Fortuna Enterprises, L.P. a Delaware Partnership d/b/a The Los Angeles Airport Hilton Hotel and Towe

National Labor Relations Board - Board Decisions

May 30, 2014

360 N.L.R.B. 1080 (N.L.R.B. 2014)

1080 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
360 NLRB No. 128
Fortuna Enterprises, L.P. a Delaware Partnership
d/b/a The Los Angeles Airport Hilton Hotel and
Towers and UNITE HERE, Local 11. Cases 31–
CA–027837, 31–CA–027954, and 31–CA–028011
May 30, 2014
SECOND SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS JOHNSON
AND SCHIFFER
On April 30, 2009, the National Labor Relations
Board, acting with two members, issued a Decision and
Order in this proceeding, finding, among other things,
that the Respondent violated Section 8(a)(1) of the Act
by suspending 77 employees for participating in an on-
site work stoppage.1 A three-member panel of the Board
ultimately affirmed and adopted this action.2 Subse-
quently, the Respondent filed a petition for review of the
Board’s Order with the United States Court of Appeals
for the District of Columbia Circuit and the Board cross-
petitioned for enforcement. On December 9, 2011, the
court issued its decision granting the Respondent’s peti-
tion for review in part, enforcing the Board’s Order in
part, and remanding the suspension issue to the Board.
The court, in disagreement with the Board, found that the
Respondent had an established procedure (its “open
door” policy) for addressing group grievances like the
one that gave rise to the work stoppage. The court re-
manded the case to the Board for it to rebalance the rele-
vant employee and employer interests in light of the
court’s factual determination that the employees had ac-
cess to an established procedure for presenting their
grievance.3 On May 24, 2012, the Board notified the
parties that it had accepted the remand and invited them
to file statements of position. The General Counsel, the
Respondent, and the Union filed position statements.
The Board has delegated its authority in this proceed-
ing to a three-member panel. We have considered the
decision and the record in light of the court’s remand and
the parties’ statements of position and, as explained be-
low, we reaffirm the Board’s prior findings that the work
stoppage was protected at all relevant times and that con-
sequently the suspensions were unlawful.4

1 354 NLRB 202 (2009).
2 355 NLRB 602 (2010).
3 Fortuna Enterprises, L.P. v. NLRB, 665 F.3d 1295 (D.C. Cir.
2011). The court also remanded the Board’s finding that the Respond-
ent, through Rogelio de la Rosa, violated Sec. 8(a)(1) by threatening to
suspend Fidel Andrade for participating in the work stoppage, which
was predicated on the Board’s finding that the work stoppage was
protected. Id. at 1303 fn. 6.
4 We also affirm the Board’s prior finding that the threat by de la
Rosa to suspend Andrade for participating in the work stoppage violat-
ed Sec. 8(a)(1).
I. FACTS
The Respondent operates the Los Angeles Airport Hil-
ton Hotel and Towers. In January 2006,5 UNITE HERE!
Local 11 began a public campaign to organize the Re-
spondent’s employees. On May 10, the Respondent sus-
pended employee Sergio Reyes after he was accused of
theft by an undercover auditor. Believing that Reyes
may have been targeted because of his union activity,
and fearing that the same thing might happen to them,
the employees decided to request a meeting with the Re-
spondent’s managers to discuss the reasons for Reyes’
suspension.
At 8 a.m. on May 11, 70 to 100 employees gathered in
the employee only cafeteria. Many of the employees
were on formal clocked out breaks of 15 or 30 minutes.
Upon arriving at the cafeteria, the employees asked a
security guard to inform General Manager Grant Coon-
ley, and Food and Beverage Director Tom Cook, who
managed the department where Reyes worked at the time
of his suspension, that the employees wanted to meet
with them.6
Housekeeping Director Anna Samayoa arrived at the
cafeteria at approximately 8:13 a.m. Security guard Luis
Gallardo informed Samayoa that the employees had re-
quested a meeting with Cook or Coonley. Gallardo also
stated that Cook was on his way, but Coonley was not at
the hotel. Samayoa then attempted to reach Cook by
telephone, but received no answer. Assuming that Cook
was en route, Samayoa continued to wait outside the caf-
eteria.
At approximately 8:26 a.m., pursuant to instructions
from Human Resources Manager Sue Trobaugh, Sama-
yoa entered the cafeteria and ordered the employees to
return to work if they were not on break. Employee Mi-
chael Vargas responded that the employees were not

We shall modify the prior Order to provide for the posting of the no-
tice in accord with J. Picini Flooring, 356 NLRB 11 (2010), and to
require the Respondent to compensate employees for the adverse tax
consequences, if any, of receiving lump-sum backpay awards and to
file a report with the Social Security Administration allocating the
backpay awards to the appropriate calendar quarters. We have substi-
tuted a new notice to conform to the Order as modified and with
Durham School Services, 360 NLRB 694 (2014).
5 All dates are in 2006.
6 At approximately 6:45 a.m. on May 11, Cook received a telephone
call from the Respondent’s assistant director of housekeeping, Jose
Cano, informing him that the employees were planning to walk out at 8
a.m. Cook then notified Coonley and the Hotel’s executive committee
of the employees’ plans, by email. He also arranged for employees
from other departments to fill in for striking employees in the restau-
rant. Shortly before 8 a.m., and again at approximately 8:20 a.m., Cook
was informed that the employees wanted to speak with him in the cafe-
teria. Cook did not go to the cafeteria, because he was attending to
guests in the restaurant.
LOS ANGELES AIRPORT HILTON HOTEL & TOWERS 1081
leaving until they spoke to Coonley or Cook. Samayoa
informed Vargas that Coonley was not available, and
Vargas responded, “Then we need to speak to [Cook].”7
At 8:32 a.m., Samayoa again ordered the employees to
return to work if they were not on break, adding that if
they did not return to work they should clock out and go
home. The employees made no move to leave and began
chanting “Śi se puede. Śi se puede” (“Yes, it can [be
done]”).
At 8:57 a.m.—about one hour after the work stoppage
began—Samayoa ordered the employees to return to
work or clock out and go home, this time adding that
they would be suspended if they remained in the cafete-
ria. Employee Vargas then asked Samayoa to try to con-
tact Coonley on his cell phone. She responded that she
would try.8
A few minutes later, pursuant to instructions from
Trobaugh, Samayoa began suspending the employees
one by one. Vargas intervened and asked Samayoa to
“stop intimidating the coworkers and . . . focus on con-
tacting Mr. Coonley.” Samayoa said, “Yes, I will try,”
and left the cafeteria. About this time, the Respondent’s
chief of security, Grant Taylor, announced that he was
going to call the police if the employees did not leave the
Hotel. Notwithstanding the threat, however, Taylor also
promised Vargas that he would try to contact Coonley.9
Shortly after 9 a.m., employee Patricia Simmons called
the human resources department and asked to speak to
Trobaugh. Her assistant, identified only as Ayesia, an-
swered the telephone and said that Trobaugh was not
available. Simmons explained that the employees need-
ed to talk to managers about a coworker who was sus-
pended, and Ayesia said that someone would call Sim-
mons back. After that, the employees just “waited [for]
an answer.” When Simmons’ call was not returned after
20 minutes, she called the human resources department
again and let the phone ring “many times,” but no one
answered.
About 9:30 a.m., Vargas asked Samayoa if she had
succeeded in contacting Coonley, and she responded,

