse the wings and that he had subsequently put
them in the cooler rather than get rid of them as she had in-
structed. Guerrero told Ibarra that the water “would have soaked
into the breading and the wings and probably would have diluted
the flavor of the chicken.” She also said the amount of moisture
in the wings could have made it “dangerous” to put them back in
the fryer. But she said she was “more bothered that [Lovato]
would alter the integrity of the product to save them from being
thrown away.” (R. Exh. 27.)
Ibarra and Guerrero subsequently discussed the matter with
HR Chief Kwok, and all three agreed that Lovato should be ter-
minated given his prior final written warning for the mac and
cheese incident. Kwok therefore drafted a termination notice.
The notice stated that Lovato had compromised the integrity of
the food by trying to reuse the wings; that he had also violated
health code standards by both trying to reuse the wings and plac-
ing them uncovered in the walk-in cooler; that he could have also
jeopardized the safety of himself and his colleagues by refrying
the rinsed wings (“refrying the wings could have caused [a] po-
tential oil explosion”); and that he had also been insubordinate
in violation of the employee rules of conduct by putting the
rinsed wings in the cooler rather than getting rid of them as re-
quested. The notice also referenced the prior final written warn-
ing that he had been issued for the mac and cheese incident and

44 Jt. Exh. 2; Tr. 651, 784, 850–851. Kwok testified that Lovato’s
prior discipline for the mac and cheese incident was the same offense
because it likewise involved a “food handling violation.” Tr. 850.
45 The General Counsel and the Union also presented evidence that it
was common to temporarily leave food uncovered in the cooler during
busy periods and that management failed to remedy health and safety
issues or problems when they were reported by kitchen staff. See Tr.
indicated that he had previously been disciplined for the same
offense.44
Ibarra and Guerrero presented the termination notice to Lov-
ato on August 13. Guerrero asked Lovato if he remembered the
chicken wings incident and told him he was being terminated for
it. Lovato, however, was taken by surprise as the incident had
occurred 5 days earlier and no one had ever talked to him about
it. He therefore refused to sign the notice, stating that he believed
management was targeting him because of his union activity.
(Tr. 84–85, 236, 652, 725.)
2. Legal Analysis
As discussed above, the General Counsel and the Union pre-
sented a strong prima facie case that the Company knew or sus-
pected that Lovato was one of the most active and outspoken un-
ion supporters, that it had animus against the union and protected
concerted activity, and that it was motivated by that animus when
it issued the June 2 final written warning to Lovato for the mac
and cheese incident. The same evidence and circumstances es-
tablish a strong prima facie case with respect to Lovato’s August
13 termination following the chicken wings incident. Further, the
Company’s failure again to interview Lovato about the incident
or offer him an opportunity to explain his actions provides addi-
tional circumstantial evidence of its discriminatory motive for
the termination.45
Moreover, Ibarra and Guerrero both acknowledged that the
chicken wings incident would not have warranted termination
but for the prior final written warning for the mac and cheese
incident (Tr. 651, 784). Accordingly, as the final written warn-
ing was unlawful, so necessarily was the termination. See Care
Manor of Farmington, Inc., 318 NLRB 725, 726 (1995); and Dy-
namics Corp., 296 NLRB 1252, 1254 (1989), enfd. 928 F.2d 609
(2d Cir. 1991). See also RELCO Locomotives, 734 F.3d at 787
(“An adverse employment decision is unlawful if it relies upon
and results from a previous unlawful action.”).
Accordingly, a preponderance of the evidence establishes that
the August 13 termination violated both Section 8(a)(1) and Sec-
tion 8(a)(3) of the Act as alleged.
CONCLUSIONS OF LAW
1. The Company engaged in unfair labor practices in violation
of both Section 8(a)(1) and Section 8(a)(3) of the Act by issuing
Lovato a final written warning on June 2, 2018 because he en-
gaged in union and other protected concerted activities and to
discourage employees from engaging in such activities.
2. The Company likewise engaged in unfair labor practices in
violation of both Section 8(a)(1) and Section 8(a)(3) of the Act
by terminating Lovato on August 13, 2018 because he engaged
in union and other protected concerted activities and to discour-
age employees from engaging in such activities.
96–112, 226–227, 242–243, 412–429, 467–472; and CP Exh. 1–3, 6.
Although the evidence was credible, it is unnecessary to address whether
it also shows disparate treatment of Lovato given the other substantial
evidence of the Company’s unlawful motivation discussed above and the
Company’s admitted reliance on the prior unlawful final written warning
as support for the termination.
DH LONG POINT MGMT., LLC 17
3. The Company’s unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
The appropriate remedy for the violations found is an order
requiring the Company to cease and desist from its unlawful con-
duct and to take certain affirmative action. Specifically, the
Company must offer Lovato full reinstatement to his former job
or, if that job no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or any other rights or priv-
ileges previously enjoyed. The Company must also make Lov-
ato whole for any loss of earnings and other benefits suffered as
a result of the unlawful termination of his employment on Au-
gust 13, 2018. Backpay shall be computed in accordance with F.
