Hacienda Hotel, Inc.

National Labor Relations Board - Administrative Judge Opinions

May 31, 2006

31-CA-026945 (N.L.R.B. May. 31, 2006)

JD(SF)–28–06
El Segundo, CA

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
SAN FRANCISCO BRANCH OFFICE
DIVISION OF JUDGES

HACIENDA HOTEL, INC.

and Case 31-CA-26945

UNITE HERE, LOCAL 11

Nathan Laks, Esq., of Los Angeles, CA,
appearing on behalf of the General Counsel

Myron R. Harpole, Esq., for Witter and Harpole,
of Pasadena, CA, and
Warren L. Nelson, Esq., for Fisher & Phillips,
of Irvine, CA, appearing on behalf of the Respondent

Ellen Greenstone, Esq., for Rothner, Segall & Greenstone,
of Pasadena, CA, appearing on behalf of the Charging Party

DECISION
BURTON LITVACK: ADMINISTRATIVE LAW JUDGE
Statement of the Case

The original and amended unfair labor practice charges in the above-captioned
matter were filed by Unite Here, Local 11, herein called the Union, on July 26 and
September 1, 2004, respectively,1 and, on May 21, 2005, the Regional Director of
Region 31 of the National Labor Relations Board, herein called the Board, issued a
complaint alleging that Hacienda Hotel, Inc., herein called Respondent, engaged in acts
and conduct violative of Sections 8(a)(1), (3), and (5) of the National Labor Relations
Act, herein called the Act. Respondent timely filed an answer, essentially denying the
commission of the alleged unfair labor practices. Pursuant to a notice of hearing, which
accompanied the instant complaint, a trial was conducted before the above-named
administrative law judge on November 14 through 18, 2005 in Los Angeles, California.
At the said trial, all parties were afforded the opportunity to call witnesses, to cross-

1 Unless otherwise stated, all dates herein occurred during calendar year 2004.

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examine witnesses, to offer into the record all relevant documentary evidence, to argue
their legal positions orally, and to file post-hearing briefs. Counsel for each of the
parties filed a post-hearing brief, and I have carefully considered each of said
documents. Accordingly, based upon the entire record herein, including my conclusions
as to the testimonial demeanor of each of the several witnesses and the post-hearing
briefs, I make the following:

FINDINGS OF FACT

Jurisdiction

At all times material herein, Respondent, a California corporation, with an office
and principal place of business located in El Segundo, California, has been engaged in
the operation of a full-service hotel, providing food and lodging. During the calendar
year ending December 31, 2004, a representative time period, in conducting its
business operations described above, Respondent derived gross revenues in excess of
$500,000 and purchased and received, at its hotel facility described above, goods and
services, valued in excess of $50,000, directly from suppliers located outside the State
of California. Respondent admits that, at all times material herein, it has been an
employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the
Act.

Labor Organization

Respondent admits that, at all times material herein, the Union has been a labor
organization within the meaning of Section 2(5) of the Act.

The Issues

The complaint alleges, and the General Counsel argues, that Respondent
violated Section 8(a)(1) and (5) of the Act through its supervisors and agents by
participating in the distribution of copies of “ballots” to its bargaining unit employees so
as to enable said employees to vote in favor of an Employer contract proposal and by
placing of copies of said ballots next to the timecards of bargaining unit employees at
the housekeeping department time clock; violated Section 8(a)(1) and (3) of the Act by
issuing a written warning letter to employee, Valentin Hernandez, because he assisted
the Union and engaged in protected concerted activities; and violated Section 8(a)(1) of
the Act through its agents and supervisors by advising a bargaining unit employee to
leave the Union because the company does want people who are in the Union and by
threatening a bargaining unit employee with a disciplinary hearing because said
employee had been the leader of an employee delegation to a supervisor in order to
speak about a work-related problem. Respondent denied engaging in the alleged unfair
labor practices and specifically asserted that the warning letter to Valentin Hernandez
was justified by the employee’s misconduct and violation of its work rules.

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The Alleged Unfair Labor Practices

Background

Respondent operates an “all-service” hotel with 627 guest rooms, 19 meeting
rooms for business conferences and banquets, a coffee shop, a dining room, and a bar,
in El Segundo, California. Myron Harpole, the attorney for Respondent’s owner, is the
chairman of Respondent’s board of directors and its chief operating officer, is
responsible for the hiring and firing of its executive officers, and “monitors” the
performance of the hotel. Joseph Harding is Respondent’s general manager2 and is
responsible for all aspects of the hotel’s operations including guest issues, public
relations, employment issues, and union-related issues.3 Gerald Katzman is
Respondent’s president and comptroller and is responsible for day-to-day accounting
matters at the hotel. Carmen Perez is the head of Respondent’s housekeeping
department, and Francisco Orozco is the manager of Respondent’s food and beverage
department.4 Respondent and the Union have had a long-standing collective-
bargaining relationship since 1970 and have had successive collective-bargaining
agreements, the most recent of which expired by its terms on October 15, 2003 and
extended through January 2004, with the Union as the exclusive representative of
Respondent’s food and beverage department, housekeeping, and guest services
department employees, The record establishes that, with the expiration of their
collective-bargaining agreement, the parties engaged in bargaining for a successor
agreement throughout 2004.5 Robin Brown-Rodriguez, who is a “director” for the
Union, was its lead negotiator during the bargaining, and she was normally
accompanied by an employee negotiating committee. Harpole, Harding, Katzman, and
attorney Warren Nelson participated in the bargaining for Respondent, and department
heads, including Perez, occasionally accompanied them.

The instant alleged unfair labor practices occurred in the context of fervent and
arduous negotiations during the summer months of 2004,6 and Harpole testified that
relations with the Union, normally “congenial,” become particularly “contentious” during
such periods of intensified collective bargaining.7 In this regard, the record establishes

Continued
2 Harding has been the general manager since 2002. Prior to him, Frank Godoy
was the general manager and was in said position for 30 years.
3 Respondent admitted that both Harpole and Harding are supervisors and agents
within the meaning of Sections 2(11) and (13) of the Act.
4 Respondent admitted that both Perez and Orozco are supervisors within the
meaning of Section 2(11) of the Act.
5 The most significant bargaining sessions herein were held on July 16 and 23.
6 Brown-Rodriguez agreed that the 2004 bargaining with Respondent was
contentious.
7 Harpole testified that, during collective bargaining, there have been public
“confrontations,” including threats of “fistfights” and other incidents necessitating
telephone calls for police assistance, and that one such incident, involving a

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that, as a pressure tactic during difficult bargaining, such as occurred during 2004 with
Respondent, the Union encourages bargaining unit employees to engage in so-called
“actions,” and Brown-Rodriguez defined these as “. . . anything where workers get
together and do something.” Such conduct includes delegations, petitions, picketing,
and wearing buttons. Brown-Rodriguez, who stated delegations are “… something that
we frequently do,” testified that these are groups of employees who desire to address
an incident or raise a matter of common concern to them and to confront a hotel
manager over the issue. According to her, “we train [the employees] to have a clear
spokesperson or spokespeople …. to back each other up and not allow the company to
try to talk to one person or another and split people off …” and “to … present a cogent
message to the company in a way that gets that message across.” She added that “we
train [the participating employees] to say we are members of the Union” and “… as a
union, we want x” and that “we expect [management] to deal with them as employees
… who have a concern.” Brown-Rodriguez stated that the usual issues, over which
delegations arise, are ones which “can easily be fixed, like a safety issue…;” although “I
think they have happened around discipline ….”8 With regard to bargaining unit
petitions, she stated the purpose of these is “to let the hotel management know directly
from the workers what the workers [are] most concerned about.” She added that
petitions are presented to management either across the bargaining table or directly to
a manager.9

The Adelina Escobar Incident

Adelina Escobar, a housekeeper, testified that, at approximately the time she
attended a bargaining session in June,10 she was approached on the floor, on which
she was working, by Marisa Mejia, a lead housekeeper, who told Escobar that Perez
was quite upset because the former had failed to clean an assigned room. Escobar11
_________________________
Continued
confrontation inside a hotel work area which resulted in the suspension of an employee,
occurred during bargaining over the successor to the contract, which expired in 1999.
8 The record reveals that, during the summer prior to July 23, Respondent’s
bargaining unit employees had engaged in three delegations. One was to Gerald
Katzman’s office during which as many as 12 employees, one at a time, walked in,
dropped pennies onto his desk, and said “… the increases that we were offering …
were in the pennies and … were not sufficient.” The other two were to Joseph Harding.
The first occurred in the hotel lobby when approximately eight employees approached
him as he was on his way to lunch and handed him some documents and the second
occurred when approximately 20 employees approached him during a lunch in a
banquet room with regard to an offer made by Respondent during bargaining. Each of
these incidents lasted for a short time and no employees were disciplined for
participating.
9 According to Brown-Rodriguez, during 2004, employees presented petitions to
Respondent, regarding insufficient linens and the need for jackets to be worn by drivers.
10 Escobar recalled the date of the incident as June 20.
11 According to Escobar, at the time of her hiring by Respondent, Perez interviewed
her and, referring to the Union, warned “. . . not to get involved with a small group of

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_________________________
said she would meet with Perez at 4:00 p.m. and asked Mejia to accompany her. At the
scheduled time, Escobar finished her assigned work, and she and Mejia found Perez in
the cafeteria. “I told [Perez] . . . that I had not left the room out because I did not have
enough time because there were 15 doubles. . . . She told me that I should not leave
the room like that because she had to keep her schedule and not to do that and that I
[had] better tell her . . . whenever I was going to leave a room out.” Then, “. . . at the
end of the conversation, she . . . was advising me to leave the Union because the
company did not want people who were in the Union.” Subsequently, Escobar
apparently disclosed Perez’ comments to her co-workers, who believed Perez’ conduct
was sufficiently egregious so as to warrant a delegation to the housekeeping manager,
and to Brown-Rodriguez, who believed Perez’ conduct was serious enough to raise
during bargaining with Respondent. Thus, at the parties’ July 23 bargaining session,
according to the Union official, she12 raised Escobar’s name and said “… that there had
been an incident in housekeeping where Carmen Perez … had told [Escobar] that she
shouldn’t be participating in the Union because the hotel didn’t like people who
participated in the Union.”13 Carmen Perez, who testified that she was aware Escobar
was active in the Union “because there are employees that comment that she passes
out Union literature and solicits signatures on petitions” and that she once asked
Escobar not to engage in Union activities during her “working hours,” specifically denied
the comments, which Escobar attributed to her. Notwithstanding that she testified on
behalf of Respondent, Mejia failed to deny the occurrence of the conversation or to
corroborate the testimony of Perez.