7 About this time, employee Patricia Simmons telephoned the office
of the Respondent’s owner and spoke to his assistant, identified only as
Charlene. Simmons explained that the employees wanted to speak with
the owner about the suspension of a coworker. Charlene told her to call
the human resources department, which opened at 9 a.m.
8 Vargas testified that after Samayoa threatened to suspend the em-
ployees, “I told her that she needs to go back and try and locate Mr.
Coonley because . . . I believe he has a cell phone like everybody else,”
and Samayoa responded, “I will try.” Samayoa did not deny that this
conversation occurred.
9 Vargas testified that he asked Taylor “if he could contact Mr.
Grant Coonley . . . via cell phone or, you know, through his secretary”
and Taylor said “he’ll try.” Taylor did not testify and Vargas’ testimo-
ny regarding the conversation was unchallenged.
“No, we’re still waiting just like you are.”10 Vargas and
Simmons then asked Hotel Chief Steward Rogelio de la
Rosa for help contacting Coonley, Cook, or Trobaugh.
De la Rosa responded “Okay, let me go and see what I
can do.” Vargas also asked de la Rosa to relay a message
to Cook that the employees were ready to return to work,
since management appeared unwilling to meet with
them. De la Rosa said that he would “pass the message
on.”11
The employees waited until approximately 10:15 a.m.
for a response to their message. Receiving none, they
sent a delegation of 8 to 10 employees to the kitchen to
tell Cook that they wanted to return to work. When the
employees arrived at the kitchen, supervisor David Ara-
gon, after speaking with Cook, informed them that they
were suspended and could not go back to work. Shortly
thereafter, Samayoa, accompanied by a police officer,
entered the kitchen area, and confirmed that the employ-
ees could not return to work because they were suspend-
ed. The employees, with the permission of Samayoa and
the police officer, then went back to the cafeteria to tell
the other employees that they were suspended and must
leave the Hotel immediately. The employees left the
cafeteria at approximately 10:30 a.m., about 2-½ hours
after the work stoppage began.
By notices dated May 18, the Respondent informed 77
employees that they were suspended for 5 days for
“[i]nsubordination” and “[f]ailure to follow instructions”
for refusing to return to work or clock out and go home.
II. PRIOR BOARD PROCEEDINGS
The administrative law judge found that the suspen-
sions violated Section 8(a)(1) of the Act. 354 NLRB at
210–212. The judge reached this conclusion by applying
the following 10 factors, set forth in Quietflex Mfg. Co.,
344 NLRB 1055 (2005), for determining the proper bal-
ance between employees’ Section 7 rights and the private
property rights of employers in on-site work stoppage
cases:
(1) the reason the employees have stopped working;
(2) whether the work stoppage was peaceful;
(3) whether the work stoppage interfered with produc-
tion, or deprived the employer access to its property;
(4) whether the employees had adequate opportunity
to present grievances to management;
(5) whether employees were given any warning that
they must leave the premises or face discharge;
(6) the duration of the work stoppage;

10 Samayoa did not deny that this conversation took place.
11 De la Rosa did not testify and Vargas’ and Simmons’ testimony
regarding the conversation was unchallenged.
1082 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(7) whether the employees were represented or had an
established grievance procedure;
(8) whether the employees remained on the premises
beyond their shift;
(9) whether the employees attempted to seize the em-
ployer’s property; and
(10) the reason for which the employees were ultimate-
ly discharged.
Id. at 1056–1057.
Applying these factors, the judge first noted that the
employees withheld their labor in protest of discipline
given to a fellow employee and thus were engaged in
protected, concerted activity. 354 NLRB at 211. The
judge next found that there was no dispute as to the
peacefulness of the work stoppage. Id. With regard to
the 3rd factor, the judge found that there was no evidence
that the employees denied the Respondent access to its
property or interfered with production. In so finding, the
judge observed that it is not considered an interference
with production where employees do no more than with-
hold their own services, citing Quietflex, 344 NLRB at
1057 fn. 6. Id. Weighing the 4th factor, the judge found
that the employees were given no opportunity to present
their grievance. Id. As to the 5th factor, the judge found
that Samayoa warned employees less than an hour into
the work stoppage that they had to return to work, go
home, or be suspended. Id. at 211–212. The judge next
found that the work stoppage was of a reasonable dura-
tion, lasting less than 1 hour before the Respondent be-
gan suspending employees, less than 2 hours before the
employees attempted to return to work, and less than 3
hours before the employees vacated the Respondent’s
premises. Id. at 212. Applying the 7th factor, the judge
found that the employees were unrepresented and had no
established mechanism for presenting group grievances.
Although the Respondent had a written “open door” pol-
icy in its employee handbook, the judge found that the
policy “addressed only individual complaints and not
group grievances” like the one presented in this case.12
Id. With regard to the 8th factor, the judge found there
was no evidence the employees remained on the Re-
spondent’s premises beyond their shift. Id. With regard
to the 9th factor, he found that the employees did not
seize or destroy the Respondent’s property. Id. Finally,
as to the 10th factor, the judge found that the employees
were suspended for “insubordination” and “refusal to
abide by a reasonable request from a manager” when
they did not return to work or clock out. Id. However,

12 The judge analogized the Respondent’s open door policy to a sim-
ilar policy that was found to apply only to individual grievances in
HMY Roomstore, Inc., 344 NLRB 963 (2005).
he noted that the suspensions were announced only an
hour after the protected work stoppage began and while
employees were waiting for management to hear their
grievance. Id. Balancing the above factors, the judge
concluded that the employees’ activity remained protect-
ed and that the Respondent therefore violated Section
8(a)(1) of the Act by suspending the employees. Id.
The Board affirmed the judge’s conclusion that the
work stoppage was protected and that the suspensions
were unlawful.
III. THE D.C. CIRCUIT’S OPINION
On review, the court assumed the validity of the “mul-
ti-factor balancing ‘test’ suggested in Quietflex” and
agreed with the Board’s application of the majority of the
Quietflex factors. 665 F.3d at 1300–1301.13 However,
the court questioned the premise of Factor 3 (“whether
the work stoppage interfered with production”), given
that many protected activities, such as a strike, are specif-
ically intended to exert economic pressure on employers
by interfering with production. Id. at 1301–1302. Fur-
thermore, with regard to factor 7, the court concluded
that the Board erred in finding that the employees did not
have access to an established procedure for addressing
group grievances. Id. at 1302. The court explained that
the Respondent has an “open door” policy to deal with
grievances, which is set out in its Team Member Hand-
book.14 The court found that the Board’s determination
that the policy addressed only individual complaints and
not group grievances like the one presented in this case
was at odds with the text of the policy, which is not lim-
ited to individual complaints, and the Respondent’s actu-
al implementation of the policy to address group griev-
ances relating to hotel equipment, employee uniforms,
working conditions, and other matters on numerous oc-
casions. Id. at 1302–1303. The court found that this
determination also impacted the Board’s assessment of
factor 4 (“whether the employees had adequate oppor-