W. Woolworth Co., 90 NLRB 289 (1950), with interest com-
pounded daily as prescribed in New Horizons, 283 NLRB 1173
(1987), and Kentucky River Medical Center, 356 NLRB 6
(2010).
In addition, the Company must compensate Lovato for any
adverse tax consequences of receiving a lump-sum backpay
award, and file with the Regional Director a report allocating the
backpay award to the appropriate calendar years. See AdvoServ
of New Jersey, Inc., 363 NLRB No. 143 (2016).
The Company must also compensate Lovato for his search-
for-work and interim employment expenses, regardless of
whether those expenses exceed interim earnings. See King
Soopers, Inc., 364 NLRB No. 93 (2016). The search-for-work
and interim employment expenses shall be calculated separately
from taxable net backpay, with interest compounded daily as
prescribed in New Horizons, supra, and Kentucky River Medical
Center, supra.
Further, the Company must remove from its files any refer-
ences to the unlawful June 2, 2018 final written warning and Au-
gust 13, 2018 termination, and notify Lovato in writing that this
has been done and that those actions will not be used against him
in any way.
Finally, as the record indicates that Spanish is the primary lan-
guage of some of the Company’s employees,46 the Company
must post a notice to employees in both English and Spanish no-
tifying them of their rights under the Act and the Board’s deci-
sion and order.
ORDER47
The Respondent, DH Long Point Management LLC, its offic-
ers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Disciplining or discharging employees because of their
union or other protected concerted activities.
(b) In any like or related manner restraining or coercing em-
ployees in the exercise of the rights guaranteed them by Section
7 of the Act.
2. Take the following affirmative action necessary to effectu-
ate the policies of the Act.

46 Flamenco testified through a Spanish-language interpreter.
47 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules, the findings, conclusions, and recommended Order will be
adopted by the Board and all objections to them will be deemed waived
for all purposes as provided by Sec. 102.48 of the Board’s Rules.
(a) Within 14 days from the date of the Board’s order, offer
Freddy Lovato full reinstatement to his former job or, if that job
no longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previ-
ously enjoyed.
(b) Make Lovato whole for any loss of earnings and benefits
suffered as a result of the August 13, 2018 discriminatory termi-
nation of his employment, in the manner set forth in the remedy
section above.
(c) Make Lovato whole for his reasonable search-for-work
and interim employment expenses, in the manner set forth in the
remedy section above.
(d) Compensate Lovato for the adverse tax consequences, if
any, of receiving a lump-sum backpay award, and file with the
Regional Director for Region 31, within 21 days of the date the
amount of backpay is fixed, either by agreement or Board order,
a report allocating the backpay award to the appropriate calendar
year.
(e) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board or
its agents, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records,
including an electronic copy of such records if stored in elec-
tronic form, necessary to analyze the amount of backpay due un-
der the terms of the Board’s order.
(f) Within 14 days of the date of the Board’s order, remove
from its files any reference to the unlawful June 2, 2018 final
written warning issued to Lovato and the August 13, 2018 termi-
nation of his employment, and within 3 days thereafter, notify
him in writing that this has been done and that those actions will
not be used against him in any way.
(g) Within 14 days after service by the Region, post at its fa-
cility in Rancho Palos Verdes, California copies of the attached
notice marked “Appendix.”48 Copies of the notice, on forms pro-
vided by the Regional Director for Region 31, 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 employ-
ees are customarily posted. In addition to physical posting of pa-
per notices, the 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, dur-
ing the pendency of these proceedings, the Respondent has gone
out of business or closed the facility involved in these proceed-
ings, the Respondent shall duplicate and mail, at its own expense,
a copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since June 2, 2018.
48 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
(h) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
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 be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT discipline, discharge, or otherwise discriminate
against you because you support UNITE HERE Local 11 or any
other union or engage in other protected concerted activities for
your mutual aid and protection.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights listed above.
WE WILL, within 14 days from the date of the Board’s order,
offer Freddy Lovato full reinstatement to his former job or, if
that job no longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights or privileges
previously enjoyed.
WE WILL make Lovato whole for any loss of earnings and ben-
efits suffered as a result of our unlawful termination of his em-
ployment on August 13, 2018.
WE WILL also make Lovato whole for his reasonable search-
for-work and interim employment expenses.
WE WILL also compensate Lovato for the adverse tax conse-
quences, if any, of receiving a lump-sum backpay award, and file
with the Board’s Regional Director a report allocating the back-
pay award to the appropriate calendar year.
WE WILL also remove from our files any reference to the un-
lawful June 2, 2018 final written warning issued to Lovato and
the August 13, 2018 termination of his employment, and notify
him in writing that this has been done and that those actions will
not be used against him in any way.
DH LONG POINT MANAGEMENT, LLC
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/31-CA-226377 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from
the Executive Secretary, National Labor Relations Board, 1015
Half Street, S.E., Washington, D.C. 20570, or by calling (202)
273–1940.