As between Escobar and Perez, I believe the former was a more credible
witness. Thus, Escobar’s demeanor, while testifying, was that of an honest witness,
and I note that she is a current employee and testified with Myron Harpole,
Respondent’s chief operating officer, directly in front of her and that I have difficulty
believing she would have paltered to her co-workers and to Brown-Rodriguez about
what Perez told her. In contrast, Perez, whose testimony was not corroborated by
Mejia, did not appear to be a particularly truthful witness and impressed me as one who
would readily fabricate testimony in order to buttress her employer’s legal position.
Therefore, I find that, on or about June 20, in the context of onerous bargaining and
Union-encouraged delegations and petitions, Perez did, in fact, advise Escobar to leave
the Union”… because [Respondent] did not want people who were in the Union.” While
the complaint alleges that Perez’ comment was violative of Section 8(a)(1) of the Act, in
his post-hearing brief, other than asserting the statement was coercive, counsel for the
General Counsel neglected to explicate any underlying rationale for the allegation.
However, in her post-hearing brief, counsel for the Union argued that Perez” comment
revolters who are in the Union.” Perez denied the warning attributed to her by Escobar.
12 What she had been told of the Escobar incident was that Perez “… had told her
she shouldn’t participate in the Union …. the company didn’t like people who
participated in the Union and [Escobar] felt that that was threatening and inappropriate.”
13 Harpole, who was sitting across the bargaining table from Brown-Rodriguez during
the July 23 bargaining session, failed to deny that the latter raised the Escobar-Perez
incident.

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constituted an implied threat of discharge or other negative consequences. I agree.
Thus, Escobar felt threatened by Perez” remark, and I believe Perez meant not that
Respondent did not want Union members as employees but, rather, that Respondent
did not appreciate employees, who were active in the Union. Consequently, Perez’
comment was, and should be viewed as, an unlawful, implied threat of reprisals or
negative consequences to Escobar for engaging in activities in support of the Union.
Merit Contracting, Inc., 333 NLRB 562, 563 (2001); Overnight Transportation Co., 332
NLRB 1331, 1335 (2000). Accordingly, I find that Perez’ comment to Escobar was
violative of Section 8(a)(1) of the Act..

The Disciplinary Warning Letter Issued to Valentin Hernandez

The record reveals that, having attended Union meetings and monthly training
sessions, participated in the collective bargaining with Respondent during the summer
of 2004 as a member of the Union’s employee negotiating committee,14 and made
“visits” to other employees to inform them of the state of the negotiations between
Respondent and the Union, Valentin Hernandez15 was active in Union-related matters
and specifically that he was active in the two delegations to Harding and the one to
Katzman’s office during the summer. In the latter regard, according to the alleged
discriminatee, as a member of the delegation which encountered Harding in the hotel
lobby as he was going to lunch, Hernandez was the individual who handed a petition,
signed by employees, to Harding. The record further reveals that, as a result of
bargaining unit employee meetings, which Hernandez attended and at which Adelina
Escobar informed the employees of “… what transpired with Carmen Perez,” and an
incident, during which Perez allegedly “mistreated” another housekeeper, Vicky Flores,
several employees, including Hernandez, decided to engage in a delegation to Carmen
Perez in order “… to demonstrate our dissatisfaction with the mistreatment.” Hernandez
notified the Union of the employees’ intent, and Brown-Rodriguez confirmed that the
Union was, at least, aware that employees were “upset” by Perez’ alleged misconduct
and were disposed to address their concerns directly to the housekeeping manager.
Hernandez testified that the delegation to Perez was timed to occur “… during the lunch
period for the housekeepers” on July 23.

14 According to Hernandez, he attended bargaining sessions in June and July at
which Katzman, Harding, and Harpole were present on behalf of Respondent. At one
bargaining session, on July 16, Hernandez spoke out during a discussion of economic
issues. According to Brown-Rodriguez, the former “… asked Mr. Harpole … why the
hotel made certain decisions about running the business. He asked [Harpole] why, for
example, the hotel didn’t charge for parking…. He asked why there weren’t more
promotions to try to bring more people into the restaurants, and he said … he had to get
a second job just to buy a car and … with prices of things like food and gas going up,
making it [on $6.50 an hour].” Brown-Rodriguez added that Harpole listened politely to
Hernandez and replied in a “pleasant manner.”
15 Hernandez is employed by Respondent as a cashier and waiter in its coffee shop
and works an evening shift, which commences at 5:00 p.m..

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That morning, at approximately 11:30, Hernandez, accompanied by nine or ten
other employees, including his brother Salvador, Roberto Reyes, a mechanic, and
housekeepers Paula Casillas and Adelina Escobar, went to confront Perez in the
housekeeping office,16 which is located on the floor beneath the main floor of the hotel-
“I went there mainly as a petition.… on the respect toward my co-workers.” During
direct examination, Hernandez testified that, upon arriving at the hotel, “I went to the
lunchroom and the other employees saw me, and they went with me” to Perez’ office.
“We entered …,” and, acting as the spokesperson, “… I greeted her and she … greeted
me and asked … what she could help me in…. The only thing I told her is the reason for
me being there was because Vicky had told us that she had mistreated [Vicky], like
raising her voice to [Vicky] and we wanted … her … not to mistreat the employees, that
they only go there to work, not to be yelled at. Then, Carmen [asked] … why I was
there when I only knew one side of the story?… I responded … that I was not there to
confront her or argue the facts, only to ask her to respect the employees, nothing more.
So, at that time, we left her office.”

Carmen Perez testified that the housekeeping office is normally a busy place with
housekeepers and maintenance employees punching in and out on the time clock and
housekeepers bringing in reports and picking up towels. She added that no employee
meetings are held there”… because there is no room … for the employees to sit down
and that she does not use the room for discussions with individual employees “because
it is a work area where many people go in and out.” In this regard, she normally
requires employees to schedule appointments with her in order to discuss “workplace”
issues, and “I do tell them the time at which I can meet with them. If I can do it at that
time, I do it and, if not, I make an appointment with them,” depending upon “the case.”
According to Perez, prior to July 23, she had never met Valentin Hernandez but had
spoken to him on the telephone regarding food orders. At approximately 11:00 a.m. on
the above date,17 she was working at her office computer, completing a standard room

16 The housekeeping office is a 17 ft. by 7 ft. room with an alcove in the back, which
is utilized by Perez as her personal office area. As viewed from the doorway, the time
clock for the housekeeping and maintenance department and racks of timecards are to
the immediate right of the door. Along the left-hand wall are tables, shelves for towels,
and shelves for various other items; and, along the right side of the room are a table
and chairs, a basket of towels, and a door. The back of the housekeeping office is
divided between what appears to be a glass-walled closet and Perez’ office alcove. Her
desk faces a wall of the closet, and a photocopying machine is located directly in front
of it. Thus, sitting at her desk, Perez would look to the left in order to see anyone
entering the housekeeping office.
17 Perez testified that 11:00 a.m. “… is one of the … busiest times in housekeeping”
because employees “… bring their reports to punch out to lunch. Another bunch comes
back from lunch. So there is much movement at that time.” Nevertheless, as will be
discussed infra, on another occasion, Marta Lara and other housekeeping employees
came to her office at approximately the same time of day as did the Hernandez
delegation and discussed with her holding an employee vote on a Respondent contract
proposal.

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cleaning report, with her back to the housekeeping office door when, “suddenly,” she felt
several people standing by her desk. She turned and observed Hernandez, who was
already speaking and whose voice she recognized, and, at least, six other individuals
standing close enough to block her view of the door to the office. Hernandez, who was
no more than a foot or two from her, was saying in a loud voice “… Carmen, I am here
to tell you that you have no right to mistreat employees. We have learned … what you
did to Vicky Flores and I am here to tell you that we are no longer going to tolerate that.
I was trying to tell him to calm down … but he wouldn’t listen. He was pointing at me
with his finger almost right at my face. I had to pull back from the desk…. He was very,
very close.” Perez, who asserted she was “scared” because Hernandez was speaking
so loud and was much larger than her,18 continued, stating that “I told him please lower
your voice. I don’t know what you are talking to me about. Please go and inform
yourself and then come back if you wish to speak to me. This is not the proper
manner.… whenever you wish to speak to me, call me and I will give you an
appointment. At this time, I cannot because I am very busy. Please leave my office.”
Rather than leaving, Hernandez “… continued saying the same thing.… I am here to
prohibit you [from mistreating] the employees. Make sure this is the last time you do it
or suffer the consequences.… I asked him several times please leave, I am busy. And
he continued talking and talking.”19 At that point, Perez abruptly turned her back to
Hernandez and started working again at the computer, and Hernandez and the others
left the housekeeping office. Perez testified further that Hernandez did not use any
profanity while speaking to her, that, although she had been sitting when the incident
began, she stood up as Hernandez continued talking, and that the entire incident
occurred between 11:00 and 11:30 a.m., lasting “between ten and fifteen minutes.”
Rosa Hernandez, a housekeeper, ostensibly corroborated Perez, claiming that she was
present in the housekeeping office for a portion of the confrontation between Hernandez
and Perez.20 According to her, upon entering the room, she observed a group of six
hotel employees, including Valentin Hernandez, whom she knew as a restaurant
employee, standing around Perez’ desk, and, while she could not hear what was said,
Hernandez, whose face had an angry look, was yelling and thrusting his hand toward
Perez., who was sitting in her desk chair and appeared to be scared.21