13 The court noted that the Board “did not quantify the particular
weight of any factor” and that “several of them appear to overlap.” Id.
at 1300. For example, the court pointed out that factor 2 (“whether the
work stoppage was peaceful”) may involve the same considerations as
factor 9 (“whether the employees attempted to seize the employer’s
property”) and seizure of the employer’s property may amount to the
same thing as factor 3 ( depriving the employer of access to its proper-
ty). Id.
14 The policy states:
Hilton Los Angeles Airport is proudly committed to maintaining an
open door policy. Any discrimination or recrimination against a team
member for presenting an issue, problem or complaint is prohibited.
A team member should always attempt to work out problems with
his/her immediate supervisor. If the issue or problem remains unre-
solved, the team member can seek assistance from his/her department
manager, the Director of Human Resources and the General Manager.
LOS ANGELES AIRPORT HILTON HOTEL & TOWERS 1083
tunity to present grievances to management”). Although
agreeing with the Board’s finding that the Respondent’s
officials suspended the employees without making it
clear that a meeting with senior management officials
was not immediately possible or offering them an alter-
native opportunity to meet, the court reasoned that those
omissions “are much less significant,” given the fact that
the employees had access to an established procedure for
presenting their grievance. Id. at 1302. The court there-
fore remanded the case to the Board for it to rebalance
the relevant employee and employer interests consistent
with its opinion.
IV. ANALYSIS
A work stoppage is a form of economic pressure pro-
tected under Sections 7 and 13 of the Act. NLRB v.
Washington Aluminum Co., 370 U.S. 9, 15 (1962). The
Board has long held, with court approval, that this pro-
tection includes the right to remain on an employer’s
property for a reasonable period of time “in a sincere
effort to meet with management” over workplace griev-
ances. Roseville Dodge, Inc. v. NLRB, 882 F.2d 1355,
1359 (8th Cir. 1989) (quoting Crenlo, Div. of GF Busi-
ness Equipment, Inc. v. NLRB, 529 F.2d 201, 204 (8th
Cir. 1975)). At the same time, employers unquestionably
may protect their private property and legitimate busi-
ness interests from undue interference by employees.
NLRB v. Fansteel Metallurgical Corp., 306 U.S. 240,
256 (1939) (work stoppage was unprotected where,
among other things, employees seized employer’s two
key buildings for 9 days, preventing their lawful use by
the employer and effectively shutting down operations).
When faced with a conflict between the Section 7
rights of employees and the private property rights of
employers, the Board’s duty is to accommodate both
rights “with as little destruction of one as is consistent
with the maintenance of the other.” Hudgens v. NLRB,
424 U.S. 507, 521 (1976), quoting NLRB v. Babcock &
Wilcox Co., 351 U.S. 105, 112 (1956). To find the prop-
er accommodation in on-site work stoppage cases, the
Board, guided by the 10 factors listed in Quietflex, en-
gages in a careful balancing of interests, “focusing on the
degree of impairment of the employees’ Section 7 rights
if access is denied, compared to the degree of impairment
of the employer’s private property rights if access is
granted.” 344 NLRB at 1058 (citing Hudgens v. NLRB,
supra). No one factor is given controlling weight and, as
the Board noted in Quietflex, “the precise contours with-
in which [a work stoppage] is protected cannot be de-
fined by hard-and-fast rules. Instead, each case requires
that many relevant factors be weighed.” 344 NLRB at
1056 (citation omitted). Further, “the locus of [the] ac-
commodation [between employer and employee rights].
. . . may fall at differing points along the spectrum de-
pending on the nature and strength of the respective Sec-
tion 7 rights and private property rights asserted in any
given context.” Id. (quoting Hudgens v. NLRB, 424
U.S. at 522).
We accept, as the law of the case, the court’s finding
that the employees had access to an established proce-
dure for resolving group grievances. We have carefully
rebalanced the relevant employer and employee interests
in light of the court’s opinion, and we find that while the
availability of an established grievance procedure weighs
against protection, this single factor is substantially out-
weighed by the other factors that favor finding the work
stoppage protected.
1.
Quietflex factors 1, 2, 5, 6, 8, 9, and 10. As indicated
above, the court affirmed the Board’s findings and con-
clusions with respect to Quietflex factors 1, 2, 5, 6, 8, 9,
and 10. We therefore review them only briefly. The
employees withheld their labor in protest of the disci-
pline of a coworker and thus were engaged in protected,
concerted activity (factor 1).15 The work stoppage was
peaceful and of short duration, lasting less than an hour
before the employees were suspended (factors 2 and 6).16
Although the Respondent warned employees that they
would be suspended if they did not return to work or go
home, it began suspending them only minutes later (fac-
tor 5). Further, in the interval between the warning and
the suspensions, Samayoa promised to try to contact
Coonley on the employees’ behalf. No employees re-

15 “Section 7 gives employees the right ‘to engage in . . . concerted
activities for the purpose of collective bargaining or other mutual aid or
protection.’ This ‘mutual aid’ and ‘concerted activities’ include . . . the
right to join other workers in quitting work in protest over the treatment
of a coemployee, or supporting him in any other grievance connected
with his work or his employer’s conduct.” NLRB v. Solo Cup Co., 237
F.2d 521, 526 (8th Cir. 1956) (quoting Carter Carburetor Corp. v.
NLRB, 140 F.2d 714, 718 (8th Cir. 1944).
16 See Atlantic Scaffolding Co., 356 NLRB 835 (2011) (51/2-hour
work stoppage, protected); City Dodge Center, Inc., 289 NLRB 194
(1988), enfd. sub nom. Roseville Dodge, Inc. v. NLRB, supra, (2- to 3-
hour work stoppage, protected); Masonic Home, 206 NLRB 789, 791,
795–796 (1973) (1-1/3-hour work stoppage, protected), enfd. sub nom.
NLRB v. Masonic and Eastern Star Home of District of Columbia, 514
F.2d 894 (mem.) (D.C. Cir. 1975); Pepsi-Cola Bottling Co. of Miami,
Inc., 186 NLRB 477, 478 (1970) (sit down strike lasting a few hours,
protected), enfd. 449 F.2d 824, 825, 829–830 (5th Cir. 1971), cert.
denied 407 U.S. 910 (1972); Golay & Co., Inc., Lee Cylinder Div., 156
NLRB 1252, 1263 (1966) (1-1/2- to 2-hour work stoppage, protected),
enfd. 371 F.2d 259 (7th Cir. 1966), cert. denied 387 U.S. 944 (1967).
Compare Quietflex, supra (12-hour work stoppage, unprotected); Cam-
bro Mfg. Co., 312 NLRB 634 (1993) (4-hour work stoppage, unprotect-
ed); Waco, Inc., 273 NLRB 746 (1984) (3-1/2-hour work stoppage,
unprotected); NLRB v. Fansteel Metallurgical Corp., supra (9-day work
stoppage, unprotected).
1084 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
mained on the Respondent’s property beyond their shift,
or attempted to seize the Respondent’s property (factors
8 and 9). With respect to factor 10, the employees were
suspended for insubordination by failing to abide by the
Respondent’s repeated request that they either go back to
work or clock out and go home.
Based on the above, we find that factors 1, 2, 6, 8, and
9 strongly support a conclusion that the employees were
engaged in protected activity at the time they were sus-
pended. We further find that find that factor 5 (Re-
spondent’s warning to employees) is entitled to little
weight. The Respondent did warn the employees that
they would be suspended if they did not return to work or
go home, but that warning came less than an hour into
the work stoppage, and the Respondent began suspend-
ing employees minutes after issuing the warning—while
employees were waiting in the employee cafeteria for a
manager to arrive and hear their grievance. Similarly, we
find that factor 10 (the reason for the discipline, here
insubordination) does not weigh against protection. As
we have held, employees are entitled to persist in a
peaceful work stoppage for a reasonable period of time,
in the absence of evidence that they are interfering with
the work of nonstrikers. See Cambro, 312 NLRB at 636
(finding that “employees were entitled to persist in their
in-plant protest for a reasonable period,” where “work
stoppage . . . caused little disruption of production by
those who continued to work”).
2.
Quietflex factor 3. As noted, with respect to factor 3,
the judge, affirmed by the Board, found no evidence that
the work stoppage deprived the Respondent of access to
its property or interfered with production. The judge
cited Quietflex, 344 NLRB at 1057 fn. 6, where the
Board stated “[it] is not considered an interference of
production where the employees do no more than with-
hold their own services.” 354 NLRB at 211. In remand-
ing, the court characterized the Board’s statement in Qui-
etflex to be “at odds with reality,” given the obvious in-
terference with production that normally results when
employees stop working in the middle of their shifts.
665 F.3d at 1301. The court added that “the point of this
Quietflex factor is unclear,” given that “some protected
activities exert economic pressure on the employer by
interfering with production,” and it offered a strike as a
prime example. Id. (Emphasis in original.) The court
went on to state, “We do not know whether the Board in
Quietflex meant to suggest that if the stoppage exerted
economic pressure—that is, if it interfered with produc-
tion or the provisions of services—this would render the
activity less protected.” Id. at 1301–1302.
Given the court’s concern, we take the opportunity to
clarify this factor. It is firmly established that employees
do not forfeit the protection of the Act by withholding
their own services. Refusing to work merely constitutes
“the means by which an employee may strike.” Golay,
156 NLRB at 1263. As the Board explained in Atlantic
Scaffolding, supra, to hold otherwise would be “antithet-
ical to the basic principles underlying the statutory
scheme, i.e., the right of employees to withhold their
labor in seeking to improve their terms of employment,
and the use of economic weapons such as work stoppag-
es as part of the ‘free play of economic forces’ that
should control collective bargaining.” 356 NLRB 835, at
837 (quoting NLRB v. Nash-Finch Co., 404 U.S. 138,
144 (1971)). The Board’s statement in Quietflex that
“[i]t is not considered an interference of production
where the employees do no more than withhold their
own services,” 344 NLRB at 1057 fn. 6, was thus not
meant to suggest that there is no interference with pro-
duction when employees withhold their own services, but
rather that the resultant interference and economic pres-
sure does not render the activity less protected.
The focus of the Board and the courts when applying
this factor is on whether striking employees interfere
with production or the provision of services by prevent-
ing other employees who are working from performing
their duties.17 The interference with production factor
thus seeks to accommodate the right of employees to
concertedly withhold their services, with the right of the
employer to continue operating its business using non-
strikers and replacement workers. Strikers overstep the
bounds of protected conduct to the extent they interfere
with the employer’s legitimate efforts to continue operat-
ing, by preventing nonstriking employees from work-
ing.18

17 See, e.g., Cambro, 312 NLRB at 636 (“employees were entitled
to persist in their in-plant protest for a reasonable period,” where “work
stoppage . . . caused little disruption of production by those who con-
tinued to work”); Roseville Dodge, Inc. v. NLRB, 882 F.2d at 1359
(placing reliance on the absence of evidence that strikers “interfered
with other employees,” in finding work stoppage to be protected);
NLRB v. Pepsi-Cola Bottling, 449 F.2d at 829 (finding in-plant work
stoppage to be protected because, among other things, “[t]he strikers
were not shown to have interfered with the work performance of non-
strikers”); Golay & Co. v. NLRB, 371 F.2d at 262 (observing that work
stoppage “interfered with production no more than a simple cessation
of work by these employees would have”).
18 See, e.g., Yale University, 330 NLRB 246, 248 (1999) (striking
teaching fellows forfeited protection by withholding papers and test
materials necessary for the employer to reassign the struck work to
nonstriking employees, effectively preventing the employer from main-
taining its business); Beacon Upholstery Co., 226 NLRB 1360, 1366–
1367 (1976) (striking employees exceeded the bounds of protected
conduct where they retained the employer’s sample books, order forms
LOS ANGELES AIRPORT HILTON HOTEL & TOWERS 1085
Here, there is no suggestion that the striking employ-
ees attempted to prevent other employees from working.
Because the record is devoid of any evidence that the
striking employees interfered with the work performance
of nonstrikers, and the Respondent suffered no apprecia-
ble loss of production or disruption of services beyond
the work the strikers themselves did not perform,19 we
find that the interference with production factor weighs
strongly in favor of protection.
3.
Quietflex factor 4. With respect to factor 4 (whether
employees had an adequate opportunity to present griev-
ances to management), the court found that the record
supports the Board’s finding that the Respondent sus-
pended employees without notifying them that senior
managers were not immediately available to meet with
employees or offering a future opportunity to meet. But
the court found that these failures by the Respondent
were “much less significant” than the Board regarded
them, given the employees’ access to an established
grievance procedure.
We accept the court’s finding. We nevertheless con-
clude that this factor weighs slightly in favor of protec-
tion. We assess the factor in the context of the repeated
assurances given the employees by Samayoa and other
managers that they were trying to contact Coonley and
Cook on the employees’ behalf. The employees thus
reasonably believed that Coonley or Cook might yet
meet with them and listen to their grievance. This belief
demonstrably contributed to the employees’ decision to
persist in the work stoppage for as long as they did. No-

and price lists, preventing the employer from continuing its business
with replacement employees).
19 While the record reflects disruption of some operations, the Re-
spondent succeeded in providing services to Hotel guests, even given
the events of the morning. During the walkout, the restaurants were
serviced by 15–20 employees from other departments. Food and Bev-
erage Director Cook testified that he had more help than he needed in
the restaurants and that “We did ok and the guests were not upset.”
Further, although the Respondent contends that there were some rooms
that were not cleaned, it does not assert that it was unable to provide a
clean room to any guest.
The Board’s finding in the underlying decisions that the work stop-
page had “the potential for interference with the provision of services,”
354 NLRB at 202 fn. 8; 355 NLRB at 602 fn. 3, was referring to the
potential for interference with food and beverage services available to
nonstriking employees in the employee cafeteria. The Board was not
referring to a disruption in services to hotel guests caused by work the
strikers themselves did not perform while engaged in the work stop-
page. Despite the Respondent’s contentions that management received
complaints from employees about “not being able to enjoy the [cafete-
ria] during its occupation,” and that it was therefore compelled to set up
an alternative lunch room in a private dining area, the Respondent did
not present the testimony of a single employee that the work stoppage
interfered with their ability to use the cafeteria.
tably, when the employees finally realized that senior
management officials were not going to meet with them,
they promptly offered to return to work.20
4.
Quietflex factor 7: We accept the court’s determination
that the employees had access to an established proce-
dure through the Respondent’s “open door” policy for
addressing group grievances. We give that factor due
weight, but not decisive weight.
In general, employees may strike in support of a work-
place complaint without first exhausting a grievance pro-
cedure unilaterally adopted by their employer.21 The
Act, which affirmatively guarantees the right to strike,
did not create such an exhaustion requirement, and im-
posing one administratively would have little, if any,
support in the policies of the Act.22 Section 7 of the Act
grants employees the right “to engage in concerted ac-
tivities, for the purpose of collective bargaining or other
mutual aid or protection,” while Section 13 provides that
“[n]othing in this Act, except as specifically provided for
herein, shall be construed so as either to interfere with or
impede or diminish in any way the right to strike or to
affect the limitations or qualifications on that right.” 23
To be sure, on-site work stoppages implicate some dis-
tinct considerations. An on-site work stoppage may un-
duly interfere with an employer’s private property rights
and its right to continue operating during a strike. In this
context, the court here—citing Cone Mills Corp. v.
NLRB, 413 F.2d 445, 451–452 (4th Cir. 1969), and Cam-
bro, 312 NLRB at 636—stated that the availability of a
grievance procedure as an alternative means for peaceful-
ly resolving disputes “cuts against the justification for
protecting on-the-job work stoppages.” 665 F.3d at
1302. Quietflex, by giving weight to the grievance-
procedure factor (among others), acknowledges as much.