Continued
18 Hernandez is six feet tall and over 200 pounds, and Perez is just five feet tall and
slight.
19 In her pretrial affidavit account of the incident, Perez failed to mention that
Hernandez continually repeated himself regarding mistreating employees.
20 Rosa Hernandez stated that she had returned to the housekeeping office in order
to clock in after lunch, and, at that point, she witnessed what was occurring. However,
her timecard for the day shows her punching in at 12:11 p.m. long after, according to all
other accounts, the incident had concluded.
21 Valentin Hernandez had papers in the hand which he was thrusting toward Perez.
Believing she had to get help for Perez, who seemed to be frightened, Rosa Hernandez
immediately left the housekeeping office and commenced a floor by floor search for
Perez’ sister, a housekeeper. Hernandez found her on the eighth floor and, together,
they returned downstairs to the housekeeping office. However, they arrived just as the
group of employees was departing from the room. She estimated five or six minutes

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_________________________

Testifying on rebuttal, Valentin Hernandez, who stated his visit to Perez was, in
effect, a “verbal petition,”22 testified that, as he and the other employees entered the
housekeeping office, Perez only seemed “a little surprised” when she turned her head
and saw the group; that, rather than confrontationally warning Perez, “I said we hope
that this would be the last time that you mistreat one of the co-workers;” and that he had
no idea as to how Perez perceived him or what he said. He further testified that Perez
arose from her chair after observing the group of employees enter the housekeeping
office and stood during the entire time Hernandez spoke to her; that he stood three to
four feet from the photocopying machine and “about seven feet from Perez;” that he did
waive his arms as he spoke; and that the entire incident lasted for just two minutes.
Also, Hernandez specifically denied that he gestured or thrust his arm toward Perez;
that he yelled or screamed during the incident,23 that Perez attempted to back away
from him, or that he used any profanity.24 Paula Casillas also testified in rebuttal.
According to her, she was a member of the group of employees, who accompanied
Hernandez to speak to Carmen Perez. They arrived at the housekeeping office at
11:30 a.m., which is the time she normally clocks out for lunch, and, as they entered the
housekeeping office, Perez, who was seated at her desk, turned and looked toward
them. Inside the room, she stood against the door opposite from the towels, and
Hernandez stood near the photocopying machine approximately 10 feet from Perez.
Hernandez spoke first, saying good morning to Perez. She greeted him and asked how
she could help him. “He said to her … we have learned of what occurred to Vicky. We
come … representing our employees to be treated with more respect.… [Perez] … said
do you not know the other side version?” Hernandez said, no and she was never again
to engage in that sort of conduct. At that point, Hernandez and the others turned and
left the housekeeping office. Stating that the entire incident took no longer than two
minutes, Casillas then clocked out and went to her lunch. She testified that Perez
appeared “calm” and “relaxed” while Hernandez spoke and that the latter waived his
right hand and pointed it while he spoke. Finally, while recalling that Perez remained
seated during the entire incident but unable to recall if he held anything in his right hand
while he spoke, she denied that Hernandez ever raised his voice or moved toward
Perez.

Perez testified that, after Hernandez and the other employees left the
housekeeping office, she immediately telephoned Joe Harding, and “I only related to
him the account of [what] occurred.” Harding recalled that the telephone conversation
elapsed while she searched for Perez’ sister.
22 During cross-examination, he specifically denied carrying a petition to Perez’
office.
23 According to Hernandez, “… I believe I only spoke kind of sternly, but I don’t …
think that I … would’ve shouted. I am not a person who usually shouts.”
24 During cross-examination, Hernandez conceded he spoke “seriously” to Perez
and added “I know that I was not yelling or shouting.” Further, he admitted cutting
Perez off “… when she said you did not hear the other side of the story.…and I said that
I was not there to argue …” with her.

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occurred “around lunchtime” on July 23 and “… that she was just harassed by a group
of employees that came in and they were loud and threw papers at her. And she has a
petition.” He asked if she could identify any of the employees, and “she mentioned
Valentin Hernandez, Roberto Reyes, Adelina Escobar, and Paula Casillas.” The
conversation lasted for no more than a minute, and, according to Harding, concerned
about Perez, he immediately went to the housekeeping office and found her “a little
frazzled.” She showed him the petition, which had been given to her, and “she … went
through the motions of how it occurred and where they were standing and … told me
what had occurred.”25 Speaking to Perez convinced Harding that further investigation
was necessary in order to determine whether discipline should be given to any of the
employees involved in the incident that morning, and he then telephoned Myron Harpole
to inform him of what, Perez said, had occurred. Harpole agreed that Harding should
continue his investigation; however, unaccountably, solely based upon Harding’s report
and without any corroboration or knowledge of Hernandez’ version of the incident, he
immediately became convinced that Hernandez should be disciplined for misconduct.

Robin Brown-Rodriguez testified that, at the parties’ bargaining session later that
afternoon, after she raised the Escobar-Perez incident, Harpole responded that he was
glad she had raised such a “serious incident” inasmuch as “… I believe we had a very
serious incident in housekeeping where an employee-- and he pointed at [Hernandez]
… went into housekeeping unauthorized with a group of employees and had a
threatening confrontation with Carmen Perez.” She replied that Hernandez “had every
right” as a bargaining unit employee to participate in union activities on his day off from
work. Harpole responded that Hernandez had no right to go to the housekeeping
department from the food and beverage area, that Hernandez had violated a company
rule about being on hotel property 30 minutes prior to or after a shift, and that his
confrontation with Perez was a threatening one. He added that Respondent would hold
a disciplinary hearing “around his actions” and repeated his statement “a couple of
times” while looking directly at Hernandez. Harpole then asked Brown-Rodriguez
whether she or another Union agent had authorized Hernandez’ conduct, and she
replied that Hernandez was on the Union negotiating committee, as well as other
employees, and he had the right to engage in union activities, which our delegations
were. Harpole did not dispute the foregoing version of events. According to him,
Brown-Rodriguez’ comments regarding Carmen Perez’ alleged harassment of an
employee “disturbed” him, and he interrupted her, saying he had heard enough about
your complaints about Perez and he was going to permit Harding to call Valentin
Hernandez to a hearing and determine if discipline was warranted regarding an incident
that morning involving Hernandez and Perez. Harpole testified he added that

25 According to Harding, what Perez told him was that Hernandez “… was loud and
very close to her and shaking papers.” She said that Hernandez was the only member
of the group who said anything and that he said to her “… you have been abusing the
employees. We want you to stop.” Significantly, Perez failed to corroborate Harding
with regard to Hernandez having any papers in his hand, throwing papers at her, or
handing her a petition, and, if such a document existed, Respondent failed to offer it as
corroboration of Harding’s testimony.

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Hernandez could be represented and would be permitted to present “his side” of what
occurred and that the alleged misconduct “… on a supervisor is unacceptable if
true.…”26

That evening, at approximately 8:00 or 9:00, while working, Hernandez
telephoned Perez at the housekeeping office. During direct examination, the former
testified that he made the telephone call because “I was … unsure … as to whether the
… matter may have been misconstrued by her and that, during the conversation, he …
[told] her what had happened was nothing personal, that I had nothing against her
personally. In a certain way, I apologized just in case that matter was … misconstrued.”
According to Perez, “he told me that he was calling … to apologize, that his action he
had taken earlier that morning was incorrect.… You don’t deserve that … disrespect.…
So I want you to forgive me but I felt pressured by …. those assholes at the Union.”
She replied that she accepted his apology. During rebuttal, Hernandez denied saying
his actions were “incorrect;” rather, “I said that perhaps this is not the best manner to
resolve things.… She said that there was no problem, that she was accepting the
apologies and that there [were] no problems.” Asked why he telephoned Perez,
Hernandez said “… when I did it, I did not feel I did anything wrong. But, when I arrived
at work … Mr. Orozco called me into his office.…and he told me that Mr. Harpole was
very upset.… And he asked me why I had gone over to [Perez] when she had not done
anything wrong to me. He told me that she was a little bit shook up for what had
happened and that is what prompted me to call her.”

Three or four days later, Harding concluded his investigation of what transpired
between Hernandez and Perez by meeting with the employee and Brown-Rodriguez for
approximately 25 minutes. According to Hernandez, “he only asked me what had
[occurred]. I [gave my version] … about the meeting with Carmen Perez and he said
that he was going to investigate and that he would let me know whether I would be
disciplined or not ..…” According to Harding, Hernandez did nothing less than “…
[admit] what he had done.… that he had gone downstairs to the housekeeping
office.…and that [what occurred] … was done in the confrontational manner.” With
regard to the latter point, Harding testified, Hernandez admitted “that he confronted
Carmen down in the office and gave her the papers. He said he did what had
occurred.”27 However, Harding conceded that, in presenting his version of the incident,
Hernandez did not admit to shouting, yelling, or raising his voice at Perez, to waving
papers at her, or to his demeanor. He further conceded that he failed to confront
Hernandez with any of Perez’ assertions as to his behavior so as to afford the employee

26 Harpole conceded that he characterized what occurred between Hernandez and
Perez as a “threatening confrontation” but denied directing any comments to the
employee-- “… I was speaking to the Union negotiating committee but principally to
[Rodriguez].”
27 During cross-examination, Harding listed as Hernandez’ admissions-- coming onto
the property, gathering with others, confronting Perez, informing the Union of his
intentions that day, and apologizing to Perez.