20 Assuming, arguendo, that factor 4 was neutral, or even that it
weighed somewhat against protection, it would not alter our ultimate
conclusion that the suspensions were unlawful. In our considered
judgment, the balance of factors would still favor protection.
21 See, e.g., San Diego County Assn. for the Retarded, 259 NLRB
1044, 1048–1049 (1982), enfd. 705 F.2d 467 (9th Cir. 1983) (table),
cert. denied 463 U.S. 1209 (1983) (rejecting the argument that employ-
ees, before going out on strike, were required to first attempt to resolve
their grievance through the employer’s unilaterally established proce-
dures). See also J. P. Hamer Lumber Co., 241 NLRB 613, 613 fn. 2,
619 fn. 31 (1979); Mercy Hosp. Assn., 235 NLRB 681, 683 (1978).
22 In general, an employer cannot restrict employees’ substantive
Sec. 7 rights through unilaterally established rules or policies. In NLRB
v. Washington Aluminum Co., 370 U.S. at 16–17, the Supreme Court
rejected the employer’s argument that it lawfully discharged employees
for participating in an on-site work stoppage because they violated a
plant rule that prohibited them from leaving work without the permis-
sion of their foreman.
23 29 U.S.C. §§ 157, 163.
1086 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
This does not mean, however—nor have the Board or the
courts ever held—that the Act affords no protection to
employees who engage in peaceful, nondisruptive, on-
site work stoppages without first attempting to resolve
their complaint through approved channels. That result
would permit an employer to effectively foreclose the
exercise of Section 7 rights on its property by unilaterally
establishing a grievance procedure. But the Supreme
Court has made clear that the “[a]ccommodation between
employees’ [Section] 7 rights and employers’ property
rights . . . ‘must be obtained with as little destruction of
one as is consistent with the maintenance of the other.”‘
Hudgens v. NLRB, 424 U.S. at 521, quoting NLRB v.
Babcock & Wilcox, 351 U.S. at 112.24 Indeed, examina-
tion of Cone Mills and Cambro reveals that the tribunals
relied on a combination of factors in concluding that the
work stoppages at issue were unprotected. The facts in
those cases make them readily distinguishable from this
one.
Cone Mills involved a planned work stoppage to pro-
test the discharge of a coworker. The employees were
represented by a union and they had access to a negotiat-
ed grievance procedure. 413 F.2d at 451. Shortly after
the work stoppage began, the union steward communi-
cated the employees’ complaint to a manager and de-
manded that the discharged employee be put back to
work “right away.” The manager responded “We have a
regular grievance procedure to handle this sort of thing
and we will not put [the discharged employee] back to
work right now.” Id. at 450. Dissatisfied with the re-
sponse, the employees stated that they would not return
to work until the discharged employee was rehired. Af-
ter they ignored several directives to return to work or
leave the plant, the employees were discharged. Of criti-
cal importance to the court in finding the discharges law-
ful was the fact that the union steward had communicat-
ed the employees’ grievance to the employer and re-
ceived a response, albeit not one the employees were
happy with. On these facts, the court found that the em-
ployees had “made their point and . . . registered their
complaint,” id. at 454, but “they were not interested in
being heard. They had planned in advance to stop pro-
duction for thirty minutes in protest of the discharge.”
Id. at 452. In sharp contrast, in this case, the employees
were unrepresented, the Respondent never considered or
responded to their grievance, and it never suggested that
the employees use the established grievance procedure.

24 See also Advance Industries Division-Overhead Door Corp.,
540 F.2d 878, 885 (7th Cir. 1976) (“We do not mean to indicate
that an employer can prevent employees from expressing their
grievances in any proper manner they see fit by unilaterally estab-
lishing a grievance procedure.”).
Moreover, the employees—who repeatedly had been
assured that efforts were being made to contact senior
managers—remained on the premises in a sincere effort
to meet with management and not merely to protest
Reyes’ suspension.25 Roseville Dodge v. NLRB, 882
F.2d at 1359 (employees have a right to remain on their
employer’s property for a reasonable period of time “in a
sincere effort to meet with management” over workplace
grievances).
Cambro involved a work stoppage to protest perceived
unfair treatment by a supervisor. The employees were
unrepresented, and the employer had an “open door”
policy for the presentation and discussion of grievances.
The employees had already filed a grievance over the
issue that led to the work stoppage and had been prom-
ised a response within 3 days. 312 NLRB at 634. Be-
cause they did not want to wait for the response, the em-
ployees demanded that the owner or plant manager come
to the plant to meet with them in the middle of the night.
A supervisor repeatedly told them that the owner or plant
manager would meet with them early in the morning to
further discuss their grievance, and directed them to go
back to work or clock out and return later for the morn-
ing meeting. However, the employees persisted in their
demand that the owner or manager come to the plant and
they refused to return to work or leave the premises. Id.
at 634–635. Notwithstanding that the employer had a
published grievance procedure and a grievance on the
subject of the work stoppage was pending, the Board
expressly found that “the employees were entitled to per-
sist in their in-plant protest for a reasonable period of

25 Although not essential to our conclusion that the work stoppage
retained the protection of the Act, we note that the action of the em-
ployees in gathering in the cafeteria during their break and requesting a
meeting with Coonley or Cook was arguably itself an attempt to pro-
cess their grievance pursuant to the established procedure. The Re-
spondent’s “open door” policy did not place any restrictions on the
time, place, or manner employees could present concerns about work-
ing conditions to management. However, on May 5, the Respondent
posted a memorandum reminding employees not to take their breaks in
unauthorized areas and designating the cafeteria as the only approved
break area in the Hotel. The memo additionally stated that “Breaks
may be used . . . to discuss your individual workplace concerns with
your supervisor, your manager or Human Resources,” and stated fur-
ther that “Hotel managers will make themselves reasonably available to
meet with you upon request.” The record reflects that the employees
were attempting to comply with the “open door” policy as clarified or
modified by the May 5 memorandum when they sought to arrange a
meeting with senior-level managers in the employee only cafeteria
during break time. The failure of the Respondent to either consider the
employees’ concerns or tell them that they would have an opportunity
to present their concerns in the future necessarily exhausted that proce-
dure. Accordingly, for this reason, as well as for the reasons discussed
above, we reject the argument that the work stoppage was unprotected
because the employees failed to present their grievance through ap-
proved channels.
LOS ANGELES AIRPORT HILTON HOTEL & TOWERS 1087
time” because their work stoppage was peaceful, focused
on job-related complaints, and caused little disruption of
production by those who continued to work. Id. at 636.
The Board found however that the work stoppage ex-
ceeded the Act’s protection after employees were “as-
sured the opportunity, in full accord with the Respond-
ent’s open door policy, to meet in just a few hours with
[the plant manager] for further discussion of their com-
plaints.” Id. The Board found that the work stoppage
lost protection at that point, because “[f]urther in-plant
refusals to work served no immediate protected employ-
ee interests and unduly interfered with the employer’s
right to control the use of its premises.” Id. In this case,
in contrast, the employees were never offered an oppor-
tunity to discuss their grievance with senior managers—
although they were repeatedly told that senior managers
were being sought. Hence, the factors that tipped the
scale in favor of loss of protection in Cambro—a defini-
tive response that a meeting was not immediately possi-
ble and an offer to meet pursuant to the employer’s
“open door” policy in a few hours—are not present in
this case.
5.
Considering all the relevant factors, we conclude that
the work stoppage was protected for its entire duration.
We reach this conclusion relying primarily on the follow-
ing factors: the purpose of the work stoppage was clearly
protected; it was peaceful and did not disrupt the work of
nonstriking employees; it was of a limited duration; and
no employees remained on the Respondent’s premises
beyond their shift or attempted to seize the Respondent’s
property. Further, we give limited weight to the Re-
spondent’s failure to make it clear to the employees, who
were waiting to hear whether senior management would
meet with them, that they would not be able to meet with
senior management officials on that day or that they
would have alternative opportunities to present their con-
cerns. These factors, taken together, substantially out-
weigh the significance of the availability of a grievance
procedure in the circumstances of this case. In sum, the
employees were entitled to continue their on-site work
stoppage for a reasonable period of time in a legitimate
effort to meet with senior-level managers, despite the
existence of an established grievance procedure and de-
spite the Respondent’s directive that the employees re-
turn to work or leave the Hotel, less than an hour after
the peaceful work stoppage began and while employees
were waiting to hear whether senior management would
meet with them.26

26 Our concurring colleague agrees that the work stoppage here was
protected at the time that the Respondent suspended participating em-
Accordingly, we reaffirm our prior finding that sus-
pensions violated Section 8(a)(1) of the Act.
SUPPLEMENTAL ORDER
The National Labor Relations Board reaffirms the
Board’s prior Order reported at 355 NLRB 602, as modi-
fied and set forth in relevant part below, and orders that
the Respondent, Fortuna Enterprises, L.P. a Delaware
Limited Partnership d/b/a/ The Los Angeles Airport Hil-
ton Hotel and Towers, Los Angeles, California, its offic-
ers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Suspending employees for engaging in protected,
concerted activities.
(b) Threatening employees with suspension if they
participate in protected, concerted activity.
(c) 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. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make whole the individuals named below, by pay-
ing them the amounts following their names, with inter-
est to be computed in the manner prescribed in New Ho-
rizons, 283 NLRB 1173 (1987), minus tax withholdings
required by Federal and State laws:
Juan Jimenez $696.19
Silviano Castillo 745.19
Agustin Vega 479.70
Juan Vizuete 513.44
Marco Zamudio 481.70
Rosario Mendoza 296.21
Alejandra Chamorro 194.40
Alicia Huizar 550.50

ployees. In reaching that conclusion, he would weigh the “Quietflex”
factors somewhat differently than we would, in particular those factors
related to the Respondent’s grievance procedure, which he gives greater
weight. Ultimately, however, he acknowledges that rather than stand
“fast on its grievance procedure, “the Respondent’s” on-scene person-
nel repeatedly sent mixed messages” to employees “that they were
trying to contact upper-level officials to get a response from those
officials, even as on-scene personnel evinced displeasure with the em-
ployees.”
Contrary to our colleague, we do not read the Board’s case law gen-
erally as establishing that the “central purpose of the latitude employees
have under the Act to engage in an onsite work stoppage is to allow
them to present their grievance to their employer.” If this were the
case, then the Board’s test would focus on a single factor, but it does
not. Nor do we agree with our colleague that “how and how long [em-
ployees] may permissibly carry out the stoppage must necessarily re-
flect the scope and extent of the employer’s grievance procedure.” Our
disagreement, however, is not decisive here, where the Board—after
careful consideration of all of the Quietflex factors in response to the
court’s remand—is unanimous in finding the suspensions unlawful.
1088 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Benjamin Lopez 534.50
Francisco Diaz 642.37
Miguel Vargas 740.14
Patricia Simmons 743.51
Raul Gonzalez 544.13
Rigoberto Gomez 796.38
Wilfredo Matamoros 703.05
Alberto Barajas 599.42
Richard Acosta 584.37
Samuel Zambrano 579.21
Cliff Lai 446.93
Adela Barrientos 447.75
Amelia Luna 450.24
Ana Flamenco 450.24
Blanca De la Torre 432.14
Christopher Fawcett 429.75
Claudina Colomer 418.56
Concepcion Molina 450.24
Edith Garcia 432.14
Estela Cabreras 450.24
Eva Pulido 458.40
Fernando Gutierrez 437.80
Gloria Saldana 450.45
Guadalupe Perez 429.75
Immacula Rene 440.29
Isabel Brentner 467.10
Ivan Gomez 393.75
Jaime Chamul 416.25
Joanna Gomez 416.25
Jose Ayala 437.80
Josefina Castillo 474.22
Juana Salinas 474.22
Juliete Cabrera 447.75
Kathy Andrade 447.75
Lazaro Orellana 429.75
Lazaro Soto 474.22
Lenardo Reynoso 418.56
Lidia Zavala 418.56
Lilia Magallon 461.12
Lillian Alcantara 447.75
Manuel Alvarez 447.75
Maria Ceja 438.02
Maria Hernandez 418.56
Maria Martinez 440.44
Maria Nunez 471.60
Maria Osuna 458.40
Marina Rivera 432.14
Raquel Benitez 447.75
Reyna Vasquez 432.14
Rigoberto Matamoros 459.74
Rolando Romero 429.75
Rosa Vaca 422.59
Rosie Delgado 475.11
Ruben Can 440.16
Silvia Alvarez 447.75
St. Wenceslaus
Lawrence 422.59
Susana Argumedo 447.75
Victor Salgero 450.24
Zulnia Jurado 422.59
Concepcion Ortiz 446.40
Jose Luis Garcia 499.27
Jose Molina 431.14
Maria Letona 422.45
Mauricio Hernandez 414.03
Fernando Vasquez 389.38
Fidel Andrade 457.48
Nieves Contreras 435.16
Ricardo Chapa 454.05
Total $36,052.74
(b) Compensate the above-named employees for the
adverse tax consequences, if any, of receiving lump-sum
backpay awards, and file a report with the Social Securi-
ty Administration allocating the backpay awards to the
appropriate calendar quarters.
(c) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful suspen-
sions of the above-named employees and within 3 days
thereafter notify the employees in writing that this has
been done and that the suspensions and warnings will not
be used against them in any way.
(d) Within 14 days after service by the Region, post at
its 5711 West Century Boulevard, Los Angeles, Califor-
nia facility copies of the attached notice marked “Appen-
dix”27 in both the English and Spanish languages. Cop-
ies of the notice, on forms provided by the Regional Di-
rector for Region 31, after being signed by the Respond-
ent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted. In addition to physi-
cal posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or
an internet site, and/or other electronic means, if the Re-
spondent customarily communicates with its employees
by such means. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,