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an opportunity to admit or deny them28 and that Hernandez’ version of the incident
contained nothing of what Perez alleged. During rebuttal, asked what he admitted to
Harding during this investigatory meeting, Hernandez said that he admitted entering the
hotel on the morning of July 23, visiting the housekeeping office with other employees,
informing the Union of the delegation, and subsequently apologizing to Perez.
Whatever he learned from Hernandez, according to Harding, immediately after the
meeting concluded, “I called Mr. Harpole and gave him the facts, my findings.”29

Harding admitted that Perez’ report of what occurred30 and his meeting with
Hernandez and Brown-Rodriguez constituted the extent of his “investigation” of the July
23 incident. He further admitted that he failed to interview any of the employee
witnesses and that his predisposition was to accept Perez’ version of what occurred as
“I find her very trustworthy.” In any event, the next day, Harding and Harpole again
spoke about Hernandez, and, according to Harding, they reached a decision to
reprimand the employee with a warning. Harpole testified that Hernandez deserved
discipline as “this group, who were … relatively inexperienced people, came in there to
surprise her,… They were intruding on her in the midst of her work.… They were there
to … chew her out.… for her treatment of Vicky Flores.… they were there to discipline
her, criticize her and warn her.”31 As to the warning notice itself, during his direct
examination, Harding stated that Harpole was to draft the reprimand letter and that the
latter did so and faxed a copy to him, which they then discussed but not “line-by-line.”32
He added that he concurred with the stated reasons for the warning and that the final
version of the reprimand was drafted by him “on my computer,” and “I presented it to

28 Subsequently, Harding changed his testimony, stating that he did explain to
Hernandez that Perez had accused him of being “overly aggressive” and that his
actions made her feel threatened and scared. Hernandez responded that “he did not
know.”
29 According to Harpole, with regard to the investigation, “It was pretty much
agreement on … some of the basic facts but it was more a matter of degree. In other
words, they both said that he was there. They both said that he was there as the leader
of a group of several other people.” They disagreed (“the he said, she said”) as to how
“loud” he was and how “abusive” he was.
30 Perez stated that she did draft a written report with regard to what occurred on
July 23, and Harding testified that she gave it to his secretary. Whether said document
exists and is corroborative of Perez’ version of events can not be determined; for
Respondent failed to produce it at the hearing.
31 Asked if Perez reported to him that other employees overheard the confrontation,
Harpole testified he believed so, and “… that was part of the humiliation happening in
front of her subordinates.” There is nothing in Perez’ testimony regarding the presence
of other employees in the housekeeping office during the incident, and she admitted
being unable to see whether any employees entered or left the room while Hernandez
was there.
32 Rather than taking credit for the document, Harpole averred that he merely
“participated” in the drafting.

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Hernandez.” During cross-examination, Harding contradicted himself, egoistically
taking credit for the warning letter, stating he drafted it from “my notes. All the facts
were found by myself. I did the interviews. I did the questioning.” However, when
asked if Harpole had, in fact, drafted the document, Harding reversed himself, stating,
“He did, yes . . . . But … he sent it to me,” and “… I retyped it.” Asked, then, whether
Harpole drafted the warning letter and he merely retyped it, Harding replied, “correct.”

The disciplinary warning letter, dated August 3, 2004 and signed by Harding, was
given to Hernandez. Said letter lists four reasons for the reprimand. These are:

1. interrupting and interfering with the head of the Hacienda Hotel’s
housekeeping department during the course of her duties;

2. attempting to usurp, and interfere with, the sole right of the
Hacienda Hotel’s General Manager to direct and to discipline, the head of
the hotel’s housekeeping department in connection with the performance
and conduct of her duties;

3. entering upon the premises of the Hacienda Hotel more that 30
minutes prior to the beginning of your shift, in violation of the provisions of
the last Union Contract, without prior consent from the General Manager;
and

4. failure to bring your complaint of supposed misconduct of the
head of the hotel’s housekeeping department direct to the General
Manager.…

The disciplinary letter then continues with the following:

It is found that, on July 23, 2004, at approximately 11:30am, you
initiated a contentious confrontation of the Hotel’s Head Housekeeper,
Carmen Perez, while she was working in her office in the Housekeeping
Department. In front of her subordinates in the Housekeeping
Department, you accused her of mistreatment of an employee and
threatened her.

You are an employee in the Food and Beverage Department and
not of the Housekeeping Department. Your work station is hundreds of
yards from the office of Carmen Perez. Your work shift on July 23rd did
not begin until 5pm; and your presence on the hotel’s property at the time
of the confrontation was in violation of Section 6.4.2(b) of the most recent
Union Contract and of the rules regarding Employees, which include that
Employees are not to enter the hotel premises more than 30 minutes
before their work shifts.

It is noted that you said the paid officials of your Union … knew
beforehand of your plan for this conduct. Under the circumstances, it is

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concluded that you were in fact encouraged by them. In view of your
relative inexperience and immaturity, this is an aspect of mitigation.…

According to Harpole, the first stated reason for the reprimand is “… the most
serious aspect of the matter and goes to the heart of it.” According to him, what
rendered it such a “severe” transgression was Hernandez’ “… intrusion into the work
area of an extremely busy executive in the midst of her duties and in front of her
subordinates,” berating her. Asserting that Perez is always busy and “… particularly so
at checkout time which is around eleven o’clock in the morning,” he added that, “… if
employees can act in the manner that Mr. Hernandez did at the time and place of their
choosing with senior supervisors at the most intense time they’re working, then any
employee at any time could disrupt the activities of the hotel.”33 Likewise, Harding
testified that the first stated reason constituted the essence of Hernandez’ misconduct
on July 23-- “he was harassing and disrupting and refused to leave ,… He harassed and
disrespected to the point of scaring a manager,…” With regard to Hernandez and the
employee delegation, which both Harpole and Harding characterized as a “gang,”
assertedly interrupting Perez’ work, Harpole testified that Respondent’s only concern
regarding employee delegations is that they “… be conducted in a proper manner …”
and that delegations, such as the one to Perez, are conducted in an “inappropriate”
manner when they “… intrude the people who are busy at work, carrying out the
operating functions of the hotel or intruding with the enjoyment of the Hotel by guests,
either of those.” He added that even a mere two minute interruption of her work would
have been “impermissible.” Harpole’s strict view must be contrasted with that of Frank
Godoy, who was the general manager of Respondent’s hotel prior to Harding and who
stated that he “… always had the policy that any employees or group of employees
were welcome in my office at any time as long as it was not disrupting something …”
and that he would only discourage groups of employees from meeting with department
heads if done in an unorganized manner. Likewise, Harding never requires employees
to make appointments to see him, stating, “My office door is open. That is an open door
policy ….” Finally, Carmen Perez testified that, whether she immediately meets with
employees, who ask to speak to her, depends upon the “importance” of the matter.
Thus, if it is a “serious” matter necessitating a lengthy conversation, she requires
employees to make an appointment; however, if relatively “simple,” she “… will just sit
… and discuss it there.”

Concerning the second reason for disciplining Hernandez, Harpole explained that
it referred to “… the report to me … that [Hernandez] attempted to instruct Carmen
Perez on how she should direct and discipline her employees. In particular, how she
should instruct and direct Vicky Flores” He added that, while doing so, Hernandez
spoke “harshly” to her and that, if employees perceived Perez as acting improperly, they

33 Harpole introduced another element into the discipline of Hernandez, asserting
that it was improper for him to have taken a complaint, regarding an employee who
worked in a different department of the hotel, directly to the head of that department.
However, he conceded that there is no work rule in the employee handbook which
renders such an act as misconduct warranting discipline.

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should have gone to the general manager-- “you do not criticize [Perez] in her face.
You go to someone who … has the authority to instruct her.” In this regard, according
to Harpole, Hernandez could have addressed the matter by leading a delegation to
Harding, for it was solely within the province of the general manager to speak to a
department head regarding treatment of a subordinate.

The third reason for Hernandez’ discipline concerns the undisputed fact that,
notwithstanding his work shift was not scheduled to begin until 5:00 p.m. on July 23,
Hernandez entered the hotel shortly before 11:30 a.m. that day in order to lead the
delegation to Perez’ office. In this regard, listed in Respondent’s employee handbook34
are various types of “unacceptable” employee conduct, which may be result in
discipline,35 and the eleventh of the stated misbehaviors is “being on the premises
more than [a half] an hour before your shift begins or after it ends.”36 Harding testified
that the policy behind rule 11 is that “it helps us maintain order and control and further
issues that may arise from employees being on the hotel property before or after their
shifts.” Asked when Respondent does not want employees on the property when not
scheduled to work, he replied, “all of the time.”37 As to this, the record discloses just
one prior instance of an employee being disciplined for violating rule 11, and this
occurred in 1997 only after the employee had been verbally warned several times
regarding coming to work early and, after work, remaining on the property in order to
“chit-chat” with other employees. Harpole conceded that prior to disciplining an
employee for violating this rule, Respondent would first consider the conduct, in which
the employee engaged, on its property and, when asked if Hernandez had done nothing
more than violating the above work rule would he have been disciplined, he replied “…
probably not. They don’t arrest people for jaywalking all the time.” On this point, while
Harding mentioned that employees are not prohibited from arriving at work early in
order to obtain their paychecks, Harpole conceded that the hotel has never set forth any
of the permissible reasons for employees to be in the hotel so as not to be in violation of

34 Each employee receives a copy of the employee handbook during his or her
orientation after hire and is expected to read it.
35 Respondent maintains a disciplinary policy with levels of discipline ranging from a
verbal warning to termination. The severity of the discipline to be utilized in any given
situation is determined after an investigation and after consideration of eight listed
factors including the impact of the misconduct on other employees, the employee’s prior
disciplinary record, the quality of his or her job performance, the employee’s job tenure,
the circumstances surrounding the misconduct, and existing precedents.
36 Similar language appears in the parties’ expired collective-bargaining agreement.
37 Asked if Respondent maintained a work rule prohibiting employees from being on
hotel property on their days off, notwithstanding the wording of the eleventh work rule,
Harpole insisted that said provision also pertained to such conduct. According to him,
the rule is “explicit” on this point, and employees know not to be at the hotel on their
days off. When asked the same question, contradicting Harpole, Harding pointed to the
“use of facilities” provision of the employee handbook. Moreover, he added that there is
no absolute ban on employees being at the hotel on their days off; they can do so after
seeking and being granted permission.

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rule 11. Asserting he has never read the employee handbook, Valentin Hernandez
claimed ignorance of rule 11 prior to receiving the written reprimand. Nevertheless,
while conceding he may have been in violation of the rule on July 23, he testified that
each of the prior delegations, in which he took part, occurred in the morning and he was
not spoken to by either Katzman or Harding or disciplined for violating rule 11,38 and
that he is aware of, at least, two other employees who habitually arrive early at work.