27 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
LOS ANGELES AIRPORT HILTON HOTEL & TOWERS 1089
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since March 3, 2006.
(e) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
MEMBER JOHNSON, concurring.
Although I concur with my colleagues’ finding that the
Respondent unlawfully suspended and threatened to sus-
pend employees for their onsite protest of a coworker’s
discharge on May 11, 2006, I write separately because I
do not agree with several aspects of their analysis of the
Quietflex1 factors following the remand from the United
States Court of Appeals for the District of Columbia Cir-
cuit.2 In particular, I disagree with their failure to give
adequate weight to the availability of the Respondent’s
open door policy as an alternative means to present their
grievances.
The court’s basis for remanding this case was fairly
limited. It assumed the validity of the Quietflex multi-
factor balancing test for assessing continued protection
of employee work stoppages on an employer’s private
property. Fortuna Enterprises, L.P., above at 1300. It
expressly affirmed the Board’s finding with respect to
factor 1—why the employees stopped working—that
they did so for the protected purpose of expressing sup-
port for a discharged coworker and ensuring that the Re-
spondent would not target other union supporters for
discipline. Id. at 1301. It questioned the Board’s treat-
ment of factor 3—whether the work stoppage interfered
with production—but determined that this factor appar-
ently had not played a significant role in the Board’s de-
cision. Id. at 1301–1302. Finally, the court found that
substantial evidence did not support the Board’s finding
that employees did not have access to presentation of
group grievances under the Respondent’s open door pol-
icy, a matter related both to Quietflex factor 4—adequate
opportunity to present grievances—and factor 7—access
to an established grievance procedure. Id. at 1302. The
court noted that the Board had not quantified the weight
to be given to any one of the Quietflex factors (which
was natural enough when finding that all factors favored

1 Quietflex Mfg. Co., 344 NLRB 1055 (2005).
2 Fortuna Enterprises, L.P. v. NLRB, 665 F.3d 1295 (D.C. Cir.
2011).
statutory protection) other than to mistakenly emphasize
the absence of a group grievance procedure. Id. at 1303.
Accordingly, the court remanded this case to the Board
for reconsideration of the protected nature of the em-
ployees’ onsite protest. Id.
My colleagues respond to the court’s remand with a
rebalancing of the Quietflex factors that gives substan-
tially greater protective weight to many of them than in
the Board’s prior analysis. I have doubts that they are
entitled to do so under the law of the case here, and fur-
ther fail to see the basis for such reweighting.3 It may be
that there are sound reasons for finding that one or more
factors now “strongly” support a conclusion that the em-
ployees retained statutory protection at the time they
were suspended, but I prefer not to join in this character-
ization without more explanation.4
With respect to the “interference-with-protection” fac-
tor 3, I likewise would not find that it weighs “strongly”
in favor of continued protection, but I concur in my col-
leagues’ clarification of the meaning of this factor; that
is, the relevant inquiry is whether the onsite withholding
of services interfered with production and discipline to a
greater degree than would have occurred if employees
had walked off the job in protest. The Respondent has
failed to prove such interference in this case.5

3 Under the law of the case doctrine, I will apply Quietflex here, and
recognize it as Board precedent until such time as a majority would
vote to consolidate and refine its ten factor test. Although well-
intentioned, the test could be improved. First, it simply has too many
factors to be predictable, especially for parties faced with time sensitive
situations such as an on-site work stoppage. Second, as this case
demonstrates, the test is fraught with difficulty for remand purposes.
An obvious problem posed by reweighting factors under any multi-
factor test, much less a 10 factor one, after a case has been remanded to
us is the susceptibility to results-oriented analysis. In other words,
colloquially speaking, the Board’s reweighting the factors to achieve
the same result may seem to the impartial observer more like some
analytical version of Whac-A-Mole than reasoned decisionmaking.
4 For instance, with respect to factor 1, my colleagues say nothing
more than that the employees were engaged in protected concerted
activity in undertaking their protest. Of course, if that were not the
case, their conduct would be unprotected ab initio and there would be
no need for undertaking a balancing test in order to find the suspensions
lawful. If they mean that the particular protected activity is entitled to
significant weight on a sliding scale of Sec. 7 rights, then they should
explain why this is. Similarly, with respect to factor 2, that the protest
was peaceful does not in and of itself indicate why this should strongly
favor continued protection, unless the intended comparison is to rau-
cous or confrontational conduct that would be entitled to less weight.
Of course, if the protest was violent, as opposed to peaceful, it would
be unprotected and, again, there would be no need for balancing prior
to finding the suspensions lawful.
5 The staffing shortages and service interruptions resulting from the
onsite work stoppage appear no different than what would have tran-
spired if the protesters had left the Respondent’s facility at 8 a.m. The
only allegedly greater interference with the Respondent’s operations
was the need to provide an alternative space for employees to eat while
1090 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Rather than straining to give greater weight to factors
that the court did not question as favoring statutory pro-
tection to some degree, I believe this case boils down to
assessing the weight to be assigned to the employees’
failure to seek redress of their grievance through the open
door policy. On this point, which the court deemed rele-
vant to an assessment of two Quietflex factors, I believe
my colleagues fail to give adequate weight to the signifi-
cance of such a procedure as a limitation on the rights of
employees to pursue grievances through onsite work
stoppages.
The court specifically held that the Respondent’s
“Open Door” policy covered “group grievances” and
“was widely known and often used” by employees.
Fortuna Enterprises, L.P., above, at 1302.6 Yet my col-
leagues conclude that factor 4 still weighs in favor of
protection, albeit only “slightly,” and that factor 7 is am-
biguously assessed as entitled to “due weight, but not
decisive weight.” In my view, both factors weigh sub-
stantially against protection and would, with only a slight
change in circumstances, strike the balance in favor of a
loss of protection.
As stated by the court, the availability of the open door
policy was significant because “[g]rievance procedures
provide an orderly means for resolving employee con-
cerns and thus promote the Act’s goal of achieving “in-
dustrial peace and stability.”’ (Citation omitted.) Id.
“For this reason, the availability of a grievance procedure
cuts against the justification for protecting on-the-job
work stoppages.” Id. To be sure, as my colleagues note,
the determination of whether a work stoppage was or
remained protected does not depend on one factor but
requires balancing multiple factors to accommodate em-
ployees’ Section 7 rights and the employer’s property
interests. Drawing that line requires balancing “whether
the means utilized by the employee in protesting, when
balanced against the employer’s property rights, are enti-
tled to the protection of the Act.” Peck, Inc., 226 NLRB
1174, 1175 (1976) (Member Penello, concurring). In
balancing those competing interests, however, the Board
and courts have repeatedly emphasized the existence, or
absence, of an established grievance procedure. Com-
pare Roseville Dodge, Inc. v. NLRB, 882 F.2d 1355, 1359
(8th Cir. 1989) (work stoppage protected in absence of