With regard to Respondent’s fourth stated reason for disciplining Hernandez,
there is no dispute that the alleged discriminate and the delegation of employees went
directly to Carmen Perez regarding her alleged mistreatment of Vicky Flores. According
to Myron Harpole, “… it’s expressed in the … contract that matters of criticism of a
supervisor are to go to the next highest supervisor.” In this regard, paragraph 27.3 of
the parties’ most recent collective-bargaining agreement39 states, “Any employee who
believes that he or she has been harassed or discriminated against in any way,
including but not limited to sexual harassment, shall report such harassment … to an
Employer supervisor or officer who is senior in authority to any employee of the
Employer who the Employee believes is engaged in such harassment or discrimination.”
Harpole added that, if other employees acted as did Hernandez on July 23, “… then we
have potential chaos in the operation of our hotel and that’s just intolerable.” During
cross-examination, when asked who is senior in authority, he stated that this means
senior “to the employee who the employee believes engaged in the harassment.”
However, when asked if an employee could be disciplined for informing his or her
supervisor that his harassment is unwelcome, Harpole replied, “We wouldn’t construe it
that way.” Further, paragraph 27 is quite specific as to its areas of concern and does
not appear to apply to general complaints of mistreatment by a supervisor, and, while
Harpole asserted that employees are subject to discipline for acting in violation of
paragraph 27.3, Harding conceded that there is no work rule in the employee handbook
advising employees regarding possible discipline for bringing a complaint to the wrong
supervisor. Finally, Hernandez testified he had never been told either that the July 23
delegation, regarding Vicky Flores, properly should have gone to Harding or that he
could be disciplined for bringing the matter directly to Perez.

The complaint alleges that Respondent engaged in conduct, violative of Section
8(a)(1) and (3) of the Act, by issuing its August 3 disciplinary warning letter to Valentin
Hernandez. In his post-hearing brief, counsel for the General Counsel poses alternate
theories underlying the alleged violation of the Act—that, rather than for legitimate

38 In this regard, Salvador Vasquez, a houseman for Respondent, testified that he
participated in two delegations in 2004, each occurring more than a half hour after the
end of his work shift, and that he knows of other employees who also participated in the
delegations after the end of their work shifts. According to Vasquez, neither he or the
other employees received discipline for violating rule 11.
39 Paragraph 27 deals with prohibitions on Respondent and the Union from engaging
in discrimination because of race, religion, color, sex, age, national origin, or ancestry.
Thus, in context, section 3 deals with the proper individual to whom complaints of
discrimination or harassment, based upon the above factors, should be brought.

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business concerns, Respondent issued the warning letter to Hernandez in order to
discourage him from engaging in activities in support of the Union—a violation of
Section 8(a)(1) and (3)-- or that the alleged misconduct, in which Hernandez engaged
and for which he received discipline, was, in reality, protected concerted activity-- a
violation of Section 8(a)(1) of the Act. Contrary to the General Counsel, Respondent
argues that its discipline of Hernandez was motivated by legitimate business concerns,
his insubordination and violations of work rules. At the outset, I must determine what
occurred on July 23 after the employee delegation, led by Hernandez, entered the
housekeeping office and, in order to do so, resolve the conflicting testimony of the
several witnesses. Initially, with regard to credibility, I was impressed by the testimonial
demeanor of Hernandez, who is, of course, a current employee and was testifying
contrary to the interests of his employer. He appeared to be always testifying in a direct
and candid manner and, therefore, I shall rely upon his version of what occurred while
he was inside the housekeeping office and, later, during his telephone conversation with
Perez. Further, Paula Casillas impressed me as being an honest witness, and I note
that, as did Hernandez, she testified directly in front of Myron Harpole. While
contradictory regarding one point,40 they generally corroborated each other as to what
occurred in the housekeeping office on July 23-- particularly regarding Hernandez’
demeanor and actions, what he said, where he stood while speaking to Perez, and the
length of time the employees remained in the room, and I, likewise, shall rely upon
Casillas’ account of what occurred. Also, Robin Brown-Rodriguez impressed me as
being a trustworthy witness, and I shall rely upon her herein. With regard to the
witnesses who testified on behalf of Respondent, inasmuch as her timecard shows her
clocking in from lunch on July 23 at 12:11 p.m., approximately 45 minutes after
Hernandez’ delegation arrived at the housekeeping office and, at least, 40 minutes after
Perez, who asserted the delegation remained in the housekeeping office for just 15
minutes, herself said the employees left her office, I believe it was impossible for Rosa
Hernandez, who claimed she was inside the housekeeping office in order to clock in
after lunch, to have observed Hernandez interacting with Perez, and, therefore, I
completely discount her feigned testimony. As I previously stated, Carmen Perez failed
to impress me as being a straightforward witness, and, in comparison to Hernandez,
she was much less frank and trustworthy, always appearing to be attempting to buttress
Respondent’s position. In particular, I note that she was impeached by her pretrial
affidavit as to her assertion Hernandez continually repeated himself regarding her
mistreatment of employees, an important point given her asservation concerning the
amount of time Hernandez remained in the housekeeping office, and that her assertion
of being too busy to meet with his delegation was undercut by her willingness, at
approximately the same time on another day, to meet with another group of employees
to discuss their plan to hold an employee vote on a Respondent contract proposal. By
his demeanor while testifying, Joseph Harding appeared to be duplicitous and a
disingenuous witness, and I am unable to credit any portion of his testimony. In this

40 They did disagree as to whether Perez sat throughout the meeting (Casillas) or
stood at some point (Hernandez). However, inasmuch as Perez admitted that she did,
in fact, stand up while Hernandez was speaking to her, I find this minor contradiction not
particularly significant.

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regard, I note his utterly contradictory testimony regarding Respondent’s preparation of
the disciplinary warning letter issued to Hernandez. Moreover, while he asserted that,
on July 23, Perez reported to him that Hernandez “threw papers at her” and gave her
some sort of a petition, Respondent offered no such document as corroboration and
Perez failed to mention any of the foregoing during her testimony. Finally, while, during
his testimony, Myron Harpole acted as a forceful advocate of Respondent’s legal
position, his demeanor, in my view, was that of a witness who was not squeamish about
tailoring his testimony in order to buttress said position. Thus, I found inconceivable his
assertion that, notwithstanding its clear wording and Harding’s belief that another rule
governs the subject, rule 11, in the employee handbook, is “explicit” with regard to not
permitting employees to be in the hotel on their days off and, unconscionable, if true, his
tropism, without any investigation, to have immediately, and unequivocally, accepted
Perez’ version of her encounter with Hernandez and concluded the latter had engaged
in misconduct, and I note that his asservation, regarding Hernandez berating Perez in
the presence of other employees, who may have been in the housekeeping office on
July 23, was not corroborated by Perez.

Based upon the foregoing, I find that, as a result of incidents involving Vicky
Flores and Adelina Escobar and after informing Union officials of their intent, Valentin
Hernandez, who had been an active supporter of the Union and had participated in the
collective bargaining between Respondent and the Union, and other employees
participated in a delegation to the housekeeping office on July 23 in order to present an
oral petition to Carmen Perez regarding, what the employees perceived as, her
mistreatment of the two housekeeping employees; that Hernandez was the leader of the
delegation; that the employees arrived at the housekeeping office at approximately
11:30 in the morning and, once inside the room, Hernandez moved to a position a few
feet from the photocopying machine next to Perez’ desk and, at least, seven feet from
her and the other employees stood nearby; and that, upon noticing the employees,
Perez, who appeared calm and relaxed, greeted them and asked how she could help
them. I further find that Hernandez, who had nothing in his hands but waved his arms
while speaking, replied that the employees were there because Vicky Flores had
informed them of Perez’ mistreatment of her, including raising her voice at Vicky; that
the employees wanted Perez to immediately stop mistreating the employees who she
supervised; and that those employees were at the hotel to work and not to be yelled at.
Also, I find that Perez, who arose from her desk chair at some point, responded, asking
why the employees in the delegation were there if they knew just one side of the story;
that Hernandez, obviously bent upon lecturing to Perez in a stern and perhaps
unwelcome manner, interrupted her, saying they were not there to confront her or to
argue with her but, rather, only to ask her to respect the employees and nothing more;
that, then, Hernandez and the other employees abruptly turned and left the
housekeeping office; that, during the incident, Hernandez neither ever raised his voice,
used profane language, repeated his words, waved his hand in her face, nor moved
toward Perez in a threatening manner and the latter never backed away from him in a
frightened manner; and that the entire incident lasted no longer than two minutes.41

Continued
41 I need not and do not make any findings as to whether Perez alone concocted her

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Next, I find, during a bargaining session later in the day, that, while pointing directly at
Hernandez, Myron Harpole accused him and the other members of the delegation of
making an unauthorized visit to Perez’ office earlier in the day and engaging in a
“threatening confrontation” with her; that Harpole added that Respondent would hold a
disciplinary hearing “around his actions;” and that Harpole then accusingly questioned
Brown-Rodriguez as to whether the Union had authorized the delegation to Perez.
Furthermore, I find, at some point after beginning work and after his supervisor,
Francisco Orozco, informed him Harpole was upset at what occurred during the
delegation to Perez’ office and Perez herself was “a bit shook up;” that, while he
believed he had done nothing wrong, Hernandez telephoned Perez at the housekeeping
office; that he told her what he had said was not directed personally at her and he had
nothing against her personally; that he also told her, if she had misconstrued what he
said, perhaps the best way to resolve things was to apologize to her; that Perez replied
there was no problem and she accepted his apology; and that the conversation then
ended. Finally, I find that Respondent issued a disciplinary warning letter to Hernandez
on July 23 and that, as admitted by Harpole and Harding, the crux of Respondent’s
rationale for disciplining him was the timing of the delegation to Perez’ office on July 23,
the manner in which Hernandez acted, and what he said to Perez, and that Harpole and
Harding believed Union officials were aware of and encouraged Hernandez and the
other participants to engage in their delegation that day.

While contrary to Respondent, the General Counsel and the Union contend that,
based upon the foregoing matrix of facts, Respondent engaged in conduct violative of
Section 8(a)(1) and (3) of the Act, all parties agree as to the applicable analytical
approach for this allegation. Thus, as explained by the Board in Naomi Knitting Plant,
328 NLRB 1279, 1281 (1999), pursuant to Wright Line, 251 NLRB 1083, 1089 (1990),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1981), approved in
Transportation Management Corp., 462 U.S. 393 (1983), in order to have established a
violation of Section 8(a)(1) and (3) of the Act, the General Counsel must have proven,
by a preponderance of the evidence, that anti-union animus was a motivating factor in
Respondent's conduct. Once such a showing was made, the burden shifted to
Respondent to demonstrate that the same action would have taken place in the
absence of, or notwithstanding, Hernandez’ activities in support of the union. To have
sustained its initial burden, that of persuading the Board Respondent acted out of anti-
union animus, the General Counsel must have shown (1) that Hernandez was engaged
in activities in support of the union; (2) that Respondent was aware of or suspected his
union sympathies or activities; and (3) that Hernandez’ activities in support of the union
were a substantial or motivating factor underlying Respondent's actions. Such motive
may be established by circumstantial evidence as well as by direct evidence and is an
issue of fact. FPC Moldings, Inc. v. NLRB, 64 F.3rd 936, 942 (4th Cir. 1995), enforcing
314 NLRB 1169 (1994). Four points are relevant to the above-described analytical
approach. First, in determining whether the General Counsel has established a prima
_________________________
duplicitous version of what occurred between Hernandez and her in her office on July
23 or whether she and Harding together decided upon a version which best suited
Respondent’s interests. Further, I do not and need not decide whether Harpole was
aware of any of Perez’ or Harding’s embellishments.

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facie showing of unlawful animus, the Board will not quantitatively analyze the effect of
the unlawful motive. The existence of such is sufficient to make the acts and conduct at
issue violative of the Act. Wright Line, supra, at 1089, n. 4. Second, once the burden
shifted to Respondent, the crucial inquiry was not whether Respondent could have
engaged in the alleged unlawful acts and conduct but, rather, whether Respondent
would have done so in the absence of Hernandez’ support for the Union. Structural
Composites Industries, 304 NLRB 729 (1991); Filene's Bargain Basement, 299 NLRB
183 (1990). Third, pretextual discharge cases should be viewed as those in which ". . .
the defense of business justification is wholly without merit" (Wright Line, supra, at
1089, n. 5), and the "burden shifting" analysis of Wright Line need not be utilized.
Arthur Young & Co., 291 NLRB 39 (1998). Finally, regarding the latter point, "it is . . .
well settled . . . when a respondent's stated motive for its actions is found to be false,
the circumstances warrant the inference that the true motive is an unlawful one that the
respondent desires to conceal. Flour Daniel, Inc., 304 NLRB 970 at 970 (1991);
Shattuck Den Mining Corporation v. NLRB, 362 F.2d 466 (9th Cir. 1966).

In these regards, Hernandez was a strong supporter of the Union and
participated in the collective bargaining between Respondent and the Union as a
member of the latter’s employee bargaining committee. While the record is uncertain as
to whether the Union actually authorized the July 23 delegation to Carmen Perez’ office,
Union officials, including.Brown-Rodriguez, were aware of the underlying reasons for
and of the delegation itself, and Union officials trained Hernandez and other employees
as to their behavior during delegations. Also, it is clear that, while participating in the
delegation and meeting with Perez, Hernandez and the other employees were engaged
in protected concerted activities. As to this, Hernandez and the other employees went
to Perez in order to protest her alleged mistreatment of two housekeeping employees,
whom she supervised, and the Board has long held that group complaints about the
quality of supervision are directly related to working conditions and fall within the “rubric”
of protected concerted activities. Rhee Bros., Inc., 343 NLRB No. 80 at n. 3 (2004);
Astro Tool & Die Corp., 320 NLRB 1157, 1162 (1996); Brother Industries, 314 NLRB
1218 (1994). Moreover, notwithstanding whether or not the Union authorized the July
23 delegation to Perez, as, in his August 3 reprimand letter to Hernandez, Harding
specifically stated his belief that the Union encouraged the July 23 delegation, for which
Hernandez was the spokesperson, Respondent obviously suspected that Hernandez
had participated in a Union-sponsored activity. While these facts are clear, the
fundamental issue is, of course, whether the General Counsel has established that
Respondent was motivated by Union-related concerns in disciplining the alleged
discriminate-- Hernandez. On this point, while no direct evidence of motive is extant in
the record, I have previously concluded that Respondent, through Perez, unlawfully
threatened reprisals against an employee for engaging in activities in support of the
Union. Further, I have found that, during the bargaining session between the parties in
the afternoon of July 23, after pointing at the alleged discriminatee, who, along with
other members of the employee negotiating committee, was present, and warning that a
disciplinary hearing, involving his conduct earlier in the day, would be held,42 turned to

Continued
42 In the circumstances of his accusatory question to Brown-Rodriguez, I agree with

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Brown-Rodriguez and demanded to know if the delegation to Perez had been a Union-
authorized event and that, as stated above, in his disciplinary letter to Hernandez,
Harding stated that Union officials knew of the delegation “beforehand” and encouraged
it but that, in view of his “relative inexperience and immaturity,” such would be viewed
as a mitigating factor insofar as the severity of discipline afforded to Hernandez. As
argued by counsel for the Union, one may justifiably infer, from both Harpole’s
accusation and Harding’s comment, that Respondent disciplined Hernandez, in part,
because it believed the Union had encouraged and persuaded him to lead the
delegation to Perez while a more mature employee, a less fervent supporter of the
Union, would have resisted the Union’s entreaties. Finally, concerning motivation, as
Harpole and Harding conceded that Hernandez’ conduct inside the housekeeping office
was the predominant underlying reason for disciplining him and as, in accord with my
credibility resolutions and findings of fact, I believe that Respondent’s version of
Hernandez’ behavior and actions while meeting with Carmen Perez was a canard,
justifying the discipline given to him, the inference is warranted that Respondent’s true
motivation was to discourage employees from engaging in lawful Union activity.
Accordingly, I am convinced that the General Counsel has established that Respondent
was unlawfully motivated in administering discipline to Hernandez.

In these circumstances, the burden shifted to Respondent to establish that it
would have disciplined Hernandez notwithstanding the presence of unlawful animus
underlying the discipline afforded to him. In this regard, I reiterate my view that,
notwithstanding Hernandez may have lectured Perez in an unwelcome and stern
manner, the initial, and concededly the preeminent, reason for its discipline of the
alleged discriminate, his asserted misconduct while speaking to Perez, was a sham.
On this point, I note the absurdly deficient nature of Harding’s putative investigation of
the incident, including the general manager’s failure to seek denials of Perez’
allegations from Hernandez or to locate and question potential witnesses, and believe
Harding was merely camouflaging Respondent’s fervor to discipline the alleged
discriminate. Moreover, assuming Hernandez acted in an abrupt and disrespectful
manner toward Perez, the Board has held that, while engaged in protected concerted
activity, regardless of the inaccuracy of an employee’s comments or their lack of merit
or even his usage of foul language or epithets directed toward a member of
management, such would not be sufficient to require forfeiture of the protection of
Section 7 of the Act. Guardian Industries Corp., 319 NLRB 542, 549 (1995); Delta
Health Center, 310 NLRB 43 (1993). Also, while Harpole emphasized how busy Perez
is before noon and the intrusive nature of the Hernandez delegation, as will be
discussed infra, Perez was not too busy, at the same time on another day, to have met
with a group of housekeepers and discussed the propriety of an employee vote on an
_________________________
counsel for the General Counsel that, rather than a mere statement of Respondent’s
intent to undertake an investigation of what occurred inside Carmen Perez’ office,
Harpole’s statement, that Respondent would hold a disciplinary hearing on Hernandez’
conduct, was nothing less than an implied threat of reprisals to Hernandez and to the
other employees present if they engaged in activities in support of the Union.
Accordingly, I find Harpole’s statement to have been in violation of Section 8(a)(1) of the
Act.

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employer contract proposal, and Harding admitted he never requires employees to
make appointments to see him, even boasting of “an open door policy.” Turning to
Hernandez’ violation of Respondent’s work rules, while he may have acted in violation
of rule 11 when he entered the hotel shortly before 11:30 a.m. in order to lead the
delegation to Carmen Perez, I have found nothing opprobrious regarding his behavior in
the housekeeping office while meeting with Perez, and Harpole likened the matter to
jaywalking, admitting that, if Hernandez had done nothing more than violating the work
rule, he would “probably” not have been disciplined. Moreover, while participating in
prior delegations to Harding and to Katzman, Hernandez seemingly had acted in
violation of rule 11 but had never been disciplined for such. Further, Harding admitted
that there are permissible reasons for employees to be in the hotel and not be in
violation of rule 11 but that none of these are set forth in the employee handbook. Next,
Harpole asserted that Hernandez had acted in violation of paragraph 27.3 of the most
recent collective-bargaining agreement by going directly to Perez in order to complain
about her alleged mistreatment of a subordinate rather than to her direct supervisor
Harding. However, the provision, to which Harpole referred, specifically pertains to
harassment and discrimination, including sexual harassment, and not to general
complaints of mistreatment by a supervisor and, while Harpole also asserted that
employees are subject to discipline for bringing complaints to the wrong supervisor, he
conceded that there is no work rule in the employee handbook advising employees
regarding possible discipline doing so. In these circumstances, I find that Respondent
failed to establish that it would have disciplined Hernandez notwithstanding harboring
unlawful animus and that, accordingly, it acted in violation of Section 8(a)(1) and (3) of
the Act by issuing a written warning to the alleged discriminatee for leading the
delegation to Perez on July 23.43

Respondent’s Involvement with the Ballots during the Employees’
Vote on Respondent’s Contract Proposal

The complaint alleges that Respondent bypassed the Union and unlawfully dealt
with its bargaining unit employees on two separate occasions involving their vote on an
employer contract proposal. The genesis of these allegations occurred during the
parties’ bargaining session on July 23; there is no dispute that, in the midst of

43 Even absent the existence of unlawful animus, under Burnup And Sims, Inc., 379
U.S. 21 (1964), Respondent’s discipline of Hernandez was violative of Section 8(a)(1) of
the Act. Thus, I have previously concluded that he engaged in protected concerted
activities by leading a delegation of employees to Carmen Perez in the housekeeping
office and meeting with her and that lecturing to Perez regarding how she should be
treating her subordinates and not permitting her to speak did not constitute conduct
which would have deprived him of the protection, afforded by Section 7 of the Act.
Further, I have found that Hernandez engaged in none of the misconduct, which was
attributed to him by Respondent. Therefore, in agreement with the General Counsel’s
alternate theory of the violation of the Act, I must conclude that Respondent simply
disciplined Hernandez because he engaged in protected concerted activities—clearly,
an unlawful act.