the protesters occupied the cafeteria. In my view, even if proven, this
was not significant enough to warrant finding that this Quietflex factor
weighed against continued protection.
6 As noted by the General Counsel and the Union in statements on
remand, there is evidence indicating that the Respondent had previously
rebuffed efforts to present group grievances over discharge issues
through the open door policy. I assume for purpose of this analysis that
the court considered this evidence and found it unpersuasive.
established grievance procedure), and NLRB v. Pepsi-
Cola Bottling Co., 449 F.2d 824, 829–830 (5th Cir.
1971) (same), cert. denied 407 U.S. 910 (1972), with
Cone Mills Corp. v. NLRB, 413 F.2d 445 (4th Cir. 1969)
(in-plant work stoppage unprotected where there was an
established grievance procedure), and Cambro Mfg. Co.,
312 NLRB 634 (1993) (established open door policy).
My colleagues minimize the importance of an estab-
lished grievance procedure on grounds that an employer
cannot “prevent employees from expressing their griev-
ances in any proper manner they see fit by unilaterally
establishing a grievance procedure.” Advance Industries
Division-Overhead Door Corp., 540 F.2d 878, 885 (7th
Cir. 1976). The point they fail to recognize from the
cited case is that “the existence of such a procedure shifts
the locus of the accommodation between employees’
rights and private property rights.” Id. Consequently,
employees who opt initially to pursue their grievance by
engaging in an on-site work stoppage and demanding
direct, immediate discussion with management are not
prevented from doing so because of an established griev-
ance procedure, but they have far less latitude to do so
before their employer is entitled to insist that they return
to work or continue their protest off its property.7 In
essence, the central purpose of the latitude employees
have under the Act to engage in an onsite work stoppage
is to allow them to present their grievance to their em-
ployer. See 354 NLRB at 211 (“the presentation of the
employees’ grievance to management [is] . . . the imme-
diate protected interest”). Thus, how and how long they
may permissibly carry out the stoppage must necessarily
reflect the scope and extent of the employer’s grievance
procedure.
In the prior Board decision in this case, the conclusion
that the onsite employee work stoppage was protected
rested heavily on the lack of a grievance procedure for
handling group grievances and the failure to offer em-
ployees an alternative opportunity to present their con-
cerns. Even then, a majority of the Board panel held this
to be a “close case.” See 355 NLRB 602, at 602 fn. 3
(2010), and 354 NLRB 202, 202 fn. 8. (2009). I believe
that the D.C. Circuit’s holding that the Respondent did
have a “widely known and often used” grievance proce-
dure covering group grievances necessarily “shifts the
locus” of the balance and cuts “against the justification
for protecting on-the-job work stoppages.” Fortuna En-

7 I note that my colleagues rely in part on inapposite precedent hold-
ing that employees have no general obligation to exhaust unilaterally
imposed grievance procedures before exercising their statutory right to
strike offsite. The Quietflex analysis does not apply in that situation
because there is no need to balance employee rights against an employ-
er’s property rights.
LOS ANGELES AIRPORT HILTON HOTEL & TOWERS 1091
terprises, L.P., above at 1302. The court’s findings thus
make what was a close case even closer. Here, if the
Respondent had stood fast on its grievance procedure and
required the employees to state their grievance to a su-
pervisor on location, for example, I would hold the stop-
page lost its protection at that point. But the Respondent
did not do that. Instead, as my colleagues note above,
Respondent’s on-scene personnel repeatedly sent mixed
messages, at best from the point of view of Respondent,
that they were trying to contact upper-level officials to
get a response from those officials, even as the on-scene
personnel evinced displeasure with the employees. And,
then, the employees were not clearly told that they could
not meet with those officials until after the suspensions
began to take place.
Having said that, weighing all the relevant factors, I
conclude that the employee work stoppage remained
protected at the point where the Respondent began sus-
pending the protesters.8 This took place at about 9 a.m.,
an hour into the work stoppage. I believe that at that
time it was still reasonable for the protesters to have re-
mained onsite while engaged in confusing communica-
tions with management about whether they would be
able to present their grievance directly to senior officials
Coonley or Cook.9 While the court indicated the failure
of management to notify the employees that such a meet-
ing was not possible was “much less significant” in light
of the established open door policy,10 it did not hold this
omission to be of no consequence whatsoever. I would
find that at 9 a.m. it justified continuing the conversa-
tions for a few more minutes at most. Had the Respond-
ent waited that short while longer, even without requiring
the employees to state their grievance on the spot or
making clear that there would be no meeting with Coon-
ley or Cook, it would have been entitled to reclaim the
use of its entire premises and to discipline those protest-
ers who failed to return to work or leave the hotel. It
would unquestionably have been entitled to do so after
they unreasonably occupied the employee cafeteria for 2-
1/2 hours.

8 I find unavailing my colleagues’ attempt to distinguish the cases
cited by the court, Cone Mills Corp. and Cambro Mfg. Co. The cited
reasons for distinguishing the cases are more post hoc rationalizations,
were dismissed by the court as less insignificant in its decision, and do
not affect the central point of those cases, and the reason the court cited
them, i.e., that the absence or existence of a grievance procedure is a
significant consideration in balancing the interests.
9 Contrary to my colleagues, I see no basis for suggesting that the
gathering of 70–100 employees in the cafeteria here could even argua-
bly be viewed as an attempt to process their grievance pursuant to the
established “Open Door” policy
10 Fortuna Enterprises, L.P., above at 1302.
Accordingly, while I disagree with my colleagues’ re-
balancing of Quietflex factors, particularly their failure to
give adequate weight to the existence of an open door
policy for the presentation of group grievances, I concur
in their reaffirmation of findings that the Respondent
violated Section 8(a)(1) of the Act by suspending and
threatening to suspend employees for engaging in a pro-
tected onsite work stoppage in the particular facts of this
case.
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 vio-
lated 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
activities.
Accordingly, we give our employees the following as-
surances:
WE WILL NOT do anything that interferes with these
rights.
WE WILL NOT suspend you because you engage in pro-
tected, concerted activities.
WE WILL NOT threaten you with suspension if you par-
ticipate in protected, concerted activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL make whole the below named employees for
any loss of wages and benefits, with interest, that they
suffered as a result of their suspensions:
Juan Jimenez Josefina Castillo
Silviano Castillo Juana Salinas
Agustin Vega Juliete Cabrera
Juan Vizuete Kathy Andrade
Marco Zamudio Lazaro Orellana
Rosario Mendoza Lazaro Soto
Alejandra Chamorro Lenardo Reynoso
Alicia Huizar Lidia Zavala
Benjamin Lopez Lilia Magallon
Francisco Diaz Lillian Alcantara
1092 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Miguel Vargas Manuel Alvarez
Patricia Simmons Maria Ceja
Raul Gonzalez Maria Hernandez
Rigoberto Gomez Maria Martinez
Wilfredo Matamoros Maria Nunez
Alberto Barajas Maria Osuna
Richard Acosta Marina Rivera
Samuel Zambrano Raquel Benitez
Cliff Lai Reyna Vasquez
Adela Barrientos Rigoberto Matamoros
Amelia Luna Rolando Romero
Ana Flamenco Rosa Vaca
Blanca De la Torre Rosie Delgado
Christopher Fawcett Ruben Can
Claudina Colomer Silvia Alvarez
Concepcion Molina St. Wenceslaus Lawrence
Edith Garcia Susana Argumedo
Estela Cabreras Victor Salgero
Eva Pulido Zulnia Jurado
Fernando Gutierrez Concepcion Ortiz
Gloria Saldana Jose Luis Garcia
Guadalupe Perez Jose Molina
Immacula Rene Maria Letona
Isabel Brentner Mauricio Hernandez
Ivan Gomez Fernando Vasquez
Jaime Chamul Fidel Andrade
Joanna Gomez Nieves Contreras
Jose Ayala Ricardo Chapa
WE WILL compensate the above named employees for
the adverse tax consequences, if any, of receiving lump
sum backpay awards, and WE WILL file a report with the
Social Security Administration allocating the backpay
awards to the appropriate calendar quarters.
WE WILL remove from our files any reference to the
unlawful suspensions of the above named employees,
and WE WILL not make reference to the suspensions in
response to any inquiry from any employer, employment
agency, unemployment insurance office, or reference
seeker and we will not use the permanently removed
material against you.
FORTUNA ENTERPRISES, L.P. A DELAWARE
LIMITED PARTNERSHIP D/B/A THE LOS ANGELES
AIRPORT HILTON HOTEL AND TOWERS
The Board’s decision can be found at
www.nlrb.gov/case/31-CA-027837 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1099 14th Street, N.W., Washington,
D.C. 20570, or by calling (202) 273–1940.