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bargaining over wages and other economic issues, Myron Harpole turned toward the
employee negotiating committee and announced a last, best, and final offer. According
to Robin Brown-Rodriguez, he said that “… the company was pretty much at the end of
the line, that they were going to be giving an offer to the Union … [which] was close to
the end of the line and he wanted employees to vote on that offer. He … told
employees that … they had paid over $700,000 in dues … over the years and that they
had a right to demand a vote from their leaders, they should ask [the Union] to put the
hotel’s offer to a vote,… within the next two weeks and that, if they did not, he would
come back [with a lesser offer] … based on the wages and benefits of the surrounding
El Segundo hotels.” While it is unclear whether Brown-Rodriguez immediately rejected
the offer, she apparently did reply that the Union reserved the right to consider how to
respond to it. Nevertheless, faced with Harpole’s demand for an employee referendum,
the Union never scheduled a bargaining unit vote on acceptance or rejection of
Respondent’s proposal.

Lead housekeeper, Marta Lara, was among the bargaining unit employees
present at the July 23 negotiating session, and, on the following Monday morning,
dissatisfied with the Union’s inaction, she met with a group of employees and informed
them that Harpole wanted them to vote on Respondent’s contract proposal, and “so that
is when a group of employees [decided to] do a voting … to see if they want … the pay
increase.” Later, at approximately 11:30, Lara, lead housekeeper, Marisa Mejia, and
two other housekeepers went to the housekeeping office in order to speak to Carmen
Perez. According to Perez, the employees “… mentioned to me that there was a pretty
large group of employees who were thinking of [organizing an employee vote on
Harpole’s contract proposal].” Also, “… they wanted to make sure they were not
violating any company rule.” Perez responded that she would get back to the
employees as to whether conducting the vote would violate any company work rule and
that she thought they could do so but only during their non-working hours.44 According
to Lara, later in the day, Perez informed her that conducting an employee vote was “not
a problem” as all the employees were members of the Union, and that evening, after
she told her what to write, Marisa Mejia’s daughter drafted a handwritten ballot form,
concerning accepting or rejecting Respondent’s contract offer, for Lara. The latter
further testified that, the next morning before Perez arrived at the housekeeping office,

44 During cross-examination, Perez said that, when Lara and the other
housekeepers met with her, it was “more or less” the same time of day as when
Hernandez and his delegation met with her. Also, she averred that, while she was busy
when Lara and the others came to speak with her, they did not interfere with her work
as “… they stayed there for about five minutes.”
During cross-examination, Perez further testified that, later in the day, she spent 15
minutes reviewing the collective-bargaining agreement and then telephoned Harding,
asking him the same question the employees had asked her regarding whether
conducting a vote would violate any work rule. However, on this point, she was
impeached by her pre-trial affidavit, in which she stated that it was not necessary to
speak to Harding because, at the bargaining session, Harpole said an employee vote
was what Respondent wanted.

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utilizing the housekeeping photocopying machine, she produced numerous copies of
the ballot, General Counsel’s Exhibit No. 2, and began distributing these to bargaining
unit employees; that, using paperclips, she also attached copies of the ballots to the
housekeeping employees’ timecards, which were located next to the time clock in the
housekeeping office;45 and that she gave several copies of the ballots to Mejia, who
was to distribute them to food and beverage department employees.

Houseman, Salvador Vasquez, testified that he first saw copies of General
Counsel’s Exhibit No. 2, the ballot, “with the timecards” in the housekeeping office one
day in mid-July. According to him, “I came to punch out and [Perez] was there, putting
the papers with the time cards, and she saw me and pulled back.” What he observed
was Perez putting the ballots and timecards together “with a paperclip.” Vasquez added
that, when he first observed her, Perez was standing in front of the timecards, and, as
he approached, “… she left and went next to her desk, in her office.” Then, Vasquez
punched his own timecard, and, as he walked out of the housekeeping office, he
observed Perez walking back toward the timecards, and “she had some folded papers
in her hands.” Perez testified that she observed Lara and Mejia producing the voting
ballots on Harpole’s contract proposal in the housekeeping office by cutting sheets of
paper in half; that, one day upon arriving at work, she observed folded sheets of paper
attached to the timecards by paperclips; that, while she did not see them doing it, she
understood Lara and Mejia were the individuals who attached the papers to the
timecards; and that, as she has responsibility to handle the timecards in order to ensure
that employees are punching in and punching out, “if I had to touch the cards, I probably
touched the ballots.” However, while conceding the foregoing, Perez specifically denied
the actions, attributed to her by Vasquez.

Marisa Mejia testified that she was responsible for distributing the ballots to the
food and beverage department employees in the hotel’s kitchen. According to her, she
spoke to Francisco Orozco, the manager of that department, as “I was entering and he
was leaving the coffee shop.… I asked him permission to place some ballots so
employees would learn of the meeting that we had.” Specifically, she asked if she could
clip the ballots to the employees’ timecards in the kitchen, and Orozco advised her not
to do so. She then went inside the kitchen, and “I handed [ballots] out to about five or
six people and they signed them and then I went back.” Denying leaving any of the
ballots in the kitchen or with Orozco or clipping any to the employees’ timecards, Mejia
further testified that she retained possession of all the signed and unsigned ballots,
which she had in her possession that day.

Orozco, who testified on behalf of the General Counsel, stated that, during the
summer, he was aware that an employee vote was being conducted on an employer
contract proposal and that “… I knew something was going on.… when I was
approached by Joe Harding in my office” one afternoon. Harding asked “… if I would do
him a favor,” and “… he had a whole bunch of those ballots … and asked me to

45 Lara testified that she produced the copies of the ballots and attached them to the
timecards without Perez’ knowledge and before the latter arrived at work.

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distribute … those to the employees in the food and beverage area, and I said,
sure.…”46 According to Orozco, he followed Harding’s instructions, but he did not “feel
comfortable” being asked to distribute the ballots as Harding had “… put [him] in a spot
when … approached by … employees,” who were “discouraged” and believed he was
“forcing” them to sign the ballots because he was distributing them. Orozco testified he
made it clear to the employees that he was “not forcing anybody” to sign a ballot and
that if anyone did not want to fill out and execute a ballot, “do not do it.” Orozco
estimated that he distributed 15 to 20 ballots between 1:00 and 2:00 p.m. and stated
that each employee, to whom he gave a ballot, returned it to him. Upon receiving all the
ballots which he distributed, Orozco immediately returned them to Joe Harding, who
thanked him. Joseph Harding testified that he became aware of the distribution of
ballots upon receiving a telephone call from a woman in Respondent’s sales office.47
She told him that the employees were putting notices on timecards, that Steve Sainz, a
cook, was ripping them down, and that the employees would like some help. He further
testified that, later in the afternoon, he walked into Orozco’s office, sat down, told him
what he had been told,48 and said “please help him out, see that they are able to get
their message across.” Stating that he had not yet seen any of the ballots and denying
ever giving any ballots to Orozco or receiving any written ballots, Harding averred that it
is “possible” that he was aware of the names of the employees who were distributing
the ballots and that he “might have” mentioned Lara and Mejia to Orozco. At this point
in his testimony, Harding changed his version of his conversation with Orozco, stating
he told the latter that “… the employees needed some help putting these on the
timecards. Please help them out and make sure they are on their own time.”49
Moreover, while Harding opined that Orozco’s version of events was wrong, he was
then confronted with his pre-trial affidavit wherein he stated he did not have any
conversations with Orozco about the ballots prior to becoming aware of the instant
unfair labor practice charge. Finally, examination of the ballots discloses that, at least,
12 food and beverage department employees signed ballots.

The complaint alleges that Respondent engaged in acts and conduct violative of
Section 8(a)(1)and (5) of the Act by bypassing the Union and dealing directly with
bargaining unit employees when Perez allegedly “placed” copies of the ballots,
regarding Respondent’s contract proposal, with employees’ timecards and when
Harding and Orozco participated in the distribution of the said ballots to bargaining unit
employees. Again, the credibility of the several witnesses is crucial to a determination
as to whether Respondent engaged in the alleged unfair labor practices, and, in this
regard, I believe lead housekeepers, Marta Lara and Marisa Mejia, and houseman,
Salvador Vasquez, were forthright witnesses, each testifying truthfully to the best of his

46 Orozco identified the documents as copies of General Counsel’s Exhibit No. 2.
47 He identified his caller as either Sandra Sooklal or Marisa Vega, both of whom are
sales managers.
48 Harding testified he also told Orozco that employees were pulling “ballots” off the
timecards and “its unfair.”
49 During cross-examination, Harding said that he specifically told Orozco that “… if
they put [the ballots] back on, let it happen. You know, just let them do their thing.”

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or her recollection. Likewise, I found Francisco Orozco’s demeanor, while testifying, to
have been that of a candid and conscientious witness, and, as an admitted supervisor,
within the meaning of Section 2(11) of the Act, his testimony, adverse to the interests of
Respondent, constituted admissions of fact. In contrast, I have previously stated my
conclusions as to the mendacity of both Carmen Perez and Joseph Harding. As to the
former, I particularly note her admission that she “probably” had touched the ballots,
which were attached to the timecards, and, as to Harding, my conclusion concerning his
guileful demeanor is enhanced by his contradictory testimony, ultimately impeached by
his pre-trial affidavit, regarding his conversation with Orozco. Accordingly, for my
findings of fact regarding the above allegations, I shall rely upon the respective
testimony of Lara, Mejia, Vasquez, and Orozco, and the admissions of Perez.

Based upon the foregoing, regarding the Perez allegations, I find that, shortly
after Myron Harpole made his contract proposal to the Union and demanded an
employee ratification vote, lead housekeeper, Marta Lara, who heard Harpole’s offer,
met with fellow bargaining unit employees and discussed it; that, as a result of these
discussions, Lara and other employees decided to conduct an employee vote; that Lara
and other housekeeping employees met with Carmen Perez, who informed them that a
vote would not violate any of Respondent’s work rules but that the vote could not be
accomplished during work time; that Lara prepared the election ballots, by which
employees would ratify or reject Harpole’s contract proposal; and that, to ensure
distribution to all housekeepers, Lara attached copies of the ballot to the housekeeping
employees’ timecards with paperclips. I further find that, at a time subsequent to Lara
attaching copies of the ballots to the housekeeping employees’ timecards, houseman,
Salvador Vasquez, observed Carmen Perez handling the ballots and timecards; that the
latter noticed Vasquez observing her and backed away; and that Perez continued what
she was doing as Vasquez left the room. As to the allegations involving Orozco and
Harding, I find that, sometime after Harpole made his contract proposal, Harding came
to Orozco’s office, carrying copies of the ballot, which had been prepared by Lara; that
Harding asked Orozco to do him a favor and distribute the ballots to the employees in
his department; that Orozco agreed to do so and gave ballots to approximately 20
employees; that, in following Harding’s instructions, Orozco told the employees, most of
whom believed he was forcing them to fill out their ballots, he was not demanding that
they do so and, if he or she was apprehensive about filling out a ballot, then, not to do
so; and that, upon receiving the ballots from employees, who completed the documents,
Orozco returned them to Harding, who thanked the former.

The Supreme Court and the Board have long held that an employer must bargain
exclusively with the majority representative of its employees with respect to the terms
and conditions of employment of its bargaining unit employees. Medo Photo Supply
Corp., 321 U.S. 678 (1944); Permanente Medical Group, 332 NLEB 1143, 1144 (2000).
In this regard, the Supreme Court has stated that the obligation to bargain with the
majority representative is an “exclusive” one and imposes a “negative duty” not to
bargain with any other, including the bargaining unit employees themselves. Medo
Photo Supply Corp., supra, at 684. For determining whether direct dealing with its
bargaining unit employees, in violation of Section 8(a)(1) and (5) of the Act, has
occurred, the Board utilizes a three-pronged test-- (1) the respondent must have
communicated directly with its union-represented employees, (2) the discussion was for

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the purpose of establishing or changing the employees’ wages, hours, or other terms
and conditions of employment, and (3) the communication was to the exclusion of the
union. Permanente Medical Group, supra. Applying this test to the Perez allegation, I
do not believe her actions constituted communicating with bargaining unit employees.
Thus, I have found that Marta Lara was the employee who attached the voting ballots to
the housekeeping employees’ timecards, and I believe that, at most, Vasquez probably
came upon Perez handling the timecards in her supervisory capacity, such as for
monitoring time and attendance or ensuring employees were clocking in and out, and,
by necessity, also handling the folded ballots. In these circumstances, while certainly
problematic, Perez’ actions did not arise to the level of unlawful direct dealing. On the
other hand, the actions of Harding and Orozco patently constituted direct dealing with
bargaining unit employees. Thus, Orozco followed Harding’s instructions and
communicated directly with Respondent’s bargaining unit employees by distributing to
and collecting from them copies of the election ballots, the said ballots were for the
purpose of ratifying or rejecting Respondent’s contract proposal regarding an increase
in the bargaining unit employees’ wage rates; and the Union never authorized such a
vote, which was originated by Marta Lara. Absent record evidence, divining why and
how Harding became involved in the distribution of the ballots would be mere
speculation. However, Respondent obviously had an interest in the outcome of the
vote, and, by enmeshing itself in Lara’s and other employees’ unauthorized activity,
Respondent clearly acted to erode the position of the Union. Accordingly, by the
actions of Harding and Orozco, Respondent engaged in direct dealing with its
bargaining unit employees in violation of Section 8(a)(1) and (5) of the Act. Harris-
Teeter Super Markets, 310 NLRB 216, 217 (1993); Allied Signal, Inc., 307 NLRB 752,
754 (1992).

CONCLUSIONS OF LAW

1. Respondent is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.

2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.

3. By involving itself in the bargaining unit employees’ unauthorized ratification
vote on Respondent’s July 23, 2004 contract proposal, Respondent engaged in direct
dealing with its bargaining unit employees in violation of Section 8(a)(1) and (5) of the
Act.

4. By issuing a warning notice to its employee, Valentin Hernandez, because he
participated in a delegation to the office of the head of housekeeping, Carmen Perez,
which act, it believed, was authorized by the Union, Respondent engaged in conduct,
violative of Section 8(a)(1) and (3) and Section 8(a)(1) of the Act.

5. By threatening its employee, Adelina Escobar, with reprisals or negative
consequences for engaging in activities in support of the Union, Respondent engaged in
acts and conduct violative of Section 8(a)(1) of the Act.

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6. By threatening Hernandez with a disciplinary hearing for participating in the
delegation to Perez, which act, it believed, was authorized by the Union, Respondent
implied that employees would suffer reprisals if they engaged in activities in support of
the Union in violation of Section 8(a)(1) of the Act.

7. Respondent engaged in unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.

THE REMEDY

Having found that Respondent engaged in serious unfair labor practices within
the meaning of Section 8(a)(1), (3), and (5) of the Act, I shall recommend that it be
ordered to cease and desist from engaging in said acts and conduct and to take certain
affirmative actions, which I deem necessary to effectuate the policies and purposes of
the Act. In particular, I shall recommend that Respondent be ordered to rescind the
warning notice, which it gave to its employee, Valentin Hernandez, in August 2004, and
to expunge from Hernandez’ personnel file and its own files any reference to said
warning notice. Further, I shall recommend that Respondent post a notice to its
employees setting forth its obligations in order to effectuate the policies and purposes of
the Act.
On these findings of fact and conclusions of law and on the entire record, I
issue the following recommended50

ORDER

The Respondent, Hacienda Hotel, Inc. of El Segundo, California, its
officers, agents, successors, and assigns, shall

1. Cease and desist from:

(a) Bypassing the Union and engaging in direct dealing with its bargaining unit
employees by involving itself in an unauthorized ratification vote on its own contract
proposal;

(b) Issuing warning notices to its employees because they engaged in protected
concerted activities, which, it believed, were authorized by the Union;

(c) Threatening its employees with reprisals or negative consequences because
they engaged in activities in support of the Union;

50 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in
Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be
deemed waived for all purposes.

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(d) Threatening its employees with disciplinary hearings for engaging in
protected concerted activities, which, it believed, were authorized by the Union; thereby
impliedly threatening its employees with reprisals if they engage in activities in support
of the Union;

2. In any like or related manner interfering with, restraining, or coercing
employees in the exercise of the rights guaranteed them by Section 7 of the Act.

(a) Take the following affirmative action necessary to effectuate the polices and
purposes of the Act;

(b) Within 14 days from the date of this Order, remove from its files any
reference to the unlawful warning notice, which was issued to its employee, Valentin
Hernandez and, within 3 days thereafter, notify Hernandez, in writing, that this has been
done and that the warning notice will not be used against him in any way;

(c) Within 14 days after service by the Region, post at its facility in El Segundo,
California copies of the attached notice marked “Appendix.”51 Copies of the notice, in
Spanish and English, on forms provided by the Regional Director for Region 31, after
being signed by the Respondent's authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and former employees
employed by the Respondent at any time since August 1, 2004;

(d) Within 21 days after service by the Region, file with the Regional Director a
sworn certification of a responsible official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.

Dated: May 31, 2006

___________________________
Burton Litvack
Administrative Law Judge

51 If this Order is enforced by a Judgment of the 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.”

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JD(SF)–28–06
El Segundo, CA

APPENDIX

NOTICE TO EMPLOYEES

Posted by Order of the
National Labor Relations Board
An Agency of the United States Government

The National Labor Relations Board has found that we violated Federal labor law
and has ordered us to post and obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities

WE WILL NOT bypass UNITE HERE, LOCAL 11, herein called the Union, their
exclusive bargaining representative, and deal directly with our bargaining unit
employees by becoming involved in an unauthorized ratification vote on our contract
proposal.

WE WILL NOT issue warning notices to our employees who engage in any of the
above-stated rights and activities or any other protected concerted acts, such as
delegations, which, we believe, are authorized by the Union.

WE WILL NOT threaten our employees with reprisals or negative consequences
for engaging in activities in support of the Union.

WE WILL NOT threaten our employees with disciplinary hearings and, thereby,
impliedly threaten them with reprisals for engaging in activities, which, we believe, are
authorized by the Union.

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.
JD(SF)–28–06
El Segundo, CA
WE WILL, within 14 days from the date of the Board’s Order, remove from our
files any reference to the unlawful disciplinary notice given to Valentin Hernandez, and

WE WILL, within 3 days thereafter, notify him, in writing, that this has been done
and that the disciplinary notice will not be used against him in any way.

HACIENDA HOTEL, INC.
(Employer)

D
Dated

(Title) (Representative)

The National Labor Relations Board is an independent Federal agency created in 1935 to enforce
the National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want
union representation and it investigates and remedies unfair labor practices by employers and unions. To
find out more about your rights under the Act and how to file a charge or election petition, you may speak
confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain
information from the Board’s website: www.nlrb.gov.

11150 West Olympic Boulevard, Suite 700, Los Angeles, CA 90064-1824
(310) 235-7352, Hours: 8:30 a.m. to 5:00 p.m.

THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF
POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE
DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE OFFICER, (310) 235-7123.

JD(SF)–28–06

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